Bombay High Court
Er Santosh Shansundar Padule vs The State Of Maharashtra Through Its ... on 18 January, 2024
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
2024:BHC-AUG:1302-DB
WP-758-2024.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.758 OF 2024
Er. Santosh Shamsundar Padule
Age: 37 years, Occu.: Government
Contractor, R/o. At post Aurangpur,
Taluka and District Beed. .. Petitioner
Versus
1. The State of Maharashtra
Through its Secretary,
Public Works Department,
Mantralaya, Mumbai-32.
2. The Executive Engineer,
Public Works Department,
Public Works Division, Beed.
3. Tender Scrutiny Committee
Through Assistant Superintendent
Engineer, Public Works Circle,
Dharashiv. .. Respondents
.....
Mr. A. D. Kulkarni h/f Mr. V. S. Kadam, Advocate for the petitioner.
Mr. S. K. Shirse, AGP for the respondents - State.
.....
CORAM : SMT. VIBHA KANKANWADI AND
S. G. CHAPALGAONKAR, JJ.
DATE : JANUARY 18, 2024.
ORDER (Per Smt. Justice Vibha Kankanwadi, J.) :
-
. Present writ petition has been filed by one of the bidder to
challenge his ineligibility/disqualification in the technical bid by
respondent Nos.2 and 3, which was communicated to him by letter
dated 01.12.2023.
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2. Heard learned Advocate Mr. A. D. Kulkarni holding for learned
Advocate Mr. V. S. Kadam for the petitioner and learned AGP Mr. S. K.
Shirse for the respondents - State. Unless the petitioner would have
shown prima facie case even for issuance of notice, there was no point
in issuing the notice automatically on the first date. Therefore, with
the help of learned Advocate for the petitioner, we have gone through
the documents placed on record by the petitioner.
3. The fact cannot be in dispute that respondent No.2 published
e-tender notice on 18.09.2023 inviting the bid for development to be
carried at Shri. Mahalaxmi Mandir at Shidod, Taluka and District Beed.
The date to apply online bid was from 18.09.2023 to 03.10.2023. The
technical bid was supposed to be opened at 11.00 a.m. on
05.10.2023.
4. The petitioner contends that he had gone through the terms and
conditions of the e-tender and thereafter applied through online portal
of Maha E-tenders and submitted his bid. It is further contended that
respondent No.3 opened the technical bid on 01.12.2023 (though it
was not as per the schedule). It was revealed that there were in all
five bidders, who had applied for the same project. Except two
bidders, all others were declared ineligible by the Executive Engineer
of respondent Nos.2 and 3. The copy of scrutiny sheet done by
Executive Engineer and tender summary report dated 14.01.2024 has
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been attached. It was contended that the petitioner has not qualified
the term No.VIII. It was in respect of no dues clearance certificate
from the competent authority in respect of PTR and PTE under Section
5 of the Maharashtra State Tax on Profession, Trade, Callings and
Employment Act, 1975. The petitioner contends that he had produced
challan copies. He was not informed by respondent No.2 immediately
after the opening of the technical bid, as to why he has been
disqualified. But when he had personally visited respondent No.2 and
cleared all the defects on 08.11.2023, he ought not to have been
disqualified or held ineligible to participate in the further process of
tender. The petitioner contends that the entire process has not been
conducted in a transparent manner. Further, respondent No.1 through
its Public Works Department has passed Government Resolution dated
27.09.2018, which was in the nature of guidance as regards opening
of technical bid, scrutiny etc. Even as per those terms, the respondent
No.2 could have asked the petitioner to cure the defect and, therefore,
the petitioner says that the impugned communication about
disqualification should be set aside and he should be held eligible in
the technical bid and should be allowed to participate in the further
process.
5. Taking into consideration the tender notice along with its terms
and conditions, it can be seen that point No.2.0 of the tender notice
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provides for manner of submission of tender and its accompaniments.
Point No.2.1 says about which document should be put in Envelope
No.1. Term No.VIII of the said Point No.2.1 reads thus :-
"VIII. Scanned from original / attested copy of Valid
Professional Tax Registration Certificate in the form of
PTR and PTE under Section (1) of Section 5 of
Maharashtra State Tax on Profession, Trade callings and
Employment Act, 1975, Rule 3(2) for employees
including technical personnel from the Professional Tax
officer of the concerned District of Maharashtra with its
latest valid clearance certificate upto 31.03.2022. " No
Dues Clearance Certificate" from competent authority
should be submitted."
Perusal of the said term would show that word 'should' has been
used. That means, the authority was expecting that this term should
be complied and such document should be submitted in Envelope
No.1. In other words, it was clearly mentioned in the tender notice
itself that no dues clearance certificate from competent authority up to
31.03.2022 should be submitted along with the other tender
documents before the closure of the tender i.e. 03.10.2023. If this
mandatory condition was not fulfilled, then the ineligibility so declared
should be upheld. No doubt, it appears that though it was made public
that the technical bid would be opened on 05.10.2023, it appears that
it was not opened on that day. But on the day it was opened, the
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petitioner says that he was present. The checklist item No.9 clearly
states that no dues clearance certificate was submitted by the
petitioner. The petitioner has produced copy of the challan, which he
had uploaded along with the bid. It appears that it is issued by the
Sales Tax Department in respect of the amount he had paid under
PTRC Act on 18.09.2023 and another challan is in respect of payment
of amount under PTEC Act on 25.09.2023. The condition clearly says
that there should be certificate issued by the competent authority
under the Act. Therefore, mere payment or submission of challan
copies was not contemplated under the said term. Thereafter, it
appears that on 08.11.2023, he had submitted certain documents with
the office of respondent No.2, however, he has not tendered it along
with a covering letter and there is no such document indicating that
the said document were accepted by the responsible officer. By a
reminder letter dated 12.01.2024, the petitioner has stated that the
certificates were submitted by him on 08.11.2023. This letter is
admittedly after the technical bid was opened on 01.12.2023 and he
was held ineligible. If he was present and when it was noticed that
this document was not uploaded by him, why he had not pointed it out
on 01.12.2023 itself that he has already tendered those documents on
08.11.2023 has not been explained by him either in the pleadings or
in his reminder letter dated 12.01.2024. When he was already
declared as ineligible, there was no question of issuing reminder and
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asking respondent No.2 to hold him eligible thereafter.
6. Perusal of the no dues certificate issued under the Maharashtra
State Tax on Profession, Trade callings and Employment Act, 1975
would show that it was issued to him on 28.09.2023 by the competent
authority. If this is so, then why he had not uploaded those documents
before 03.10.2023, is a question. It is not the case of the petitioner
that he had uploaded the no dues clearance certificate along with the
other bid documents when he submitted the bid. We are more
concerned with the position at the end of the period stipulated under
the bid i.e. up to 03.10.2023. In other words, it can be certainly said
that by the end of 03.10.2023, there was no compliance of Point
No.2.1 term/condition No.VIII by the petitioner, which was in fact a
mandatory term.
7. The petitioner is relying upon the Government Resolution dated
27.09.2018, which is in the form of guidelines to the process in
respect of E-tenders by Public Works Department. Perusal of the said
Government Resolution would show that the scrutiny committee may
ask for the clarification from the contractors at the time of scrutiny,
which would be throwing light on the eligibility or ineligibility of the
concerned contractor and about eight circumstances have been noted
in respect of which the said clarification can be called upon. Point
No.4.5.2(8) of the said Government Resolution says about rkaf=d
WP-758-2024.odt
fyQk¶;krhy lknj dsysys izLrko@dkxni=krhy vVh@'krhZ o i= O;ogkjkrhy
lafnX/krk] vLi"Vrk bR;kfn- Here, there was no ambiguity in respect of the
term which is held to be not complied by the petitioner. Further, it has
been stated in the Government Resolution that many times it is found
that a contractor at one time held to be eligible, is held to be not
eligible on the second occasion. This might be the situation due to
cartel formation by the contractors. Under such circumstance, the
contractor should not be disqualified or to be held ineligible on trifle
matters (PTC, Machinery, Income Tax documents, similar work
condition etc.). If the contractor has given documents in that respect
earlier, then those documents can be relied. By pointing out this
clause, the learned Advocate for the petitioner submits that time
ought to have been given to the petitioner to cure the said defect
when it was brought to the notice of the scrutiny committee that the
amount has been paid. We do not agree with the said submission.
First of all, the non compliance of the term in respect of submission of
no dues clearance certificate cannot be termed as ' fdjdksG dkj.k' i.e.
trifle reason. It is also not covered under PTC, Machinery, Income Tax
documents, similar work condition. It was the mandatory requirement
to obtain the no dues clearance certificate in respect of professional
tax for the employees including technical personnel, as required under
Section 5 of the Maharashtra State Tax on Profession, Trade, Callings
and Employment Act, 1975.
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8. When there is clear non compliance of a mandatory condition,
we do not find that any case is made out for interference in the tender
process by exercising constitutional powers of this Court.
9. We would like to rely on the decision in M/s. N. G. Projects
Limited Vs. M/s. Vinod Kumar Jain and Ors., [2022 LiveLaw (SC) 302],
wherein it has been observed that :-
"23. In view of the above judgments of this Court, the
Writ Court should refrain itself from imposing its decision
over the decision of the employer as to whether or not to
accept the bid of a tenderer. The court does not have the
expertise to examine the terms and conditions of the
present-day economic activities of the State and this
limitation should be kept in view. Courts should be even
more reluctant in interfering with contracts involving
technical issues as there is a requirement of the necessary
expertise to adjudicate upon such issues. The approach of
the Court should be not to find fault with magnifying glass in
its hands, rather the Court should examine as to whether the
decision-making process is after complying with the
procedure contemplated by the tender conditions. If the
Court finds that there is total arbitrariness or that the tender
has been granted in a mala fide manner, still the Court
should refrain from interfering in the grant of tender but
instead relegate the parties to seek damages for the
wrongful exclusion rather than to injunct the execution of
the contract. The injunction or interference in the tender
leads to additional costs on the state and is also against
public interest. Therefore, the State and its citizens suffer
twice, firstly by paying escalation costs and secondly, by
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being deprived of the infrastructure for which they present-
day Governments are expected to work."
10. For the aforesaid reasons, Writ Petition stands dismissed at the
threshold.
[ S. G. CHAPALGAONKAR ] [ SMT. VIBHA KANKANWADI ]
JUDGE JUDGE
scm
