Bombay High Court
Dattaray Hamal And Mapadi Sahakari ... vs The State Of Maharashtra Through Food ... on 25 January, 2024
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
2024:BHC-AUG:1931-DB
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
914 WRIT PETITION NO.955 OF 2024
Dattatray Hamal & Mapadi
Sahakari Sanstha Maryadit, Jalgaon
Through its
Bala Parshuram Jadhav,
Age 45 yrs., Occ. Worker,
R/o Shop No.8, Gita Shankar Apartment,
Ganesh Colony Chowk, Jalgaon.
... Petitioner
... Versus ...
1 The State of Maharashtra
Through Food Civil Supply,
Consumer Protection Department,
Mantralaya, Mumbai.
2 The Collector,
Nandurbar, Tq. & Dist. Nandurbar.
3 The District Supply Officer,
Collector Office, Nandurbar,
Dist. Nandurbar.
4 The Adivasi Hamal Mapadi
and Malvahtuk Sahakari Sanstha
Maryadit, Molagi, Tq. Akalkuwa,
Dist. Nandurbar.
5 Falai Durbal Ghatak Hamal Mapadi
Swaynrozgar Sahakari Sanstha Maryadit,
Shahada, Tq. Shahada, Dist. Nandurbar.
6 Yaha Mogi Hamal Mapadi Kamgar
Sanstha Maryadit, Nashik.
... Respondents
2 WP_955_2024
...
Mrs. Rashmi S. Kulkarni, Advocate a/w Mr. S.S. Kulkarni, Advocate for
petitioner
Mr. N.S. Tekale, AGP for respondent Nos.1 to 3
...
CORAM : SMT. VIBHA KANKANWADI &
S.G. CHAPALGAONKAR, JJ.
DATE : 25th JANUARY, 2024
ORDER :
(PER : SMT. VIBHA KANKANWADI, J.)
1 The present petitioner challenges the qualification of respondent
Nos.4 to 6 for the purpose of tender issued for handling of food grains in
Nandurbar district.
2 The petitioner Mathadi Society is working since 2003 in
handling and distribution of food grains in the Government godown. The
petitioner is registered co-operative society. Terms and conditions in the
tender were enumerated in State Government Resolution dated 06.03.2023.
Condition No.14.6 expressly stated that the document required to be
submitted along with tender will not be accepted after submission of the
tender and no fresh documents would be accepted. The petitioner bid came
to be rejected as it has tried to submit its documents after the said cut off
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date; yet, opportunity was given to respondent Nos.4 to 6 to comply with the
documents. Therefore, the acceptance of the technical bid of respondent
Nos.4 to 6 by respondent No.2 is illegal and the tender itself needs to be
quashed and set aside.
3 Heard learned Advocate Mrs. Rashmi S. Kulkarni for the
petitioner and learned AGP Mr. N.S. Tekale for respondent Nos.1 to 3 at the
stage of admission.
4 Learned Advocate for the petitioner relied on the decision in
Parashar Hamal Kamgar Co-operative Society Limited, Paradh (Bk) vs. The
State of Maharashtra and others in Writ Petition No.7279 of 2023 with
companion matters decided by this Court on 29.11.2023. It is observed that
the condition regarding the area of operation of the society taking part in the
bid should be of a particular district is unreasonable and arbitrary. Therefore,
the bid of the petitioner ought not to have been rejected and further when
there is specific term stated that no documents can be allowed to be later on
presented; yet, it appears that respondent Nos.4 and 5 placed those
documents on record after the finalization of the bid. Therefore, the action
taken by respondent Nos.2 and 3 is arbitrary.
5 At the outset, we can see that petitioner's technical bid was not
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accepted on the ground that his area of operation is Jalgaon district and not
Nandurbar district. With knowing fully well that the tenders are invited from
the institutions which have the area of operations over respondent No.2, then
the petitioner should have had requisite licence from the competent
department. After participating the entire process the petitioner cannot say
that the said term is illegal or arbitrary.
6 We would also like to rely on the following observations by
Hon'ble Supreme Court in M/s. N.G. Projects Limited vs. M/s. Vinod Kumar
Jain and others [2022 LiveLaw (SC) 302], wherein it has been held 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
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escalation costs and secondly, by being deprived of the infrastructure
for which the present-day Governments are expected to work."
It is required to be seen, as to whether the petitioner ought to
have been held eligible; yet, has been unnecessarily discarded and then if the
answer to these questions come in affirmative, then only the petitioner would
be entitled to challenge the qualification of respondent Nos.4 to 6. Here, the
petitioner appears to have accepted its own disqualification. There is no
document produced on record which would show that the area of operation
of the petitioner was over the period of respondent No.1. In fact, it was a
mandatory or inherent condition. The petitioner participated in the entire
process fully well about the terms or eligibility criteria. When the petitioner
cannot held entitle to succeed in the qualifying round for the technical bid,
he cannot be asked to participate or allow to participate in the financial bid.
The situation in Writ Petition No.7279 of 2023 relied by learned Advocate for
the petitioner is different. In Parashar Hamal Kamgar Co-operative Society
Limited (supra) it is rather observed that it cannot be held that the condition
for area restriction i.e. registration of the society or operation of the society
should be restricted to one district. It is held that it is not arbitrary or
unreasonable, it is only considering the interest of the labourer and labour
co-operative societies and in the light of having fair distribution of work to
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the labourers from different districts, the stipulation restricting only the
societies registered from a particular district has been provided.
7 It was also then submitted that objection has been taken by the
petitioner in respect of qualification of respondent Nos.4 to 6, however, that
has not been decided and the mechanism has been given for grievance
redressal; yet, the said grievance has not been redressed and yet financial bid
might be opened. We may not be able to appreciate this point for the simple
reason that the petitioner himself had not qualified and, therefore, it cannot
be said that he can challenge the qualification of any other person as violative
of Article 14 or 19 of the Constitution of India. Though the Grievance
Redressal Forum appears to have been made available, when the tender
submitted by the petitioner lacks inherent defect and that too, with
knowledge that the tenders were invited from the society having registration
over a particular district; yet, when the bid is submitted, such person cannot
seek equality. The petition, therefore, deserves to be dismissed at the
threshold. Accordingly, the writ petition stands dismissed.
(S.G. CHAPALGAONKAR, J.) ( SMT. VIBHA KANKANWADI, J. )
agd
