Samarth Infra Tech Servies Pvt Ltd ... vs The State Of Maharashtra Through Its ...
2024 Latest Caselaw 2734 Bom

Bombay High Court

Samarth Infra Tech Servies Pvt Ltd ... vs The State Of Maharashtra Through Its ... on 30 January, 2024

Author: Vibha Kankanwadi

Bench: Vibha Kankanwadi

2024:BHC-AUG:2803-DB


                                                               WP-933-2024.odt



                       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                  BENCH AT AURANGABAD


                              WRIT PETITION NO.933 OF 2024


                 Samarth Infra-Tech Services Pvt. Ltd.
                 Registered Office : Office No.40 and 41,
                 5th Floor, Lokmanya House,
                 Lokmanya Colony, Opp. Kothrud Police
                 Station, Paud Road, Kothrud,
                 Pune - 4011038
                 Through its General Manager                 .. PETITIONER

                       VERSUS

            1.   The State of Maharashtra,
                 Through its Principal Secretary,
                 Water Resources Department,
                 Mantralaya, Mumbai-32.

            2.   Godavari Marathwada Irrigation
                 Development Corporation,
                 Sinchan Bhavan, Jalna Road,
                 Chh. Sambhajinagar 431005,
                 Through the Executive Director.

            3.   The Executive Engineer,
                 Minor Irrigation Division No.1,
                 Sinchan Bhavan, Jalna Road,
                 Chhatrapati Sambhajinagar-431005.

            4.   Shri Ashish s/o Shirish Waghchaure,
                 Age: Major, Occu.: Contractor,
                 R/o. Deogiri Keshardeep,
                 Near Bhagatsingnagar, Harsul,
                 Chhatrapati Sambhajinagar-431008.           .. RESPONDENTS

                                                ...
            Mr. S. T. Shelke, Advocate for petitioner.
            Mr. P. S. Patil, AGP for Respondent No.1 - State.
            Mr. Hemant Dhage, Advocate for Respondent Nos.2 and 3.
            Mr. S. G. Bhalerao, Advocate for Respondent No.4.
                                                ...



                                              [1]
                                                                   WP-933-2024.odt



                            CORAM       :     SMT. VIBHA KANKANWADI AND
                                              S. G. CHAPALGAONKAR, JJ.

                            DATE        :     JANUARY 30, 2024.


ORDER (Per Smt. Vibha Kankanwadi, J.) :

-

. By invoking the constitutional powers of this Court under Article

226 of the Constitution of India, the petitioner has prayed for following

relief :-

"B) Quash and set aside the decision of respondent No.3 of holding the petitioner as disqualified and the respondent No.4 as qualified as per Exhibit-B and the consequent Work Order dated 27.12.2023 at Exhibit-C issued by respondent No.3 in favour of respondent No.4 and thereafter, further direct the respondent No.3 to open the Tender (Financial Bid) of the petitioner holding him as qualified in Technical Bid and for that purpose issue a necessary writ or order."

2. The facts leading to the present petition are that the petitioner is

a private limited company. Respondent No.3 published the B-1 Tender

Notice thereby inviting the tenders from the competent bidders

through E-Tender System (Online) for the work of preparation of

detailed construction plan for pipe distribution network system

including necessary command survey, linear survey for pipe laying,

chak planing, designing of pipe network and preparation of estimate

for Canal No.1 RD to 37 km of Bramhagavhan L.I.S. Part-II, Taluka

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Paithan, District Chhatrapati Sambhajinagar. The estimated cost of this

work is Rs.94,12,755/- (Work Portion - Rs.79,09,878/- + GST and

Insurance Rs.15,02,877/-). It is mentioned in the tender notice that

all the information regarding the E-tender is available on the

Government Website and on the notice board of the Divisional Office.

The tender documents were to be uploaded from the Government

Website. It is further mentioned that the contractor/bidder has to

ensure that the First Envelope (Technical Bid) shall contain the

documents as enlisted in the tender notice. It is further mentioned

that all the photocopies submitted in connection with tender shall be

attested by the Gazetted Officer, otherwise their tender will not be

considered and Envelope No.2 will not be opened. Further, it is

mentioned that the first envelope (Technical Bid) was to accompany

the documents which are stated in paragraph No.3 of the present writ

petition. Thereafter, as per the scheduled program, E-tenders were

opened on 07.12.2023 and it appears that only four bidders have

submitted their tenders. The petitioner and one Arun Idhate came to

be disqualified and respondent No.4 and one Sandip Gore came to be

qualified in the technical bid on 22.12.2023. Thereafter respondent

No.3 issued the work order dated 27.12.2023 to respondent No.4,

which was uploaded on the website on 29.12.2023. The petitioner

thereafter made representations to all the authorities bringing to their

notice that the petitioner has been erroneously declared as disqualified

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in the technical bid and respondent No.4 has been held eligible for the

tender. It is the case of the petitioner that respondent No.4 had not

submitted the copies of the documents duly attested by the Gazetted

Officer as was asked for and, therefore, his technical bid could not

have been considered and opened. So also the respondent No.4 had

not submitted the certificate regarding machinery items. It is the

further case of the petitioner that the respondent No.4 has not

submitted the EPF Clearance Certificate. It is also contended that the

respondent No.4 had not submitted the work certificates of the

quantity and magnitude of Grid Survey of at least 7393 Hectare of

land issued by the Executive Engineer as mentioned in the documents

list clause No.l of Envelope No.1, but submitted the certificate of a

private entity. It is contended that two reasons have been assigned

for rejection of the technical bid of the petitioner i.e. Empanelment

certificate was not submitted and the documents are not digitally

signed. Further, it is contended that the petitioner has submitted

registration certificate of Maharashtra Public Works Department. All

the tender documents submitted by the petitioner are signed by the

petitioner and all the certificates submitted by the petitioner are

signed by the Executive Engineer of Maharashtra Jeevan Pradhikaran,

who is a Gazetted Officer. In view of this it was not necessary to sign

the documents digitally and the so called defect is not of substantial

nature. The petitioner contends that his tender was complete in all

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respects and has been rejected mala fide by respondent No. 3 only

with a view to favour repsondent No.4. Hence, this petition.

3. Heard learned Advocate Mr. S. T. Shelke for the petitioner,

learned AGP Mr. P. S. Patil for respondent No.1 - State, learned

Advocate Mr. Hemant Dhage for respondent Nos.2 and 3 and learned

Advocate Mr. S. G. Bhalerao for respondent No.4.

4. Learned Advocate for the petitioner submits that respondent

No.4 had not complied with the mandatory requirement clause No.'k'

in Envelope No.1 i.e. scanned copy of Employees Provident Fund

registration and its clearance, still respondent No.4 has been held to

be qualified and the work order has been issued. The petitioner was

holding the requisite certificate of empanelment. He relies on the

Government Resolution dated 18.10.2023 and submits that necessary

time ought to have been given in view of the said Government

Resolution. He has also produced on record the circular issued by

Maharashtra Jivan Pradhikaran dated 08.04.2021 in which the work

distribution was made and thereby Panel of Administrative Advisors

were fixed for Aurangabad. They had appointed the petitioner. He has

also filed the other letters/orders showing that the petitioner was

appointed as consultant/advisor. The petitioner was also appointed as

advisor by other States. Therefore, it cannot be said that the petitioner

was not qualified. The disqualification of petitioner is improper. So

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also, holding respondent No.4 as qualified is also improper and

deserves to be set aside.

5. The learned Advocate for respondent No.4 submitted that the

work order has been issued and 90% of the work is completed. He

relied on M/s. N.G. Projects Limited Vs. M/s. Vinod Kumar Jain, [2022

LiveLaw (SC) 302] and M/s. Tirupati Construction Vs. The State of

Maharashtra and Others, [2021 (3) ALL MR 258].

6. As aforesaid, the petition is on two counts, firstly to challenge

the petitioners own disqualification and secondly, to challenge the

qualification of respondent No.4. We would like to rely on the decision

in M/s. N.G. Products Limited (Supra), in which the earlier decisions

have been taken note of and 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,

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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 being deprived of the infrastructure for which they present-day Governments are expected to work."

7. We are aware of the decision in Jagdish Mandal Vs. State of

Orissa, (2007) 14 SCC 517, wherein Hon'ble Supreme Court has held

that :-

"22. Judicial review of administrative action is intended to prevent arbitrariness, irrationality; unreasonableness, bias and mala fides. Its purpose is to check whether choice or decision is made "lawfully"

and not to check whether choice or decision is "sound". When the power of judicial review is invoked in matters relating to tenders or award of contracts, certain special features should be borne in mind. A contract is a commercial transaction. Evaluating tenders and awarding contracts are essentially commercial

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functions. Principles of equity and natural justice stay at a distance. If the decision relating to award of contract is bona fide and is in public interest, courts will not, in exercise of power of judicial review, interfere even if a procedural aberration or error in assessment or prejudice to a tenderer, is made out. The power of judicial review will not be permitted to be invoked to protect private interest at the cost of public interest, or to decide contractual disputes. The tenderer or contractor with a grievance can always seek damages in a civil Court. Attempts by unsuccessful tenderers with imaginary grievances, wounded pride and business rivalry, to make mountains out of molehills of some technical/procedural violation or some prejudice to self, and persuade courts to interfere by exercising power of judicial review, should be resisted. Such interferences, either interim or final, may hold up public works for years, or delay relief and succour to thousands and millions and may increase the project cost manifold. Therefore, a Court before interfering in tender or contractual matters in exercise of power of judicial review, should pose to itself the following questions :

(i) Whether the process adopted or decision made by the authority is mala fide or intended to favour someone;

or Whether the process adopted or decision made is so arbitrary and irrational that the court can say: "the decision is such that no responsible authority acting reasonably and in accordance with relevant law could

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have reached";

(ii) Whether public interest is affected.

If the answers are in the negative, there should be no interference under Article 226. Cases involving blacklisting or imposition of penal consequences on a tenderer/contractor or distribution of State largesse (allotment of sites/shops, grant of licences, dealerships and franchises) stand on a different footing as they may require a higher degree of fairness in action."

8. Thus, taking into consideration the well settled law on this point,

we have limited scope. Since the petition requires attention on two

counts i.e. the petitioner's own disqualification and qualification of

respondent No.4, as aforesaid, we would like to deal with the

disqualification point first, for discussion.

9. Perusal of the tender notice would show that it was stated that

Envelope No.1 should contain the list of documents given thereunder.

Point 'q' was in respect of, Empanelment Certificate in the name of

sole bidder as a working consultant/Independent Engineer with any

Government Department for survey, hydraulic design and consulting

works is mandatory. It is stated that no such certificate was attached.

The petitioner has not produced any such document, which he has

now tendered across the bar i.e. the certificate showing that he was

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empaneled consultant with various authorities including Maharashtra

Jivan Pradhikaran, Government of Bihar, Uttar Pradesh State Industrial

Development Authority, Gujarat Urban Development Mission,

Government of Jharkhand, Madhya Pradesh Jal Nigam, Environmental

Planning and Coordination Organization. In spite of having documents

with him if those were not produced, then the petitioner will have to

blame itself. Condition No.23 of the tender notice reads thus :-

23. fufonk dkxni= lkscrps udk'ks da=kVnkjkus Lok{kfjr d#u lknj u dsY;kl [kkyhy vk'k;kps ca/ki= n~;kos- "ladsrLFkGkojhy udk'ks eh ikfgys vkgsr rh fufonk dkxni=pkp Hkkx vlqu ;k loZ ckchapk fopkj d#u eh fufonk Hkjyh vkgs- ek>h fufonk eatqj >kY;kl lqj{kk jDde Hk#u dk;kZjaHk vkns'k ?ks.;kiwohZ] udka'kkoj eh lg~;k d#u miyC/k d#u nsbZu-"

Therefore, the petitioner ought to have shown that this condition

is also complied with by him. The said tender was in respect of

preparation of detailed construction plan for pipe distribution network

system and now it is said that respondent No.4 has completed 90% of

the work. At this stage, the same cannot be disturbed and interfered

with. The petitioner would be at liberty to agitate in an appropriate

proceeding that respondent No.4 ought not to have been granted bid

by showing as to what damages the petitioner has suffered. When the

petitioner himself was unsuccessful, he cannot raise the objection in

respect of qualification of another bidder, unless it is shown that his

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disqualification has resulted in the damages.

9. In view of the above, we are of the opinion that no case is made

out for exercising the constitutional powers of this Court under Article

226 of the Constitution of India.

10. Hence, the Writ Petition stands dismissed.

[ S. G. CHAPALGAONKAR ]                [ SMT. VIBHA KANKANWADI ]
         JUDGE                                       JUDGE


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