Bombay High Court
R. K. Infraconstro Pvt. Ltd Through Its ... vs The State Of Maharashtra Through The ... on 15 January, 2024
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
2024:BHC-AUG:1419-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.7085 OF 2023
R. K. Infraconstro Pvt. Ltd.
Through its Authorised Signatory,
Shubham s/o Madhav Thakre,
Age: 26 years, Occu.: Contractor,
R/o. Kaij Sangvi, Soni Sangvi,
Nashik, District Nashik. .. PETITIONER
VERSUS
1. The State of Maharashtra
Through the Principal Secretary,
Rural Development Department,
Mantralaya, Mumbai-32.
2. The Accountant (Gr.C.),
PMGSY, MRRDA, Nandurbar,
Dist. Nandurbar.
3. The Executive Engineer,
PMGSY, MRRDA, Nandurbar,
Dist. Nandurbar.
4. The accountant (Gr.B.)
PMGSY, MRRDA, Nashik Circle,
Nashik, Dist. Nashik;
5. The Deputy Engineer,
PMGSY, MRRDA, Nashik Circle,
Nashik, Dist. Nashik;
6. The Superintending Engineer,
PMGSY, MRRDA, Nashik Circle,
Nashik, Dist. Nashik.
7. Shantaram Sahebrao Patil,
R/o. Ambika Colony, Tq. Nandurbar,
District Nandurbar.
8. Dashrath Vikram Patil,
R/o.Shanti Nagar, Near Wagheshwari,
[1]
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Nandurbar, District Nandurbar.
9. M/s. Girija Construction
Through its Proprietor,
Avinash Shankarrao More,
Age: 39 years, Occu.: Business,
R/o. Vardhaman Nagar, Nandurbar,
District Nandurbar. .. RESPONDENTS
..........
Ms. Pradnya S. Talekar i/b Talekar and Associates, Advocate for
petitioner.
Mr. N. S. Tekale, AGP for respondent Nos.1 to 6.
Mr. R. S. Deshmukh, Senior Counsel i/b Mr. A. R. Joshi, Advocate for
respondent No.7.
Mr. B. I. Mahajan, Advocate for respondent Nos.8 and 9.
..........
CORAM : SMT. VIBHA KANKANWADI AND
S. G. CHAPALGAONKAR, JJ.
DATE : JANUARY 15, 2024.
JUDGMENT (Per Smt. Justice Vibha Kankanwadi, J.) :
-
. Rule. Rule made returnable forthwith. Heard learned
Counsel for the appearing parties finally by consent.
2. The petitioner challenges its disqualification rejecting the
technical bid submitted by the petitioner by quashing the technical
scrutiny checklist as well as minutes of meeting of technical evaluation
committee dated 19.06.2023 and by way of amendment prayer has
been made to quash the work order dated 23.11.2023 issued by the
respondents in favour of respondent No.7.
3. The factual matrix leading to the petition are that the
petitioner - Company had taken part in the tender floated by
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Superintending Engineer, Pradhan Mantri Gram Sadak Yojana
(PMGSY), Nashik Region, Nashik for total 13 works in approximately
112 kms. length in District Nandurbar. The petitioner contends that it
is a seasoned Government contractor and has successfully completed
works in several road development projects. There were in all four
bidders and the scrutiny of those bids was undertaken on 19.06.2023.
From the checklist it appears that the petitioner was found qualified on
all counts, however, in the second last row concerning 'material
deviation omission or reservation found', it was marked as YES, still his
bid was not held to be qualified. Upon the inquiry, it was observed by
the scrutiny committee that there were shortfalls with the bidder i.e.
the petitioner and a separate chart regarding the same has been given
mainly in respect of that the petitioner has not completed the previous
projects. In fact, various government resolutions have been issued
directing scrutiny authorities not to reject the bids on hyper technical
grounds and if there is any shortfall in documents, then the bidder
shall be permitted to cure it by granting reasonable time. There was
no mandatory condition in the present bid which was not complied
with by the petitioner. The petitioner has been disqualified on the
three grounds i.e. (i) he has not submitted statement that there was
any pending litigation or arbitration, (ii) similar works not completed
and (iii) the bank certificate was not in the format. In fact, the
statement was made by the petitioner and also submitted undertaking
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stating that there is no litigation pending or arbitration proceedings
pending. The bank certificate was given and it ought not to have been
insisted that it should not have been in a particular format. Whatever
was appended to the tender notice was the sample format and if at all
the respondent was so keen on getting the certificate in a particular
format, time could have been given to the petitioner to submit it in
format. As regards the completion of the three works under Mukhya
Mantri Gram Sadak Yojana, the petitioner could have shown that in
fact those three works are completed. Only on the basis of some
complaint or information it appears that such action is taken. The
petitioner has been wrongly disqualified and it appears to be with mala
fide intention to give the work to a particular person. Though during
the pendency of the petition work order has been issued, yet this
Court by order dated 28.06.2023 had issued interim order that the
respondent should not open the financial bid and not to proceed
further until the returnable date and therefore, the petitioner prays for
the reliefs.
4. Affidavit-in-reply of Kavita Vinayak Deore, the Executive
Engineer, Pradhan Mantri Gram Sadak Yojana, Nandurbar has been
filed on behalf of respondent Nos.1 to 6. It has been contended that
the scrutiny committee held meeting on 19.06.2023 and prior to that
the technical bid was opened on 15.05.2023. Two deficiencies were
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found in the bid submitted by the petitioner. The first deficiency was
in respect of bank certificate of liquid, assets or credit facilities is not
in format and the second deficiency was in respect of litigation and/or
arbitration proceedings. As regards the third evaluated defect is
concerned three similar works were allotted to the petitioner in tribal
area. One was in the year 2015-2016 and two others were in 2016-
2017, however, the work is not yet complete. The performance of the
petitioner was found to be very poor. The present project was also
from the tribal area. Despite granting extensions, the petitioner could
not complete those three works. The work was in the public interest
at large and, therefore, the petitioner has been held to be not
qualified.
5. One Shantaram Sahebrao Patil - respondent No.7 has filed
affidavit-in-reply. In order to cut short, it can be said that he has
stated as to how he has qualified and he was not made party in the
initial stage. He came to be made party later on and in the meantime,
the work order came to be issued. He has started the work and has
also furnished performance security deposit worth Rs.38,59,000/- vide
letter dated 09.11.2023. He, therefore, prayed for dismissal of the
petition.
6. Heard learned Advocate Ms. Pradnya S. Talekar instructed
by Talekar and Associates for the petitioner, learned AGP Mr. N. S.
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Tekale for respondent Nos.1 to 6, learned Senior Counsel Mr. R. S.
Deshmukh instructed by learned Advocate Mr. A. R. Joshi for
respondent No.7 and learned Advocate Mr. B. I. Mahajan for
respondent Nos.8 and 9.
7. It has been vehemently submitted on behalf of the
petitioner that after the petition was filed, this Court by order dated
28.06.2023 had directed the respondents not to open the financial
bids. Unfortunately, the office objections were not removed by the
petitioner and in the meantime, by order dated 28.07.2023, a
conditional order came to be passed that the office objections should
be removed within four weeks failing which the matter would stand
dismissed automatically without further reference to the Court. The
said order went unnoticed and, therefore, it was treated that the
present petition has been dismissed. Thereafter, the petitioner had
undertaken the exercise of filing application for restoration along with
condonation of delay application. The delay was condoned. Petition
was restored. By order dated 10.11.2023, this Court after taking note
of all the aspects, observed that any work order issued pursuant to the
tender in question shall be subject to the final outcome of the petition.
Thereafter, the amendment was carried out, when a statement was
made by learned AGP that the work order has already been issued on
23.11.2023. The subsequent events does not take away the right of
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the present petitioner to contest the matter and show that he was
eligible and has wrongly been thrown away in the technical bid.
Learned Advocate for the petitioner then reiterated the pleadings as
part of her submissions and taken us through the record that
undertaking, in respect of no litigation pending as well as arbitration
proceedings pending, was given by the petitioner. She tried to
demonstrate as to how the certificate of the bank could not have been
insisted upon a particular format and if it was not in a particular
format, how the respondents could have gone liberally and allowed the
petitioner to submit a certificate under the requisite format. Learned
Advocate for the petitioner also submitted that as regards the earlier
work details are concerned, it cannot be taken as a compulsory or
mandatory information, as there was no column to show that the said
previous work is pending and the reasons for the pendency of the
projects could have been explained by the petitioner. Proper
opportunity was not given by adhering to the principles of natural
justice. Further, the act on the part of respondent Nos.1 to 6 is clearly
arbitrary. Those factors have been considered which were not
mandatory to disqualify a person and, therefore, the writ jurisdiction
can be exercised.
8. Learned Advocate for the petitioner relied on the decision
in Reliance Energy Ltd. and Another Vs. Maharashtra State Road
Development Corpn. Ltd. And Others, [(2007) 8 SCC 1]. She relied on
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paragraph No.36 of the said judgment and submitted that when Article
19(1)(g) of the Constitution of India confers fundamental right to carry
on business to a company, then it is entitled to invoke the said
doctrine of "level playing field". The said doctrine provides space within
which equally placed competitors are allowed to bid so as to subserve
the larger public interest. She further relied on the decision in Jai
Bholenath Construction Vs. The Chief Executive Officer, Zilla Parishad,
Nanded and Ors., passed by the Hon'ble Supreme Court in Civil Appeal
No.4140 of 2022 [@ Special Leave Petition (C) No.7150 of 2022] on
18.05.2022, wherein note was taken on the decision in M/s. N. G.
Projects Ltd. Vs. M/s. Vinod Kumar Jain, reported in [2022 (5) SCALE
105], but it was then found that this Court had misread the judgment
of the Apex Court. Respondent No.4 therein was declared eligible in a
flagrant violation of principles of natural justice and all fairness in the
process of determining the eligibility of the tenderers. The bid of
respondent No.4 was accepted when at the time of opening of
technical bids, the said respondent was disqualified. The order passed
by this Court was set aside and the respondent - Zilla Parishad was
directed to process the matter further from the stage prior to issuance
of corrigendum dated 24.11.2021. She prayed that similar relief needs
to be given in this case.
9. Learned AGP reiterated the same facts, which have been
given in the affidavit-in-reply and mainly submitted that the bidders
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were directed to give information regarding the previous work with an
intention that their performance in those earlier bids or works allotted
can be considered while allotting the fresh work. Though the earlier
three bids were given long back, the petitioner could not complete the
same even after the extension was given for its compliance. The
present project is also in the tribal area. The basic purpose for work
was to develop the said area. Therefore, in the public interest also the
petitioner has been disqualified.
10. Learned Senior Counsel instructed by learned Advocate Mr.
A. R. Joshi for respondent No.7 has taken objection on the eligibility of
the authorized signatory, who has filed the petition on behalf of the
petitioner - Company. He submitted that resolution by the Company
was not filed in the petition and a statement has been made by the
learned Senior Counsel that the said authorized signatory is party
petitioner in the capacity of authorized signatory for other persons also
in similar matters i.e. wherein its disqualification of those petitioners in
the technical bid is under challenge. He, therefore, submits that the
petition is not filed with bona fide intention. It is then reiterated that
respondent No.7 was held to be qualified on all counts. Now, the work
order has been issued. 15% work has been completed and the bill is
also submitted. The performance security deposit has also been paid.
Under the said circumstance, for the reasons which petitioner wants to
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canvass and with the help of a person who is said to be an authorized
signatory, the constitutional powers cannot be used. Learned AGP as
well as learned Senior Counsel for respondent No.7 relied on decision
in M/s. N. G. Projects Limited Vs. Vinod Kumar Jain, [2022 (6) SCC
127].
11. Since the maintainability of the petition is also raised, we
would like to deal with that objection first. The petitioner appears to
be a private limited company and it is said that the petition is filed
through its authorized signatory. In the entire body of the petition, a
clear statement has not been made that the petitioner is a private
limited company, but the name of the petitioner suggests the same. A
private limited company, which is a registered one, has its own entity
and, therefore, it is hard to accept that there can be an authorized
signatory to the company, who is not holding any post in the company.
Paragraph No.1 of the petition states that the petitioner company has
executed a Power of Attorney to grant the signing authority for the
present petition and the other documents concerning this litigation to
Shubham Madhav Thakre. When a specific question was then put to
the learned Advocate for the petitioner, photocopy of the Power of
Attorney has been tendered across the bar. Perusal of the said Power
of Attorney would show that it has been executed by the Director of
Company in favour of the said authorized signatory. The execution of
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such document cannot be accepted when it is a company. Certainly
any act done by the company should be through a resolution to be
passed by the requisite directors. Further, there is no reason as to why
the Power of Attorney has been given. That may not be a much point
for deliberation. Still, the Power of Attorney, in the fashion it is
executed, cannot be said to be a legal document and, therefore, the
petition should fail on this count itself.
12. Even if for the sake of arguments we keep the first point
aside, we are then required to consider the issue raised in the petition.
Now, the petitioner wants to canvass two points, first is the wrong or
alleged illegal disqualification of the petitioner from the technical bid
and second is the outcome of amendment that the work order issued
in favour of respondent No.7 after holding that respondent No.7 is
successful in the bid. We will have to take into consideration the
subsequent events. Now, 15% work is over after the work order was
issued. Even the security deposit in the lakhs of rupees has been
deposited, then whether at this stage, the Court should interfere or
not would be a question. Definitely, by order dated 28.06.2023 when
a statement was made that the financial bid is not yet opened, this
Court had directed original respondent Nos.1 to 6 not to open the
financial bid and not to proceed further until the returnable date of the
matter. The returnable date was 27.07.2023. Further, it was also
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stated in the order that all the office objections should be removed
within three weeks and copies for serving notices on the unserved
respondents shall be tendered within five days. In fact, by same order
dated 28.06.2023, leave was granted to add three bidders who were
held to be qualified in the scrutiny process on 19.06.2023. It appears
that the amendment was carried out in the Court itself, but the office
objections were not removed. Thereafter, on 28.07.2023 a common
order came to be passed that all the petitioners should remove the
office objections within a period of four weeks. It was a conditional
order that in case of failure to remove the office objections, the
petition would stand dismissed without further reference to the Court.
Now, it has been submitted that the order was not uploaded
immediately and, therefore, it could not be noticed by the petitioner.
It can be seen from the order that the matter of the petitioner was at
Serial No.986 on the board. Therefore, it is the bounden duty of the
petitioner to see what has happened in the matter. Further, even by
order dated 28.07.2023, four weeks time was given for removal of
office objections, still it appears that the office objections were not
removed and, therefore, the effect of conditional order took place and
it was treated that the petition stood dismissed automatically upon
non compliance. That means, the interim order that was passed on
28.06.2023 was not in existence upon the conditional dismissal of the
petition. Thereafter, by Civil Application No.13586 of 2023, the interim
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order came to be passed on 10.11.2023, wherein it was stated that
any work order issued pursuant to the tender in question shall be
subject to the final outcome of the writ petition. The matter came to
be restored. From all these facts, it can be seen that respondent
Nos.1 to 6 or even respondent No.7 cannot be blamed for taking up
steps for issuing work order and for starting the work in accordance
with the work order. Therefore, unless it is now pointed out that the
entire exercise of allotting the work to respondent No.7 is tainted with
mala fides, this Court cannot interfere in the matter.
13. As regards the objections are concerned, they were three
in numbers, (i) bank certificate, (ii) litigation/arbitration proceedings
pending, undertaking or statement and (iii) regarding incomplete
previous work by the petitioner under MMGSY. We may not give much
importance to the first two objections, as it could have been got cured
by respondent Nos.3 to 6 and it cannot be said that non compliance of
the same was inherent defect.
14. As regards the third ground on which the petitioner has
been disqualified, it has been tried to be stated that the said previous
work was under different scheme and, therefore, if any incomplete
work is there, it could not have been considered in another scheme.
The present tender process was under the Pradhan Mantri Gram Sadak
Yojana. The three previous incomplete work are said to be under
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Mukhyamantri Gram Sadak Yojna. But the fact then remains is that it
was to be completed almost by the same authorities. Further, in the
tender notice itself, it is made clear that the Superintending Engineer,
Pradhan Mantri Gram Sadak Yojana was inviting bids for the
improvement and five year maintenance of rural roads in Nanded
district under Mukhyamantri Gram Sadak Yojana, so it had connection
and, therefore, the previous incomplete work could have been taken
note of by the scrutiny committee in the present bid. The chart shows
that one work was given in 2015-2016 and two other works in 2016-
2017 and the status is not yet complete. Petitioner has not produced
documents to show that when those works are now complete. Those
works would have been completed prior to the last date of submission
of bid in the present case.
15. It is not in dispute that major part of Nandurbar district is
a tribal area and if development project like construction or road is
undertaken by way of such tender process, then it was expected that
it should be completed within the prescribed time. The project was of
public interest and, therefore, not allotting or holding the petitioner as
not eligible at the technical bid in the interest of public cannot be now
questioned. Even in Reliance Energy Ltd. And Another (Supra), in
paragraph No.36 itself, it has been observed that the doctrine of level
playing field is subject to public interest. In M/s. N. G. Projects
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(Supra), the Hon'ble Supreme Court has observed that :-
"21. Since the construction of road is an
infrastructure project and keeping in view the intent of
the legislature that infrastructure projects should not be
stayed, the High Court would have been well advised to
hold its hand to stay the construction of the
infrastructure project. Such provision should be kept in
view even by the Writ Court while exercising its
jurisdiction under Article 226 of the Constitution of
India."
16. Therefore, we are of the opinion that no case is made out
for exercising constitutional powers of this Court under Article 226 of
the Constitution of India.
17. The Writ Petition stands dismissed.
18. Rule is discharged.
[ S. G. CHAPALGAONKAR ] [ SMT. VIBHA KANKANWADI ]
JUDGE JUDGE
scm
