Bombay High Court
M/S Anuni Infrastructure Throu. ... vs Chief Officer Karal Muncipal Council ... on 3 September, 2024
Author: Amit Borkar
Bench: Amit Borkar
2024:BHC-AS:35626-DB
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VRJ
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.3007 OF 2024
VAIBHAV
RAMESH
JADHAV M/s. Anuni Infrastructure,
Digitally signed by
VAIBHAV RAMESH
JADHAV
Date: 2024.09.05
15:01:40 +0530
Through Partner, Sachin T. Patil,
Age. 45, Bearing Registration
No."Anusaya", S. No.78, Karad Wahab
Road, Opposite Karad Urban Bank,
Branch-Rukmininagar Karad, Dist:
Satara, 415 110
... Petitioner
V/s.
1 Chief Officer, Karad Municipal Council,
Karad
2 Principal Secretary,
Urban Development Department,
Mantralaya, Madam Cama Road,
Nariman Point, Mumbai - 1.
3 Amit Enterprises, 77, Budhwar Peth,
Karad, Satara, 415 110
... Respondents
Mr. Yuvraj Narvankar for the Petitioner.
Mr. Dilip Bodake with Mr. Sharad T. Bhosale for
Respondent No.1.
Mr. P. P. Kakade, Government Pleader with Mr. O. A.
Chandurkar, Additional Government Pleader and
Ms. G. R. Raghuwanshi, AGP for the State -
Respondent No.2.
Mr. Chaitanya C. Mulawkar for Respondent No.3.
1
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CORAM : DEVENDRA KUMAR UPADHYAYA, CJ &
AMIT BORKAR, J.
RESERVED ON : AUGUST 30, 2024
PRONOUNCED ON : SEPTEMBER 3, 2024
JUDGMENT.: (PER AMIT BORKAR, J.)
1. Rule. With consent of learned counsel for respective
parties rule is made returnable forthwith.
2. Respondent No. 1, Karad Municipal Council, issued an
invitation for bids on 31 January 2024 for execution of road
construction work from Shukrawar Peth to Sarda Ghar Nana
Nani Park. The tender notice issued by Respondent No. 1
detailed the general terms and conditions and the scope of
work for the tender. It was stipulated that the tender process
would follow a two-stage system. In the first stage, pursuant
to Condition No. 6.1, proposals were scrutinized for
compliance with the tender notice requirements, with only
compliant proposals advancing to the second stage. The
second stage, in accordance with Condition No. 8, involved a
technical evaluation based on the criteria set forth in the
tender documents.
3. In the present case, the technical bids were opened on
12 February 2024. The tender committee examined the
documents submitted by all bidders, including the Petitioner
and Respondent No. 3. By order dated 15 February 2024, the
tender inviting authority decided to reject the Petitioner's
technical bid and recommended the opening of financial bids
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submitted by the other three bidders. The decision of the
tender inviting authority dated 15 February 2024, declaring
the Petitioner's bid as non-responsive, is challenged in the
present writ petition.
4. In challenging the decision to declare the Petitioner
ineligible, the learned advocate for the Petitioner submitted
that the reason provided by the tender inviting authority was
the Petitioner's failure to produce the Geo-Tag certificate, as
required by Condition No. 6.1.13. This site visit certificate is
issued by the Chief Officer of Karad Municipal Council. The
process for obtaining such a Geo-Tag certificate necessitates
any person seeking such certificate to apply to Respondent
No. 1 for a site visit along with his representative, and upon
the photograph being uploaded by Respondent No. 1, the
certificate is prepared by Respondent No. 1. Accordingly, the
Petitioner applied to Respondent No. 1 on 9 February 2024 for
certificates for seven sites, including the subject site. On 12
February 2024, Respondent No. 1 issued site visit certificates
for six of the sites. According to the Petitioner, all seven sites
pertain to the same road, making it difficult to distinguish
individual sites; hence, the Petitioner annexed the Geo-Tag
certificate of a different site for the present tender process.
Upon the rejection of the Petitioner's bid, the Petitioner
immediately lodged a complaint with Respondent No. 1 on 20
February 2024, contending that the officer concerned issued
the wrong Geo-Tag certificate. The Petitioner further argued
that the Government Resolution dated 27 September 2018 in
terms of Condition No. 4.5.2, mandates that the tenderer be
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given notice in case of minor deficiencies in the bidding
process. The Petitioner thus requested that they be deemed
eligible to participate in the tender process. On 23 February
2024, Respondent No. 1 communicated to the Petitioner that
the Petitioner's representative had orally informed that the
Petitioner required Geo-Tag certificates for only six works. The
Petitioner contends that the approach of Respondent No. 1 is
contrary to the Government Resolution dated 27 September
2018.
5. Conversely, it is argued on behalf of Respondent No. 1
that the Petitioner's representative had orally informed the
officials of Respondent No. 1 that the Petitioner did not
require a Geo-Tag certificate, and therefore, the Petitioner
failed to comply with the eligibility condition, resulting in his
rightful disqualification. Respondent No. 1 had issued site visit
certificates for the other six tender sites.
6. The learned advocate for Respondent No. 3 submitted
that the petitioner was rightly declared disqualified, and given
the Petitioner's non-compliance with the eligibility condition of
furnishing the Geo-Tag certificate, Respondent No. 1 rightly
declared the Petitioner's bid non-responsive. He further
submitted that Respondent No. 3 has not yet commenced the
road construction work but has procured the necessary
materials, and thus, no interference under the extraordinary
jurisdiction under Article 226 of the Constitution of India is
warranted in this petition, as the decision of the tender
inviting authority is neither arbitrary, unreasonable, nor
perverse.
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7. The rival contentions now require adjudication.
8. The primary issue for consideration is whether the
Petitioner's inability to furnish the Geo-Tag certificate is
attributable to the inaction on the part of Respondent No. 1
which led the Petitioner's disqualification for reasons beyond
his control. For effective adjudication of the issue, it is
necessary to examine the following tender conditions:
"6.1 ONLINE ENVELOPE No.1: (Documents)
The First Online Envelope, "Envelope No.1," shall contain
the following documents:
6.1.13 SITE VISIT CERTIFICATE ISSUED BY THE CHIEF
OFFICER, KARAD MUNICIPAL COUNCIL, KARAD, WITH A
GEO-TAG PHOTO."
9. The following factual scenario emerges on consideration
and examination of the rival submissions made on behalf of
the parties:
(i) The Petitioner applied for a site visit certificate with a
Geo-Tag photo for seven works, including the subject
work.
(ii) The site of all seven works is located along the same
stretch of road.
(iii) Six site visit certificates for the works listed as Serial
Nos. 1 to 6 in the application dated 9 February 2024
were issued by Respondent No. 1.
(iv) The site visit certificate with a Geo-Tag photo for the
work listed as Serial No. 7 was not issued by Respondent
No. 1.
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10. In response to the Petitioner's complaint dated 20
February 2024, Respondent No. 1 replied, stating that the
Petitioner's representative had orally informed an employee of
Respondent No. 1 to issue site visit certificates for only six
works. The Petitioner has annexed a written application from
another bidder in a different tender process, withdrawing the
application for the issuance of a Geo-Tag certificate, to
demonstrate that similar applications were withdrawn in
writing.
11. Furthermore, the Petitioner promptly filed a complaint
on 20 February 2024, asserting that Respondent No. 1 had
provided six site visit certificates to the Petitioner. Considering
the location of all sites on the same road, the Petitioner was
unable to ascertain the exact location of the site visit
certificate for the subject work, as the distance between the
sites is merely 20 to 30 feet along the same road.
12. Moreover, Clause 4.5.2 of the Government Resolution
dated 27 September 2018 mandates that in case of any
ambiguity or deficiency in the documents relating to the
technical and financial bids, it is obligatory for the tender
scrutiny committee to seek an explanation from the tenderer.
This clause specifically requires the competent officer to
communicate in writing with the tenderer before disqualifying
them. It also requires the evaluation committee to consider
corrected documents regarding the tenderer's eligibility.
Additionally, it is stated that if such a tenderer was deemed
eligible in an earlier tender process and had completed the
earlier work to the satisfaction of the authority, such a
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tenderer should not be disqualified on trivial grounds.
13. Therefore, in our opinion, there was Respondent No. 1's
failure to comply with Condition No. 4.5.2 of the Government
Resolution dated 27 September, 2018 by not granting the
Petitioner an opportunity to rectify the deficiency in the supply
of the site visit certificate. The Petitioner's inability to furnish
such a certificate occurred due to Respondent No. 1's inaction.
The Petitioner having been deemed eligible for an earlier
contract and having completed that work to the satisfaction of
Respondent No. 1 all the above failures on the part of
Respondent No. 1, make the impugned decision to declare the
Petitioner ineligible unjustified. Thus, the decision of the
Tender Evaluation Committee is, on the face of it, arbitrary
and ultra vires, as it violates the binding Government
Resolution dated 27 September 2018.
14. In view of the aforementioned facts and circumstances,
we are of the opinion that the Petition is entitled to succeed.
We, therefore, quash and set aside the decision of rejection of
the technical bid dated 15 February 2024 and the work order
dated 1 March 2024 issued in favor of Respondent No. 3.
15. Respondent No. 1 shall be at liberty to invite fresh bids if
it so deems fit.
16. Rule made absolute in above terms.
17. The writ petition stands disposed of. No costs.
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18. Pending interlocutory application(s), if any, stand
disposed of.
(AMIT BORKAR, J.) (CHIEF JUSTICE)
19. After pronouncement of the judgment, learned counsel
representing respondent No.1 seeks stay of the judgment and
order. The oral prayer is rejected.
(AMIT BORKAR, J.) (CHIEF JUSTICE)
