[Cites 12, Cited by 0]
Bombay High Court
M/S Aditya Construction Company, ... vs Vidharbha Irrigation Devpt. Corp. Thr. ... on 1 December, 2025
Author: Anil Laxman Pansare
Bench: Anil Laxman Pansare
2025:BHC-NAG:13248-DB
904-WP-2210-2025 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 2210 OF 2025
(M/s Aditya Construction Company, through its authorized signatory Mr. Nilesh s/o Rameshwarrao
Borekar Vs. Vidharbha Irrigation Development Corporation, through its Executive Director & Ors.)
__________________________________________________________________________
Office Notes, Office Memoranda of Coram,
appearances, Court's orders of directions Court's or Judge's orders.
and Registrar's Orders.
Mr. R.R. Chhabra with Mr. S.N. Tapadia, Counsel for the
petitioner.
Ms A.S. Athalye, Counsel for respondent nos. 1 to 4.
Mr. A.C. Dharmadhikari, Counsel for respondent no.5.
.....
CORAM : ANIL L. PANSARE AND
RAJ D. WAKODE, JJ.
ARGUMENTS WERE HEARD ON : NOVEMBER 27, 2025
ORDER IS PRONOUNCED ON : DECEMBER 1, 2025
Respondent no.4 - Executive Engineer,
Vidarbha Irrigation Development Corporation, floated
tender for repairing and renovation of Main Earthen Wall,
Overflow Section and Other Ancillary Components of
Januna Dam, Taluka - Khamgaon, District - Buldhana.
The petitioner submitted its bid for the said tender.
2] To qualify for award of the contract, a
bidder was required to fulfill eligibility criteria as stated
in Clause 3.3 of Section 3 of the tender document. Clause
3.3.2 of the tender document requires bidder to have
experience in similar type of work. The said Clause reads
as under :
"3.3.2 Experience in Similar Type of Work :
Minimum Requirement for Contractors :
Contractors are required to have successfully
completed a work, as per the Definition of the
work, under a single contract. The cost of this
work should not be less than Rs.526.47 Lakh,
considering the price level of the financial yeaar
2024-25."
3] The technical bids were evaluated, and the
petitioner was disqualified on the ground that it had not
carried out similar type of work and does not satisfy
Clause 3.3.2. According to the petitioner, the decision of
disqualification is arbitrary. Hence, the present petition.
4] We have heard Mr. R.R. Chhabra with Mr.
S.N. Tapadia, learned Counsel for the petitioner, Ms A.S.
Athalye, learned Counsel for respondent nos. 1 to 4, and
Mr. A.C. Dharmadhikari, learned Counsel for respondent
no.5.
5] The issue involved revolves around the
Work Completion Certificate furnished by the bidders.
The Work Completion Certificate, submitted by the
petitioner, is at page 458, and that of respondent no.5,
whose tender is accepted, is at page 550 of the petition.
6] The respondents argument is that the
document so furnished by the petitioner did not qualify
Clause 3.3.2. According to the respondents, the document
is not sufficient to establish that similar work has been
successfully completed by the petitioner.
7] Our attention is invited to following
information : Clause 8 refers to 'Schedule date of
completion', against which, scheduled date is not
mentioned, but 'Work Successfully Completed' is
mentioned. In Clause 10, final date of completion is
shown as '30/06/2023'.
8] The respondents Counsel has, then, invited
our attention to Work Done Certificate annexed with the
said document (page 460 of the petition). It is issued by
the concerned Executive Engineer. The certificate is issued
on 4/10/2023, i.e., after about three months of the date
of alleged completion of work. The last line of the Work
Done Certificate reads as follows : "At present Earthen
Dam is physically completed and agreement work is
93.89% completed."
9] The Counsel for the respondents submits
that the documents furnished by the petitioner if are read
collectively, what is apparent is that the scheduled date of
completion is not given, the final date of completion is
said to be 30/6/2023, and on 4/10/2023, the Executive
Engineer concerned issued a certificate saying that work
completed is 93-89%. In addition to above, final bill is
also not paid. Such status of work cannot be treated as
successful completion of work. Accordingly, respondent
no.4 has rejected the petitioner's bid.
10] The petitioner has criticized this rejection
saying that it is an arbitrary act. According to the
petitioner, under Clause 8, though scheduled date of
completion is not mentioned, the Executive Engineer has
categorically mentioned that work is successfully
completed. This itself, according to the petitioner, is a
sufficient proof of completion of similar type of work. So
far as certificate dated 4/10/2023 is concerned, the
Counsel for the petitioner submits that reference to
93.89% is in context with the amount of bill paid to the
petitioner. He submits that the said percentage of
completion of work pertains to the amount paid to the
petitioner, and not about completion of work.
11] The Counsel for the petitioner has, then,
invited our attention to the Work Completion Certificate
issued to respondent no.5. Clause 13 pertains to 'Balance
amount of work', against it, an amount of Rs.5.27 lakh is
mentioned, and in addition, following information is
given : "Overall dam construction work is physically
100% completed." The Counsel submits that the
certificate issued to respondent no.5 does not even show
that work has been successfully completed. What is
mentioned in the certificate is that the construction of
dam is physically 100% completed. He submits that if
such a certificate, which also indicates amount of Rs.5.27
lakh remaining, is accepted, the petitioner's certificate is
better placed.
12] We do not find any merit in the submissions
made by the petitioner. Firstly, there appears no reason
why should, in the certificate issued to the petitioner,
under Clause 'Schedule date of completion', one should
mention 'Work successfully completed' instead of giving
the completion date. Secondly, if the final date of
completion was 30/6/2023, the certificate issued on
4/10/2023 should not have indicated that the agreement
work is 93.89% completed. As such, the certificate also
mentions that the Earthen Dam is physically completed.
However, additional information that as per agreement it
is 93.89% complete would leave doubt, and in that
context, interpretation of tender conditions by respondent
no.4 - employer will have to be honored. One cannot
expect respondent no.4 to understand that 93.89% refers
to financial completion and not actual completion of
work, particularly when final bill is not paid.
13] So far as the certificate issued to respondent
no.5 is concerned, an amount of Rs.5.27 lakh, as
mentioned in Clause 13, is in respect of the amount
remaining after completion of work. Clause 13 is sum
total of revised amount of work minus cost of work
executed. The revised amount of work, as shown in
Clause 11, is Rs.1652.59 lakh and the cost of work
executed is Rs.1642.32 lakh, and accordingly, the balance
amount of work is shown as Rs.5.27 lakh. This amount
cannot be said to be an amount of balance work, but is an
amount remaining after completion of work. What is
important here is the other information provided against
Clause 13, where, the concerned Executive Engineer has
mentioned that the dam construction work is physically
100% completed and final bill paid. This, according to
respondent no.4, would meet the eligibility criteria. Such
interpretation would also find favor with respondent
no.4, who is best person to appreciate and understand its
requirement. It is well settled that in tender matters, it
should be left to the employer to interpret the Clauses of
tender. The interference by the Court is permissible,
where the interpretation is apparently illogical, arbitrary
or suffers from mala fide.
14] In the present case, mala fide is not
attributed to the respondents. Further, the petitioner is
not the only other bidder, four others have also submitted
bids. They have no grievance. The petitioner has come up
with a case of arbitrary decision, which, according to us,
is not finding any support from the documents.
15] The Counsel for the petitioner has relied
upon the judgment in the case of i] Subodh Kumar Singh
Rathour Vs. Chief Executive Officer and Others [2024
SCC OnLine SC 1682]; ii] Maha Mineral Mining &
Benefication Pvt. Ltd. Vs. Madhya Pradesh Power
Generating Co. Ltd. and Another [2025 SCC OnLine SC
1942]; iii] Kimberley Club Pvt. Ltd. Vs. Krishi Utpadan
Mandi Parishad and Others [2025 SCC OnLine SC 2323];
iv] Mohinder Singh Gill And Another Vs. The Chief
Election Commissioner, New Delhi And Others [(1978) 1
SCC 405]; and v] United Air Travel Services Through Its
Proprietor A.D.M. Anwar Khan Vs. Union of India
Through Secretary (Ministry of External Affairs), to
contend that cancellation of tender by a public authority
must be based on genuine and bona fide reason that are
property reflected in the decision making process. That a
bidder's reliance on work execution certificate, which
explicitly states the bidder's experience and share within a
consortium, can be considered sufficient to establish
eligibility and experience under tender process. That the
terms of NIT must be clear and unambiguous regarding
requirement for submission of such certificate. In the case
before the Hon'ble Supreme Court, the notice inviting
tender did not specify the authority, who should issue
solvency certificate and, therefore, rejection of bid was
diverse the terms of NIT and, therefore, unjustified. That
in administrative law, the action is to be judged by reason
stated while making order, and supplementary reasons in
the shape of affidavit should be executed. This finding,
however, has been rendered in the petition, where the
Supreme Court was required to consider scope of Election
Commission's power under Article 324 of the Constitution
of India. That the administrative actions must be
grounded in reasons explicitly communicated at the time
of decision. These findings were rendered in a case,
where private tour operators were disqualified from
obtaining registration for organizing pilgrimage tour. The
authorities were discharging statutory duties, and
accordingly, the Supreme Court underscored importance
of transparency, consistency and adherence to procedural
fairness when public authorities exercised statutory
powers, especially in matters affecting citizens lives and
livelihood.
16] Here, we may refer to the judgment of the
Supreme Court in the case of National Highways Vs.
Madhukar [2021 SCC OnLine SC 791], where, in the case
of construction of toll plaza, on the point of reasons to be
assigned while taking decision, the Court referred to
various judgments, and held that it is one thing to say
that there should be reasons, which persuaded
Administrator to take a particular decision and a different
thing to find that the reasons must be incorporated in a
decision. The Court held that it would depend on the
nature of duty and the issue involved whether or not the
reasons should be part of the order. Accordingly, the Court
held that in certain situations, reasons will have to be
recorded in the order, and in another, it may be found in
the files. The Court, then, held that when there is no duty
to record reasons, the administrative decision may be
supported through pleadings aided by material. Thus, the
moot question is whether absence of reason in taking
decision in the present case, will vitiate the decision. The
answer is certainly in the negative for following reasons.
17] The petitioner has not pointed out to us any
material that would indicate that respondent no.4 was
under an obligation to communicate detail reasons while
rejecting the bid. That being so, and considering the flaws
in the documents submitted by the petitioner, we do not
find that the decision taken by respondent no.4 is
incorrect much less an arbitrary decision. The decision
arises out of documents furnished by the petitioner. The
documents itself are inconclusive of completion of work.
The decision is nothing but reading of documents
submitted by the petitioner. The respondent no.4 found
these documents to be not sufficient to show that the
petitioner has completed the work. Accordingly, he found
that the petitioner was not meeting the eligibility criteria,
and rejected the bid. In such circumstances, where
respondent no.4 was not duty bound to convey decision
with reasons, he may justify decision by assigning reasons
through pleadings.
19] On the point of interpretation of tender
condition and the scope to interfere in tender matters, the
respondents have relied upon following judgments :
I] Agmatel India Private Limited Vs. Resoursys Telecom
And Others [(2022) 5 SCC 362].
II] N.G. Projects Limited Vs. Vinod Kumar Jain And
Others [(2022) 6 SCC 127].
III] Silppi Constructions Contractors Vs. Union of India
And Another [(2020) 16 SCC 489].
IV] Tata Motors Limited Vs. Brihan Mumbai Electric
Supply & Transport Undertaking (BEST) and Others
[2023 SCC OnLine SC 671].
V] Consortium of Titagarh Firema Adher S.P.A. - Titagarh
Wagons Ltd. Through Authorised Signatory Vs. Nagpur
Metro Rail Corporation Limited (NMRCL) Through its
General Manager (Procurement) And Another [(2017) 7
SCC 486].
20] The law laid down can be summarized as
follows :
The author of tender document is the best
person to understand and appreciate its requirement. The
Writ Court should not substitute its preferred
interpretation of tender condition with the one adopted
by the author of the tender document. The satisfaction
whether the bidder satisfies the tender condition is
primarily upon the authority inviting bids. While rejecting
tender, the authority inviting tenders is not required to
give reasons, even if it is to be State within the meaning
of Article 12 of the Constitution of India. It should be
borne in mind that evaluation of tenders are essentially a
commercial function and principle of equity and natural
justice stay at a distance. Where the decision is taken that
is manifestly in consonance with any of the tender
document or sub-surge the purpose, for which the tender
is floated, the Court should follow the principle of
restraint.
21] The law laid down in the aforesaid
judgments would support the decision taken by
respondent no.4, which, even otherwise appears to us to
be a possible view. In any case, one cannot label the
decision as arbitrary.
22] The petition, therefore, is devoid of merit,
and is accordingly dismissed.
(JUDGE) (JUDGE)
LATER ON
23] The Counsel for the petitioner submits that
the statement made by respondent no.1 on 23/4/2025
that work order will not be issue till next date should be
continued.
24] The Counsel appearing for respondent no.1
submits that respondent no.1 is not willing to make/
continue the statement.
25] In the circumstances, the request made by
the petitioner cannot be acceded to. The same is
accordingly rejected.
(JUDGE) (JUDGE)
Sumit
Signed by: Mr. Sumit Agrawal
Designation: PS To Honourable Judge
Date: 01/12/2025 16:15:28
