Bombay High Court
Bhimraj Industries Pvt. Ltd vs State Of Maharashtra Thru Tribal ... on 13 February, 2025
Author: Bharati Dangre
Bench: Bharati Dangre
2025:BHC-AS:8639-DB
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MANDIRA Digitally signed by MANDIRA
MILIND SALGAONKAR
MILIND
SALGAONKAR
Date: 2025.02.25 00:04:31
+0530 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.11706 OF 2023
Bhimraj Industries Pvt. Ltd. .. Petitioner
Versus
State of Maharashtra & Ors. .. Respondents
...
Mr.Sanjeev M. Gorwadkar, Senior Advocate with Mr.Niranjan
Mogre for the Petitioner.
Mr.O.A.Chandurkar, Addl. Govt. Pleader with
Ms.G.R.Raghuwanshi, A.G.P. for the State/Respondent Nos.1 to
8.
CORAM: ALOK ARADHE, CJ. &
BHARATI DANGRE, J.
DATED : 13th FEBRUARY, 2025
...
JUDGMENT (Per Bharati Dangre, J.):
-
1. The Petitioner, a start-up unit, registered as Micro
Enterprise at Udyog Adhar with Udyam Registration and
engaged in the business of manufacturing of metal fabricated
items and wooden furniture, has approached this Court, being
aggrieved by the action of the Respondents in not following the
public procurement policy for Micro and Small Enterprises
(MSE). The Petition also raise challenge to the procurement
process adopted by the Respondents in respect of four tenders,
which included the participation of the Petitioner, the tender
being allotted to the chosen entities. Another direction in the
Writ Petition is to take action on the report of the Six Member
Sub-Committee constituted by the Respondents under the
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Chairmanship of the Joint Director (Finance) pursuant to the
representation/complaints made by the Petitioner.
2. We have heard learned senior counsel Mr.Sanjeev
Gorwadkar for the Petitioner, whereas Respondents
Authorities represented by learned Addl. Govt. Pleader
Mr.O.S.Chandurkar alongwith Ms.Raghuwanshi, learned A.G.P.
3. By consent of parties, we issue Rule. Rule is made
returnable forthwith.
4. The Respondent in the Petition is the Tribal Development
Department under whose aegis Ashramshalas in tribal region,
for providing educational and other facilities to tribal students
for their upliftment, are being run.
Since there was a need of various items of furniture in
the said Ashramshalas, being run in tribal regions of Nashik,
Thane, Nagpur and Amravati, it was decided to purchase the
items of furniture through GeM Portal, which is centralised by
the Central Government in the wake of National Public
Procurement Policy. Distinct tender notices were issued, but
since they did not comply with the policy of procurement,
which contemplated reservation for MSME/Startup/Make in
India entities, the tenders were subjected to challenge in the
Petition filed by Vidya Sahyog, through the Proprietor Pushkar
Ashok Naik, alleging that it did not adhere to the procurement
policy. Upon an appearance by the learned Advocate General,
his statement was recorded that the State would comply with
the Public Procurement Policy for Micro and Small Enterprises
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(MSEs) Order, 2012, passed by the Office of Development
Commissioner, Ministry of Micro, Small and Medium
Enterprises.
Upon the aforesaid statement being made, the Petitioner
did not press the petition and it was disposed of on
31/01/2019.
5. Pursuant to the said order being passed, the earlier
tenders were cancelled, and fresh tenders were issued on
07/02/2019 for four distinct divisions, namely, Nashik ATC,
Thane ATC, Nagpur ATC and Amravati ATC and the grievance
in the present Petition pertains to the conditions in the tender
notice published on 07/02/2019.
It is the submission of learned senior counsel
Mr.Gorwadkar that despite an assurance being given by the
learned Advocate General, the Respondents did not adhere to
the Procurement Policy and though the bid document
expressly exempted MSE from the 'years of experience and
turnover', by introduction of 'Buyer-Specific Additional Terms
and Conditions', the hidden criteria was introduced to expel
MSME, and according to him, the 'additional terms and
conditions' are so formulated, so that the MSME are excluded
from competition. It is specifically submitted by the learned
senior counsel that the impugned tenders involve the question
of public interest, as huge amount of money was to be spent
and, therefore, the Respondents ought to have been conscious
about the adherence to the guidelines regarding Procurement
Policy and not adhering to the same, despite the statement
being made before the Court in the earlier round, is nothing
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but misleading the public at large and it also violates the
undertaking submitted before the Court.
6. The Petitioner filed his bid through GeM portal, which
came to be disqualified and it is urged that it was on account of
corrigendum that was issued, which was intended to oust the
MSEs like the Petitioner. The present Petitioner alongwith
others once again approached the High Court by filing distinct
petitions and the grievance of the petitioner alongwith certain
entities was that the items required under the tender were
reserved for MSME/Startup/Make in India entities, but in
utter ignorance of the said policy, the tender was floated and
by order dated 27/02/2019, the Court permitted the
Respondents to proceed with tender process,but made it clear
that the process shall be subject to the further orders to be
passed by this Court in the said writ petition.
On 24/02/2022, the petition was disposed of as
infructuous, since the tender contract has been completed,
pursuant to the procurement having been done and the
tenderer having paid the amount. But, the Court also
permitted the petitioners to make appropriate representation
in terms of prayer clauses (c) and (d) and permitted adoption
of legal proceedings, including the claim for damages and the
representation was directed to be decided in a stipulated
period.
7. In pursuance of the same, the Petitioner submitted
representation to Respondent No.2 on 03/03/2022 and
Respondent No.2 constituted a Committee of six senior officers
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of Accounting and Finance Department. The Sub-Committee
constituted under the chairmanship of Respondent No.8 was
directed to submit its report to Respondent No.3 and
Respondent No.3 addressed a communication to the Petitioner
on 19/04/2022, directing it to remain present alongwith the
necessary documents. On receipt of the notice, the Petitioner
presented it's representative before the Sub-Committee on
21/04/2022 and in addition to the documents, was also
permitted to advance oral arguments.
Since the Petitioner was apprehensive, whether the
report would be submitted in the time-bound manner, it
approached the Hon'ble Minister for the Tribal Development
Department, who directed conduct of an enquiry expeditiously.
The Petitioner gathered the information that all the
relevant papers and documents alongwith the report were
submitted by Sub-Committee headed by Respondent No.8 in
the office of Respondent No.3 on 24/05/2022 itself and the
report taken note of several illegalities and irregularities while
implementing the tender process.
8. It is in this background, the Petitioner has sought a
direction for submission of the report before this Court and
request is made for appropriate steps to be taken in
furtherance of the said report.
9. From the affidavit filed on behalf of Respondent Nos.1
and 8 by the Assistant Project Officer, Commissionerate,
Nashik, Tribal Development Department, it is apparent that
the tenders which were floated for procurement of furniture
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items on 07/02/2019 had indicated the last date for
submission of bids as 27/02/2019. It is stated that after
following due process, on 01/03/2019, the Thane ATC and
Nashik ATC declared M/s Godrej and Boyes Manufacturing Co.
Ltd. as L1 bidder, whereas on 02/03/2019, Nagpur ATC and
Amravati ATC declared Spacewood Furniture Pvt. Ltd. as L1
bidder.
Pursuant to the aforesaid, a formal contract was entered
with the successful bidders and in terms of the contract, entire
furniture was supplied between 26/08/2019 to 21/02/2020
and pursuant to the supply, the necessary payments were also
made. The affidavit categorically states that last payment was
done on 19/09/2021.
Mr.Gorwadkar, learned counsel for the Petitioner has
not filed any rejoinder disputing the aforesaid statement.
10. In the wake of the aforesaid situation, since the work
under the impugned tender is already accomplished by the
bidders, who were found to be successful in the tender process
and they have received the payments, we are not at all
persuaded to show any indulgence at this stage on the ground
that when the tenders were floated, the policy of Ministry of
Micro, Small and Medium Enterprises, Office of Development
Commissioner, providing relaxation for startup and small and
micro enterprises in public procurement, has not been applied.
In any case, what we have noted from the said policy is some
relaxation, being granted to the Micro and Small Enterprises
in public procurement on certain issues, including prior
experience, turnover criteria etc., but we do not find any
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mandate that the procurement should be only from the MSME.
In any case, we do not intend to get into this issue at this stage,
since we find that the tender process having been completed
and the furniture therein being supplied, it is too late in the
day to entertain the grievance of the Petitioner.
Though Mr.Gorwadkar would insist that a direction
should be issued that in future, the tender process should be as
per the prevailing policy, we do not in specific deem it
appropriate to issue such a direction, as we expect the
Respondents to follow the guidelines issued by the
Government of India or by the State of Maharashtra,
whenever it procures any product/material.
As far as enquiry report is concerned, we expect the
Respondents Authorities to take the report to its logical end, if
they have not taken any action upon the same.
With these observations, the Writ Petition is disposed of.
(BHARATI DANGRE, J.) (CHIEF JUSTICE)
M.M.Salgaonkar
