Bombay High Court
Anik Industries Limited vs Maharashtra Airport Development ... on 26 June, 2025
2025:BHC-OS:9512-DB
Neeta Sawant Writ Petition (l)-6662/2025-fc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L.) NO. 6662 OF 2025
Anik Industries Ltd, through its Authorized
Representative Mr. Arvind Jain S/o Late
Shri S.C. Jain, Occ.Service, Age- 50 Years
Registered office -610, Tulsiani Chambers,
Nariman Point, Mumbai 400021
Corporate office - 2/1, South Tukoganj,
Indore. ....Petitioner
: Versus :
1. Maharashtra Airport Development
Company Ltd. through Vice Chairman
& Managing Director R/o -- 8" Floor,
Centre-1, World Trade Centre, Cuffe
Parade, Mumbai 400005
2. Maharashtra Airport Development
Company Ltd. through its Tender
Committee R/o -- 8" Floor, Centre-1,
World Trade Centre, Cuffe Parade,
Mumbai 400005.
3. M/s. Kukreja Infrastructures Plot No.
17, Sushila Layout,Sugatnagar, Jaipatka
Ring Road, Nagpur --440014. ....Respondents
Mr. Nitin Thakker, Senior Advocate with Mr. Abhijeet Desai, Mr. Vijay
Singh, Mr. Adarsh Jain, Ms. Daksha Punghera and Mr. Digvijay Kachare i/by.
Desai Legal LLP, for the Petitioner.
Mr. Shardul Singh with Ms. Sayali Sawant, Mr. Hridyanshi Sharma and Mr.
Ninad Thikekar, for Respondent Nos.1 and 2.
Dr. Milind Sathe, Senior Advocate and Mr. Nikhil Sakhardande,
Senior Advocate with Mr. Pralhad Paranjape, Mr. Aditya Mhase, Mr.
Manish Kelkar and Mr. Anshuman Sambre, for Respondent No.3.
Page No.1 of 24
26 June 2025
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Neeta Sawant Writ Petition (l)-6662/2025-fc
CORAM : ALOK ARADHE, CJ. &
SANDEEP V. MARNE, J.
Judgment Reserved On : 18 June 2025.
Judgment Pronounced on : 26 June 2025.
JUDGMENT:
(Per: Sandeep V. Marne, J.)
1) Rule. Rule is made returnable forthwith. With the consent of
the learned counsel appearing for the parties, the petition is taken up for
hearing and final disposal.
2) The Petitioner has filed the present petition under Article 226
of the Constitution of India challenging the action of Respondent Nos.1
and 2 in rejecting its technical bid in the tender process initiated for
allotment of lease of plot of land. Petitioner has sought declaration that it
is technically qualified and has challenged the Letter of Allotment issued
to Respondent No.3.
3) Brief facts leading to filing of the petition are as follows :-
In September 2024, Respondent Nos. 1 and 2 initiated the
process of leasing Plot No. 18, Sector 22, admeasuring 47347.975 sq. meter
(approx. 11.69 acres) located out of Special Economic Zone (SEZ) in
MIHAN, Nagpur for residential and commercial use. Upto the last date of
submission of bids on 26 September 2024, it was noticed that only three
bidders had participated in the bidding process, which excluded
Respondent No. 3. On account of lukewarm response to the tender process
and in terms of the Guidelines issued by Central Vigilance Commission
(CVC), Respondent Nos.1 and 2 decided to cancel the tender. Accordingly,
a fresh tender was floated on 10 October 2024 for grant of lease of the
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subject plot. The last date for submission of the bids was 5 November
2024, during which queries raised by the prospective bidders were
addressed. The Petitioner apparently did not attend the pre-bid meeting.
On the basis of clarifications given to the prospective bidders in the pre-bid
meeting, a corrigendum was issued by Respondent Nos.1 and 2, which
according to the tender conditions, became part of the tender document.
The corrigendum inter alia altered the technical eligibility criteria. By way
of corrigendum, the last date of submission of bids was extended from
5 November 2024 to 18 November 2024. The Petitioner submitted its bid
on 18 November 2024. Total five bidders had submitted their bids. The
Technical Committee evaluated the bids and prepared a report dated 29
November 2024, in which it was found that the Petitioner and M/s. R.
Sandesh Infrastructure Pvt. Ltd. had failed to submit the requisite
documents and therefore they were disqualified. Respondent Nos.1 and 2
held three entities, including Respondent No.3, to have technically
qualified in the tender process. Finally, the bids were opened on the same
day and it was found that Respondent No.3 was the highest bidder quoting
the rate of Rs. 8,407 per sq.mtr. Accordingly, Letter of Acceptance dated 2
December 2024 was issued to Respondent No.3.
4) Petitioner sought information under the Right to Information
Act, 2005 for knowing reasons for rejection and requisitioned the entire
Note Sheet relating to the tender. Petitioner also made representation
against the rejection of its bid on 2 December 2024. In the meantime,
Respondent No.3 made the payment of first installment of
Rs.12,10,18,141/- to Respondent Nos.1 and 2. Petitioner received copies of
Technical Evaluation Report on 6 January 2025, which reflected the
reasons for rejection of its technical bid as (i) failure to submit information
as per Exhibit-IV and (ii) non-compliance of experience certificate of
construction of residential/commercial project with atleast 6 lakh square
feet built-up area. On 14 January 2025, Petitioner complained about
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rejection of its bid and alleged that Respondent No.3 submitted forged
documents in support of its bid. By email dated 22 January 2025,
Respondent Nos. 1 and 2 informed the Petitioner that its bid was rejected
on account of non-fulfillment of qualifications of technical criteria. On 26
February 2025, the Petitioner has filed the present petition challenging
rejection of its bid and award of the plot in favour of Respondent No.3.
5) On 10 March 2025, this Court directed that any further action
in relation to allotment of plot to Respondent No.3 shall be subject to the
final outcome of the petition. Since the pleadings in the petition are
complete, the petition is taken up for hearing and disposal with the consent
of the learned counsel appearing for the parties.
6) Mr. Thakker, the learned Senior Advocate appearing for the
Petitioner would submit that rejection of Petitioner's bid by Respondent
Nos.1 and 2 is wholly arbitrary, irrational and perverse. That the reason of
rejection of Petitioner's bid for failure to submit information in Exhibit-IV
is totally baseless. That Exhibit-IV appended to the corrigendum merely
expected the bidders to submit summary of information to demonstrate
possession of experience of having executed similar projects. He would
submit that Petitioner inadvertently filled up and submitted the summary
in old format in Exhibit-IV appended to the original tender document. He
would compare the information sought by Respondent Nos.1 and 2 in
Exhibit-IV format attached to original tender documents and the one
attached to the corrigendum to demonstrate that most of the information
was common. He would submit that only information relating to area of
development was altered in the new format from ' land area' to 'built-up
area'. In any case, according to Mr. Thakker, the summary of information
expected to be submitted alongwith the prescribed format under Exhibit-IV
was already made available to Respondent Nos.1 and 2 through supporting
documents. That the exact built-up area of construction executed by the
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Petitioner is easily discernible from the experience documents filed
alongwith the bid. That therefore rejection of Petitioner's bid on hyper-
technical reason of non-submission of summary of information in
prescribed format is liable to be set aside. That in any case, the Petitioner
ought to have been given on opportunity to submit necessary summary
information in prescribed format rather than rejecting the bid by adopting
hypertechnical approach. Mr. Thakker would submit that Exhibit-IV
cannot be treated as a mandatory document, in absence of which, decision
for awarding of contract could not be taken in the impugned tender
process. He would submit that the law is otherwise well established that
non-submission of documents, which are merely ancillary in nature,
cannot be a ground for rejection of bid. In support of his contention, he
would upon judgment of the Apex Court in Poddar Steel Corporation
Versus. Ganesh Engineering Works and Ors. 1. He would also rely upon
judgment of Division Bench of this Court in Shalby Limited and another
Versus. State of Goa and others2.
7) Mr. Thakker would then take us through the second reason of
rejection of Petitioner's bid of not fulfilling the experience of having
carried out residential/commercial construction of 6 lakhs square feet
built-up area. He would submit that Petitioner's experience certificate has
erroneously been rejected only on account of use of the words 'Assembly'
in the Certificate of Architect as well as in the Occupancy Certificate. He
would submit that in the State of West Bengal, various commercial uses
are collectively referred to as 'Assembly'. He would draw our attention to
the Certificate issued under the RERA Act depicting that the construction
carried out by the Petitioner is for both, residential as well as commercial
use. He would submit that Petitioner's bid has been erroneously rejected
without considering the position that it actually has the experience of
1 (1991) 3 SCC 273
2 2012 (1) Mh.L.J. 533
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having constructed the requisite quantity of construction for residential
and commercial use.
8) Mr. Thakker would then question the eligibility of the third
Respondent to participate and qualify in the impugned tender process. He
would submit that Respondent No.3 relied on certificate of the Architect,
which raised false claim of having completed construction in respect of
area admeasuring 1,92,914.598 sq.ft. of the building-M/s. Kukreja Infinity
East. That in the summary submitted by Respondent No.3 in Exhibit-IV
format, it claimed that the construction of the Project-M/s. Kukreja
Infinity East involved 1,92,914.598 sq.ft. built-up area was completed on
18 June 2023 when infact the Occupancy Certificate issued in respect of
the said project was only in respect of ground plus podium floor with only
12,000 sq. ft. of built-up area. That the Architect of the Petitioner also
falsely certified completion of the said project with built-up area of
1,92,914.598 sq.ft. when infact the construction of the building was
incomplete. He would also take us through the Architect Certificate
uploaded on RERA website to demonstrate that only 47% work of slabs of
super structure above stilt floor was complete. He would therefore submit
that Respondent No.3 has relied on false certificate of Architect and its bid
ought to have been disqualified. Mr. Thakker would blame Respondent
Nos.1 and 2 in blindly relying on certificate of the Architect by ignoring
the actual construction demonstrated by the Petitioner. He would rely on
judgment of the Apex Court in Banshidhar Construction Private Limited
Versus. Bharat Coking Coal Limited and Ors. 3 in support of his contention
that Petitioner is entitled to question eligibility of the third Respondent
notwithstanding rejection of its technical bid. Lastly, Mr. Thakker would
submit that acceptance of bid of the Petitioner has resulted in loss for
Respondent Nos.1 and 2. That Petitioner has quoted rate of Rs.12,889/-
per sq. meter as against the rate of Rs.8,407/- per square meter of
3 (2024) 10 SCC 273
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Neeta Sawant Writ Petition (l)-6662/2025-fc
Respondent No.3. That therefore Respondent Nos.1 and 2 would incur
loss of Rs.22 crores on account of erroneous acceptance of bid of the third
Respondent. Mr. Thakker would accordingly submit that the action of
Respondent Nos.1 and 2 in rejecting Petitioner's bid and in allotting the
plot to Respondent No.3 is clearly arbitrary and irrational and therefore
interference by this Court in exercise of jurisdiction under Article 226 of
the Constitution of India is clearly warranted.
9) The petition is opposed by Mr. Singh, the learned counsel
appearing for Respondent Nos.1 and 2. He would submit that the
Petitioner's bid has rightly been rejected on account of failure to submit the
mandatory documents. He would submit that the Petitioner has suppressed
the corrigendum, as well as Exhibit-IV appended thereto. As per the tender
conditions, the qualifications issued in the pre-bid meeting vide
corrigendum also formed part of the prescribed eligibility criteria. That the
corrigendum made it mandatory to submit summary in format at Exhibit-
IV. Petitioner not only suppressed the corrigendum and the format in
Exhibit-IV, but has claimed ignorance thereof in the rejoinder. That
Petitioner however took benefit of the extended date for submission of his
bids from 5 November 2024 to 18 November 2024 and therefore it cannot
feign ignorance in respect of the corrigendum. That Petitioner cannot
selectively take benefit of the corrigendum and then proceed to suppress
the same with a view to escape the liability arising from non-submission of
mandatory information in Exhibit-IV. Mr. Singh would submit that
Condition No.3 in Exhibit-IV clearly provided that submission of
summary in Exhibit-IV as a mandatory requirement. That Respondent
Nos.1 and 2 have fairly conducted the impugned tender process as
Petitioner is not the only entity who is disqualified on account of non-
submission of the summary under Exhibit-IV and another bidder M/s. R.
Sandesh Infrastructures Pvt. Ltd. has also been disqualified for the very
same reason indicating absence of any bias towards the Petitioner. In
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support of his contention that failure to submit mandatory documents in
prescribed format can entail rejection of bid, Mr. Singh would rely upon
judgment of W.B. State Electricity Board Versus. Patel Engineering Co.
Ltd and Ors.4
10) So far as the eligibility of the third Respondent is concerned,
Mr. Singh would clarify that the bidders had complained about the
requirement of the Occupancy Certificate being produced to demonstrate
completion of construction. That the bidders had complained that issuance
of Occupancy Certificate many times gets delayed and that therefore
bidders must be given an opportunity to rely upon construction actually
carried out at the site in absence of issuance of Occupancy Certificate. He
would therefore submit that it is an otherwise normal practice to rely upon
certification by the experts such as Chartered Accountants, Engineers,
Doctors, Architects etc. and that there was nothing wrong on the part of
Respondent Nos.1 and 2 to rely upon Certificate of Architect furnished by
Respondent No.3 alongwith its bid. He would submit that Respondent
Nos.1 and 2 have objectively evaluated the bid of Respondent No.3 and
adjudged it as technically qualified. Lastly, Mr. Singh would submit that
mere higher quote by the Petitioner cannot be a reason alone for allotment
of plot in its favour as the tendering authority is expected to act fairly and
in strict adherence to the tender conditions. That once the bid of the
Petitioner is found to be technically non-responsive, the financial quote
made by it becomes irrelevant. That Respondent Nos.1 and 2 have not
opened the financial bid of the Petitioner and therefore the allegation of
higher bid made by it becomes irrelevant.
11) Dr. Sathe, the learned Senior Advocate appearing for
Respondent No.3 would oppose the petition. He would submit that
4 (2001) 2 SCC 451
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Petitioner has rightly been adjudged technically disqualified on account of
failure to submit information in Exhibit-IV, which was a mandatory
requirement. That Petitioner is not entitled to invoke jurisdiction of this
Court under Article 226 of the Constitution of India having suppressed the
factum of issuance of corrigendum as well as the requirement for
submission of summary information in Exhibit-IV. That Petitioner
selectively took the benefit of extended date for bid submission, but
suppressed the corrigendum after noticing that it got technically
disqualified on account on non-submission of information in the format
prescribed in Exhibit-IV. So far as the eligibility of Respondent No.3 is
concerned, Dr. Sathe would submit that Petitioner has erroneously relied
upon the Occupancy Certificate issued in September 2023 when infact the
construction of project of the third Respondent had progressed
substantially by November 2024, when the bids were submitted. He would
highlight use of the words ' as on date' in the eligibility criteria depicting
that the bidders were entitled to rely upon entire construction carried out at
the site as on the date of submission of the bid. He would submit that in
respect of the Project-M/s. Kukreja Infinity East construction of built-up
area of 1,92,914.598 sq.ft. was actually complete as on the date of
submission of bid and that there is nothing erroneous on the part of the
Architect in certifying the said construction. He would also rely upon
certificates uploaded on RERA website to demonstrate that construction of
the project upto 90% was complete by November 2024. He would rely
upon judgment of the Apex Court in Central Coalfields Limited & Anr.
Versus. SLL-SML (Joint Venture Consortium) and Ors.5 in support of his
contention that Courts cannot hold a particular tender condition to be non-
essential and that non-submission of information in the prescribed format
can be a fit ground for rejection of the bids. Dr. Sathe would accordingly
pray for dismissal of the petition.
5 (2016) 8 SCC 622
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12) Rival contentions of the parties now fall for our
consideration.
13) Petitioner has raised twin issues relating to his own
disqualification due to failure to meet eligibility criteria and eligibility of
Respondent No.3 to participate in the tender process.
14) So far as the first issue of Petitioner's disqualification is
concerned, it is held ineligible and its technical bid is rejected on two
grounds of (i) failure to meet the prescribed criteria of having experience
of construction of residential and/or commercial projects with total area
of atleast 6 lakh square feet built-up area and (ii) failure to submit the
summary information in prescribed format in Exhibit-IV. Petitioner has
also questioned eligibility of Respondent No.3 contending that Respondent
No.3 produced false certificate of Architect in support of claim of having
constructed residential/commercial project with 6 lakhs square feet built-
up area.
15) Before going into the issue of eligibility of Respondent No.3,
who is the successful bidder, it would be first necessary to take up the issue
of validity of disqualification of the Petitioner. So far as the first ground of
Petitioner's disqualification is concerned, the tendering authority has
refused to accept the certificate of Architect of the Petitioner in respect of
the project 'One Rajarhat' with built-up area of 71,041.94 sq.mtrs
equivalent to 7,64,695.44 sq.ft. situated at New Town, Kolkata (West
Bengal). The experience indicated in the Architect's certificate dated 12
August 2024 is rejected by the tendering authority for the reason that
construction indicated therein is not of 'residential and/or commercial
project' as the building constructed by the Petitioner is 'Residential plus
Assembly building'. The bidder was required to submit either the
Occupancy Certificate issued by the Competent Authority or Completion
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Certificate issued by the project Architect to demonstrate possession of
experience of having constructed residential and/or commercial project
with 6 lakhs sq.ft. built-up area. Petitioner accordingly relied upon
certificate of its Architect, which reads thus :-
I, the undersigned, hereby confirm that Anik Industries Limited has
successfully completed a high-rise Residential cum Assembly project
'One Rajarhat' having Basement + Ground Floor + 23 Floors
covering approx. 71041.94 sqmt (764695.44 Sq. ft.) Built up area
located at premises no. 30-1111 in Action Area - 1- B, New Town,
Kolkata (WB)
16) Petitioner also relied on Occupancy Certificate issued by the
New Town Kolkata Development Authority dated 28 February 2022,
which indicated that the building was certified as 'fit for occupation as
Assembly Building'. The tendering authority in its Affidavit-in-Reply has
quoted definition of the term 'Assembly Building' in New Town Kolkata
Planning Area (Building) Rules, 2014 and in New Town Kolkata
Development Authority Act, 2007 and has contended that the Assembly
Building is only for use as amusement, recreation, social, religious,
patriotic, civil, travel, sports activities etc. For these reasons, the tendering
authority has refused to consider the experience of the Petitioner in respect
of the Project 'One Rajarhat' at Kolkata as compliant with the tender
conditions.
17) Under the tender conditions, the bidders had the option of
either producing the Occupancy Certificate issued by the Competent
Authority or the Completion Certificate issued by the project Architect. In
this regard it would be relevant to quote the prescribed eligibility criteria
prescribed in the Corrigendum issued by the tendering authority which is
as under :-
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b) The bidder should have minimum 5 years' experience of
construction of residential and/or commercial projects with
total of at least 6 Lakh square feet of built-up area as on date
and as 2 documentary evidence, bidder should submit below:-
i) Occupancy Certificate (OC) issued by competent authority
along with related documents issued by competent authority
indicating built up area specifically for which OC is issued
/or
ii) Completion Certificate issued by project Architect registered
with COA with built up area specifically mentioned in it or
along with related documents issued by competent authority
indicating built up area.
*Bidder has to submit that summary in the format mentioned at
Exhibit IV
18) Petitioner apparently produced both, the Occupancy
Certificate issued by the planning authority as well as the certificate issued
by the Architect. However both, the Occupancy Certificate as well as the
Architect certificate do not indicate that the project constructed by the
Petitioner is for use either for residential purpose or for commercial
purpose or for mixed used as residential and commercial purpose. The
tender conditions prescribed that the entire area of 6 lakhs square feet must
be for either residential or commercial or for mixed use for residential +
commercial. The Occupancy Certificate issued by the planning authority
in respect of Petitioner's project is as under :-
On inspection of the premises by the person authorized by the
undersigned, it is certified that the building is fit for occupation
as Assembly Building.
19) Thus, the Occupancy Certificate does not clarify that the
building constructed by the Petitioner is for residential or commercial use.
If the Occupancy Certificate is silent about the exact use of the building,
atleast the Architect ought to have certified that the building is constructed
for use as residential and/or commercial purpose. The Architect however
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certified that the 'Project is Residential-cum-Assembly Project'. After taking
into consideration definition of the term 'Assembly' under the relevant Act
and Rules, the tendering authority has refused to consider the experience of
the Petitioner as compliant with the tender condition of 'construction of 6
lakhs square feet built-up area of residential and/or commercial use'. The
interpretation made by the tendering authority would be final and binding
and it is not for this Court to give a different interpretation either to the
tender condition or to the certificate relied upon by the Petitioner. The law
in this regard is well settled that the interpretation of the tendering
authority about the tender conditions is final. Reference in this regard can
be made to the judgments of the Apex Court in Tata Cellular Versus. Union
of India6 and Silppi Constructions Contractors Versus. Union of India and
another7.
20) Mr. Thakker has relied upon certificate in respect of the
Petitioner's project uploaded on the RERA website to buttress his
contention that the project actually comprises of residential and
commercial use. It is an admitted position that the said document was not
produced before the tendering authority. Petitioner was given option of
producing either the Occupancy Certificate issued by the Competent
Authority or Completion Certificate issued by its own Architect. As
observed above, if there was any lack of clarity about use of the building in
Occupancy Certificate, Petitioner's Architect ought to have clarified that
the building constructed by the Petitioner is for use as residential and
commercial purposes. The Petitioner cannot now be permitted to rely upon
additional documents after completion of the tender process. We therefore
do not find any error on the part of the tendering authority in rejecting
6 (1994) 6 SCC 651
7 (2020) 16 SCC 489
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Petitioner's bid on the ground of non-meeting of the eligibility criteria
prescribed in the corrigendum.
21) Even if this Court was to conclude on the basis of additional
documents now relied upon by the Petitioner that its project is for
residential and commercial use, the Petitioner still has to cross the second
and major hurdle of having not submitted the mandatory document in the
form of Exhibit-IV. The initial tender condition did not contain any
stipulation in Annexure-I for submission of summary in the format
mentioned as Exhibit-IV. In para-6.1(vii)(e) of the tender notice, the
bidders were required to submit 'technical eligibility documents' as per
Annexure-I. In Annexure-I the bidders were required to submit either
Occupancy Certificate issued by the Competent Authority and/or
certificate issued by the project Architect. The original tender notice
contained a format in Exhibit-IV which required bidders to furnish
information for evaluation of technical eligibility criteria which was as
under :-
Sr.No. Name of the Land Area Project Cost Date of
Project Developed in (Amt. In crore) Completion of
sq.mtrs of Project
*You may add more rows for additional information. Documentary proof is to be submitted
vide technical bid in support of the aforesaid documents
22) It is the case of the tendering authority that bidders
questioned the requirement of production of Occupancy Certificate during
the pre-bid meeting on the ground that issuance of Occupancy Certificate
sometimes takes longer time and requested for consideration of
Completion Certificate issued by the Project Architect indicating built-up
area along with supporting documents issued by the Competent Authority
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to demonstrate construction of requisite built-up area. Accordingly, a
Corrigendum was issued replacing the original tender condition relating to
technical eligibility and by substituting the same with new eligibility
criteria. The Corrigendum reflected both, original criteria as well as
modified criteria. The relevant part of the Corrigendum reads thus :-
Pre-bid Query Tender Condition Proposed Reply
Technical b) The bidder should have minimum 3 b) The bidder should
Eligibility years* experience of construction of have 5 years experience
Criteria must be residential and/or commercial projects of construction of
either revoked with total of at least 6 Lakh square feet of residential and/or
or reduced to 1 built-up area as on date and as a commercial projects with
lakh square feet documentary evidence, bidder should total of at least 6 Lakh
of construction submit below: - square feet of built-up
required as on area as on date and as a
date. documentary evidence
bidder should submit
below: -
i) Occupancy Certificate issued by i)Occupancy Certificate
competent authority and bidder should (OC) issued by
submit details of project (Name, address competent authority
& built-up area) certified by COA along with related
registered architect to correlate the OC documents issued by
details competent authority
indicating built up area
specifically for which OC
is issued
and/or /or
ii) Completion Certificate issued by ii)Completion Certificate
project Architect registered with COA issued by project
(stamped & sealed alongwith copy of his Architect registered with
COA certificate), COA with built up area
specifically mentioned in
it or along with related
documents issued by
competent authority
indicating built up area.
*Bidder has to submit the
summary in the format
mentioned at Exhibit IV
(emphasis added)
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23) Thus, a new condition came to be added by way of
Corrigendum as under :-
Bidder has to submit the summary in the format mentioned at
Exhibit IV
24) The new format of Exhibit-IV appended to the corrigendum
was as under :-
EXHIBIT IV : INFORMATION FOR EVALUATION OF THE TECHNICAL
ELIGIBILITY CRITERIA
1. Experience in Similar Projects
Sr.No. Name of the Project Built up Area Project Cost Date of Completion
constructed (Amt. In of Project
(insq.Ft) Crores)
*You may add more rows for additional information. This table indicates summary of
projects submitted for consideration. However, bidder has to submit that documents
mentioned in corrigendum hereinabove. Projects mentioned in this table without the
supporting documents will not be considered for evaluation.
25) Condition No.3 below Exhibit-IV stipulated as under :-
3. The information must be submitted in the given formats. Any
information not furnished strictly in accordance with the formats
and requirements, irrelevant & non-certified documents shall not
be considered for evaluation.
26) Thus, the bidders were mandatorily required to submit the
summary in the format prescribed in Exhibit-IV. Comparison of the old
format in Exhibit-IV appended to the original tender document with the
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new format introduced vide Corrigendum would indicate that the old
format required the bidders to indicate the area of 'Land Area Developed in
sq.mtr.', whereas the new format mandated indication of 'Built up Area
constructed (in sq.ft)'. Since the tender condition required possession of
experience of construction of residential/commercial project with total
built-up area of 6 lakhs square feet, the tendering authority demanded
information of built-up area in Exhibit-IV format rather than seeking the
details of area of land developed. Petitioner has apparently submitted
Exhibit-IV in old format by ignoring the new format introduced alongwith
the Corrigendum. Mr. Thakker has submitted that it was an inadvertence
on the part of the Petitioner in submitting the requisite information in old
format of Exhibit-IV. However, this oral submission of Mr. Thakker is
contrary to the pleadings in the petition, in which the Petitioner has
claimed that it had submitted its bid in the prescribed format as per
requirement stipulated in the tender conditions. Petitioner has not pleaded
the case of inadvertence in the petition.
27) Having failed to submit Exhibit-IV as mandated in the
Corrigendum, it is urged on behalf of the Petitioner that the format in
Exhibit-IV is not a mandatory document and was merely an ancillary
document. It is contended that Exhibit-IV required mere summary of the
information which is already borne out by the Occupancy Certificate and
Architect Certificate submitted by the Petitioner. In the tender document,
Clause-2.14(c) provided that the Corrigendum issued to the tender
document shall form part of tender documents. Thus, the Corrigendum
issued by the tendering authority has also formed part of the tender
document. There is a mandatory condition in the technical eligibility
clause requiring submission of summary in the format specified in Exhibit-
IV. In Central Coalfields Ltd. (supra), the Apex Court has highlighted the
importance of submission of the documents/information in prescribed
format. It is held in paras- 51 and 52 as under :-
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51. Not only this, any decision taken by the employer in accepting or
rejecting a particular bank guarantee in a format not prescribed by it could
lead to (avoidable) litigation requiring the employer to justify the rejection
or acceptance of each bank guarantee. This is hardly conducive to a
smooth and hassle-free bidding process.
52. There is a wholesome principle that the Courts have been following for
a very long time and which was articulated in Nazir Ahmad v. King
Emperor, AIR 1936 PC 253 namely
"Where a power is given to do a certain thing in a certain way
the thing must be done in that way or not at all. Other methods
of performance are necessarily forbidden."
There is no valid reason to give up this salutary principle or not to apply it
mutatis mutandis to bid documents. This principle deserves to be applied in
contractual disputes, particularly in commercial contracts or bids leading
up to commercial contracts, where there is stiff competition. It must follow
from the application of the principle laid down in Nazir Ahmed that if the
employer prescribes a particular format of the bank guarantee to be
furnished, then a bidder ought to submit the bank guarantee in that
particular format only and not in any other format. However, as mentioned
above, there is no inflexibility in this regard and an employer could deviate
from the terms of the bid document but only within the parameters
mentioned above.
(emphasis added)
28) In West Bengal State Electricity Board (supra), it is held that
adherence to the instructions in the tender document cannot be given a go-
bye by branding it as a pedantic approach. The Apex Court has held in
para-24 as under :-
24. The controversy in this case has arisen at the threshold. It cannot be
disputed that this is an international competitive bidding which postulates
keen competition and high efficiency. The bidders have or should have
assistance of technical experts. The degree of care required in such a
bidding is greater than in ordinary local bids for small works. It is essential
to maintain the sanctity and integrity of process of tender/bid and also
award of a contract. The appellant, respondent Nos.1 to 4 and respondent
Nos.10 & 11 are all bound by the ITB which should be complied with
scrupulously. In a work of this nature and magnitude where bidders who
fulfil pre- qualification alone are invited to bid, adherence to the
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instructions cannot be given a go-bye by branding it as a pedantic approach
otherwise it will encourage and provide scope for discrimination,
arbitrariness and favouritism which are totally opposed to the Rule of law
and our Constitutional values. The very purpose of issuing
Rules/instructions is to ensure their enforcement lest the Rule of law
should be a causality. Relaxation or waiver of a rule or condition, unless so
provided under ITB, by the State or its agencies (the appellant) in favour of
one bidder would create justifiable doubts in the minds of other bidders,
would impair the rule of transparency and fairness and provide room for
manipulation to suit the whims of the State agencies in picking and
choosing a bidder for awarding contracts as in the case of distributing
bounty or charity. In our view such approach should always be avoided.
Where power to relax or waive a rule or a condition exists under the Rules,
it has to be done strictly in compliance with the Rules. We have, therefore,
no hesitation in concluding that adherence to ITB or Rules is the best
principle to be followed, which is also in the best public interest.
29) The contention raised on behalf of the Petitioner that the
format in Exhibit-IV is not a mandatory document does not appeal to us.
The tender condition indicated mandatory condition of experience of
construction of residential and/or commercial project of atleast 6 lakhs
square feet built-up area. Exhibit-IV required the bidders to indicate the
exact built-up area in respect of each of the projects relied upon by them.
The format required the bidders to indicate the figures of constructed area
of each project so as to present ready information to the evaluation
committee to adjudge eligibility of the bidders. The Evaluation Committee
was not supposed to go through the details of each and every document
relied upon by the bidders and then scout for the relevant information
related about built-up area of the projects. In any case, the condition of
submission of summary in Exhibit-IV was included in the stipulation
relating to 'technical criteria'. It was introduced as a new condition by way
of Corrigendum. The Petitioner therefore ought to have noticed the said
condition and ought to have submitted the information in Exhibit-IV
alongwith its bid. Petitioner's contention that Exhibit-IV is not a
mandatory document or is an ancillary document cannot be accepted as
the same contained information relating to built-up area of the Project for
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the purpose of evaluating experience of the bidders. Reliance on the
judgment in the case of Poddar Steel Corporation (supra) and Shalby
Limited (supra) is therefore inapposite.
30) Faced with the situation that Exhibit-IV is a mandatory
document stipulated in the eligibility criteria, Petitioner who initially
pleaded in the petition that he had submitted the bid in the prescribed
format, has improved upon his case in the rejoinder by contending as
under :-
b. Respondent Nos.1 & 2 have modified the tender requirements
through a corrigendum that was neither properly uploaded nor
made accessible on the Maharashtra E-procurement Portal at the
time of the Petitioner's bid submission.
31) The Petitioner has taken a belated defence in the rejoinder
that the Corrigendum was not properly uploaded and was not accessible on
the portal at the time of the bid submission. This improvised defence is
proved fallacious as the Petitioner conveniently took note of the
Corrigendum in respect of extension of last date to submit the bids from 5
November 2024 to 18 November 2024 and submitted its bid on the
extended date of 18 November 2024. It is therefore impossible to believe
that the Corrigendum was not properly uploaded on the E-portal or was
not accessible to the bidders as falsely contended in the rejoinder. Having
raised false plea in the rejoinder, Petitioner would be disentitled to invoke
discretionary jurisdiction of this Court under Article 226 of the
Constitution of India.
32) We are therefore of the view that Petitioner did not submit
mandatory document in prescribed format of Exhibit-IV and has rightly
been disqualified by the tendering authority.
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33) Coming to the aspect of Petitioner questioning the eligibility
of Respondent No.3, once Petitioner itself is found technically disqualified,
the issue of eligibility of other bidders becomes academic. Mr. Thakker has
however relied upon judgment of the Apex Court in Banshidhar
Construction Pvt. Limited (supra) in support of his contention that even
though Petitioner is declared ineligible, it is entitled to question the
eligibility of Respondent No.3. Reliance is placed on the findings recorded
by the Apex Court in para-22 of the judgment which read thus :-
22. When the technical bid of the appellant was rejected by the
respondents on 6-5-2024 on the ground that it did not comply with
Clause 10 of NIT, namely Part I/Cover I Other Important Documents
(OID) Point 02 Appendix II (power of attorney for signing of bid), there
was no justification on the part of respondent authorities for accepting
the technical bid of Respondent 8, which clearly was not in compliance
with the same mandatory Clause 10 of NIT. The respondent BCCL has
miserably failed to justify as to how the technical bid of Respondent 8
was accepted when it had not submitted the requisite important
documents related to the qualification criteria as mentioned in Clause 10
of NIT.
34) In our view, the judgment of the Apex Court in Banshidhar
Construction Pvt. Ltd. cannot be relied upon in support of absolute
proposition that in every case where the Petitioner's disqualification is
upheld, the Court must hold an enquiry into eligibility of the successful
bidder. The judgment in Banshidhar Construction Pvt. Ltd. is rendered in
the unique facts of that case. The Appellant therein had questioned award
of contract to Respondent No.8 therein on the ground that Respondent
No.8 did not possess the necessary qualification criteria prescribed in
Clause-10 of the NIT. Respondent No.8 had failed to submit scanned
copies of annual audit reports for three financial years, which was the
mandatory requirement of the NIT. It was also found that the bid of the
Appellant therein was rejected on the ground of non-compliance with
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Clause-10 of the NIT on account of failure to submit other important
documents like Power of Attorney. The Apex Court held that a
discriminating treatment was given to the Appellant as the bid of
Respondent No.8 was accepted though he had failed to comply with the
submission of mandatory documents alongwith its bid. In our view, the
judgment in Banshidhar Construction Pvt. Ltd. rendered in the peculiar
facts of that case would not assist the case of the Petitioner.
35) However, even if the aspect of impermissibility for Petitioner
to raise the issue of eligibility of Respondent No. 3 is to be momentarily
ignored, we are unable to trace any element of arbitrariness, irrationality or
perversity in the tendering authority adjudging Respondent No.3 as
technically qualified. Petitioner has sought to create an element of
suspicion on eligibility of Respondent No.3 contending that the Project-
Kukreja Infinity East was incomplete but Respondent No.3 misrepresented
to the tendering authority as if the project was complete. It is the
contention of the Petitioner that the project-M/s. Kukreja Infinity East was
constructed only upto ground and podium floor with built-up area of
12,000 sq.ft., whereas Respondent No.3 misrepresented before the
tendering authority that the entire construction admeasuring 1,92,914.598
sq.ft. was complete and that the date of completion of project was 18 June
2023. Petitioner has also relied upon part Occupancy Certificate issued by
Nagpur Municipal Corporation on 21 September 2023, as well as
Certificate of the Architect uploaded on the RERA website to demonstrate
non-completion of the project. However, the relevant eligibility condition
required possession of experience of construction of residential and/or
commercial projects with total of atleast 6 lakhs square feet built-up area
'as on date' of submission of bids. The tendering condition required
production of either Occupancy Certificate or Completion Certificate
issued by the Project Architect. The bid was submitted by Respondent
No.3 in November 2024 and therefore Respondent No.3 was entitled to
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rely upon the entire construction carried upto the date of submission of the
bid. The Occupancy Certificate relied upon by the Petitioner was issued by
the Planning Authority-Nagpur Municipal Corporation on 21 September
2023 by which time construction only upto ground and podium floors was
complete. The Petitioner's Architect has however certified that
construction admeasuring 1,92,914.598 sq.ft. was completed upto
November 2024. Petitioner has relied on status of the project on RERA
website uploaded in 2023 by ignoring the position that by November 2024,
100% work of slabs of super structure was apparently complete. We are
therefore unable to accept the contention of the Petitioner that Respondent
No.3 either did not possess the requisite eligibility criteria or
misrepresented before the tendering authority in any manner.
36) Petitioner has contended that its bid was the highest and that
therefore the tender ought to have been awarded to it. However, since
Petitioner is found to be technically disqualified, no occasion arose for the
tendering authority to examine its financial bid. It is well settled law that
the comparison of financial bids can be made only if the bidders satisfy the
tender eligibility criteria. In W.B. State Electricity Board (supra) the Apex
Court has held as under :-
31. The submission that remains to be considered is that as the price bid of
Respondents 1 to 4 is lesser by 40 crores and 80 crores than that of Respondents
11 and 10 respectively, public interest demands that the bid of Respondents 1 to 4
should be considered. The Project undertaken by the appellant is undoubtedly for
the benefit of the public. The mode of execution of the work of the Project
should also ensure that the public interest is best served. Tenders are invited on
the basis of competitive bidding for execution of the work of the Project as it
serves dual purposes. On the one hand it offers a fair opportunity to all those
who are interested in competing for the contract relating to execution of the work
and, on the other hand it affords the appellant a choice to select the best of the
competitors on a competitive price without prejudice to the quality of the work.
Above all, it eliminates favouritism and discrimination in awarding public works
to contractors. The contract is, therefore, awarded normally to the lowest
tenderer which is in public interest. The principle of awarding contract to the
lowest tenderer applies when all things are equal. It is equally in public interest to
adhere to the rules and conditions subject to which bids are invited. Merely
because a bid is the lowest the requirements of compliance with the rules and
conditions cannot be ignored. It is obvious that the bid of Respondents 1 to 4 is
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the lowest of bids offered. As the bid documents of Respondents 1 to 4 stand
without correction there will be inherent inconsistency between the particulars
given in the annexure and the total bid amount, it (sic they) cannot be directed to
be considered along with the other bids on the sole ground of being the lowest.
(emphasis added)
Therefore the contention that the Plot must be allotted to the Petitioner on
account of its bid being the highest, by ignoring its technical
disqualification, deserves rejection.
37) Considering the overall conspectus of the case, we are of the
view that Petitioner is unable to demonstrate any element of arbitrariness,
irrationality or perversity in the actions of the tendering authority in
implementing the impugned tender process. Therefore, there is no warrant
for interference at the instance of the Petitioner who is found to have raised
a false defence in rejoinder disentitling it from invoking discretionary
jurisdiction of this Court under Article 226 of the Constitution of India.
The petition is otherwise devoid of merits. The petition accordingly fails. It
is accordingly dismissed. Rule is discharged. There shall be no orders as to
costs.
[SANDEEP V. MARNE, J.] [CHIEF JUSTICE]
26 June 2025
