Bombay High Court
Sm Motor And Construction, Thr. ... vs State Of Maharashtra, Thr. Principal ... on 5 May, 2025
Author: Avinash G. Gharote
Bench: Avinash G. Gharote
2025:BHC-NAG:4615-DB
1 WP6429.24.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 6429 OF 2024
SM Motor & Construction,
through it's Proprietor
Mohammad Aasim Ansari,
Aged about 29 years, Occ.-Business,
R/o Gulmohar Park, Yavatmal. .... PETITIONER
VERSUS
1) State of Maharashtra,
through its Principal Secretary,
Revenue and Forest Department,
Mantralaya, Mumbai - 32.
2) Collector, Yavatmal,
Collector Office, Yavatmal.
3) District Mining Officer,
Collector Office, Yavatmal.
4) Gayatri Traders,
through it's Proprietor-
Prashant Krushnarao Dagwar,
Occupation - Business,
Aged about 40 years,
R/o Donadkar Layout, Near Tirupati
Society, Pimpalgaon, Yavatmal. .... RESPONDENTS
________________________________________________________________
Mr. S.O. Ahmed, Counsel for the petitioner,
Mr. D.V. Chauhan, Senior Counsel & Government Pleader with Mr. N.S.
Rao, Assistant Government Pleader for respondent Nos. 1 to 3,
Mr. V.D. Darne, Counsel for respondent No.4.
________________________________________________________________
CORAM : AVINASH G. GHAROTE &
ABHAY J. MANTRI, JJ.
DATE : 05-05-2025
JUDGMENT :
(Per : ABHAY J. MANTRI, J.)
Heard. RULE. Heard finally with the consent of the learned
Counsel for the parties.
2 WP6429.24.odt
2. The petition questions the order dated 30-09-2024 passed by
respondent No.2-Collector, Yavatmal, whereby he issued Letter of Intent
(LOI) in favour of respondent No.4 for excavation, transportation of silty
sand of the river bed of Mouza Kotha, Tahsil Kalamb, District Yavatmal to
the sand depot and construction and management of the sand depot,
which is contended to be in violation of the Government Resolution dated
16-02-2024. Hence, the petitioner has preferred this petition.
3. FACTUAL MATRIX :
(a) The petitioner is involved in excavation, transportation of the
silty sand to the depot and construction and management of the depot. On
19-04-2023, respondent No.1 had issued a Government Resolution (for
short, 'G.R. dated 19.04.2023') for the issuance of e-Tender regarding the
excavation of the silty sand from the river bed, its transportation to the
depot and construction and management of the sand depot, for the sand
ghats in the entire State of Maharashtra. The purchase price of one ton of
silty sand was fixed to be Rs. 133/- per ton (Rs. 600/- per brass). The
Government had decided to sell the same to the purchasers at the price
incurred for excavating the said sand and transporting it to the sand depot
on a 'no profit and no loss' basis. The G.R. dated 19-04-2023 was revised
and superseded by the Government Resolution dated 16-02-2024 (for
short, 'G.R. dated 16.02.2024'), and the terms and conditions were
modified.
3 WP6429.24.odt
(b) Pursuant to the G.R. dated 16-02-2024, respondent No.2-
Collector, Yavatmal, had issued e-Tender notice for the year 2023-2024 for
excavation of silty sand from the place in the river bed of Mouza Kotha,
Tahsil Kalamb, District Yavatmal, its transportation to the depot and
construction and management of the depot having Tender I.D.
No.2024_YAVML_989542_1. The said e-Tender notice was published on
23-01-2024. In view of the advertisement, the bids were submitted by
several persons/companies, of which five were qualified for the financial
bid. The petitioner was not qualified among the said five persons/
companies. One Saikrupa Enterprises was declared L-1, which quoted the
lowest bid of Rs.0.45/- per ton, and respondent No.4 was declared L-3,
which quoted a bid of Rs.1/- per ton. However, the said bid was cancelled
on 20-02-2024 on the grounds that the bid price quoted by the lowest
bidder was unrealistic.
(c) Similarly, the e-Tender was published for Mouza Manakpur,
Tahsil Kalamb, District Yavatmal. Three companies were qualified in the
financial bid. In the said bid, neither the petitioner nor respondent No.4
was qualified. Saikrupa Enterprises was declared L-1, which quoted the
lowest bid of Rs.0.90/- per ton, and the other two bidders quoted Rs.1/-
per ton. On 20-02-2024, the said bid was also cancelled on the same
ground.
(d) Thereafter, respondent No.2-Collector, Yavatmal floated a
new tender notice for Mouza Kotha, by publishing the second e-Tender on
4 WP6429.24.odt
29-02-2024 for the year 2023-2024. As per the said advertisement, the
schedule for publishing e-Tender, pre-meeting, deposit of the amount
online and the last date of acceptance of the e-Tender and opening of it
was given as under :
v-dz- Rkif'ky rkjh[k o osG
1- ई&निविदा प्रसिध्द दिनांक दिनांक 12-3-2024
2- ई&निविदा पुर्व बैठक दिनांक 13-3-2024
3- ई&निविदा रक्कम ऑनलाईन जमा करणे दिनांक 26-03-2024 दुपारी 01-00
वाजेपर्यंत
4- ई&निविदा स्विकारण्याचा अंतिम दिनांक दिनांक 26-03-2024 दुपारी 01-00
वाजेपर्यंत
5- ई&निविदा उघडण्याचा दिनांक दिनांक 27-03-2024 दुपारी 01-00
वाजेपर्यंत
The terms and conditions/guidelines for the bidders of the e-Tender
process regarding the e-Tender notice were also available along with the
advertisement. Pursuant to the said second e-Tender notice, several
persons/companies submitted the bids. Out of them, five persons/
companies were qualified (Page 228) in the financial bid as under :
S.No. Bid Number Bidder Name Submitted Status Remarks Status Up-
Date dated on
1. 5881655 Gayatri Traders 26-Mar-2024 Accepted-AOC L1 30-Sep-
12:33 PM 2024
06:23 PM
2. 5880232 Pravin Mude 26-Mar-2024 Rejected-Tech- Reject 14-Jun-
12:36 PM nical 2024
02:14 PM
3 5880056 PRITHVI BUILD- 26-Mar-2024 Rejected-Finance L2 30-Sep.
ING MATERIAL 11:24 PM 2024
SUPPLIERS 06:22 PM
5 WP6429.24.odt
4. 5880607 SM MOTOR & 26-Mar-2024 Rejected-Finance L3 30-Sep.
CONSTRUCTION 12:37 PM 2024
3. Additional 06:22 PM
trade names, if
any, are null
4 Constitution of
Business Propriet-
orship
5. Address of Prin-
cipal Place of
Business
5. 5879990 SUMIT BUILDING 26-MAR- Rejected-Finance L4 30-Sep-
MATERIAL SUP- 2024 12:59 2024
PLIER AND PM 06:22 PM
TRANSPORT
Respondent No.4 was declared L-1, who quoted the bid price of
Rs.0.999/- paisa per ton. One Prithvi Building Material Supplier was
declared as L-2, who quoted the bid price of Rs.1/- per ton, and the
petitioner was declared as L-3, who quoted the bid price of Rs.1.42/- per
ton; hence, their financial bid was rejected. Respondent No.4 was
declared as L-1 and accordingly, LOI was issued in its favour on
30-09-2024. Aggrieved by the said order, the petitioner has preferred this
writ petition.
4. We have heard the respective parties at length and gone through
the impugned order, terms and conditions of the e-Tender notice, G.R.
dated 16-02-2024, and the decisions relied upon by the respective parties.
We have also gone through the record.
6 WP6429.24.odt
5. The crucial question that falls for our consideration is :-
"Whether the grant of tender for excavation, transportation
of silty sand of the river bed of Mouza Kotha, Tahsil
Kalamb, District Yavatmal to the sand depot and
construction and material of the sand depot in favour of
respondent No.4 was issued in violation of the mandate of
the G. R. dated 16-02-2024 and terms and conditions of
the e-Tender notice."
While dealing with the controversy between the parties, we would
like to reproduce the law laid down by the Hon'ble Apex Court in
paragraph Nos. 48 to 54 of the decision in Tata Motors Limited V. Brihan
Mumbai Electric Supply & Transport Undertaking (BEST) and Others, 2023
SCC OnLine SC 671, as under :
"48. This Court, being the guardian of fundamental rights, is duty-
bound to interfere when there is arbitrariness, irrationality, mala fides
and bias. However, this Court has cautioned time and again that
courts should exercise a lot of restraint while exercising their powers
of judicial review in contractual or commercial matters. This Court is
normally loath to interfere in contractual matters unless a clear-cut
case of arbitrariness, mala fides, bias, or irrationality is made out.
One must remember that today, many public sector undertakings
compete with the private industry. The contracts entered into
between private parties are not subject to scrutiny under writ
jurisdiction. No doubt, the bodies which are State within the meaning
of Article 12 of the Constitution are bound to act fairly and are
amenable to the writ jurisdiction of superior courts, but this
discretionary power must be exercised with a great deal of restraint
and caution. The courts must realise their limitations and the havoc
which needless interference in commercial matters can cause. In
contracts involving technical issues, the courts should be even more
reluctant because most of us in Judges' robes do not have the
necessary expertise to adjudicate upon technical issues beyond our
domain. The courts should not use a magnifying glass while scanning
the tenders and make every small mistake appear like a big blunder.
7 WP6429.24.odt
In fact, the courts must give "fair play in the joints" to the
government and public sector undertakings in matters of contract.
Courts must also not interfere where such interference will cause
unnecessary loss to the public exchequer. (See: Silppi Constructions
Contractors v. Union of India, (2020) 16 SCC 489)
49. It is not in dispute that the first and the foremost requirement
of the Tender was the prescribed operating range of the single-decker
buses, which would operate for around an average of 200 Kms in a
single charge in "actual conditions" with 80% Soc without any
interruption. Then, the materials on record would indicate that TATA
Motors, in its bid, deviated from this requirement and had informed
BEST that it could carry the operating range in the "standard test
conditions", which was not in accordance with the Tender conditions.
The High Court has rightly observed in its impugned judgment that
the bid of TATA Motors failed to comply with the said clause. TATA
Motors deviated from the material and essential terms of the Tender.
It may not be out of place to state at this stage that it is only TATA
Motors who deviated from the condition referred to above. However,
we are of the view that the High Court, having once declared TATA
Motors as "non-responsive" and having stood disqualified from the
Tender process, should not have entered into the fray of investigating
the decision of BEST to declare EVEY as the eligible bidder. We are
saying so because the High Court was not exercising its writ
jurisdiction in the public interest. The High Court looked into a
petition filed by a party trying to assert its own rights. As held by this
Court in Raunaq International Ltd. (supra), the grant of judicial relief
at the instance of a party that does not fulfil the requisite criteria is
something that could be termed as misplaced. In Raunaq
International Ltd. (supra), this Court observed as under:
"27. In the present case, however, the relaxation was
permissible under the terms of the tender. The relaxation which
the Board has granted to M/s Raunaq International Ltd. is on
valid principles, looking to the expertise of the tenderer and his
past experience, although it does not exactly tally with the
prescribed criteria. What is more relevant, M/s I.V.R.
Construction Ltd. who have challenged this award of tender
themselves do not fulfil the requisite criteria. They do not
possess the prescribed experience qualification. Therefore, any
judicial relief at the instance of a party which does not fulfil the
requisite criteria seems to be misplaced. Even if the criteria can
be relaxed both for M/s Raunaq International Ltd. and M/s
I.V.R. Construction Ltd., it is clear that the offer of M/s Raunaq
International Ltd. is lower, and it is on this ground that the
Board has accepted the offer of M/s Raunaq International Ltd.
We fail to see how the award of tender can be stayed at the
instance of a party which does not fulfil the requisite criteria
itself and whose offer is higher than the offer which has been
accepted. It is also obvious that by stopping the performance of
the contract so awarded, there is a major detriment to the
public because the construction of two thermal power units,
each of 210 MW, is held up on account of this dispute.
8 WP6429.24.odt
Shortages of power have become notorious. They also seriously
affect industrial development and the resulting job
opportunities for a large number of people. In the present case,
there is no overwhelming public interest in stopping the project.
There is no allegation whatsoever of any mala fides or collateral
reasons for granting the contract to M/s. Raunaq International
Ltd." (Emphasis supplied)
50. We take notice of the fact that Annexure Y was originally
required to be submitted by the "Successful Bidder" after the
evaluation of the bid and the same did not figure in the list of
documents and annexures to be included in the technical
submissions, as provided under Clause 5.1.1 of Schedule II of the
Tender. Further, the format provided for Annexure Y in the Tender
documents in its heading states that the "Successful Bidders shall
upload a Letter of Undertaking on their letter head as below".
Therefore, we are of the view that the restriction on revision of
documents under Clause 16 of Schedule I, which states, "No
addition/correction, submission of documents will be allowed after
opening of technical bid," is only limited to the documents necessary
to be included in the technical bid and would not be applicable to any
such document which does not form a part of the technical bid.
51. We are of the view that the High Court should have been a bit
slow and circumspect in reversing the action of BEST permitting
EVEY to submit a revised Annexure Y. We are of the view that the
BEST committed no error or cannot be held guilty of favoritism, etc.
in allowing EVEY to submit a revised Annexure Y as the earlier one
was incorrect on account of a clerical error. This exercise itself was
not sufficient to declare the entire bid offered by EVEY as unlawful or
illegal.
52. Ordinarily, a writ court should refrain itself from imposing its
decision over the decision of the employer as to whether or not to
accept the bid of a tenderer unless something very gross or palpable
is pointed out. The court ordinarily should not interfere in matters
relating to tender or contract. To set at naught the entire tender
process at the stage when the contract is well underway, would not be
in public interest. Initiating a fresh tender process at this stage may
consume a lot of time and also result in a loss to the public exchequer
to the tune of crores of rupees. The financial burden/implications on
the public exchequer that the State may have to meet with if the
Court directs issue of a fresh tender notice, should be one of the
guiding factors that the Court should keep in mind. This is evident
from a three-judge Bench decision of this Court in Association of
Registration Plates v. Union of India and Others, reported in (2005) 1
SCC 679.
53. The law relating to the award of contracts by the State and
public sector corporations was reviewed in Air India Ltd. v. Cochin
International Airport Ltd., reported in (2000) 2 SCC 617. It was held
that the award of a contract, whether by a private party or by a State,
is essentially a commercial transaction. It can choose its own method
9 WP6429.24.odt
to arrive at a decision, and it is free to grant any relaxation for bona
fide reasons if the tender conditions permit such a relaxation. It was
further held that the State, its corporations, instrumentalities, and
agencies have the public duty to be fair to all concerned. Even when
some defect is found in the decision-making process, the court must
exercise its discretionary powers under Article 226 with great caution
and should exercise it only in furtherance of public interest and not
merely on the making out of a legal point. The court should always
keep the larger public interest in mind in order to decide whether its
intervention is called for or not. Only when it comes to a conclusion
that overwhelming public interest requires interference, the court
should interfere.
54. As observed by this Court in Jagdish Mandal v. State of Orissa
and Others, reported in (2007) 14 SCC 517, while invoking the
power of judicial review in matters as to tenders or award of
contracts, certain special features should be borne in mind that
evaluations of tenders and awarding of contracts are essentially
commercial functions and principles of equity and natural justice stay
at a distance in such matters. If the decision relating to the award of
the contract is bona fide and is in the public interest, courts will not
interfere by exercising powers of judicial review even if a procedural
aberration or error in assessment or prejudice to a tenderer is made
out. Power of judicial review will not be invoked to protect private
interest at the cost of public interest, or to decide contractual
disputes."
6. Similarly, in Subodh Kumar Singh Rathour V. Chief Executive Officer
and others, 2024 SCC OnLine Sc 1682 , the Three Judge Bench of the
Hon'ble Apex Court, after considering the various decisions of the Apex
Court, has held that :
"Where the State action is challenged on the ground of being
arbitrary, unfair or unreasonable, the State would be under
an obligation to comply with the basic requirements of
Article 14 of the Constitution and not act in an arbitrary,
unfair and unreasonable manner. This is the constitutional
limit of their authority. There is a jural postulate of good
faith in business relations and undertakings which is given
effect to by preventing arbitrary exercise of powers by the
public functionaries in contractual matters with private
individuals. Therefore, writ is maintainable against the order
of cancellation of the tender if the same is found to be
arbitrary. In view of the above settled position of law, it
10 WP6429.24.odt
would be appropriate to scrutinise the facts of the case at
hand to determine the controversy between the parties."
(Emphasis supplied)
SUBMISSION ON BEHALF OF THE PETITIONER :
7. Mr. S.O. Ahmed, learned Counsel for the petitioner, submitted that
passing of the impugned order by respondent No.2-Collector, Yavatmal
thereby granting tender for excavation, transportation of silty sand of the
river bed of Mouza Kotha in favour of respondent No.4 is illegal and
arbitrary to the terms and conditions of the tender notice. He drew our
attention to the e-Tender proceedings conducted at Mouza Kotha as well
as Mouza Manakpur, which were cancelled on the ground that the bid
price quoted by the lowest bidder was unrealistic. He further harped on
Clause 8 of the Tender Process in Chapter 3 (Page 71) and submitted that,
as per said clause, 'the LOI has to be issued within a period of two days
from the opening of the financial bid' . However, in the case at hand, the
financial bid was opened on 14-06-2024, and the LOI was issued on
25-09-2024, i.e. contrary to Clause 8 of the Government Resolution; and
the tendering authority failed to explain the delay, therefore, on that
ground alone, the tender has to be cancelled. He drew our attention to
Clause 8 of the said Government Resolution.
SUBMISSION ON BEHALF OF THE RESPONDENTS :
8. Mr. N.S. Rao, learned Assistant Government Pleader for
respondents No.1 to 3 and Mr. V.D. Darne, learned Counsel for respondent
11 WP6429.24.odt
No.4, vehemently submitted that Clause 8 of the Government Resolution
is not mandatory in nature to issue the LOI within two days. The said
condition is general. Therefore, it would not be proper to say that non-
compliance with the said condition would be liable to terminate the
tender notice. The learned Assistant Government Pleader argued that it is
not disputed that as per Clause 8, the LOI needs to be issued within two
days to the successful bidder, however, respondent No.4, who was the
lowest bidder, has quoted bid price of Rs.0.999 paisa per ton and
considering the expenses which will be incurred for excavation of silty
sand for the river bed, its transportation to the depot and construction and
management of the sand depot, respondent No.2 by communication dated
01-07-2024 sought the guidance in the matter of Mouza Kotha sand depot
auction from respondent No.1. Respondent No.1 by communication dated
22-08-2024 informed to respondent No.2 to a take decision on his behalf
in term and conditions of the G. R. dated 16-02-2024. Thereafter,
respondent No.2-Collector called the District Level Sand Monitoring
Committee meeting on 30-08-2024. In the meeting, they unanimously
decided to allot the tender to respondent No.4, and accordingly, the LOI
was issued in favour of respondent No.4 on 25-09-2024. Hence, it cannot
be said that the respondents have violated Clause 8 of the G.R.
9. While determining the said controversy, it would be proper to
reproduce Clause 8 of the G. R. dated 16-02-2024 as under :
12 WP6429.24.odt
"8½ lnj ;'kLoh cksyh/kkjdkl 02 fnolkaps vkr ftYgkf/kdkjh ;kaP;k
dk;kZy;kdMwu bjknk i= (LOI) ns.;kph dk;Zokgh dj.;kr ;koh-"
A bare perusal of the title of Chapter 3 of the G.R dated 16.02.2024
regarding the tender process reveals that the said chapter is titled as
'General Guidelines' for the tender process. The title itself indicates that
those are the "general guidelines regarding the tender process. Therefore,
it cannot be construed as a mandatory condition. Thus, considering the
purpose and intent of Chapter 3 of the G.R. dated 16-02-2024, it would
mean that Clause No.8 is nothing but a general guideline to follow while
implementing the tender process. Therefore, we do not find substance in
the argument of the petitioner regarding the fact that respondent No.2 has
violated the condition incorporated in Clause No.8 of the G.R. dated
16-02-2024.
10. Mr. S.O. Ahmed, learned Counsel for the petitioner, further drew
our attention to Clause/Condition No.6 of the general guideline/term and
conditions of tender notice and emphasised that respondent No.4 failed to
satisfy the said condition in its proper perspective as at the time of
technical bid, he had not submitted/uploaded the document that he had
possessed 'water tanker' and thereby violated Condition No.6 of the said
guideline. However, respondent No.2 has not considered the said fact and
granted LOI in favour of respondent No.4 contrary to said Clause No.6.
Therefore, he submitted that the tender bid is liable to be cancelled on
13 WP6429.24.odt
that ground. In support of his contentions, he has relied on the decisions
in Jai Bholenath Construction V. Chief Executive Officer, Zilla Parishad,
Nanded and Ors., AIR Online 2022 SC 867 and M/s. Monarch Infrastructure
(P) Ltd. V. Commissioner, Ulhasnagar Municipal Corporation and others,
2000 AIR SC 2272.
11. On the other hand, Mr. N.S. Rao, learned Assistant Government
Pleader for respondent Nos. 1 to 3 and Mr. V.D. Darne, learned Counsel for
respondent No.4, have submitted that said Clause No.6 was substantially
complied by respondent No.4, but only the document in respect of 'water
tank' was not uploaded on the website, which was subsequently adhered
to it. Hence, the respondent tendering authority has rightly considered the
said fact and, within its discretion, granted the tender in favour of
respondent No.4, therefore, it cannot be said that the tender bid is liable
to be cancelled.
12. While dealing with the issue in dispute, it would be proper to
reproduce Clause 6 of the said guidelines, as under :
"6- व्यक्ती किं वा संस्था यांच्या मालकीचा ट्रॅक्टर] 6 टायराचे टिप्पर] पाण्याचे टँकर]
भराईयंत्र ¼ लोडर ½ इत्यादी वाहनाचे आर-सी-बुक- फिटनेस प्रमाणपत्र ¼ संबंधित सक्षम
अधिका&याने दिलेले साक्षांकीत प्रत ½ व विमा] प्रपत्र&4 नुसार कागदपत्रे-
fdaok
व्यक्ती किं वा संस्था यांनी निविदा प्राप्त झाल्यास व्यक्ती @ संस्था यांनी भाडेतत्वावर
ट्रॅक्टर] 6 टायराचे टिप्पर] पाण्याचे टँकर] भराईयंत्र ¼ लोडर ½ व इतर वाहने
घेण्याकरीता के लेला करारनामा ¼100½ रूपयाचा स्टॅम्प पेपरवर नोटराईज्ड के लेला½] तसेच
वाहनाबाबतचे आर-सी-वुक- फिटनेस प्रमाणपत्र ¼ संबंधित सक्षम अधिका&याने दिलेले
साक्षांकीत प्रत ½ व विमा] प्रपत्र&4 नुसार कागदपत्रे-"
14 WP6429.24.odt
13. Similarly, we would like to reproduce terms and conditions Nos.
1(a), 3, 5 and 12 of Tender document, as under :
^1½ अ ½ गाळ व गाळमिश्रीत वाळूचे उत्खनन] उत्खननानंतर गाळ व गाळमिश्रीत
वाळूची डेपोपर्यंत वाहतूक याबाबत अटी व शर्ती %
1- -------
2- -------
3- नदीपात्रापासून डेपोपर्यंत वाहतूक ट्रॅक्टरद्वारे अथवा कमाल 6
टायरच्या ¼ टिप्पर ½ वाहना मार्फ त करणे बंधनकारक राहील-
4- -------
5- नदीपात्र ते डेपोपर्यंत वाहतूक करणा&या ट्रॅक्टर व 6 टायरच्या
टिपरची संख्यां व त्यांचे क्रमांक नोंदणी करुन घेण्यात यावे- या वाहनाव्यतिरिक्त
इतर वाहनांद्वारे वाळू वाहतूक के ल्याचे आढळून आल्यास अशी वाळू वाहतूक अवैध
समजून संबंधित निविदाधारक@कं त्राटधारकांवर नियमानुसार दंडात्मक कारवाई व
पुढील कारवाई करण्यात
येईल-
6 rs 11 ------
12- अवैध उत्खनन व वाहतूक कारवाई मध्ये जप्त के लेली वाळू@रेती]
त्याच्या नजीक वाळू डेपोमध्ये निविदाधारकाकडे नांS द असलेल्या ट्रॅक्टर अथवा
कमाल 6 टायरच्या ¼ टिप्पर ½ ज्याच्या दर्शनी भागास पिवळा रंग दिलेला आहे अशा
वाहनातून नजीकच्या वाळू डेपोमध्ये वाहतूक करून साठवणूक करण्यात येईल व
त्याची नोंद महाखनिज प्रणालीवर घेण्यात येईल- जप्त के लेल्या वाळू@रेतीची वाळू
डेपोपर्यंतच्या वाहतूकीसाठी निविदाधारकास रक्कम अनुज्ञेय असणार नाही-*
14. A bare perusal of Clause Nos. 3, 5, and 12 would indicate that the
presence of equipment such as a tractor and a 6-tyre tipper is necessary to
execute the tender work. The 'water tanker' is mentioned as ancillary
equipment. He submitted the document about the tractor, which was
uploaded, but only the document regarding the water tanker, i.e., the
equipment attached to the back of a tractor, was not uploaded. However,
before issuance of the LOI, he submitted the document to the tendering
authority.
15 WP6429.24.odt
15. We would like to reproduce Clause No.3 of Chapter 3 of G.R. dated
16.02.2024 as under :
"3½ प्रस्तावित निविदासंदर्भात काही तक्रारी / आक्षेप / सूचना प्राप्त झाल्यास
जिल्हाधिकारी/ अपर जिल्हाधिकारी व संयुक्त वाळूगटाच्या बाबतीत विभागीय आयुक्त
यांनी त्याची तपासणी / चौकशी करावी व चौकशीच्या अनुषंगाने संबंधित वाळूगटाच्या
निविदेच्या प्रक्रियेबाबत योग्य तो निर्णय घेतील."
A bare perusal of the said clause indicates that respondent No.2, the
tendering authority, was empowered to take an appropriate decision
concerning any objection or grievance raised before them. The said clause
itself shows that the tendering authority has the discretion to consider the
fact of non-uploading the documents in respect of the 'water tanker' by
respondent No.4 to permit it to submit the documents in respect of the
trolley later on.
16. Apart from this, the tender condition will have to be interpreted in
the background of the tender work and looked into their entirety, whether
for excavation and transporting the sand from the river bed to the sand
depot, or to construction and management of the sand depot, whether a
water tanker is required or not. In our opinion, the answer to the query is
negative; in such an event, not uploading the document with respect to
the 'water tanker' would not hamper the excavation work of sand. Thus,
in our view, the requirement of water tanker equipment is an optional one
and not mandatory. Moreover, the tendering authority is competent to
take a decision in respect of the execution of the tender work in its proper
16 WP6429.24.odt
perspective and, therefore, the non-uploading of the document by
respondent No.4 would not affect the entire tender process, which was
issued for the second time. Consequently, we disagree with the argument
made by the learned Counsel for the petitioner regarding the fact that
respondent No.4 failed to satisfy Clause No.6 of the terms and conditions
of the tender notice.
17. In Jai Bholenath Construction (supra), the appellant therein was
found to be the lowest bidder, but the LOI was not issued to it, and
respondent No.4 therein was excluded from the process and was declared
ineligible for non-compliance with the document. However, the bid of
respondent No.4 was subsequently accepted, which was challenged by the
appellant on the grounds of arbitrary exercise of power by the tendering
authority. The civil appeal was disposed of based on the corrigendum
dated 24-11-2021. However, the facts in the case at hand are distinct from
the said case; therefore, what has been held in the said case is not
applicable in the present case.
18. In M/s. Monarch Infrastructure (P) Ltd. (supra), the successful
bidder, had not fulfilled the condition relating to Clause No.6 of the
tender notice therein. Therefore, the High Court had set aside the award
of the contract in favour of the petitioner therein, which the petitioner
challenged before the Hon'ble Apex Court. The Hon'ble Apex Court has
17 WP6429.24.odt
confirmed the order passed by the High Court. However, in the case in
hand, the petitioner failed to demonstrate that respondent No.4 has been
unable to fulfil the mandatory condition of the Government Resolution or
terms and conditions of the tender notice, and, therefore, the dictum laid
down in the above decision is not helpful for the petitioner in support of
his contention.
19. Mr. S.O. Ahmed, learned Counsel for the petitioner, during
argument had tendered across the bar a copy of the order dated
17-08-2021 passed by the Tahsildar, Arni directing respondent No.4 to pay
penalty of Rs.3,29,47,356/- with the Government as imposed under
Section 48(8) of the Maharashtra Land Revenue Code. He, therefore,
submitted that respondent No.4 failed to comply with the said order and
suppress the same from the tendering authority and in alternative
submitted that false affidavit was filed by the respondent No.4 in that
regard, hence, on that ground also, the tender granted in favour of
respondent No.4 has to be cancelled as it had suppressed the said fact
from the tendering authority and thereby cheated them. However, the said
order was passed in 2021, and the present tender notice was issued in
2024, i.e. after a period of three years. The petitioner failed to produce
any recent document about non-compliance with the said order by
respondent No.4, but only produced the said order, which does not
disclose whether respondent No.4 had complied with the said order or
18 WP6429.24.odt
not. Besides, the Tahsildar, Arni, has not given any information to
respondent No.2-Collector about non-payment of penalty by respondent
No.4. Had it been the fact that if the penalty were not paid by respondent
No.4, then certainly the Tahsildar, Arni, would have informed the said fact
to respondent No.2-Collector. No document has been produced on record
by the petitioner to demonstrate that respondent No.4 failed to comply
with the said order. Therefore, it would not be proper to consider the
submissions of the learned Counsel for the petitioner in that regard.
Furthermore, in the petition, the petitioner has not stated the same nor
raised any objection before the tendering authority to give them an
opportunity to explain the said fact by them or respondent No. 4.
Therefore, we do not find substance in the petitioner's contentions in that
regard.
20. The petitioner in support of his contention has relied on the
decision in New Okhla Industrial Development Authority V. Ravindra Kumar
Singhvi (Dead) through Lrs., 2022 AIR SC 928. The facts of the said case
were that the respondent therein obtained the plot from the petitioner
authority by misleading them. Therefore, allotment of the plot was
cancelled. Thus, the Court held that cancellation of allotment of a plot
obtained by filing a false affidavit is the legitimate ground for cancellation
of the lease. However, in the case at hand, the petitioner failed to
demonstrate that respondent No.4 had not complied with the order of the
19 WP6429.24.odt
Tahsildar and suppressed the said fact from the competent authority or
filed a false affidavit before the tendering authority. Therefore, the dictum
laid down in the said judgment is hardly of any assistance to the
petitioner.
21. It is pertinent to note that any of the bidders therein did not
challenge the cancellation of earlier tenders by the order dated
20-02-2023. Moreover, the petitioner was not qualified for the financial
bid in the said tender. Therefore, cancellation of the earlier tenders would
not affect the subsequent re-tender proceedings.
22. It is undisputed that the petitioner was declared L-3; however, he
has not made L-2 a party in the petition. Therefore, the petitioner cannot
challenge the said order for non compliance with the tender conditions.
Apart from this, the petitioner never raised a grievance about non
compliance with the conditions or about opening the financial bid before
the tendering authority to consider the same.
23. It is also pertinent to note that the Court, being a Constitutional
functionary, is duty-bound to guard the rights of the parties to interfere
when there is arbitrariness, irrationality, mala fides, and bias. Likewise,
the Hon'ble Apex Court has cautioned time and again that the Court
should usually refrain from exercising its power while exercising its
20 WP6429.24.odt
power in judicial review in contractual and commercial matters.
Similarly, the Court is normally loath to interfere in contractual matters
unless a clear-cut case of arbitrariness, mala fides, bias, or irrationality
is made out.
24. In the wake of the above discussion, it is revealed that the
petitioner failed to demonstrate that respondent No.4 has not complied
with the terms and conditions of the Government Resolution dated
16-02-2024 or the terms and conditions of the tender notice. Similarly, the
petitioner failed to show that the tendering authority has arbitrarily
exercised powers with mala fide intention to deprive it of getting the said
tender. Even assuming that respondent No.4 was not eligible, in that case,
the petitioner, being L-3, is also not entitled to get the tender in question,
as L-2 is eligible for the same. L-2 Prithvi Building Material Suppliers did
not challenge the tender process. Therefore, we do not find that the
decision taken by the competent authority is liable to be vitiated on the
ground of arbitrariness, irrationality, mala fide and bias. Apart from this,
the Court does not sit as a court of appeal but merely reviews the manner
in which the decision was made. Therefore, the Court cannot examine the
terms and conditions of the contract which have been entered into by the
public bodies or the State. So also in view of the dictum laid down in the
above cited judgments and the settled position of law, it would not be
proper to interfere in the contratual disputes. Hence, we answer the
question in the negative.
21 WP6429.24.odt
25. In such an eventuality, we do not find substance in the submissions
of the learned Counsel for the petitioner and the petition, being bereft of
merit, stands dismissed. The Interim relief, if any, is vacated. Rule is
discharged. No order as to costs.
(ABHAY J. MANTRI, J.) (AVINASH G. GHAROTE, J.)
At this stage, the learned Counsel for the petitioner, seeks to
continue the interim order for ten weeks. Since we have already held that
the challenge in the petition is unsuccessful, we do not see it proper to
continue the interim relief for a further period.
(ABHAY J. MANTRI, J.) (AVINASH G. GHAROTE, J.)
adgokar
Signed by: MR. P.M. ADGOKAR
Designation: PS To Honourable Judge
Date: 06/05/2025 16:02:40
