M/S Agrawal Distilleries Pvt. Ltd vs The State Of Madhya Pradesh
2022 Latest Caselaw 4586 MP

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      IN THE HIGH COURT OF MADHYA PRADESH
                        AT INDORE
                          BEFORE
            HON'BLE SHRI JUSTICE VIVEK RUSIA
                             &
     HON'BLE SHRI JUSTICE AMAR NATH (KESHARWANI)

                 ON THE 31st OF MARCH, 2022

             WRIT PETITION No. 7539 of 2022

     Between:-
     M/S AGRAWAL DISTILLERIES PVT. LTD OFFICE AT 509-510
     5TH FLOOR BUSINESS SKYPARK SCHEME NO. 54 VIJAY
     NAGAR (MADHYA PRADESH)
                                              .....PETITIONER
     (BY SHRI PIYUSH MATHUR, LEARNED SENIOR ADVOCATE WITH
     SHRI PARITOSH SHRIVASTAVA, LEARNED COUNSEL AND SHRI
     AYUSH SHARMA, LEARNED COUNSEL AND SHRI AKASH
     VIJAYWARGIYA, AND PANKAJ CHANDRA BAGADIYA, LEARNED
     COUNSEL FOR THE PETITIONER. )

     AND

     THE STATE OF MADHYA PRADESH PRINCIPAL SECRETARY
1.   MINISTRY OF COMMERCE VALLABH BHAWAN, BHOPAL
     (MADHYA PRADESH)
     EXCISE COMMISSIONER STATE EXCISE DEPARTMENT MOTI
2.
     MAHAL , GWALIOR (MADHYA PRADESH)
     M/S ASSOCIATED ALCHOHOLS AND BREWERIES LTD. 4TH
3.   FLOOR, BPK STAR TOWER, A.B. ROAD ABOVE SHOPPERS
     STOP INDORE (MADHYA PRADESH)
     M/S GREAT GALLEON VENTURES LTD. PRINCESS BUSINESS
4.   SKYPARK, 308-309, BLOCK NO. 22, 23 AND 24 IIIRD FLOOR,
     SCHEME NO. 54 PU-3 INDORE (MADHYA PRADESH)
     M/S GWALIOR ALCOBREW PRIVATE LTD. PLOT NO. 480,
5.   SHRIRAM COMPLEX, IIND FLOOR, APARTMENT NO. 202,
     JARIPAKTA NAGPUR MAHARASTHRA (MAHARASHTRA)
     M/S VINDHYACHAL DISTILLERIES PVT. LTD. E-2/34, ARERA
6.
     COLONY BHOPAL (MADHYA PRADESH)
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    M/S OASIS DISTILLERIES LTD. METRO TOWER, H-102, 1ST
7. FLOOR, PLOT NO. B-02, PU-4 SCHEME NO. 54, NEAR MANGAL
    CITY MALL, A.B. ROAD,INDORE (MADHYA PRADESH)
    M/S JAGPIN BREWERIES PVT. LTD. C-115, MANSAROVAR
8.
    GARDEN, GROUND FLOOR, NEW DELHI (DELHI)
    M/S GULSHAN POLYOLS PVT. LTD. VILLAGE BORGAON,
9.
    TEHSIL SAUSAR DIST CHHINDWARA (MADHYA PRADESH)
    M/S GWALIOR DISTILLERY PVT. LTD. GRAM DIDI, ATER
10.
    ROAD, (MADHYA PRADESH)
    M/S DCR DISTILLERY PVT. LTD. 15/24, SADAR BAZAR,
11.
    VILLAGE MEHER, DIST SAGAR (MADHYA PRADESH)
    M/S SOM DISTILLERIES PVT. LTD. 23 ZONE II MP NAGAR
12.
    BHOPAL (MADHYA PRADESH)
                                                      .....RESPONDENTS
     (BY SHRI PIYUSH BHARGAV, LEARENED ADDITIONAL
     ADVOCATE GENERAL, FOR THE RESPONDENT/STATE.)
     (BY SHRI ANAND MOHAN MATHUR, LEARNED SENIOR
     ADVOCATE WITH SHRI ANINDYA BHAN WITH SHRI IBRAHIM
     KANNODWALAL, SANDEEP PANDEY AND SURYANSH SINGH
     LEEARNED COUNSE FOR THE FOR THE RESPONDENT NO.3
     AND 4.
                           ORDER

Heard on the question of admission as well as interim relief.

The petitioner has filed the present petition being aggrieved by the rejection of the technical bid on 25.03.2022 by the duly constituted committee.

2. Facts of the case in short are as under:-

i. The petitioner's company is a duly registered company under the provision of the companies Act, 1956/2013. The petitioner is engaged in the manufacture of Extra Neutral Alcohol, Hand Sanitizer etc. Respondent no.2 invited the petitioner and other distilleries situated in the State of M.P. to participate in an e-tender (Limited Tender) for the supply of country liquor for the year 2022-23. The petitioner is presently

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holding the D-1 License for the manufacturing of country liquor hence participated in the above meeting. In the said meeting all the petitioner and respondents no 2 to 12 were explained the procedure for participation in the tender by respondent no.2 . Thereafter Respondent no.2 floated e-tender 15.03.2022 for the supply of country liquor (spirit) in sealed bottles and aseptic packaging in 52 districts of Madhya Pradesh for the financial year 2022-23. As per the qualification in the tender, the distilleries possessing D-1 licenses were only eligible to submit the bid for each district separately. All the prospective bidders were required to create a user ID and password by providing all supporting documents After creating IDs they have submitted their technical bid as well as financial bid duly supported as per Annexure-A and B.

ii. Initially the last date for submitting the tender was 22.03.2022 but it was extended up to 25.03.2022 by an amendment letter dated 22.03.2022 clause 13.6 and clause 13.7 of the tender were amended. A clarification to that effect was issued vide letter dated 24.03.2022.

iii. The petitioner submitted a tender document through its user ID on e-portal thereafter the petitioner initiated the process for uploading the technical bid and financial bid on e-portal on 25.03.2022 but erroneously in place of the documents required to be submitted along with the technical bid as per Annexure-A again the documents which required for creating user ID were submitted along with the technical bid by the clerk of the petitioner. The petitioner has also deposited Rs.5 lacs for each

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district in total Rs.1.50 crores along with the bid documents. iv. On 25.03.2022 in presence of all 11 bidders the tender documents were opened since the petitioner did not filed necessary documents i.e. No.1. D-1 License, No.2. No-due certificate from Distillery Officer and No.3. Affidavit of the applicant.

The tender committee has rejected the tender document and disqualified the petitioner. The information to that effect was sent by mail for every 30 bidders. The petitioner submitted objection and representation to the Excise Commissioner as required under Clause-19 of the tender. The other bidders have extended 'no objection' in favour of the petitioner for accepting the technical bid and opening the financial bid of the petitioner on the same day 25.02.2022 the respondents have opened the financial bid of remaining qualified bidders. Hence this present petitioner is before this court.

3. Shri Piyush Mathur, learned senior counsel appearing for the petitioner submits that due to the clerical error the documents which were in possession of the petitioner in the physical form could not be submitted inadvertently. Before rejecting the technical bid of the petitioner, the respondents ought to have been given an opportunity to submit a physical copy of the documents. Due to this error which could have been cured immediately, the petitioner has been debarred from participating in the tender process which would cause substantial loss to the petitioner throughout the year. The petitioner has invested Rs.40

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crores for the up-gradation of the plant in anticipation of getting the supply of spirit/ country liquor this year 2022-2023. In support of his contention, Shri Mathur has placed reliance on the judgment passed by the apex court in the case of Poddar Steel Corporation Vs. Ganesh Engineering Works and Others reported in the year 1991 Vol.3 SCC 273 in which the apex court has held that the requirements in the tender notice can be classified into two categories- those which lay down the essential conditions of eligibility and others which are merely ancillary or subsidiary with the main object to be achieved by the condition. In the first case, the authority issuing the tender may be required to enforce them rigidly. In the other cases, it must be open to the authority to deviate from and not insist upon the strict literal compliance of the condition in appropriate cases. He has also placed reliance on the judgment passed by the Apex Court in the case of Rashmi Metaliks Limited and another Vs. Kolkata Metropolitian Development Authority and others reported in 2013 Vol.10 SCC 95 in which the apex court has held that in case of non-submission of the latest income tax return, instead of disqualifying the bid for non-compliance with the terms in question, tendering authority ought to have brought this discrepancy to the notice of the tenderer and if even thereafter, no rectification had been carried out, the position may have been appreciably different, therefore, in view of the above, Shri Mathur submits that respondent/Commissioner be directed to open the financial bid of the petitioner and if he is found L-1 then district be allotted to the petitioner along with other bidders.

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4. Shri Pushyamitra Bhargava, learned Additional A.G. Appearing for the respondent/State submits that as per the Clause 4.3 of the bid the three documents namely:- No.1. D-1 License, No.2. No-due certificate from Distillery Officer and No.3. Affidavits of the applicant were mandatory to be uploaded along with the technical bid. Since the petitioner did not upload these documents, therefore, the tender committee has not committed any error while declaring the petitioner disqualified for the opening of the financial bid. The decision taken by the committee is not liable to be interfered with by the High Court in the writ petition as there is no malafide attached to it. The condition is so mandatory in nature because an affidavit is required to be filed by the petitioner to the effect that till 31.01.2022 there is no recovery of government dues and further declaration to the effect that if any information is found to be correct the bid is liable to be cancelled without any objection by bidder. These mandatory conditions cannot be relaxed for the petitioner. It is further submitted that now the financial bid has been opened and 17 distilleries have been issued a work order dated 30.03.2022 for completing the remaining formalities and now they are required to supply liquor from 01.04.2022. Hence, at this stage, no interference is called for and the petition is liable to be dismissed.

5. Shri A.M. Mathur learned senior counsel for respondents no.3 and 4 has argued in support of the State and prayed for dismissal of the writ petition.

6. clause 4.3 of the bid which is mandatory in nature is

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reproduced below:-

4.3 VsDuhdy fcM fufonknkrk dks viuh VsDuhdy fcM fu/kkZfjr izk:i ¼layXud&v½ esa fuEukuqlkj vfHkys[kkas dh LdS.M dkWih ihMh,Q QkesZV esa vko';d :i ls viyksM djuh gksxh %& 1- fufonk fnukad dks fufonknkrk ds ikl miyC/k thfor vklouh ¼Mh&1½ vuqKfIr dh izekf.kr izfrA 2- layXud&I vuqlkj fu/kkZfjr izk:i esa vklouh ds izHkkjh vf/kdkjh }kjk lR;kfir uks&M;wt izek.k i=A 3- layXud&II vuqlkj ukWu&T;qMhf'k;y LVkEi ij bl vk'k; dk 'kiFk&i= fd] ñ fufonknkrk dh daiuh ds fo:) 31 tuojh] 2022 dh fLFkfr esa jkT; esa ns'kh efnjk ds mRiknu ,oa vkiwfrZ ls lacaf/kr dksbZ olwyh ;ksX; cdk;k jkf'k yafcr ugha gSaA ñ ns'kh efnjk dh vkiwfrZ esa foyac ;k vlQyrk dh fLFkfr esa jkT; ljdkj ,oa QqVdj Bsdsnkjksa dks gqbZ foRrh; gkfu ds gtkZus ,oa eqvkots ds Hkqxrku dk mRrjnkf;Ro fufonknkrk dk gksxkA ñ 'kiFk i= esa mYysf[kr ¼Quoted½ rF;@tkudkjh vlR; ik;s tkus ij esjs }kjk izLrqr fufonk dks vekU; fd;s tkus ij eq>s dksbZ vkifRr ugha gksxhA

7. It is not the case of the petitioner that these conditions are not mandatory in nature and that could have been relaxed but the petitioner should have been given the opportunity to submit these documents in physical form.

8. The tender was liable to be submitted online by way of uploading from 16.03.2022 to 23.03.2022 (which is extended up to 25.03.2022). Before initiating the process, the petitioner and others were explained the procedure of bidding by respondent no.2. As per Clause-(X,) every bidder was required to submit a technical and financial bid in a prescribed format. After freezing the technical and financial bid, the bid shall be considered. The bidder could have amended the bid before freezing. As per Clause-XII at the prescribed date and time the technical bid shall be opened and after examination, the financial bid of successful s shall be opened. As per the timetable given in the NIT (as

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amended later on) the technical and financial bid is to be opened on the same day in one go. Once the petitioner's technical bid was not found as per the prescribed format it was rejected then and there and as per the time schedule financial bid was opened. The entire procedure was completed within the time schedule prescribed in the timetable. Hence, there was no occasion or time to cure the defects and as per the judgment of the apex court in the case of Poddar Steel Corporation (supra) and Rashmi Metaliks Limited (Supra) it was purely the discretion of the tendering committee to decide as to which condition is essential or condition or same can be relaxed.

9. The Clause-19 of the tender document only gives authority to the Commissioner to give judgment in case of dispute arises due to the interpretation of the terms and conditions of the tender. So far, the mandatory condition no.4.3 is concerned there is no dispute in respect of interpretation, admittedly the petitioner did not upload in PDF format the scanned copy of these three documents along with the technical bid which was mandatory to be required to be uploaded. Now the work orders have been issued and the tender process has been completed hence no case for interference is made out.

Accordingly, the writ petition is dismissed.

            (VIVEK RUSIA )                                          (AMAR NATH (KESHARWANI))
               JUDGE                                                            JUDGE


   Ajit/-


AJIT
                 Digitally signed by AJIT KAMALASANAN

DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH INDORE, ou=HIGH COURT OF MADHYA PRADESH BENCH INDORE, postalCode=452001, st=Madhya Pradesh,

KAMALASAN 2.5.4.20=156c9cedca1b74d671db9f220a5e3ed6cba241e ffad892107d95ef0a1afc55b4, pseudonym=CFDFD9C36711CA738F527A5D61A1EE901 C09EF29,

AN serialNumber=7F0BEE2D78BD57DA058F3247441C87E7 E0817FB61F5E2ABCAEE63CAAA7B3B9FF, cn=AJIT KAMALASANAN Date: 2022.04.01 11:12:19 +05'30'