Madhya Pradesh High Court
Priya Jain Proprietor Rochak ... vs Madhya Pradesh Laghu Udyog Nigam ... on 14 November, 2022
Author: Vijay Kumar Shukla
IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE VIJAY KUMAR SHUKLA
ON THE 14th OF NOVEMBER, 2022
WRIT PETITION No. 17642 of 2022
BETWEEN:-
PRIYA JAIN PROPRIETOR ROCHAK INDUSTRIES W/O SHRI RAJESH JAIN,
AGED ABOUT 43 YEARS, 89/1, LODHIPURA (MADHYA PRADESH)
.....PETITIONER
(BY SHRI VIVEK DALAL, LEARNED COUNSEL FOR THE PETITIONER)
AND
MADHYA PRADESH LAGHU UDYOG NIGAM LTD THROUGH
1. ITS MANAGING DIRECTOR 1ST FLOOR PANCHANAN
BHAWAN MALVIYA NAGAR (MADHYA PRADESH)
GENERAL MANAGER (MARKETING) MADHYA PRADESH
2. LAGHU UDYOG NIGAM LIMITED 1ST FLOOR PANCHANAN
BHAVAN MALVIYA NAGAR, BHOPAL (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI AJINKYA DAGAONKAR, LEARNED COUNSEL FOR THE
RESPONDENT)
This petition coming on for orders this day, the court passed the
following:
ORDER
The present petition has been filed under Article 226 of the Constitution of
India being aggrieved by the order dated 19.05.2022 issued by the respondent no.2
for disqualification of the petitioner pursuant to rejection of technical bid from
NIT dated 24.12.2021. A direction has also been prayed to accept the technical bid
of the petitioner and he be allowed to participate in the rate contract.
2. The facts adumbrated in nutshell are that the respondent no.2 floated a
tender for rate contract for the subject item NIT dated 24.12.2021. The financial
bid and the technical bid of the aforesaid NIT were to be submitted by the bidders.
The date of tender was 24.12.2021 and the date for submission of bid was from
24.12.2021 to 14.01.2022. The date for opening of the bid was 17.01.2022. The
successful bidders were entitled and competent to supply the subject item to the
government department/corporation at the rate finalized. The petitioner is a
proprietorship firm run by a woman entrepreneur who had participated in the said
NIT and submitted the aforesaid bid.
3. It is asservated that the petitioner M/s Rochak Industries has been
successfully participating in the tender for last 15 years. The respondents rejected
the technical bid of the petitioner on the ground of Qualification Criteria (QC)
point no.5 and under show cause.
4. It is contended that though the information was not supplied by the
petitioner in the format Annexure III but all the necessary required informations
were supplied in the certificate issued by the Chartered Accountant which was
enclosed alongwith the tender form. The petitioner was issued a show cause notice
dated 23/12/2021 for discrepancies in turn over services provided that earlier
tender numbers 20020-A and 20031-A and after reply of the petitioner, the final
order was passed on 13.06.2022; 1) forfeiture of Rs.1,00,000/- earnest money
against the tender no.20020-A and 2) debarment for six months from 23.12.2021
date of show cause was levied. The period of punishment was to run from
23.12.2021 to 22.6.022. Thus, the final order dated 13.06.2022 was passed by the
respondent no.2 debarring the petitioner from the date of show cause notice for a
period of six months.
5. The respondents filed reply and raises an objection that the petition is not
maintainable as the successful bidders have not been impleaded as party. It is
further submitted that the respondent no.1 is a Government of MP undertaking
established in the year 1961 with a view to promote the small scale industries of
the State and is professional procurement organization. The respondent no.1 is
neither the seller nor the buyer. It is only a service provider functioning as
intermediate agency and therefore, the State was also necessary party.
6. Combating the aforesaid objections, the learned counsel for the petitioner
submitted that the interest of successful bidders is not adversely affected even if
the petition filed by the petitioner is allowed and his technical bid is accepted. It is
further argued that the petitioner is challenging only the action of the respondents
rejecting the technical bid of the petitioner and the petitioner is not claiming any
relief against the State Government and therefore the State Government is not a
necessary party.
7. After hearing learned counsel for the petitioner and the respondent, I do not
find any merit in the objection raised by the respondent regarding non
impleadment of successful bidder and the State Government. The tender has
been issued for rate contract and the successful bidder becomes entitled and
competent to supply the subject item to the government department at the rate
finalized. Thus, if the petition is allowed and the technical bid of the petitioner is
accepted, the interest of the successful bidder and the State would not be adversely
affected.
8. The respondents have invited the tender for rate contract for NIT 21009-S
Item - Retro Reflective Information Bid. Items were required to be uploaded on
the respondent portal on 24.12.2021. The last date for the submission and
uploading the documents for financial and technical bid was 14.01.2022 on the
respondent portal. In the financial and technical bid, 12 bidders successfully
presented their bid in which petitioner was also included. The aforesaid financial
and technical bid was open on the prescribed date i.e. 17.01.2022 based on the
documents uploaded by the bidders on the portal. The Techno/commercial
evaluation for NIT no.21009-S Item - Retro Reflective and Road Sign was done.
In the aforesaid techno-commercial evaluation, 7 bidders were entitled and
competent to supply the Retro Reflective Information and Road Sign. In the
aforesaid technical bid, five bidders were not qualified due to technical reasons
and the name of the petitioner was also mentioned in the last. The petitioner was
disqualified for non-compliance of Qualified Criteria (QC) point no.5, which was
uploaded by the petitioner but not as per the Annexure III of annual turn over
statement format of NIT.
9. Learned counsel for the respondent referred point no.5 (2) on the technical
criteria of section 5 of the Qualified Criteria and Evaluation Methodology of NIT
which reads as under:-
"The Bidders annual turnover in the last three financial years (2018-19,
2019-20, 2020-21) shall be submittedin the format given in Annexure III
certified by the Chartered Accountant with UDIN Number."
10. He also referred point no.12.1 of the technical bid of section III of the NIT
which reads as under:-
"The bidder should upload all the necessary documents,
certifications as required in Qualifications Criteria and specification
compulsorily on portal, failing which their bid shall be rejected."
11. He also referred point no.24 of the Annexure III of the NIT which reads as
under :-
"All the Annexures alongwith specivication are enclosed for
technical/commercial terms and condition. It is compulsory on the part
of the bidder to furnish all the details as sought in these. In case, these
are not filledin and enclosed with the offer, the bid will be rejected."
12. He further referred point no.27 of the Annexure III which reads as under :-
"27.1 MPLUN may in its sole discretion and at any time during the
processing of Bids, disqualify any bidder from the Bidding process at any stage, if
the bidder....
27.1.2 Has not submittedthe bid in accordance with the bid documents.
27.1.3 Does not meets the qualification criteria as mentioned in the bid
documents."
13. A meeting of the technical committee of NIT was held on 09.03.2022 to take
further decision regarding bidder who found eligible and in-eligible in
techno/commercial bid. The recommendations were made by the technical
committee where seven bidders are found eligible to open the price bid and to
reject the financial and technical bid of five bidder who were in-eligible to open
the bid. The copy of the minutes of the meeting of the technical committee for NIT
has been enclosed. The meeting of the market committee for rate determination
has also taken place. The bid of the eligible bidders was open on 19.05.2022 and
the number of comparative seats were received from the eligible bidders. In regard
to the rejection of the technical bid of the petitioner on the ground of show cause
notice for debarment, the respondent relied on point no.1(2) of the basic
qualification of bidder under section 5 of the NIT which reads as under :-
"If the bidder has been debarred or blacklisted or their
marketing assistance has been stopped/withheld by any Government
Department or Government undertaking such bidder will not
participate in the bid during the period of such penalty. In case, where
no period of penalty has been mentioned, in such cases, period of
penalty will be treated as two years from the date of such
penalty/debarment."
14. It is stated on behalf of the respondent that show cause notice dated
23.12.2021 was issued in respect of the discrepancies in turn over certificate
provided for earlier tender 20020-A and 20031-A and after the reply of the
petitioner to the said notice, the petitioner has been debarred by the order dated
13.06.2022 for a period of 6 months from the date of issuance of the show cause
notice dated 23.12.2021 and the punishment for forfeiture of Rs.1,00,000/- earnest
money deposited against the tender number 20020-A was also levied.
15. It is submitted that the tender of the petitioner was not as per the prescribed
format of the NIT and further a show cause notice for debarment was already
issued against the petitioner on which an order of debarment has been passed on
13.06.2022 with retrospective date from the date of show cause notice dated
23.12.2021. In view of the various clauses of the NIT and the fact that the final
conduct of the petitioner in respect of the other tenders were also taken note and he
has been debarred from participating in the tender for a period of six months from
retrospective date, there is no illegality in the decision taken by the respondents
rejecting the technical bid of the petitioner. The petition is liable to be dismissed.
16. It is also argued that the petitioner has suppressed the letter dated
08.03.2022, wherein, he has admitted that the submission of financial and
technical bid of the NIT was not submitted as per the averments Annexure III and
he submitted Chartered Accountant certificate which was not in the prescribed
format. The said letter was not enclosed alongwith the writ petition and therefore,
the petition suffers from suppression of the said letter.
17. I have heard learned counsel for the parties and I do not find any merit in the
present case.
18. The petitioner submitted that the decision of the respondent is illegal and
arbitrary. The non-compliance of QC point no.5 of NIT is not of substantial nature.
In support of his submission he referred para no.6 of the judgment passed by the
Apex Court in the case of Poddar Steel Corporation Vs. Ganesh Engineering
Works reported in (1991) 3 SCC 373. In para no.6, it has been held that the
requirement in the tender notice can be qualified into two categories- those which
laid down essential condition of eligibility and the 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 to insist
upon the referred compliance of the condition in the appropriate case.
19. It is argued that the non-furnishing of information in format in Annexure III
of the NIT could not have been treated to be an essential requirement and the
technical bid should not have been rejected.
20. Learned counsel for the respondent referred to the various clauses of the
NIT which has already been quoted in the preciding paragraphs. The point no.5(2)
of the technical criteria of section 5 requires that the bidders annual turn over in
the last three financial years (2018-19, 2019-20, 2020-21) shall be submitted in the
format given in the Annexure III certificate by Chartered Accountant with UDIN
Number. He further referred clause 2 (1) of the NIT, which deals with the technical
bid which provides that the bidder should upload all necessary documents,
certifications as required in Qualification Criteria (QC) and specification
compulsorily on portal failing which their bid shall be rejected. Thus, it was made
clear that all the bidders with the aforesaid informations has to be compulsorily
given in the format otherwise, the bid shall be rejected. He also referred point
no.24, filling of Annexures, wherein it is provided that all the Annexures
alongwith specifications are enclosed for technical/commercial terms and
conditions. It is compulsory on the part of the bidder to furnish all details as
sought in these. It was further made clear that in case, these are not filled in and
enclosed with the offer, the bid will be rejected. In point no.27, disqualification of
bids, it has been provided that it would be sole discretion and at any time during
the processing of Bids, disqualify any bidder from the bidding process at any
stage, if the bidder has not submitted the bid in accordance with the bid document
and does not meet the qualification criteria as mentioned in the bid documents. A
reference was also made as per the point no.1(2) of basic qualification bidder of
section 5 of the qualification criteria and evaluation methodology of NIT, whereby
it has been provided that if the petitioner has been debarred or blacklisted or their
marketing assistance has been stopped/withheld by any Government Department
or Government undertaking such bidder will not participate in the bid during the
period of such penalty. In case, where no period of penalty has been mentioned, in
such cases, period of penalty will be treated as two years from the date of such
penalty/debarment.
21. Upon perusalof the record, it is evident that on the date of submission of the
bid, a show cause notice dated 23.12.2021 was already issued by the respondent
for the discrepancies in turn over service provided for earlier tenders 20020-A and
20031-A and finally by order dated 13.06.2022, the petitioner has been
debarredfor a period of six months from the date of show cause notice i.e.
23.12.2021 and he has been punished for forfeiture of Rs.1,00,000/- earnest money
deposited against the tender no.20020-A. The impugned communication has been
issued on 17.07.2022 and the impugned order of debarment has been passed on
13.06.2022 whereby, the petitioner has been debarred for a period of six months
from the date of show cause notice dated 23.12.2021 and on the date of decision of
rejection of the technical bid, the order of debarment was effective from the date
of show cause notice.
22. The tender of the petitioner has been examined by the Technical Evaluation
Committee after taking into consideration the various clauses of the bid documents
and held that the petitioner did not supply information of QC point no.5 in the
prescribed format and the information supplied through Chartered Accountant
certificate was not in terms of the format. The aforesaid requirement of furnishing
information in the format Annexure III has been held to be essential requirement.
23. The relevant Qualification Criteria (QC) point no.5 as mentioned in section
5 while qualification criteria and evaluation methodology of the bid document
reads as under :-
"The bidder annual turn over in the last three financial years (2018-
19, 2019-20, 2020-21) shall be submitted in the format given in Annexure
III certified by the Chartered Accountant with UDIN Number."
24. The biddes annual turn over in the last three financial years (2018-19, 2019-
20, 2020-21) shall be submitted in the format given in Annexure III certified by the
Chartered Accountant with UDIN Number.
The relevant Annexure III of the bid document is as under :-
ANNEXURE - III
ANNUAL TURNOVER STATEMENT FORMAT
The Annual Turnover of bidding entity M/s........... for the
past three years are given below and certified that the
statement is true and correct:-
S.No. Year Turnover(InRs.)
1. 2018-19
2. 2019-20
3. 2020-21
4. Net Worth of the Bidder
FY 2020-21 Positive /Negative/
Must be mention positive or negative
Whichever is applicable
Seal and signature of Chartered Accountant
(Name and Address)
Date:
Note: 1. As UDIN (Unique Docunent identification
Number) is mandatory for all the certificates issued by
Chartered Accountant in practice w.e.f. February 1, 2019 18
Digit UDIN needs to be be mentioned on the certificate.
2. If this certificate not uploaded as per Annexure III, bid is
liable to be rejected.
Date
Seal and signature of Chartered Accountant
(Name and Address))"
25. The case of the petitioner is that he had given all the information as
contemplated in Annexure III by stating that the necessary information of
networth is supplied in an enclosed Chartered Accountant certificate. The
certificate of the CA enclosed alongwith the tender form reads as under :-
"Hussain Shabbir & Co.
Chartered Accountamis
Email:[email protected]
31/4, Ushaganj, Chhawani, Indore - 452001
UDIN: 22402820AAAAAA3762
CERTIFICATE
This is to certify that we have verified the books of account and
records of Smt Priya Jain Wio Shri Rajesh Jain (Proprietor Rocho
mdustries) Ro 89/1, Lodhipura, Indore (PAN:ACTPI9906D). Fr
verification we hereby certify that Net Worih of Smt. Priya Jajin as
(Rs. Two Hundred and Nine Lakh and Five 1housand only)
on 13.01.2022 is Rs.209. 05 Lakhs.
The calculation on which the net worth has been arrived at is
enclose herewith.
We have obtained all the information and the explanations
which were necessary for the purpose of our verification.
For Hussain Shabbir & Co.
Chartered Accountant
CA. Hatim Badshah
Membership No. 402820
(Partner)
PLACE: Indore
DATED: 13/01/2022
31/4, Ushaganj, Chhawani, Indore - 452001
UDIN: 22402820AAAAAQ2579
CERTIFICATE
This is to certify that we have verified the books of accounts
and other records of Ms. Rochak Industries (Prop. Smt. Priya Jain)
of 891, Lodhipura, Indore.
From our verification we hereby certify that the turnover of
the firm for the following years was as follows:
Year Turnover (ln Rs.)
2016-17 Rs.1,04,06,068/-
2017-18 Rs.56,29,387/-
2018-19 Rs.53,01,454/-
2019-20 Rs. 64,94,675/-
2020-21 Rs.22,13,424/-
We have obtained all the information and explanations which
were necessary for the purpose for the of verification.
For Hussain Shabbir & Co.
Chartered Accountant
CA. Hatim Badshah
Membership No. 402820
(Partner)
PLACE: Indore
DATED: 13/01/2022"
26. After perusal of the Annexure III and the information supplied by the
petitioner in an enclosed certificate of the Chartered Accountant, this Court finds
that the information which is required in the prescribed form Annexure III have
not been contained in the certificate issued by the Chartered Accountant. The
format requires that the annual turn over of bidding company for the past three
years are to be mentioned with a statement that the same is true and correct. There
is no statement in the certificate given by the Chartered Accountant that the
information given for the relevant years are true and correct. In the light of the
consideration of various clauses of the NIT and contents of Annexure III, this
Court holds that the requirement of furnishing information in prescribed Annexure
III is an essential condition of eligibility and the same cannot be held to be
ancilliary or subsidiary with th main object to be achieved by the condition.
27. The Division Bench of this Court in the case of Sunil Kumar Baghel Vs.
State of MP reported in AIR 2017 MP 182 held that the requirement of furnishing
the affidavit duly notarized as per the terms and conditions is an essential
qualification and since the affidavit was not attested by notary, such affidavit was
found not to be valid affidavit as per the conditions of the tender document. The
petition was dismissed.
28. The Apex Court in the case of NG Project Ltd Vs. Vinod Kumar Jain
reported reported in (2022) 6 SCC 127 held that in the writ petition under Article
226 of the Constitution of India, the High Court cannot act as an Appellate
Authority to examine the decision taken by the experts.
29. The petition is dismissed.
30. No order as to cost.
(Vijay Kumar Shukla)
Judge
sourabh
Digitally signed by
SOURABH YADAV
Date: 2022.11.15
17:53:48 +05'30'
