Back
2022 Supreme(Bom) 205
IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR
Sunil B.Shukre, A.L.Pansare, JJ.
M/s. Aditya Construction Company (J.V.) – Petitioner
Versus
State of Maharashtra, through the Secretary, Water Resource Department and ors. – Respondents
Writ Petition No. 2942 of 2021
Decided On : 10-03-2022
Advocate Appeared:
For the Petitioner:Shri S.K.Mishra, Senior Counsel with Shri V.S.Mishra & Shri Kabir, Jhams, Advocate
For the Respondent:Shri M.G.Bhangde, Senior Counsel with Shri P.B.Patil, Advocate, Shri J.T.Gilda, Senior Counsel with Shri A.J.Gilda, Advocate, Shri N.V.Kalwaghe, Advocate, Mr. N.R.Patil, AGP
Point of Law : A stamp paper is not rendered useless, as the purpose of Section 54 of Indian Stamp Act is only to enable an individual to claim refund of the value of unused stamp paper and that it has got no relation with use of stamp paper within six months from date of purchase.
Headnote:
Maharashtra Stamp Act, 1958 - Section 52 B(b) r/w 34 - Indian Stamp Act - Section 54 - Member of Joint Venture - Partnership firms - Tender Process - Bids - Essential conditions of Tender document - Misconduct of suppression of material facts - Respondent No.2 Corporation floated E-Tender vide Tender Notice inviting bids for awarding contract of “Construction of Balance Earth Work of Dam upto District Chandrapur” with an estimated cost of Rs.71,04,73,961/- - Petitioner being of opinion that it fulfilled eligibility criteria and all requirements of tender notice, felt that it was eminently suited for award of contract and, therefore, it submitted its technical as well as financial bid on web portal - Petitioner contends that after submission of its bid, it reliably learnt that entire tender process was being carried out under political dictum and decision had already been taken as to whom work be awarded.
Finding of the court : Petitioner has committed a clear breach of Condition of Clause 2.23.0 (xviii) and it being one of essential requisites for opening of the financial bid, declaration of technical bid of the Petitioner by Respondent Nos.2 to 5 as non- responsive cannot be faulted with and this would mean that petition needs to be dismissed - There is also a clause in this undertaking itself which when accepted would bind a tenderer to abide by decision of summary rejection of bid as non-responsive if the above referred information is found to be false and misleading. This condition of undertaking has rendered argument of learned Senior Advocate for petitioner that if fault or mistake is noticed in undertaking, further opportunity to correct mistake should have been given as per G.R. as insignificant. Now, let us consider effect the undertaking submitted by petitioner had on its tender - Petitioner was never penalised for any work carried out by it for any Government department previously. If the Petitioner had any explanation to give in respect of imposition of these penalties, Petitioner ought to have first disclosed these facts in the undertaking and then explained those penalties. But the Petitioner did not do so, neither in the undertaking nor in this petition.
Result : Petition dismissed
JUDGMENT :
Sunil B. Shukre, J.
Heard. Rule. Rule made returnable forthwith. Heard finally by consent of the parties.
2. The Petitioner is a Joint Venture between the Petitioner entity and one M/s.Bhagwat Prasad Sharma,Gwalior, both registered partnership firms with the Petitioner, being a lead member of the Joint Venture.
3. The Respondent No.2 Corporation floated E-Tender vide Tender Notice No.2/2021-2022 dated 06/07/2021 inviting bids for awarding the contract of “Construction of Balance Earth Work of Dam upto District Chandrapur” with an estimated cost of Rs.71,04,73,961/-(Seventy-One Crores Four Lakhs Seventy-Three Thousand Nine Hundred and Sixty-One Only). The Petitioner being of the opinion that it fulfilled the eligibility criteria and all the requirements of the tender notice, felt that it was eminently suited for award of the contract and, therefore, it submitted its technical as well as financial bid on the web portal on 27th July 2021. The Petitioner contends that after submission of its bid, it reliably learnt that entire tender process was being carried out under political dictum and decision had already been taken as to whom the work be awarded.
4. The Petitioner submits that its suspicion proved to be well founded and the Petitioner learnt vide Technical Bid Summary Report dated 03rd August 2021 that the technical bid of the Petitioner was rejected and the Petitioner was disqualified from getting its financial bid opened. The Petitioner submits that the Summary Report revealed that technical offer of the Petitioner was rejected on 5 principle grounds namely (i) the undertaking in the form prescribed in Appendix J was given on a stamp paper which was more than six months old; (ii) the Geo-Tagging of all the locations was not completed, (iii) Undertaking-1 submitted by the Petitioner was false; (iv) Petitioner did not fulfill the essential condition of completion of similar type of work; and, (v) the Petitioner failed to fulfill the criteria of completion of minimum quantities of work namely construction of embankment and structural scheme.
5. According to the Petitioners, the aforestated grounds are patently illegal and none of them is true on facts and in law. The Petitioner submits that the entire tender process undertaken by Respondent No.2 is vitiated by nepotism and favouritism and has been carried out under political pressure and, therefore, it deserves to be interfered with by quashing and setting aside the Summary Report in question and issuing necessary declaration and directions in the matter.
6. A common reply has been filed by Respondent Nos.2,3,4 and 5 and separate reply has been filed by Respondent No.8 whose financial bid has been found to be of the lowest order. Remaining Respondents including Respondent No.1 – State of Maharashtra, have not filed any reply, there being neither any relief claimed against these Respondents nor there being any possibility of these Respondents getting affected by whatever the result of the Petition be.
7. Respondent Nos.2,3,4 and 5 have taken a preliminary objection to the maintainability of this Petition stating that Petitioner has not approached this Court with clean hands. They submit that the Petitioner has filed an undertaking falsely stating that at no point of time the Petitioner was penalised for any work carried out nor was blacklisted by any Government department previously and whereas the true position is that the Petitioner by the Resolution passed in the meeting held on 22nd June 2019 of the Executive Council of Maharashtra Water Conservation Corporation, has been prohibited from participating in any tender process of the Board and that the Petitioner has also been penalised by the office of Nagpur Irrigation Division and further penalised by the office of the Executive Engineer, Lower Wardha, Canal Division, Wardha. It is also stated that the order of the blacklisting of the Petitioner was challenged by the Petitioner by filing a Writ Petition No.1940/2021 in w
