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2019 Supreme(Guj) 434
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
K.M. THAKER, V.B. MAYANI, JJ.
M/s A.D. More and Sons - Petitioner
Versus
State Of Gujarat & Others - Respondent
R/Special Civil Application No. 21205 of 2017
Decided On : 12-04-2019
Advocate Appeared:
For the Petitioners: Mr. Niral R Mehta
For the Respondents: Mr Manan Mehta AGP, Mr Mitul K Shelat, Mr Nandish Chudgar for Nanavati Associates.
Headnote:
Constitution of India -Articles 226, 14 and 19 -Petitioner has challenged one of the conditions in the tender and prayed that:Be pleased to issue a Writ of Mandamus and/or a Writ in the nature of Mandamus or any other appropriate Writ, Direction or Order directing the Respondents, its agents or servant to allow the petitioner, a trader, to participate in the tender process being Tender No.GMSCL/D623/RC/201718 by quashing and setting aside the condition being B(l) which only permits manufacturer and importers to participate in the tender process holding it violative of Article 14 and 19(1)(g) of the Constitution of India. Be pleased to issue a Writ of Mandamus and/or a Writ in the nature of Mandamus or any other appropriate Writ, Direction or Order directing the Respondents, its agents or servant to initiate appropriate proceeding; against the manufacturers who have submitted false Higher/Lower price certificate in the previous tender being Tender Notice No.GMSCL/D/04/201617. Be pleased to issue a Writ of Mandamus and/or a Writ in the nature of Mandamus or any other appropriate Writ, Direction or Order directing the Respondent no.1, its agents or servants to inquire about the genuineness, correctness, impartialness, of the Respondent no.2 in tender process being Tender No.GMSCL/D623/RC/201718. Pending admission till the final disposal of this Petition, be pleased to grant ad interim relief in terms of directing the Respondent no.2 to allow the petitioner to submit its bid in connection with Tender No. GMSCL/D623/RC/201718 and/or be pleased to stay the tender proceedings.” Somewhere ,respondent No.2 corporation issued Notice Inviting Tender (NIT for short) [No.GMSCL/D/623/RC/201718] whereunder the respondent No.1 corporation invited bids for liquid medical gases At the outset, it is relevant to mention that the said product i.e. medical gas is required by several civil hospitals, other government hospitals and hospitals run by local authorities. Any delay or disruption or irregularity in continuous supply could result into a calamity and may create life threatening situation for many patients. By means of present petition, which appears to have been filed on or around Petitioner has challenged One Tender Condition (eligibility criteria) and prayed for abovequoted relief. Before proceeding further, it is relevant to note that somewhere in 201617, present respondent No.2 corporation had issued one NIT ie NIT No.GMSCL/D/595/RC/20162017 whereunder also, bids for same product were invited –Held When rival contentions and the terms of tender are examined in light of above quoted observations by Apex Court, it becomes clear that the objections are without merits and there is no justification to interfere with and disturb the tender condition. Above quoted observations fortify this Court’s decision in respect of the challenge raised in present petition and the relief prayed for by the petitioner. So far as the decision in the case of Michigan Rubber (India) Company Ltd. (supra) is concerned, it may be mentioned that even on the touch stone of the observations in the said decision, the impugned tender condition does not warrant interference and does not deserve to be quashed. The petitioner has failed to make out prejudice or procedural aberration or error in assessment. Actually, the object and purpose behind present petition is to promote and protect self interest (i.e. protecting self / private interest) at the cost of public interest. reasons mentioned above, petition fails and does not deserve to be entertained. In light of foregoing discussion, it has emerged that the relief prayed for does not deserve to be and cannot be granted. We, therefore, do not accept the petition. The petition stands disposed of as disallowed. Orders accordingly –Petition is Disposed.
(PER : HONOURABLE MR.JUSTICE K.M.THAKER)
1. In present petition under Articles 226, 14 and 19(1)(g) of the Constitution, the petitioner has challenged one of the conditions in the tender and prayed that:
“12(B)Be pleased to issue a Writ of Mandamus and/or a Writ in the nature of Mandamus or any other appropriate Writ, Direction or Order directing the Respondents, its agents or servant to allow the petitioner, a trader, to participate in the tender process being Tender No.GMSCL/D623/RC/201718 by quashing and setting aside the condition being B(l) which only permits manufacturer and importers to participate in the tender process holding it violative of Article 14 and 19(1)(g) of the Constitution of India.
(C) Be pleased to issue a Writ of Mandamus and/or a Writ in the nature of Mandamus or any other appropriate Writ, Direction or Order directing the Respondents, its agents or servant to initiate appropriate proceeding; against the manufacturers who have submitted false Higher/Lower price certificate in the previous tender being Tender Notice No.GMSCL/D/04/201617.
(D) Be pleased to issue a Writ of Mandamus and/or a Writ in the nature of Mandamus or any other appropriate Writ, Direction or Order directing the Respondent no.1, its agents or servants to inquire about the genuineness, correctness, impartialness, of the Respondent no.2 in tender process being Tender No.GMSCL/D623/RC/201718.
(E) Pending admission till the final disposal of this Petition, be pleased to grant ad interim relief in terms of directing the Respondent no.2 to allow the petitioner to submit its bid in connection with Tender No. GMSCL/D623/RC/201718 and/or be pleased to stay the tender proceedings.”
2. Somewhere between August 2017 to November 2017, the respondent No.2 corporation issued Notice Inviting Tender (NIT for short) [No.GMSCL/D/623/RC/201718] whereunder the respondent No.1 corporation invited bids for liquid medical gases [for four zones viz. Vadodara, Surat, Rajkot and Bhavnagar].
3. At the outset, it is relevant to mention that the said product i.e. medical gas is required by several civil hospitals, other government hospitals and hospitals run by local authorities. Any delay or disruption or irregularity in continuous supply could result into a calamity and may create life threatening situation for many patients.
4. By means of present petition, which appears to have been filed on or around 17.11.2017, the petitioner has challenged One Tender Condition (eligibility criteria) and prayed for abovequoted relief.
5. Before proceeding further, it is relevant to note that somewhere in 201617, present respondent No.2 corporation had issued one NIT ie NIT No.GMSCL/D/595/RC/20162017 whereunder also, bids for same product were invited.
5.1 The said previous NIT was issued for six zones [viz. Gandhinagar, Ahmedabad, Vadodara, Surat, Rajkot and Bhavnagar]. Under the said previous NIT, almost identical eligibility criteria was prescribed by way of clause No.9(a) and (b).
5.2 What is relevant and pertinent is the fact that the said previous NIT and tender process were challenged by present petitioner in SCA No.4712 of 2017. However, though, in said previous NIT, similar condition/eligibility criteria [i.e. clause No.9(a) and 9(b)] were prescribed, this very petitioner, in its said previous SCA No.4712 of 2017 did not challenge the said conditions/eligibility criteria. In the said SCA No.4712 of 2017, present petitioner prayed, inter alia, that:
“17b. Your Lordships may be pleased to issue the writ of mandamus or any other appropriate writ, order or direction directing the Respondent No.1 to reject the tender of Respondent No.2 i.e. Tender Enquiry No.GMSCL/D595/RC/201617 having Tehder Notice No.GMSCL/D04/201617 for supply of various medicai gases to various Zones and quas and set aside the rate contract awarded to Respondent No.3 for supply of Medical Oxygen Cylinder, D Type (Bulk).
c. Your Lordships will be pleased to direct the Respondent No.1 to reinvite the te
