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2018 Supreme(Guj) 1229
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
ANANT S. DAVE, A.C. RAO, JJ.
Sankalp Infracon – Petitioner
Versus
State of Gujarat – Respondent
Special Civil Application No. 9379 of 2018
Decided On : 21-12-2018
For the Petitioner: Mrs. Sangeeta N. Pahwa.
For the Respondent: Mr. Chintan Dave.
Headnote:
Constitution of India – Article 226 – Tender/Contract – Petitioner held eligible at pre-qualification stage for Tender for construction Polytechnic Building – Challenged – Held, respondent Nos. 2 and 3 have committed an error in passing the impugned orders and not considering the past experience of the petitioner as a Director of the Company and considering the petitioner ineligible at pre-qualification stage – Normally it could be presumed that the director is drawing salary he takes active part in to the management company - It does not mean that he is employee of the company – Respondent Nos. 2 and 3 have committed an error in passing the impugned orders and not considering the past experience of the petitioner as a Director of the Company and considering the petitioner ineligible at pre-qualification stage – Petition allowed [Para 7.7, 7.8, 7.9]
Facts of the Case:
Rejection of bid of Contract and petitioner held held eligible at pre-qualification stage for Tender for construction Polytechnic Building, on account of the impugned orders, the petitioner is not found eligible for pre-qualification bid in all other future contracts also
Finding of Court:
respondent Nos. 2 and 3 have committed an error in passing the impugned orders and not considering the past experience of the petitioner as a Director of the Company and considering the petitioner ineligible at pre-qualification stage – Normally it could be presumed that the director is drawing salary he takes active part in to the management company - It does not mean that he is employee of the company – Respondent Nos. 2 and 3 have committed an error in passing the impugned orders and not considering the past experience of the petitioner as a Director of the Company and considering the petitioner ineligible at pre-qualification stage
A.C. RAO, J.
1. By way of present petition under Article 226 of the Constitution of India, petitioner Sankalp Infracon, through its sole proprietor Sureshkumar Babulal Vora, has challenged the impugned order dated 15.3.2018, by which the respondent No. 2 considered the petitioner as ineligible at pre-qualification stage for Tender ID No. 288455 for construction Polytechnic Building at Halol, District Panchmahal. The petitioner has also challenged the impugned order dated 25.4.2018, by which the respondent No. 3 disqualified the petitioner for three contracts for the very reason given in the order dated 15.3.2018 and by which the petitioner is considered ineligible for all other government tenders by the respondents.
2. Facts giving rise to the present petition, in nutshell are as under:-
2.1 The petitioner herein is a proprietorship concern and is doing its business in the name and style of Sankalp Infracon. It is the case of the petitioner that earlier sole proprietor of the petitioner herein - Mr. Suresh Vora was a partner in a partnership firm namely Shree Construction Company and there was another partner in the said partnership firm namely Jitendra Dhirubhai Patel and thereafter the said partnership firm has been converted into a Joint Stock Company as Shree Infracon Pvt. Ltd. (Company for short), as per the provisions of the Companies Act, 1956 and the same came to be registered on 20.10.2006 and the partnership firm in which the petitioner proprietor had 50% share was converted into a Joint Stock Company in which also the petitioner proprietor along with family members held 50% shareholding. It is the case of the petitioner that after working for nearly two decades, both the petitioner proprietor and Mr. Jitendra Dhirubhai Patel have separated and petitioner proprietor had resigned from the Company as on 14.4.2017 and has transferred his share being 50% shareholding in the Company in favour of Mr. Jitendra Patel and his nominees and petitioner started his own business in the name and style of Sankalp Infracon on and from 7.9.2016 as a sole proprietor of Sankalp Infracon, a proprietorship concern and the petitioner was qualified for 14 contracts in the name of Sankalp Infracon and the average turnover of the petitioner proprietor is around 33.54 Crores.
2.2 As per the case of the petitioner, that the respondent No. 1 floated a tender for “Construction of Government Polytechnic Building at Halol, District Panchmahal” work and pre-qualified bid was also floated for the said bid and as the petitioner was eligible to bid for the said contract, the petitioner applied for the said contract along with necessary documents, as per the conditions of the tender including balance-sheet and other documents for showing the average turnover, certificate of Chartered Accountant regarding turnover/experience and Certificate of shareholding, list of works completed, etc. However, the petitioner was considered ineligible in pre-qualification. The petitioner vide letters dated 13.2.2018, 17.2.2018 and 12.3.2018 requested the respondent No. 2 to give reasons for considering petitioner ineligible for pre-qualification stage.
2.3 The respondent No. 2 vide impugned order dated 15.3.2018 informed the petitioner that the petitioner is not eligible, because his past experience in Shree Infracon Pvt. Ltd. cannot be considered. That by the impugned order dated 25.4.2018, the petitioner is informed that the petitioner is not found eligible by the screening committee. It is the case of the petitioner that on account of the impugned orders, the petitioner is not found eligible for pre-qualification bid in all other future contracts also. Hence this petition.
3. Ms. Sangeeta Pahwa, learned advocate appearing on behalf of the petitioner has vehemently submitted that the impugned orders are illegal, bad in law, against the settled legal position and in violation of principles of natural justice and hence the same deserve to be quashed and set aside.
4.
