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2019 Supreme(Guj) 560
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
J.B. PARDIWALA, A.C. RAO, JJ.
Ravi Industries Through Authorised Signatory Sagar Behl S/o Subhash Behl - Petitioner
Versus
Gujarat Rural Industries Marketing Corporation Ltd Thru. Managing Director - Respondent
R/Special Civil Application No. 6886 of 2019 With Civil Application (For Direction) No. 1 of 2019 With R/Special Civil Application No. 8545 of 2019
Decided On : 08-07-2019
For the Petitioner:Mr. S.N. Shelat, Senior Advocate with Mr. Vishwas K. Shah.
For the Respondent:Mr. Kamal Trivedi, Advocate General with Mr. Anuj K. Trivedi, Advocate with Ms. Ankeeta Rajput Advocate For Mr. Mahavir M. Gadhvi, Advocate.
Headnote:
Constitution of India,1950 - Article 226 – Petition issues raised in both captioned writ applications are same those were heard analogously and are being disposed of by this common judgment and order - Writ applicant a partnership firm through its authorized signatory has prayed for following reliefs – Petition be pleased to quash and set aside condition clause introduced by way of Corrigendum from Tender floated by Respondent Corporation - Petitioner states and submits that details of sales of Petitioner is also provided to Respondent Corporation eligibility criteria of units produced is brought by corrigendum to specifically eliminate Petitioner from race said clause is arbitrary and illogical - Admittedly Petitioner does not fulfill eligibility criteria of production introduced by way of Corrigendum - Case of Petitioner is what is relevant is production capacity of unit factory and not actual production of unit factory - In any case Petitioner’s production capacity is more requirement of Respondent Corporation and thus it can meet the demand of Corporation smoothly if awarded contract on being - Thus logical aspect is production capacity of unit - Tender document of no such eligibility clause was there - In case on hand it is added with Oblique motive and to favor some parties only theme and aim of Corrigendum is to restrict race between few parties only and not to allow healthy competition with a equator that Govt. undertaking pays more for bicycle - Thus Corrigendum is against public policy and discriminatory - It is the case of the writ applicant that it is a partnership firm having its registered office at Ludhiana, Punjab - It is in the business of manufacturing bicycles respondent is a Government of Gujarat Undertaking, and on regular basis it floats Tenders to purchase bicycles grievance voiced by writ applicant is that in first bid document there was no condition prescribed that bidder should have minimum actual production of average – Held, Court has been held that terms of invitation to tender cannot be open to judicial scrutiny because invitation to tender is in realm of contract - However Apex Court observed that only a limited judicial review is available in cases where is established that terms of invitation to tender were so tailor-made to suit convenience of any particular person with a view to eliminate all others from participating in bidding process - Similar view has been taken by the Apex Court after considering a catena of decisions - Apex Court has held in that award of a contract is essentially a commercial transaction which must be determined on basis of consideration that are relevant to such commercial decision - This implies that terms subject to which tenders are invited are not open to judicial scrutiny unless it is found that same have been tailor-made to benefit any particular renderer or class - In this view of matter, we are of opinion that it is always open to Government to put any condition in tender notice which according to them is suitable and in larger public interest – Petition rejected (Para 10)
J.B. PARDIWALA, J.
1. Since the issues raised in both the captioned writ applications are the same, those were heard analogously and are being disposed of by this common judgement and order.
2. For the sake of convenience, the Special Civil Application No.6886 of 2019 is treated as the lead matter.
3. By this writ application under Article 226 of the Constitution of India, the writ applicant, a partnership firm, through its authorized signatory, has prayed for the following reliefs:
“9(a) Be pleased to quash and set aside condition clause No.4 introduced by way of Corrigendum from Tender dated 28.02.19 floated by Respondent No.1 Corporation.
(b) Pending admission, bearing and final disposal of this Petition be pleased to stay the opening of the bids of the Tender floated by Respondent No. 1 Corporation.
(c) Pending admission, hearing and final disposal of this Petition, be pleased to stay condition clause No.4 of Tender dated 28.02.19 floated by Respondent No. 1 Corporation and be further pleased to permit Respondent No. 1 Corporation to proceed for opening the bids.
(d) Costs of this Petition to be awarded.
(e) Such further and other relief, order or direction which may be just, fit, proper and equitable in the facts and circumstances of the Petition.”
4. The case of the writ applicant, in his own words, as pleaded in the writ application, is as under:
“2.1 The Petitioner is Partnership Finn established in the year 1967, having registered office at Ludhiana, Punjab and it manufactures bicycles.
2.2 The Respondent No. 1 is Government of Gujarat Undertaking which regularly floats tenders to purchase bicycles.
2.3 The Petitioner states that by way of corrigendum dated 05.03.19, minimum actual production of average 6,00,000 per annum bicycles in each of three accounting years i.e. 2015-16, 2016-17 and 2017-18 was added. To amplify the proof of production, insistence was placed on ER-l or any other return submitted to Excise authority.
2.4 The Petitioner states that by way of another corrigendum dated 27.03.19 the aforesaid condition of produced bicycles was altered from 600,000 to 500,000 in last three years I.e. 2015-16, 2016-17 and 2017-18 and minimum production capacity of 10,00,000 bicycles per annum.
2.5 The Petitioner states that by way of another corrigendum dated 29.03.19 the aforesaid condition of produced bicycles was altered 5 lacs bicycles in last three years ( aggregate 15 lacs ) I.e. 2015-16,2016-17 and 2017-18.
2.6 The Petitioner states and submits that it has submitted its bid for the tender on 01.04.19. The closing date of bid was 01.04.19.
2.7 That the Petitioner states and submits that details of sales of Petitioner is also provided to Respondent No. 1 Corporation. The eligibility criteria of no. of units produced is brought by corrigendum to specifically eliminate Petitioner from the race. The said clause is arbitrary and illogical. Admittedly, Petitioner does not fulfill eligibility criteria of production introduced by way of Corrigendum. The case of Petitioner is what is relevant is production capacity of the unit factory and not actual production of unit factory. In any case, Petitioner’s production capacity is more then the requirement of Respondent No. 1 Corporation and thus it can meet the demand of Respondent No. 1 Corporation smoothly if awarded the contract on being L1. Thus the logical aspect is production capacity of the unit and not the no. of units manufactured per annum.
2.8 That in Tender document of 2016-17, no such eligibility clause was there. In the case on hand, it is added with Oblique motive and to favour some parties only. The theme and aim of such Corrigendum is to restrict the race between few parties only and not to allow healthy competition, with a sequator that Govt. undertaking pays more for the bicycle. Thus the Corrigendum is against public policy and discriminatory. That the Peti
