IMPORTANT POINT
The eligibility criteria for tender participation require continuous operation of retail outlets for five years, and no binding contract existed, negating the application of natural justice principles.

JUDGMENT

Umesh A. Trivedi, J.

1. By way of this petition under Article 226 of the Constitution of India, the petitioner is challenging communication dated 13.08.2024 issued by the respondent authority as being illegal and with a further direction to respondent authority to enter into agreement with the petitioner in accordance with clause 32 of the tender notice, whereby petitioner was informed that the documents submitted with the bid revealed that none of the functioning retail outlets are operating since last five years as against the requirement of at least 05 numbers of functioning outlet, seeking clarification from the petitioner.

2. While petition was filed, a further prayer was made to restrain the respondents from canceling the tender bearing Tender Notice No. MH/SP/127/2024-25 till the pendency and final outcome of the present petition. In the alternative, it was prayed that respondent authority may be restrained from taking any coercive steps against the petitioner without prior adjudication of the detailed representation put forth by the petitioner dated 05.09.2024 after affording an opportunity of hearing to the petitioner.

2.1 When petition came up for hearing, a draft amendment was filed and it was allowed by the Court. The Court issued notice making it returnable after amendment is carried out. Pursuant thereto, not only few grounds are added to the petition but prayer clauses (BB),(BBB) are also added, whereby notice dated 11.09.2024, whereby it was communicated that tender has been discharged as no bidder fulfilled the eligibility criteria, as also notice for Expression Of Interest (hereinafter referred to as “EOI” for short) for supply of medicine dated 04.09.2024 at page 91 of the petition, is also challenged, which provided for a stop-gap arrangement for the supply of medicines for the benefit of respondent authority, and even Union of India, through Secretary, Ministry of Ports, Shipping and Waterways is also joined as party respondent No.2.

2.2 Considering the necessity of the supply of medicines vide order dated 27.09.2024, pursuant to advertisement being “EOI” for supplying medicines published dated 05.09.2024, was permitted by the Court to proceed ahead for a period of 1 month from that date. By the said order, the authorities were free to get the supply for the aforesaid period, which came to be further extended for 1 more month vide order dated 24.10.2024, as matter was in the midst of hearing on that day.

2.3 On conclusion of submissions as also learned advocates tendered notes of submissions, case is posted for dictation of judgment and order on 30.10.2024. However, it being the last working day before Diwali holidays, since it was not possible to conclude on that day, it has been again posted for dictation of judgment and order today i.e. on 18.11.2024. However, during Diwali vacation, since we could find some time for dictation of this judgment, we have devoted some time for it during the Diwali holidays.

3. Heard Mr. Harshit S. Tolia, Senior advocate, learned Counsel assisted by Mr. Suraj A. Shukla, learned advocate for the petitioner as also Mr. Dhaval Vyas, Senior advocate, learned Counsel assisted by Ms. Yukta Pandey for M/s. Vyas Associates, learned advocate for the respondent No.1.

3.1 Mr. Harshit S. Tolia, Senior advocate, learned Counsel for the petitioner, vehemently submitted that petitioner fulfills the qualification criteria mentioned in the Notice Inviting Tender online (hereinafter referred to as “NIT”, for short).

3.2 Drawing attention of the Court to the qualification criteria mentioned in the notice inviting online tender where under the head of “Experience”, it is submitted that the bidder should have minimum five years’ experience ending last day of month previous to the one in which applications are invited of owning and operating at least 08 numbers of functioning outlets (subsequently it was by corrigendum reduced to 05 numbers of outlets) of allopathic medicines in India under appl