IN THE HIGH COURT OF MADHYA PRADESH AT GWALIOR BEFORE HON'BLE SHRI JUSTICE ANAND PATHAK &

HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE WRIT APPEAL NO.1299 of 2022 Between:-

M/s INNOVATED HOSPITALITY SERVICE (INDIA) PRIVATE LIMITED THROUGH DIRECTOR RAM KUMAR SHARMA S/O SHRI RAM BHAJAN SHARMA, AGED ABOUT 34 YEAR, OCCUPATION- BUSINESS, R/O WARD NO.- 38 HOUSE NO. 713 RAM JANKI GALI GANDHI COLONY MORENA (M.P.)

…..APPELLANT (BY SHRI R.P. SINGH -ADVOCATE)

AND

1. STATE OF M.P. THROUGH PRINCIPAL SECRETARY, TECHNICAL EDUCATION DEPARTMENT, VALLABH BHAWAN, BHOPAL (M.P.)

2. COMMISSIONER, TECHNICAL EDUCATION DEPARTMENT, SATPUDA BHAWAN BHOPAL (M.P.)

3. PRINCIPAL GOVERNMENT POLYTECHNIC COLLEGE MORENA DISTRICT- MORENA (M.P.)

4. CHAIRMAN, TENDER SCRUTINY COMMITTEE, GOVERNMENT POLYTECHNIC COLLEGE MORENA DISTRICT- MORENA (M.P.)

5. M/s GAUTAM ENTERPRISES THROUGH PROPRIETOR/ DIRECTOR RAVINDRA GAUTAM, OFFICE ADDRESS- GANESH PURA MORENA DISTRICT-

MORENA (M.P)

…..RESPONDENTS (BY SHRI M.P.S RAGHUVANSHI– ADDITIONAL ADVOCATE GENERAL )

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Reserved on 28.10.2022 Delivered on 02.11.2022 --------------------------------------------------------------------------------

This appeal coming on for hearing this day, Hon'ble Shri Justice Milind Ramesh Phadke, passed the following:

JUDGMENT

(1) The instant writ appeal had been preferred u/s 2 (1) of Madhya Pradesh Uchcha Nayayalay (Khand Nyay Peeth Ko Appeal) Adhiniyum, 2005 against the judgment dated 02/09/2022 passed by learned Single Judge in W.P. (S) No. 19744/2022, whereby the writ petition filed by the appellant/petitioner challenging the sole eligible bid was rejected by the respondents without owing any justification in the first round of tender and illegally awarding the tender to respondent no.5 by molding the tender condition favouring it was dismissed.

(2) Heard on the question of admission.

(3) Facts which led to filing of the writ petition was that the appellant/petitioner participated in tender process floated online by the respondents for supply of food and its management to the ST students under Ambedkar free residential scheme as per the menu prescribed for day to day meal, by submitting its bid along with the requisite documents, which were to be submitted between the period 17/05/2022 to 06/06/2022 up to 5.00 p.m. Along with the petitioner six other firms also submitted their bids, but as per the tip of the scrutiny committee only the bid of the petitioner was found to qualify and therefore, in the light of clause 11.1.5 of M.P. Bhandar Kray Tatha Seva Uparjan Niyam, 2015 (herein after called “the Rules of 2015”) the entire tender process was cancelled and recommendations for issuance of new tender were made, since as per clause 11.1.5 of the Rule of 2015 there must have been at least three tenders for comparison.

(4) Thereafter, a second tender was issued, with a requirement of a fresh document i.e. form 26AS in alternate of form 16A, if not available, just to accommodate respondent no.5, as in the first round of tender respondent No.5 had not submitted form 16A, as it was not having any.

(5) The petitioner participated in the second tender process, but as the bid of respondent no.5 was the lowest, the tender was closed in its favour. Thus, by way of this petition, it is challenged that cancellation of the first tender was bad in law, as the first bid of the petitioner was cancelled in contravention of the Rules of 2015 and the second tender is bad in law as the conditions therein were modified just to accommodate respondent No.5 and the tender was awarded in its favour.

(6) Learned Single Judge after hearing the matter dismissed the petition holding that since the appellant/petitioner had participated in the second tender process and only when he remained unsuccessful that he challenged the tender conditions, now is estopped from challenging any of the conditions of the tender and secondly, a writ petition for enforcement of contract is no