Gunina Commercials Private Limited Vs the State of Maharashtra through the Principal Secretary Tribal Development Dept. and Ors.

wp5140-wp5197

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELATE JURISDICTION
WRIT PETITION NO.5140 OF 2014

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Mohmmed Salim Mohmmed Kasam...Petitioner
vs.
State of Maharashtra & Ors. ...Respondents

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...Respondents

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ALONG WITH

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 WRIT PETITION NO.5197 OF 2014

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Gunina Commercials Pvt.Ltd....Petitioner
vs.
The State of Maharashtra & Ors. ...Respondents

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Mr.Uday Warunjikar i/b Mr.Siddhesh Ashok Pilankar for
the Petitioner in W.P.No.5140 of 2014.
Mr.M.M.Vashi, Senior Advocate i/b Mr.Nikhilesh Pote
for the petitioner in W.P.No.5197/2014
Mr.Vineet Naik, Special Senior Counsel i/b
Mr.P.G.Sawant, AGP `B' Panel for the State

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CORAM : A.S.OKA, &
 A.S.CHANDURKAR, JJ.

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 DATE : JULY 1,2014

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P.C.:

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1These petitions can be disposed of by a common
order as the challenge in both the petitions is more
or less identical.

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2In these petitions, the challenge is to the
certain terms and conditions incorporated in the e-
tender notice dated 20th May 2014. The e-tender is
for supply of food grains, pulses and other items to
Adivasi Ashram Schools run by the State Government.
The estimated cost of supply is Rs.1,00,00,000/-.

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Essentially, the challenge is to the conditions 3,6,7
and 13 in the tender which read thus:

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(A) Essential/compulsory documents in the technical
bid (Bidder has to upload following documents in the
form of scanned PDF file)

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(1)...

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(2)...

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(3)Joint Venture of any form are not
acceptable.

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(4)...

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(5)...

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(6)The certificate issued by the Chartered
Accountant showing minimum turnover of
Rs.100.00 Crore per annum for last three
financial years (2011-12, 2012-13 and 2013-
14).

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(7)Chartered Accountant certificate in
support of experience of Supply of food items
to any State Government/Central Government
for last 3 financial years (2011-12, 2012-13,
2013-14);

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(8)...

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(9)...

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(10)...

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(11)...

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(12)...

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(13)Bidder should submit certificate from
responsible authority of any Central
Government/State Government showing that he

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has supplied food items minimum Rs.50 Crore
in each year during last 3 financial year
(2011-12, 2012-13, 2013-14)”

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3We have heard the learned counsel Shri
Warunjikar in Writ Petition No.5140 of 2014 and the
learned senior counsel Shri Vashi in Writ Petition
No.5197 of 2014. We have heard the learned senior
counsel representing the State Government.

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4Our attention is invited by the learned senior
counsel for the petitioner in Writ Petition No.5197
of 2014 to the orders passed by this Court in Writ
Petition No.6952 of 2013. The submission is that
this Court deprecated the practice of procuring food
grains without inviting tenders. It is pointed out
that this Court observed that the State Government
will have to adopt a fair and transparent process of
procuring food grains of a good quality at a
competitive price. The submission is that the e-
tender has been issued on the basis of the Government
Resolution published on the basis of the observations
made by this Court in Writ Petition. It is submitted
that the terms and conditions which are objected will
have to be tested on the basis of what is observed by
this Court. The submission is that the respondents
will have to satisfy that the process adopted by e-
tender is fair and transparent process of procuring
food grains of a good quality at a competitive price.

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5Various submissions have been made by the
learned senior counsel appearing for the petitioner
in Writ Petition No.5197 of 2014 in support of the
challenge to the aforesaid clauses (6), (7) and (13)
of the e-tender notice. The entire emphasis in the

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submissions is that the said conditions have been
incorporated to favour Mahila Sansthas namely
Venkateshwara Mahila Sanstha,Latur, Mahalaxmi Mahila
and Balvikas Bahuddeshiya Audhyogic Sahakari Sanstha
Ltd.,Nanded and Mahila Sahkari Sanstha Ltd.,Dhule.
Our attention was invited to observations and
findings recorded as regards some of the institutions
in the fact finding enquiry ordered by the Apex Court
in a pending petition. The submission is that the
conditions have been essentially incorporated to
ensure that only the said three institutions satisfy
the criteria laid down. It is pointed out that the
requirement of producing a certificate issued by a
Chartered Accountant showing a minimum turnover of
Rs.100.00 crore for last 3 financial years is
arbitrary and irrational. It is pointed out that the
condition No.7 clearly indicates that the competition
is restricted by providing that the bidder should
have experience of supply of food items to any State
or Central Government for last 3 financial years. It
is submitted that this clause has been incorporated
to ensure that those who have supplied food grains to
the Government through the agencies of the Government
are not eligible. As regards the condition No.13 of
having supplied food items of minimum Rs.50 Crores
during the last 3 financial years, our attention is
invited to another tender notice published by the
State Government after the publication of the
impugned tender notice. The said tender is for the
supply of milk, eggs, Banana and seasonal fruits to
Ashram Schools. It is pointed that the term (A)-15
thereof provides that the bidder should submit a

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certificate from responsible authority of any Central
Government/StateGovernment/SemiGovernment/
Government undertaking/ Co-operative institutions
showing that he has supplied food items (as mentioned
in the tender) minimum Rs.25 Crore in any 3 financial
years out of last 5 years. The learned senior counsel
for the petitioner submitted that the there cannot be
a difference between the tender conditions in the
tender for supply of milk, eggs, Banana and seasonal
fruits and the tender conditions in the tender for
supply of food grains.

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6Our attention is invited to the decision of the
Division Bench of Nagpur High Court dated 5th March
2004 in the case of M/s.D.K.Enterprises Vs.State of
Maharashtra (Writ Petition No.87 of 2004 delivered on
5th March 2004). It is pointed out that a similar
condition of having experience of three consecutive
years immediately preceding the year in which the
tender is floated, is found to be arbitrary and
irrational. Relying upon the said decision, it is
submitted that the condition Nos.6,7 and 13 are
arbitrary and irrational. It is submitted that the
objected clauses will defeat the very object of
ensuring transparent and fair process which is
required to be adopted by the State Government in
procuring the supply of food grains.

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7The learned counsel for the petitioner in Writ
Petition No.5140 of 2014 while adopting the
submissions of the learned senior counsel for the
petitioner in the other companion Petition urged

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that the incorporation of the condition No.3 which
prevents a joint venture from offering a bid shows
that the intention is to prefer selected few.

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8The learned senior counsel for the petitioner
for the State Government invited our attention to
order dated 10th June 2014 passed by the Division
Bench of this Court, Bench at Nagpur in Writ Petition
No.2548 of 2014 in the case of M/s.Chordia Trading
Company vs. The State of Maharashtra and another. He
submitted that the challenge was to the same tender
notice subject matter of the challenge in this
petition. He has produced a copy of the said Writ
Petition for showing that the challenge was to the
same conditions which are subjected to challenge in
these two petitions. He submitted that the said
conditions have been upheld by the Bench at Nagpur.

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9Today the learned senior counsel for the State
Government has tendered across the bar a letter dated
1st July 2014 addressed by the Deputy Commissioner-
Finance, Tribal Department to the Government Pleader
in which a statement has been made that the State
Government shall re-issue a short tender covered by
the notice dated 20th June 2014 with the following
clarifications/notifications to the tender condition
Nos.7 and 13 in the impugned tender notice:

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“7Chartered Accountant Certificate in

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support of experience of supply of Food
items to any State Government/Central
Government, either directly or through its

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Nodal Agencies for the last 3 financial
years (2011-12, 2012-13 and 2013-14)

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13(a)In the case of supplies made
directly to any State Government/ Central
Government by a Bidder, he should submit a
Certificate from any Officer not below the
rank of Deputy Secretary or its equivalent
of the respective State Governments/Central
Government that he has supplied Food Items
minimum of Rs.50 Crores in each year during
last 3 Financial Years (2011-12, 2012-13) OR
(b)In the event of any supplies made
to any State Government/ Central Government
by a Bidder through any Nodal Agency,
appointedbytherespectiveState
Government/ Central Government, then he
shall submit a Certificate by the Managing
Director or equivalent of that Nodal Agency,
that he has supplied Food items minimum of
Rs.50 Crores in each year during the last 3
Financial Years (2011-12, 2012-13 and 2013-
14).”

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10 We have considered the submissions made across
the bar. As far as challenge to the conditions
incorporated in the tender notice is concerned, in
the case of M/s.Michigan Rubber (I) Ltd. Vs. State of
Karnataka and others1, the Apex Court has held that
the scope of interference in a petition under Article
226 of the Constitution of India with the tender

1 (2012) 8 SCC 216

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conditions is very limited. The Apex Court held that
in the matter of formulating conditions of tenders
and awarding contracts, a greater latitude is to be
conceded to the State Authorities. It is held that
unless the action of the tendering authority is mala-
fide and is a misuse of statutory powers, the
inference of the writ Court is not warranted. In the
context of the limited scope, the the submissions
made across the bar will have to be considered. We
must note here that the learned senior Counsel
representing the State is right to the extent that
the challenge to the same conditions of the same
tender notice has been rejected by the Bench at
Nagpur by the aforesaid Judgment and order dated 10th
June 2014 in the case of M/s.Choradia Trading
Company.

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11 As far as the submission made by the learned
Counsel for the petitioner in Writ Petition No.5140
of 2014 as regards clause No.3 is concerned, we must
observe here that in the said petition, there is no
challenge to clause (3). Therefore, the said
contention cannot be considered on merits. As
regards the condition No.6 which provides that there
should be a minimum turnover of Rs.100 Crores for
last 3 financial years, we must note this turn over
is not necessarily of the business of supply of food
items. The Estimated cost of the food grains to be
supplied under the impugned tender is Rs.100 Crores.
Any person who satisfies the condition Nos.7 and 13
as per the conditions modified by the State can
compete provided the minimum turnover of his entire

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business is 100 Crores per annum for last three
financial years. We find nothing illegal about the
said condition. The State wants to ensure that the
Contractor should have a financial capacity to handle
supply of food grains of Rs.100 crores.

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12 A submission is made relying upon another tender
of supply milk, eggs, Banana and seasonable fruits in
which the condition is of having a turn over of
minimum Rs.30 Crores during last three financial
years. In this behalf, as pointed out earlier,
reliance is placed on the decision dated 5th March
2004 of the Division Bench of this Court, at Nagpur
(M/s.D.K.Enterprises vs. The State of Maharashtra).
We have perused the said decision. As far as the
terms and the conditions in a tender document are
concerned, the same depend on the nature of the
contract and the nature of the goods to be supplied.
Therefore, the submission that the conditions in the
tender for supply of food grains and conditions in
the tender for supply of milk and other items should
be the same cannot be accepted. As far as the
aforesaid decision is concerned, we find from the
Judgment that the same proceeds on the concession by
the learned counsel for the State Government which
has been recorded by the Division Bench in paragraph
29 of the said Judgment.

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13 In view of above discussion, we find nothing
arbitrary or illegal about the condition no.6
incorporated in the tender. We are satisfied that
the action of incorporating the said condition in

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tender is not at all a misuse of power. Now, there is
a statement that a fresh short tender after
incorporating modified conditions No.7 and 13 will be
issued. After having considered the modifications
which the State Government proposes to make to
clauses 7 and 13 of the tender conditions, we find
nothing arbitrary with the amended clauses as
modified by the State. Now, the bidder who has
supplied food grains to the Central or State
Government through its nodal agency will be eligible
to apply. Those who have not made supply directly to
the Governments but have made it through the
agencies appointed by the State will be also entitled
to offer bids.

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14 We accept the statements made by the State
Government and the communication dated 1st July 2014
which we have quoted above.

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15 Subject to what is stated above, we see no
scope for interference in writ jurisdiction under
Article 226 of the Constitution of India.
Accordingly, we reject the petitions.

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16 At this stage, the senior learned counsel for
the State pointed out that now fresh tenders will
have to be invited and earlier tenders will not be
acted upon in view of ad-interim relief granted by
this Court. He states that new tender process will
be completed within a period of 45 days. We,
therefore, make it clear that it will be open for
the State to procure supply from the existing

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contractors on the same terms and conditions for a
period of 45 days.

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(A.S.CHANDURKAR,J.)

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(A.S.OKA,J.)

Gunina Commercials Private Limited v. the State of Maharashtra through the Principal Secretary Tribal Development Dept. and Ors.

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Gunina Commercials Private Limited v. the State of Maharashtra through the Principal Secretary Tribal Development Dept. and Ors.

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