Bombay High Court
Barket Contractors Pvt Ltd And Anr vs Bhiwandi Nizampur City Municipal … on 30 April, 2025
Author: M. S. Karnik
Bench: M. S. Karnik
2025:BHC-AS:19682-DB
wp.17090-2024.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.17090 OF 2024
1) M/s. Barkat Contractors Pvt. Ltd.,
Having its Registered Office at
Shop No. 12, Vishwakarma Estate,
Phase-2, 100ft Road, Vasai West,
Thane - 401 105, Maharashtra.
2) M/s. Ratnaprabha Facility Services
LLP, Having its office at S.No. 31/8,
Lane No. 5, Borate Wasti,
Khardi, Pune, Maharashtra, 411014. ...Petitioners
Versus
1) Bhiwandi Nizampur City Municipal
Corporation, Old ST Stand,
New Building, Anand Dighe Chowk,
Opp. Rajiv Gandhi Flyover,
Bhiwandi, Maharashtra - 421302.
2) Municipal Commissioner,
Bhiwandi Nizampur City Municipal
Corporation, Old ST Stand,
New Building, Anand Dighe Chowk,
Opp. Rajiv Gandhi Flyover,
Bhiwandi, Maharashtra - 421302.
3) Deputy Commissioner,
Bhiwandi Nizampur City Municipal
Corporation, Old ST Stand,
New Building, Anand Dighe Chowk,
Opp. Rajiv Gandhi Flyover,
Bhiwandi, Maharashtra - 421302.
4) M/s. Dimpal Enterprises,
70, Kacheri Pada Road,
Behind Remand Home,
Kacheri Pada, Bhiwandi,
Thane - 421302.
PMB 1
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5) M/s. Chavan Enterprises,
45/2-3, Shivsagar Rahivashi Sangh,
Bhatwadi Opp Samaj Kalyam Kendra,
Ghatkopar West, Mumbai - 400084.
6) M/s. Sai Baba Enterprises,
Flat No. 350, Vehele Village,
Post Pimplas Block,
Near Shiv Mandir, Bhiwandi City,
Thane - 421311. .... Respondents
****
Ms. Shilpi Jain i/b. Ms. Jaya Bagwe, for the Petitioners.
Mr. Dilip Bodake, for Respondent Nos.1 to 3.
Mr. Ravi Prakash Jadhav a/w Ms. Richa Khatu, for Respondent
No.4.
****
CORAM : ALOK ARADHE, CJ &
M. S. KARNIK, J.
RESERVED ON : 22nd APRIL, 2025
PRONOUNCED ON : 30th APRIL, 2025
JUDGMENT (PER M. S. KARNIK, J.) :
1. Petitioner No.1 – M/s. Barkat Contractors Pvt. Ltd. and
Petitioner No.2 – M/s. Ratnaprabha Facility Services LLP
challenge the decision dated 9th October 2024 of the
Respondent No.1 – Bhiwandi Nizampur City Municipal
Corporation (‘Corporation’ for short) disqualifying the
Petitioners and thereby declaring Respondent Nos. 4 to 6
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technically eligible. The order dated 13 th October 2024 passed
by the Corporation is also challenged, whereby the
Respondent No.4 is declared as the lowest bidder. The work
order dated 20th December 2024 in favour of Respondent No.4
is also under challenge.
2. Briefly stated the facts are that the Corporation
issued e-tender on 7th September 2024 for door-to-door
collection and transportation of Municipal Solid Waste up to
disposal/treatment site for Zone II in the Bhiwandi Nizampur
City for the period of three years. The Petitioners through
their partnership firm M/s. Barkat Contractors submitted the
bid on 29th September 2024 along with all the required
documents, credentials and experience certificates as per the
tender format. The technical bids were opened on 1 st October
2024. There were five bidders including the Petitioner. The
Petitioners downloaded all the documents pertaining to the
other bidders/applicants which were submitted along with the
tender.
3. Upon examining the bid documents, the Petitioners
found that out of the total 16 mandatory qualifications,
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Respondent Nos.4 to 6 had failed to meet approximately
12-13 criterions. The Petitioners brought the same to the
attention of the Corporation on 8th October 2024 and
requested to investigate the matter and if found to be correct,
disqualify Respondent Nos.4 to 6.
4. The Corporation issued email to the Petitioners dated
9th October 2024 stating that the Technical Evaluation
Committee had rejected their bid. The Corporation uploaded
the technical evaluation report on its website on 9th October
2024. The grievance of the Petitioners is that despite the
Petitioners’ objection that Respondent Nos.4 to 6 have
submitted incomplete and false documents, they were
declared to be technically eligible. The financial bid was
opened on 9th October 2024. The Petitioners vide a letter
dated 11th October 2024 wrote to the Corporation objecting to
the declaration of Respondent No.4 as technically and
financially eligible.
5. Ms. Shilpi Jain, learned counsel for the Petitioners
submitted that :-
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“i) R4 had filed the forged ITR documents as E-filing
acknowledgement number on the ITR filed for AY 2023-24
and 2024-25 are same which shows a clear case of
forgery.
ii) Bar code numbers on both the ITR i.e, AY 2023-24 and
AY 2024-25 are same.
iii) Computation on both the ITR for the AY 2024-25 and
2023-24 were found to be same.
iv) Submitted labour License that had already expired on
30th September 2022.
v) CA certificate does not have a date and the UDIN
number.
vi) Application Reference Number on GST-36 Turnover
Details for quarterly returns in both the AY 2024-25 and
AY 2023-24 is same.”
6. Learned counsel for the Petitioners submitted that the
Respondent No.5 is not technically eligible for the following
reasons :
“i) Acknowledgement No. mentioned in the ITR submitted
by R5 for AY 2024-25 is exactly same as the
acknowledgement number in the ITR submitted by R4 for
AY 2023-24 & AY 2024-25.
ii) There are two different IT Acknowledgement number in
the ITR for AY 2024-25.
iii) Turnover certificate issued by CA is also forged. It
shows the turnover of Rs. 930.95 crores but on examination
of the UDIN Number, the certificate shows a turnover of
822.82 crores for the year 2022-23.
iv) Submitted forged experience certificate alleged to be
issued by Akola Municipal Corporation, which on telephonic
verification was confirmed that no such certificate was ever
issued.”
7. So far as Respondent No.6 is concerned, learned
counsel for the Petitioners submitted that Respondent No.6 is
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not technically eligible on the following grounds:
“i) R6 had submitted the UDYAM Registration Certificate
as per which Respondent No. 6 is categorized as ‘Micro’ for
the AY 2024-25, 2023-24 and 2022-23. Despite this, the
Contractor has submitted the false turnovers of
Rs. 8,85,48,600/-, 6,19,20,000.0 and 2,16,90,500/- for
the respective assessment years which are completely
contradictory to the statement that Respondent No.6 is a
micro enterprise.
ii) Respondent No. 6’s submitted work order in the name
of Saibaba Transport, while the bid itself was submitted
under the name of Saibaba Enterprises. No details about
Saibaba Transport were provided in the tender. The only
document submitted to the tendering authority was an
agreement claiming Saibaba Transport and Saibaba
Enterprises were separate entities with the same
proprietor. However, there is no legal concept of merging
two proprietary firms.”
8. Learned counsel submitted that despite these
objections, the Corporation issued a communication dated
16th October 2024 declaring Respondent No.4 as the lowest
bidder. This Writ Petition was filed on 25th October 2024.
9. Learned counsel for the Petitioners submitted that
belatedly on 14th November 2024 the Corporation provided
the official reason for the Petitioners’ disqualification from the
tender process. The Petitioners’ tender was rejected because
the document presented as a partnership deed was in nature
of Joint Venture Agreement, as according to the Corporation
the Petitioners cannot form Partnership Firm. The extract of
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the letter dated 14th November 2024 reads as under :-
“Vide ref no.1, Bhiwandi Nizampur municipal corporation
has checked and verified the documents in Joint venture.
As per the Tender condition Joint venture is not allowed to
participate in tender so your bid has been disqualified.
Furthermost you have claimed that you have submitted a
partnership deed so as per the tender requirement”
partnership deed is that document which is prepared
between the partner before establishing the firm or during
or in between of the single firm for deciding the
shareholding of partner in company” but you have
submitted a document showing two different firm
collaborating to form a partnership which is nothing but a
joint venture. So accordingly, your bid has been
disqualified.”
10. Assailing such an approach of the Corporation, learned
counsel for the Petitioners submitted that as per the
Partnership Act, any two persons who are separate legal
entities can form a partnership firm. Learned counsel
submitted that since the Partnership Agreement was executed
between the two separate legal entities i.e. between Petitioner
No.1 which is a corporate entity and Petitioner No.2 which is
an LLP, the same is allowed under the Partnership Act.
Learned counsel therefore submitted that the stand of the
Corporation that two firms cannot form a partnership is
incorrect.
11. Learned counsel also assails the work order as
according to her not only is the decision of the Corporation to
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disqualify the Petitioners is arbitrary and capricious but the
decision of the Corporation to issue the work order in favour
of Respondent No.4 holding it to be technically qualified and
thereupon accepting the financial bid as L1 is completely
arbitrary and illegal for the reason that the Respondent No.4
has filed forged and fabricated documents. Learned counsel
submitted that it is in the public interest that the tender
process should be cancelled as the very basis of submission of
bid by the Respondent No.4 was fabrication and falsification of
documents.
12. Learned counsel filed an additional affidavit on 8 th
January 2025 annexing a copy of the Partnership Deed in the
name of M/s. Barkat Contractors and the Petitioner No.2 and
Memorandum of Association of Petitioner No.1. Learned
counsel emphasised that Section 4 of the Partnership Act
permits constitution of a firm or partnership between one or
more person. She submitted that since the partnership deed
was executed between a private limited company and LLP,
which are both separate legal entities, the same is allowed
under the Partnership Act. Learned counsel was at pains to
point out that all the documents of Respondent No.4 are
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forged and new documents are submitted by the Respondent
No.4 after the process was completed.
13. On the other hand, learned counsel for the
Respondents submitted that the decision making process
cannot be faulted as on the basis of the documents submitted
and in terms of the tender conditions, the Petitioners were
held ineligible. It is further submitted that the Respondent
No.4 was issued the work order as it was found to be
technically eligible.
14. We have heard learned counsel. We have perused the
memo of the Petition, the materials on record and the
pleadings. At the outset let us see the instructions to the
bidders in the tender document. Clause 2.4 provides as
under:-
“2.4 No Joint Venture and subcontracting will be
allowed.”
15. Further the eligibility criteria, opening and evaluation
of bids in terms of Clause 3 of the tender document provides
that “Bidder may be entities registered under the Indian
Companies Act, 1956 or entities registered under the Indian
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Trust Act, 1882 or Public Trust Act, 1959 or Societies
registered under the Society Registration Act, 1860 or
Proprietorship firm or Partnership firms, LLP, Private Limited.”
16. The Petitioners were disqualified by the decision dated
9th October 2024 of the Corporation. The Corporation had
issued the notice inviting the online tenders (E-Tender) for the
period of three years for door-to-door collection and
transportation of Municipal Solid Waste up to
disposal/treatment site for Zone II of the Corporation from
well qualified and experienced agencies / Contractors/Firms/
Company (public limited/private limited) on web portal. The
contract value of the work for the period of one year was
approximately Rs.7.30 Crores and time limit for completion is
three years from the date of issue of the work order.
17. The Petitioners’ e-tender was scrutinised and
technically evaluated by duly constituted Technical Evaluation
Committee. The Petitioners were declared disqualified because
of violation of terms and conditions of Clause 2.4 which
provides no joint venture and subcontracting will be allowed.
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The Petitioner No.1 is a private limited company and Petitioner
No.2 is a partnership firm and both these entities have
submitted e-tender and therefore due to joint venture the
Petitioners were declared as disqualified as per the terms and
conditions of Clause 2.4. The Respondent Nos.4 to 6 were
found to be qualified.
18. Exhaustive arguments are advanced by learned
counsel for the Petitioners that having regard to the provisions
of the Partnership Act, the Petitioner Nos.1 and 2 fit into the
definition of a Partnership Firm and that the Petitioners in
such circumstance cannot be regarded as a joint venture, but
according to learned counsel the Petitioners, have to be
regarded as partnership firm. Admittedly, the Petitioner No.1
is a private limited company and Petitioner No.2 is a
partnership firm and both the entities have submitted e-
tender. The Corporation construes the Petitioners to be a joint
venture which as per the tender condition is not allowed to
participate in the bidding process. According to us, the
Corporation is best suited to interpret the tender document
being an employer which has issued the tender document.
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The interpretation of the Corporation that the Petitioner No.1
being a private limited company and Petitioner No.2 being LLP
constitutes a joint venture cannot be regarded as perverse
considering the tender document as a whole. The argument of
the learned counsel for the Petitioners that ‘for the purpose of
the Partnership Act the Petitioner No.1 and Petitioner No.2
constitutes a partnership firm and therefore the Petitioners
are qualified’ is an argument which is completely misplaced.
The Corporation has to get the work executed. The
Corporation therefore knows its requirements.
19. The bid submitted by the Petitioner No.1 a private
limited company and Petitioner No.2 a partnership firm, if
regarded as a joint venture by the Corporation is an approach
which we do not find to be unreasonable, arbitrary or
capricious. The tender document prohibits participation by a
joint venture. That the Petitioner No.1 and Petitioner No.2
constitutes a partnership in terms of the Partnership Act is
hardly of any relevance, because in terms of the tender
document, a partnership firm or LLP individually is permitted
to bid but what is prohibited is a joint venture. The
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interpretation of the Corporation that a bid submitted jointly
by the partnership firm and a private limited company has to
be regarded as a joint venture is not a view which can be
regarded as perverse warranting interference.
20. Further, we find from the stand of the Corporation
that the Petitioners in the cause title and paragraph 2 of the
Petition stated that Petitioner No.2 is an LLP firm incorporated
under the Limited Liability Partnership Act having its
registered office at the address set out in the cause title and
Petitioners No.1 and Petitioner No.2 are partners in the
partnership firm M/s. Barkat Contractors. However, while
submitting the e-tender, the Petitioners did not disclose the
said fact to the Corporation. The Petitioners did not enclose
and supply the said partnership deed and Memorandum of
Association to the Corporation and therefore the Technical
Evaluation Committee disqualified the Petitioners on the basis
of the report submitted to the Corporation. Pursuant to the
directions of this Court, the Petitioners brought on record the
said partnership deed and Memorandum of Association. In any
case as we have found favour with the interpretation of the
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Corporation that the Petitioners constitute a joint venture and
therefore are disqualified, the belated submission of the
partnership deed and Memorandum of Association on
8th January 2025 in this Court can be of no assistance to the
Petitioners in respect of the present tender where even the
work order dated 20th December 2024 has been issued and
the work has commenced. We therefore do not find any merit
in this submission of learned counsel for the Petitioners.
21. Once the Petitioners are disqualified and not eligible
to participate, in view of the law laid down by the Supreme
Court in Raunaq International Ltd. vs. I.V.R.
Construction Ltd. And Ors.1 any judicial relief at the
instance of the Petitioners who are disqualified is misplaced.
22. Learned counsel for the Petitioners relied on the
decision of this Court in Shah Investments, Financials,
Developments & Consultants Pvt. Ltd. vs. State of
Maharashtra, through Principal Secretary and others 2. It
is pointed out that the contention raised by the Petitioners in
respect of alleged wrongful acceptance of bid of Respondent
1 (1999) 1 SCC 492
2 2014 SCC OnLine Bom 1561
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No.3 deserves consideration and accordingly this Court tested
the contention regarding disqualification of Respondent No.3
therein. The decision in Shah Investments, Financials,
Developments & Consultants Pvt. Ltd. (supra) is
distinguishable on facts. For one, in paragraph 37 this Court
was considering a case where there were several deficiencies
in the tender document of Respondent No.3 itself and
secondly, found that the Corporation had hurriedly taken a
decision to award the tender. It is under those circumstances
that the Petition was allowed and the work order was
quashed. The facts in the present case are completely
different.
23. Nonetheless, in order to satisfy ourselves with the
submission of learned counsel regarding the documents
furnished by Respondent No.4 which according to the
Petitioners are forged and fabricated, let us see the stand of
the Corporation. The Corporation by the email dated 4 th
October 2024 directed the Respondent No.4 to submit the
documents enclosed along with the tender and sought
clarifications. All the required original documents were
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furnished on 19th November 2024 as mentioned in the email in
the proper format given in the tender document. The
Corporation had forwarded the tender documents of
Respondent No.4 to the All India Institute of Local Self
Government. Sometime in October 2024 the All India Institute
of Local Self Government addressed a communication to the
Corporation that a scrutiny of the submitted tender
documents was made and necessary clarifications were
sought. It was indicated that if the documents are not
submitted within the timeframe stipulated the bidders will be
disqualified.
24. All India Institute of Local Self Government issued a
letter dated 8th November 2024 to the Corporation to obtain
certified copies of documents from Respondent Nos.4 to 6
along with a confirmation from their Chartered Accountant
validating the document’s authenticity. The Corporation sent
letters dated 14th November 2024 to Respondent Nos.4 to 6
instructing them to provide all the original documents
submitted for the tender, along with a true copy and
statement from a Chartered Accountant confirming the
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authenticity of the documents and their respective UDIN
numbers.
25. The following chart indicates that the All India
Institute of Local Self Government recommended
disqualification of the Petitioners whereas on scrutiny of the
documents shared by the bidders, Respondent No.4 – M/s.
Dimpal Enterprises was recommended as qualified. We thus
find that there is a scrutiny of the documents shared by the
bidders by the All India Institute of Local Self Government.
The summary of technical evaluation by the Regional Director,
All India Institute of Local Self Government so far as the
Petitioners (Barkat Contractors) and Respondent No.4 (Dimpal
Enterprises) is concerned reads thus :-
Sr. Zone Tender Id Name of Bidder Status of Tender Remark
No. No.
1 Zone II 2024_BNCMC_ Barkat Contractors Recommendation – Violation of
10822167_1 & Ramprabha Disqualified tender clause 2.4
facilities Pvt “No Joint
Ltd Venture and
Subcontracting
will be allowed”
Recommendation
-Disqualified
3 Zone II 2024_BNCMC_ Dimpal PMC Recommend to Submitted all the
10822167_1 Enterprises email for Clarification & document.
pending document Recommendation
submission. -
1.Incorporation Qualified
Certificate:- UDYAM not For detail Please
submitted. check Annexure -
2.Letter for The Bid I(
Submission in the format kindly collect
attached at Appendix-I:- True
not Submitted. hard Copy from
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3. Experience Certificate/ successful
work order copy of bidder)
similar work:- not
submitted.
4. STATEMENT NO. II :-
not Submitted.
5. Financial Capacity of
The Bidder in the format
attached at Appendix I
Annexure- III :- Not
Submitted as per
Format.
6. Legal Capacity in the
format attached at
Appendix I Annexure-IV
:-not Submitted.
7. An affidavit regarding
no relation or
partnership with the
corporation member in
prescribed for on stamp
paper of Rs.100.
Appendix I Annexure-
V :- not Submitted.
8. An affidavit regarding
false document in
prescribed format on
stamp paper of 500/-
Appendix 1 Annexure-
VI.- not submitted.
9.Anti-Collusion
Certificate in the format
attached at Appendix-
IV :-not Submitted.
10. Bidder’s duly audited
balance sheet and profit
and loss account for the
preceding three years;
(i.e. 2021-22, 2022-23
and 2023-24) if year
2023-24 not audited
then valid reason with
declaration by CA along
last three-year
statement (i.e. 2020-
2021, 2021-22 and
2022-23) :-CA sign
stamp not present.
11.CV of the skilled
resources as
mentioned :-only 1 cv
attached, required 4
more.
12. Certificate from the
statutory auditor
regarding Eligible Project
:- submit with CA sign.
26. We are satisfied with the decision making process
adopted by the Corporation. The Petitioners may have their
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the Respondent No.4, however, we are concerned with the
approach adopted by the Corporation while scrutinising the
documents. Once we find that the procedure adopted is
reasonably fair and transparent, it is not possible for us to
extend the scope of judicial scrutiny merely because the
Petitioners are not satisfied and insist for further scrutiny by
any independent body.
27. We therefore do not find any merit in this Writ
Petition. The Writ Petition is dismissed.
(M. S. KARNIK, J.) (CHIEF JUSTICE)
Signed by: Pradnya Bhogale
Designation: PA To Honourable Judge
Date: 30/04/2025 17:04:12 PMB 19
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