Bombay High Court
Nitin Laxmidas Dama vs State Of Maharashtra Through Its … on 19 June, 2025
2025:BHC-OS:8973-DB
Neeta Sawant WP-4761-2024-FC
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.4761 OF 2024
Nitin Laxmidas Dama
An adult Indian inhabitant, residing at
106, Poonam Vihar C4 CHS Ltd.,
Poonam Nagar, Mahakali Caves,
Andheri (East), Mumbai - 400 093. ...Petitioner
: Versus :
1. The State of Maharashtra
Through its Principal Secretary,
Ministry of Dairy Development,
having its office at
Mantralaya, Mumbai 400032
2. The Commissioner
Dairy Development Department,
having its office at
Worli, Mumbai - 400 017
3. The Dy. Commissioner
Dairy Development Department,
having its office at
Worli, Mumbai - 400 017
4. The Dy. Secretary (Diary)
Government of Maharashtra
having its office at
Mantralaya, Mumbai - 400 032.
5. Chief Executive Officer,
Aarey Milk Colony,
Having its office at Goregaon (East),
Mumbai - 400 065
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6. Nyraa Entertainment
constituted under the provisions of the
Indian Partnership Act,
having its office at C/o Om Cars
Kent Enclave, Haridasnagar,
Kalpana Chowk Road,
Borivali (W), Mumbai - 400 092
through its partners Mr. Viral Ramniklal
Khokhani, Mr. Ketankumar Tarun Bhura
and Mr. Shridhar Nagolkar ....Respondents
_______________________________________________________________
Mr. Aseem Naphade with Ms. Chaitra Rao, Ms. Meera Parmar and
Mr. Jatin Sheth, for the Petitioner.
Mr. Kevic Setalwad, Senior Advocate with Mr. Mohit P. Jadhav,
Additional Government Pleader and Mr. Amar Mishra, AGP, for Respondent
Nos. 1 to 5-State.
Mr. Rahul Gaikwad with Mr. Nitin Jagtap and Mr. Dewang Mhatre i/b
Mr. Pavan Patil, for Respondent No.6.
_______________________________________________________________
CORAM : ALOK ARADHE, CJ. &
SANDEEP V. MARNE, J.
Reserved On : 13 June 2025.
Pronounced On : 19 June 2025.
JUDGMENT :
(Per Sandeep V. Marne, J.)
1) The Petitioner has filed the present petition invoking
jurisdiction of this Court under Article 226 of the Constitution of India
seeking declaration of ineligibility of Respondent No.6 in the tender
process initiated by Respondent Nos.1 to 5 for allotment of warehouses
on lease for a period of 30 years. Petitioner has also sought writ of
mandamus for consideration of its bid for allotment of seven
warehouses which have been allotted to Respondent No.6.
Page No.2 of 25 19 June 2025 ::: Uploaded on - 19/06/2025 ::: Downloaded on - 19/06/2025 23:44:56 ::: Neeta Sawant WP-4761-2024-FC 2) Brief facts leading to filing of the present petition are as under :-
Respondent Nos.1 to 5 floated tender vide Notice dated
24 July 2024 for grant of lease in respect of 16 warehouses and one
Central Store Office for a tenure of thirty years. The tender notice
stipulated eligibility criteria, inter-alia pertaining to turnover and net
worth of the bidders. The tender notice required the bidders to have
annual financial turnover exceeding Rs. 50,00,000/- and in the event of
the bidder bidding for more than one warehouse, the bidder was
required to satisfy eligibility of annual financial turnover exceeding
Rs.50,00,000/- for each warehouse. Similarly, the tender notice
prescribed eligibility criteria of bidder’s net worth exceeding
Rs. 50,00,000/- for each of the warehouses. Petitioner submitted his bids
in respect of the eight warehouses and one Central Store Office on
9 August 2024. Similarly, nine other bidders submitted their bids in
pursuance of the tender notice, which included Respondent No.6. After
conducting technical evaluation, seven bidders were adjudged
technically eligible by the tendering authority, including Petitioner and
Respondent No.6. The financial bids were opened on 16 August 2024
and thereafter allotment in respect of 16 warehouses and one Central
Store Office was finalised by Respondent Nos.1 to 5, under which total
10 warehouses are allotted to Respondent No.6. Warehouse No.16 and
the Central Store Office are allotted to the Petitioner. Petitioner is
aggrieved by the decision of Respondent Nos.1 to 5 in allotting 7 out of
the 10 warehouses (for which Petitioner had bid) in favour of
Respondent No.6 on the ground that Respondent No.6 is erroneously
held eligible in the tender process. Petitioner has accordingly filed the
present petition seeking disqualification of Respondent No.6 in the
impugned tender process and for consideration of his bid for allotment
of the said 7 warehouses.
Page No.3 of 25 19 June 2025 ::: Uploaded on - 19/06/2025 ::: Downloaded on - 19/06/2025 23:44:56 ::: Neeta Sawant WP-4761-2024-FC 3) We have heard Mr. Naphade, the learned counsel
appearing for the Petitioner. He would submit that Respondent Nos.1 to
5 have erroneously held Respondent No.6 eligible though it had not
fulfilled the mandatory eligibility criteria relating to turnover and net
worth. That Respondent No.6 is a partnership firm, which was set up
only on 2 July 2024 i.e. merely 20 days prior to issuance of tender on
22 July 2024. That therefore it was impossible for Respondent No.6 to
satisfy the requirement of annual financial turnover exceeding
Rs.50,00,000/- each year and for previous three years. He would further
submit that partners of Respondent No.6 also did not submit requisite
certificate of Chartered Accountant to indicate that they possessed
annual financial turnover exceeding Rs.50,00,000/-. That therefore
Respondent Nos.1 to 5 ought to have rejected the technical bid of
Respondent No.6 for failure to submit certificate of Chartered
Accountant to demonstrate annual financial turnover as required in the
E-Tender Notice. Mr. Naphade would further submit that for satisfying
the mandatory condition of networth of Rs.50,00,000/- per warehouse,
Respondent No.6 submitted Networth Certificate dated 27 April 2024 of
one Mr. Rajiv Chandulal Darji issued by the Chartered Accountant
reflecting his networth to be Rs.15.21 crores. However, Mr. Rajiv
Chandulal Darji is not the partner of Respondent No.6-Firm. He is
merely a Director of the Company, who happens to be the partner of
Respondent No.6. That therefore personal networth of Mr. Rajiv Darji
cannot be the networth of Respondent No.6. That except the said
Certificate of networth of Mr. Rajiv Darji, Respondent No.6 has not
submitted any other document to demonstrate possession of the
requisite by it. That therefore the bid of Respondent No.6 ought to have
been rejected. He would further submit that the income tax returns of
Respondent No.6 have also not been submitted. That income-tax returns
of some of the partners are unaudited. Similarly, professional tax
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returns, as well as GST Certificates have also not been submitted by
Respondent No.6. He would therefore submit that Respondent No.6 has
been erroneously held technically qualified in the bidding process. He
would accordingly pray for cancellation of allotment of seven
warehouses to Respondent No.6 and for consideration of Petitioner’s
bid therefor.
4) Mr. Setalwad, the learned senior advocate appearing for
Respondent Nos.1 to 5 would oppose the petition submitting that the
objection of eligibility of Respondent No.6 raised by the Petitioner are
absolutely baseless and are premised on surmises and conjectures. He
submits that Respondent Nos.1 to 5 have duly verified the documents of
Respondent No.6 who fulfills the prescribed eligibility criteria. He
would invite our attention to the relevant clause in the NIT to
demonstrate that the requisite documents could be submitted by a
company/institute/partnership firm/individuals. He would therefore
submit that it was permissible for the partners to rely upon their
individual financial statements in support of eligibility of Respondent
No.6-partnership firm. He would submit that the law is well settled
that financial documents of a partners can be relied upon to
demonstrate the turnover and networth of the partnership firm. In
support of his contention, he would rely upon judgment of the Apex
Court in New Horizons Limited and another Versus. Union of India
and others1 and of Division Bench of judgment of Gauhati High Court
in Trio Stoney Mart Versus. Jamal Ahmed and Ors. 2 In support of his
contention of irrelevancy of the date on which partner has joined, Mr.
Setalwad has relied upon judgment of Division Bench of this Court in
IMS Bhatia Transport Contractor Versus. Union of India and others 3.
Mr. Setalwad would further rely upon relevant clauses in the NIT,
1
(1995) 1 SCC 478
2
(2018) 3 Gauhati Law Reports 92
3
2021(4) Mh.L.J. 233
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under which bidders submitting bid for higher number of warehouses
were to be given preference during the selection process. He would
submit that since Respondent No.6 had submitted bids for 10
warehouses as compared to Petitioner’s bid for 7 warehouses and
Central Store Office, the tendering authority has rightly given
preference to Respondent No.6 over the Petitioner. He would submit
that Mr. Rajiv Darji is the director of the Company who is a partner in
Respondent No.6-Firm and that therefore the documents of networth of
Mr. Rajiv Darji have rightly been taken into consideration by the
tendering authority for deciding eligibility of Respondent No.6. He
would pray for dismissal of the petition.
5) Mr. Gaikwad, the learned counsel appearing for
Respondent No.6 would also oppose the petition submitting that the
Petitioner did not participate in the meeting of the committee, which
had opened bids in presence of all the bidders. If Petitioner had any
objection about technical eligibility of Respondent No.6, he could have
raised such an objection immediately after bids were opened by the
committee. Having not raised any objection about technical qualification
of Respondent No.6 at the time of opening of the bids, Petitioner is now
estopped from doing so at such a belated stage. He would submit that
as against the requirement of networth of Rs.50,00,000/- per warehouse
i.e. Rs. 5 crores for 10 warehouses, Respondent No.6 produced
documents showing networth of Rs.15 crores. He would submit that
the financial capacity of Respondent No.6 has been duly verified by the
tendering authority and its decision is not open for being challenged as
this Court, is not an appellate authority over the decision of the
tendering authority. He would accordingly pray for dismissal of the
petition.
Page No.6 of 25 19 June 2025 ::: Uploaded on - 19/06/2025 ::: Downloaded on - 19/06/2025 23:44:56 ::: Neeta Sawant WP-4761-2024-FC 6) Rival contentions of the parties now fall for our consideration. 7) Respondent Nos.1 to 5 had floated tender for allotment of
16 warehouses and one Central Store Office on lease basis for a tenure
of 30 years. The bidders were permitted to bid for either one or more
warehouses or for all of them. The relevant eligibility criteria prescribed
in the NIT was as under :-
1. General eligibility
(i) The bidder must be an Indian citizen as per the laws of India.
or
(ii) In the case of a Partnership Firm, at least one of the partners must
be an Indian citizen.
or
(iii) Alternatively, the bidder may be a Company registered under the
provisions of the Companies Act.
or
(iv) Public trust or societies.
or
(v) Women self-help groups.
(vi) The bidder must have a good reputation. He must not have ; been
declared bankrupt under the laws in India, must not have been
convicted by any Court in India or sentenced for moral turpitude,
must not have been involved in any case where a Court has issued a
judgment against him for having been involved in a criminal activity
or have been blacklisted by any governmental, semi-governmental or
cooperative institutions.
2. Financial Eligibility:
I. Turnover Requirement: The bidder’s annual turnover for the
financial years 2020-21, 2021-22, and 2022-23 must meet the following
criteria : A) For Unit no. 2, Warehouses 1-14, the Central Store Office,
and Unit 25, Warehouse 15, as well as Unit 4, Warehouse 16, the
annual turnover must exceed ₹50 lakh for each warehouse
B) If bidding for more than one warehouse, the total annual turnover
must be equivalent to combined requirement of turnover for all the
warehouses.
II. Net Worth Certificate: The bidder must submit a net worth
certificate certified by a Chartered Accountant. The requirements are:
A) For Unit 2, Warehouses 1-14, the Central Storage Office, and Unit
25, Warehouse 15, as well as Unit 4, Warehouse 16, the annual net
worth must exceed ₹50 lakh for each warehouse.
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B) If bidding for more than one warehouse, the total annual net worth
must be equivalent to combined requirement of networth for all the
warehouses.
8) The documents that bidders were required to submit in
support of their eligibility were as under :-
I) A self- attested copy of Permanent Account Number (PAN) Card
and Aadhar Card issued by the competent authorities;
II) A self-attested copy of Goods and Services Tax (GST) registration
Certificate issued by the competent authorities;
III) Proof of payment of security Deposit and tender fee of Rs. 10,000/-
+ 18% GST through SBI GRAS system;
IV) Certified copy of required licenses, registration certificates, Income
Tax certificates, professional tax certificate and any other relevant
permissions required for the business for which the warehouse was
being leased;
V) Details of Income Tax returns for the last three years in the name
of the bidder- the company/ institution/partnership firm/
individual;
VI) Details of Professional Tax of last three years up to December, 2023
in the name of the bidder –company/institution/ partnership
firm/individual;
VII) Audited accounts and certificate from a Chartered Accountant
confirming that the bidder’s turnover for the last three Financial
Years meets or exceeds the required amount. This was required to be
in the name of the company/ institution/ partnership firm/
individual;
VIII) Certificate from a Chartered Accountant confirming that the
bidder’s net worth meets or exceeds the required amount. This was
required in addition to the turnover certificate;
IX) To specifically state in which capacity the bidder had signed the
bid. For e.g., If the bidder was a partnership firm, it was necessary to
list the names of all partners and append the signatures of all
partners. It was mandatory to enclose a certified copy of partnership
agreement as well as certified copy of a power of attorney in favour of
the representative of the partnership firm who was authorized to
handle financial transactions on behalf of the partnership firm;
X) Provide signed checklist of the documents to be attached with the
bid (as per Appendix-C) andXI) The bidder must sign each page of the bid document.
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9) The tender document envisaged a preference clause which
reads as under :-
IV. The bidder submitting bids for maximum number of warehouses
collectively in the e-tender process will be given preference during the
selection process.
10) The Petitioner submitted his bids for 8 warehouses and one
Central Store Office, whereas Respondent No.6 submitted bids for 10
warehouses. Respondent No.6 has succeeded in securing allotment of 7
warehouses whereas Petitioner has succeeded in securing allotment of
Warehouse No.16 and Central Store Office. Another bidder, N S Bizcorp
LLP, Pune has secured allotment of four warehouses. It appears that no
bid was submitted in respect of Warehouse No.15 located in Unit No.25
which has remained unallotted. Despite securing allotment of one
warehouse (Warehouse No.16) and Central Store Office, Petitioner has
still chosen to file the present petition on account of denial of allotment
in respect of balance 7 warehouses for which also he had bid. Since the
Petitioner had submitted bid for allotment of eight warehouses and one
Central Store Office, the petition challenges decision by which allotment
is made in favour of Respondent No.6 in respect of seven warehouses
against which Petitioner had submitted bid. In addition to the said
warehouses, Respondent No.6 has been allotted additional three
warehouses about which Petitioner has not sought any prayer possibly
on account of the fact that no bid was submitted by him in respect of the
said three warehouses. The details of the warehouses in respect of
which the present petition is filed is as under :-
(i) Warehouse No. 1, admeasuring3244 sq. ft. in Unit No. 2;
(ii) Warehouse No. 2, admeasuring 3268 sq.ft. in Unit No. 2;
(iii) Warehouse No. 3, admeasuring 3235 sq. ft. in Unit No. 2;
(iv) Warehouse No. 5, admeasuring 3217 sq. ft. in Unit No.2;
(v) Warehouse No. 12, admeasuring 3268 sq. ft. in Unit No. 2;
(vi) Warehouse No. 13, admeasuring 3268 sq. ft. in Unit No. 2;
(vii) Warehouse No. 14, admeasuring 3268 sq. ft. in Unit No. 2
situated at Aarey Milk Colony, Goregaon (East), Mumbai 400065.
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11) The main objection raised by the Petitioner is about
Respondent No.6 not fulfilling the criteria with regard to the turnover
and networth. Petitioner has also objected to technical qualification of
Respondent No.6 despite non-submission of documents such as
income-tax return, professional tax returns and GST returns. The exact
objections raised by the Petitioner about eligibility of Respondent No.6
have been summarised in the Note of arguments submitted by the
Petitioner, which is as under :-
Sr. Eligibility under the e-tender Respondent No.6’s compliance
No. dated 24.07.2024
1. Turnover: Respondent No.6 is a partnership
As per Clause 2(I)(A)/Pg.115 of firm which was set up only on
the e-tender the bidder should 02.07.2024 i.e. merely 22 days prior
have an annual financial to the issuance of the e-tender on
turnover exceeding Rs. 50 24.07.2024. Therefore, Respondent
Lakhs for each year and for the No. 6 could never have had an
last 3 years. annual financial turnover
exceeding Rs. 50 Lakhs for each
year and for the last 3 years, since
it did not even exist for that
period.
As per Clause 2(I)(A)/Pg.115 of The partners of Respondent No. 6
the e-tender, if the bidder i.e. Mr. Viral Ramniklal Khokani,
submits a bid for more Mr. Ketankumar Tarun Bhura and
warehouses than one then the Mr. Shridhar Nagolkar also have
eligibility of annual financial not submitted the requisite
turnover (exceeding Rs. 50 certificate of the chartered
Lakhs for more than 3 years) accountant (as required by Clause
must be shown for each 3(vii) of the e-tender) to show that
warehouse. they had an annual financial
turnover exceeding Rs. 50 Lakhs
For example – If a bidder bids for each year and for the last 3
for 10 warehouses he must years.
show annual financial turnover
exceeding Rs. 5 crores for each Hence, Respondent No. 6 has not
year and for the last 3 years submitted any certificate by a
(Rs.50 lakhs x 10) chartered accountant to show the
annual financial turnover as
required in e-tender.
2. Net Worth: Respondent No. 6 submitted a net
worth certificate dated 27.04.2024
As per Clause 2(II)(A)/Pg. 115 at Pg. 760 of one Mr. Rajiv
of the e-tender the bidder Chandulal Darji issued by a
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should have a net worth Chartered Accountant (Ravi B.
certificate of a chartered Soni & Co.) which shows a net
accountant certifying that the worth of Rs. 15,21,26,783/-.
net worth of the bidder exceeds However, the said Mr. Rajiv
Rs. 50 Lakhs. Chandulal Darji is not even a
partner of Respondent No. 6.
As per Clause 2(II)(B)/Pg. 115
of the e-tender, if the bidder is The partners of Respondent No. 6
submitting a bid for more have not submitted any net worth
warehouses than one then such certificate.
certificate of net worth
exceeding Rs. 50 Lakhs is Hence, Respondent No. 6 has not
required for each warehouse for submitted any net worth
which a bid is proposed to be certificate as required by the e-
submitted. tender.
For example - If a bidder bids
for 10 warehouses he must
show a chartered accountant
certificate certifying that his net
worth exceeds Rs. 5 Crores (Rs.
50 Lakhs x 10).
3. Non-submission of documents: Income Tax Returns of
Respondent No. 6 have not been
The bidder was required to submitted.
submit documents such as
Income Professional Tax Unaudited income tax returns of
Returns, Tax Returns, GST Mr. Ketan Kumar Bhura have been
returns for 3 years. submitted for A.Y. 2019-20.
Unaudited income tax returns of
Mr. Viral Ramniklal Khokani have
been submitted for AY 2021-22,
2022-23 and 2023-24.
Unaudited income tax returns of
Mr. Shridhar Nagolkar for AY
2022-23 and 2023-24.
Professional Tax Returns have not
been submitted either by
Respondent No. 6 or any of its
partners.
Goods and Service Tax certificate
(GST) has not been submitted by
Respondent no. 6.
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12) In our view, the objection raised by the Petitioner about
constitution of Respondent No.6-partnership firm 20 days prior to the
issuance of E-Tender is wholly untenable. As on the date of submission
of the bids, Respondent No.6 had a valid existence in law and it was a
legal entity capable of participating in the tender process. The tender
document specifically made partnership firm eligible to participate in
the impugned tender process. It is sought to be contended by the
Petitioner that it was impossible for Respondent No.6 to satisfy the
condition of financial turnover exceeding Rs.50,00,000/- for each year
during previous three years on account of its constitution on
2 July 2024. However, Respondent No.6 has relied upon annual financial
turnover of its partners to meet the prescribed requirement. It is well
settled position of law that for satisfaction of eligibility criteria by a
partnership firm, the experience, as well as financial documents of
individual partner can also be taken into consideration.
In New Horizons Limited (supra), the Apex Court has held as under :-
23. Even if it be assumed that the requirement regarding experience as
set out in the advertisement dated 22-4-1993 inviting tenders is a
condition about eligibility for consideration of the tender, though we
find no basis for the same, the said requirement regarding experience
cannot be construed to mean that the said experience should be of the
tenderer in his name only. It is possible to visualise a situation where a
person having past experience has entered into a partnership and the
tender has been submitted in the name of the partnership firm which
may not have any past experience in its own name. That does not
mean that the earlier experience of one of the partners of the firm
cannot be taken into consideration. Similarly, a company incorporated
under the Companies Act having past experience may undergo
reorganisation as a result of merger or amalgamation with another
company which may have no such past experience and the tender is
submitted in the name of the reorganised company. It could not be the
purport of the requirement about experience that the experience of the
company which has merged into the reorganised company cannot be
taken into consideration because the tender has not been submitted in
its name and has been submitted in the name of the reorganised
company which does not have experience in its name. Conversely
there may be a split in a company and persons looking after a
particular field of the business of the company form a new company
after leaving it. The new company, though having persons withPage No.12 of 25
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original company having experience in its name lacks persons with
experience. The requirement regarding experience does not mean that
the offer of the original company must be considered because it has
experience in its name though it does not have experienced persons
with it and ignore the offer of the new company because it does not
have experience in its name though it has persons having experience
in the field. While considering the requirement regarding experience it
has to be borne in mind that the said requirement is contained in a
document inviting offers for a commercial transaction. The terms and
conditions of such a document have to be construed from the
standpoint of a prudent businessman. When a businessman enters
into a contract whereunder some work is to be performed he seeks to
assure himself about the credentials of the person who is to be
entrusted with the performance of the work. Such credentials are to be
examined from a commercial point of view which means that if the
contract is to be entered with a company he will look into the
background of the company and the persons who are in control of the
same and their capacity to execute the work. He would go not by the
name of the company but by the persons behind the company. While
keeping in view the past experience he would also take note of the
present state of affairs and the equipment and resources at the
disposal of the company. The same has to be the approach of the
authorities while considering a tender received in response to the
advertisement issued on 22-4-1993. This would require that first the
terms of the offer must be examined and if they are found satisfactory
the next step would be to consider the credentials of the tenderer and
his ability to perform the work to be entrusted. For judging the
credentials past experience will have to be considered along with the
present state of equipment and resources available with the tenderer.
Past experience may not be of much help if the machinery and
equipment is outdated. Conversely lack of experience may be made
good by improved technology and better equipment. The
advertisement dated 22-4-1993 when read with the notice for inviting
tenders dated 26-4-1993 does not preclude adoption of this course of
action. If the Tender Evaluation Committee had adopted this approach
and had examined the tender of NHL in this perspective it would have
found that NHL, being a joint venture, has access to the benefit of the
resources and strength of its parent/owning companies as well as to
the experience in database management, sales and publishing of its
parent group companies because after reorganisation of the Company
in 1992 60% of the share capital of NHL is owned by Indian group of
companies namely, TPI, LMI, WML, etc. and Mr Aroon Purie and 40%
of the share capital is owned by IIPL a wholly-owned subsidiary of
Singapore Telecom which was established in 1967 and is having long
experience in publishing the Singapore telephone directory with
yellow pages and other directories. Moreover in the tender it was
specifically stated that IIPL will be providing its unique integrated
directory management system along with the expertise of its managers
and that the managers will be actively involved in the project both out
of Singapore and resident in India.
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40. Thus the approach from the legal standpoint also leads to the
conclusion that for the purpose of considering whether NHL has the
experience as contemplated by the advertisement for inviting tenders
dated 22-4-1993, the experience of the constituents of NHL, i.e., the
Indian group of companies (TPI, LMI and WML) and the Singapore-
based company, (IIPL) has to be taken into consideration. As per the
tender of NHL, one of its Indian constituents (LMI) had printed and
bound the telephone directories of Delhi and Bombay for the years
1992 and its Singapore-based constituent (IIPL) has 25 years’
experience in printing the telephone directories with “yellow pages”
in Singapore. The said experience has been ignored by the Tender
Evaluation Committee on an erroneous view that the said experience
was not in the name of NHL and that NHL did not fulfil the
conditions about eligibility for the award of the contract. In
proceeding on that basis the Tender Evaluation Committee has
misguided itself about the true legal position as well as the terms and
conditions prescribed for submission of tenders contained in the
notice for inviting tenders dated 26-4-1993. The non-consideration of
the tender submitted by NHL has resulted in acceptance of the tender
of Respondent 4. The total amount of royalty offered by Respondent 4
for three years was Rs 95 lakhs whereas NHL had offered Rs 459.90
lakhs, i.e., nearly five times the amount offered by Respondent 4.
Having regard to this large margin in the amount of royalty offered by
NHL and that offered by Respondent 4, it must be held that decision
of the Tender Evaluation Committee to refuse to consider the tender of
NHL and to accept the tender of Respondent 4 suffers from the vice of
arbitrariness and irrationality and is liable to be quashed.
(underlining supplied)
13) The Division Bench of Guwahati High Court in Trio Stoney
Mart (supra) has decided similar issue and has held in paras-25 to 29 as
under :-
25. It is a settled proposition that a partnership firm is not a juristic
person. It is an association of persons where individual identity of the
individual partners is recognized. This means that a partnership firm
is a collection of the partners and nothing else. It is not a legal entity
and has no separate legal existence. It is a mere collective name for the
individuals who are the members of the partnership. That apart,
requirement of the clause is not that financial soundness certificate has
to be of the tendering firm if it is a partnership firm. All that it says is
that a financial soundness certificate from the concerned Deputy
Commissioner or Sub-Divisional Officer ascertaining the financial
capability to operate the mining lease/contract should accompany the
tender papers.
26. In New Horizons Ltd. v. Union of India, (1995) 1 SCC 478, Supreme
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Neeta Sawant WP-4761-2024-FCthe tenderers, namely, ‘experience’ by the Tender Evaluation
Committee. The tenderer in that case was a joint venture company. In
the context of that case, Supreme Court held that the requirement
regarding ‘experience’ cannot be construed to mean that such
‘experience’ should be of the tenderer in his name only. It was possible
to visualize a situation where a person having past experience had
entered into a partnership and the tender had been submitted in the
name of the partnership firm, which may not have any past experience
in its own name. This would not mean that the earlier experience of
one of the partners of the firm could not be taken into consideration.
Similarly, a company incorporated under the Companies Act, 1956
having past experience may undergo reorganisation as a result of
merger or amalgamation with another company which may have no
such past experience and the tender is submitted in the name of the
re-organised company. It cannot be the purport of the requirement
that the ‘experience’ of the company which had merged into the re-
organized company cannot be taken into consideration because tender
has not been submitted in its name and has been submitted in the
name of the reorganized company which does not have ‘experience’ in
its name. Conversely, there may be a split in the company and the
persons looking after a particular field of the business of the company
form a new company after leaving it. The new company though
having persons with ‘experience’ in the field has no experience in its
name while the original company having ‘experience’ in its name lacks
persons with experience. The requirement regarding ‘experience’ does
not mean that the offer of the original company must be considered
because it has ‘experience’ in its name though it does not have
experienced persons with it and ignore the offer of the new company
because it does not have ‘experience’ in its name though it has persons
having ‘experience’ in the field. Supreme Court held that while
considering the requirement regarding ‘experience’, it has to be borne
in mind that the said requirement is contained in a document inviting
offers for a commercial transaction. Terms and conditions of such a
document have to be construed from the standpoint of a prudent
businessman. Thereafter, Supreme Court went on to explain the
evolving concept of joint venture.
27. The reasonings given by the Supreme Court in respect of the
eligibility requirement of ‘experience’, in our considered opinion,
would also be applicable in the case of a financial soundness certificate
as required under clause 12(d) of the sale notice.
28. In Master Marine Services (P.) Ltd. v. Metcalfe & Hodgkinson (P.) Ltd.,
(2005) 6 SCC 138, Supreme Court in the context of the tender
conditions requiring the bidder to have licence to act as Surveyor/Loss
Assessor under the Insurance Act to prequalify, held that tender
document did not say that in a case where a company had made a bid,
the licence to act as Surveyor/Loss Assessor under the Insurance Act
must be in the name of the company itself or that a licence personally
in the name of the Chairman or a Director of the company would not
be treated as a valid compliance with the requirement of the tender.
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29. In the instant case, requirement of clause 12(d) is that tender
papers must be accompanied by a financial soundness certificate
ascertaining the financial capability to operate the mining
lease/contract which is to be obtained from the concerned Deputy
Commissioner/Sub-Divisional Officer. It nowhere says that the
financial soundness certificate has to be that of a partnership firm if
the tenderer is a partnership firm. We have already noted that a
partnership firm is not a juristic entity and is only an association of
persons. It is a collective name of the individual partners comprising
the partnership. A partnership firm being not a legal person, the
ultimate liability would be that of the partners. Every partner is liable
for all acts of the partnership firm, jointly as well as severally.
Therefore, having regard to the settled legal position, a financial
soundness certificate of any one of the partners comprising the
partnership, to our mind, would fulfill the requirement of the
aforesaid condition. Whether the particular tenderer is financially
sound or not, the decision is that of the tendering authority or may be,
that of the higher authorities, including the Appellate Authority under
the Assam Minor Mineral Concession Rules, 2013. Ordinarily, Court
should not substitute its understanding of financial soundness for that
of the administrative authorities. Of course, in a case of arbitrariness
or unreasonableness or mala fide exercise of power, certainly court
would interfere with such decision but in the facts and circumstances
of the case, interpretation given by the learned Single Judge to the
requirement of clause 12(d) of the sale notice would not be justified.
14) Following the law enunciated by the Apex Court in
New Horizons Limited the past experience and financial credentials of
partners of Respondent No. 6-Firm are required to be considered as
experience and financial credentials of the partnership firm as well. In
our view, tendering authority has rightly taken into consideration the
financial documents relied upon by Respondent No.6 in respect of its
partners.
15) Reliance by Mr. Setalwad on judgment of Division Bench of
this Court in IMS Bhatia Transport Contractor (supra) is also apposite
in which the Division Bench has held that the date on which the partner
is added in the firm is irrelevant and experience of such added partner
can also be considered as experience of the firm. It has been held in
para-21 to 24 as under :-
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21. Reading clause of experience in the tender document, the past
seven years experience ending last day of the month previous to in
which the applications are invited is sufficient.
22. Once the partner has entered into the partnership firm before
the submission of the tender document, then it is immaterial as to
the date on which he has entered into the partnership for the
purpose of experience as contemplated in the afore mentioned
clause of experience. We cannot comprehend the argument on
behalf of the respondents that if the newly added partner would
have entered into the partnership prior to 31st July, then his
experience could have been counted and only because he has
entered into the partnership firm on 14th August, 2020, his
experience prior to 31st July cannot be counted. The same does not
appear to be purport of the clause of experience.
23. The Apex Court in case of New Horizon Limited (supra) has also
observed that the expression “joint venture” connotes a legal entity in
the nature of a partnership engaged in the joint undertaking of a
particular transaction for mutual profit or an association of persons or
companies jointly undertaking some commercial enterprise wherein
all contribute assets and share risks.
24. In light of all the aforesaid facts, we have no hesitation to conclude
that the experience of the 4th partner admitted to the partnership on
14th August, 2020 has to be considered while considering the
experience of the petitioner partnership firm.
(emphasis supplied)
16) So far as the objection of networth of Respondent No.6 is
concerned, the tendering authority has taken into consideration the net
worth of Mr. Rajiv Chandulal Darji, who is the Director of one of the
constituent partners of Respondent No.6. The tendering authority has
exercised its discretion in adjudging the net worth of Respondent No.6
on the basis of the documents submitted by the director of one of the
partners. We cannot sit in appeal over such discretion exercised by the
tendering authority. It must also be borne in mind that the objection
behind prescribing the condition of net worth is to ensure that bidders,
who are financially incapable of executing the work are excluded from
the tendering process. In the instant case, the tender was floated for
allotment of premises owned by Respondent Nos. 1 to 5 on lease basis
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for a tenure of 30 years. The networth condition is inserted with a view
to ensure that the bidders have the sound financial background and
capability of paying the lease premium in respect of the allotted
warehouses. In the present case, if the tendering authority has
exercised the discretion of considering the networth of director of a
company, which happens to be the partner of Respondent No.6 and has
accordingly concluded that Respondent No.6 is financially capable of
performing the contract, it would be beyond the scope of power of
judicial review of this Court to sit as an appellate authority over the
discretion exercised by the tendering authority. This Court can merely
review the decision-making process. In Tata Cellular Versus. Union of
India4, it is held as under :-
94. The principles deducible from the above are:
(1) The modern trend points to judicial restraint in administrative action.
(2) The court does not sit as a court of appeal but merely reviews the
manner in which the decision was made.
(3) The court does not have the expertise to correct the administrative
decision. If a review of the administrative decision is permitted it
will be substituting its own decision, without the necessary
expertise which itself may be fallible.
(4) The terms of the invitation to tender cannot be open to judicial scrutiny
because the invitation to tender is in the realm of contract. Normally
speaking, the decision to accept the tender or award the contract is
reached by process of negotiations through several tiers. More often
than not, such decisions are made qualitatively by experts.
(5) The Government must have freedom of contract. In other words, a fair
play in the joints is a necessary concomitant for an administrative
body functioning in an administrative sphere or quasi-administrative
sphere. However, the decision must not only be tested by the
application of Wednesbury principle of reasonableness (including its
other facts pointed out above) but must be free from arbitrariness not
affected by bias or actuated by mala fides.
(6) Quashing decisions may impose heavy administrative burden on the
administration and lead to increased and unbudgeted expenditure.
(emphasis supplied)
4
(1994) 6 SCC 651
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17) In Silppi Constructions Contractors Versus. Union of
India5, after analyzing various judgments on the subject, the Apex
Court has held that Courts should exercise a lot of restraint while
exercising their powers of judicial review in contractual or commercial
matters and that Courts would normally be loathe to interfere in
contractual matters unless a clear-cut case of arbitrariness or mala fides
or bias or irrationality is made out. The Apex Court has held as under :-
19. This Court being the guardian of fundamental rights is duty-
bound to interfere when there is arbitrariness, irrationality, mala fides
and bias. However, this Court in all the aforesaid decisions has
cautioned time and again that courts should exercise a lot of
restraint while exercising their powers of judicial review in
contractual or commercial matters. This Court is normally loathe to
interfere in contractual matters unless a clear-cut case of
arbitrariness or mala fides or bias or irrationality is made out. One
must remember that today many public sector undertakings
compete with the private industry. The contracts entered into
between private parties are not subject to scrutiny under writ
jurisdiction. No doubt, the bodies which are State within the meaning
of Article 12 of the Constitution are bound to act fairly and are
amenable to the writ jurisdiction of superior courts but this
discretionary power must be exercised with a great deal of restraint
and caution. The courts must realise their limitations and the havoc
which needless interference in commercial matters can cause. In
contracts involving technical issues the courts should be even more
reluctant because most of us in Judges’ robes do not have the
necessary expertise to adjudicate upon technical issues beyond our
domain. As laid down in the judgments cited above the courts should
not use a magnifying glass while scanning the tenders and make every
small mistake appear like a big blunder. In fact, the courts must give
“fair play in the joints” to the government and public sector
undertakings in matters of contract. Courts must also not interfere
where such interference will cause unnecessary loss to the public
exchequer.
(emphasis supplied)
18) The scope of interference by Courts in tender matters lies in
an extremely narrow compass. The Courts must show deference to the
discretion exercised by the tendering authority. The Division Bench of
this Court in Sagar Lookouts Versus. Maharashtra Housing and Area
5
(2020) 16 SCC 489
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Development Authority and Others6 has held in paragraphs 18 to 24
and 32 to 36 as under :-
18. We have pondered over the erudite submissions canvassed on behalf of
the contesting parties by learned senior advocates. There is no disputing the
proposition that unless the eligibility criteria prescribed in Clause 3.2 of the
RFP is satisfied by the bidder, the bid cannot be held eligible. The condition
which Sagar Lookouts does not fulfil, according to the tendering authority, is
the experience of at least 10 (Ten) years in erection and handling of city
advertising/outdoor advertising media of 50 Hoardings each of minimum
450 sq.ft. in corporation/Authority area. The Committee found that Sagar
Lookouts has the requisite experience of 10 years of erecting and handling
hoardings but that it has put up 47 hoardings only. Sagar Lookouts as a
partnership firm, per se, i.e. without considering the partners experience,
does not satisfy the eligibility condition of erecting and handling 50
hoardings. This standard or norm of eligibility laid down by MHADB cannot
be faulted nor is it the contention of Sagar Lookouts that the said eligibility
condition is arbitrary or unreasonable. It is a well settled rule of
administrative law that an executive authority must be rigorously held to the
standards by which it professes its action to be judged and it must
scrupulously observe those standards on pain of invalidation of an act in
violation of them. This rule was enunciated by Mr. Justice Frankfurter
in Viteralli v. Seaton14 where the learned Judge said that “An executive agency
must be rigorously held to the standards by which it professes its action to be
judged…. Accordingly, if dismissal from employment is based on a defined
procedure, even though generous beyond the requirements that bind such
agency, that procedure must be scrupulously observed…. This judicially
evolved rule of administrative law is now firmly established and, if I may add,
rightly so. He that takes the procedural sword shall perish with the sword.”
Their Lordships in Ramana Dayaram Shetty (supra) observed that this rule was
accepted as valid and applicable in India. In A.S. Ahuwalia v. Punjab15 and in
subsequent decision given in Sukhdev v. Bhagatram16, His Lordship Mathew, J.,
quoted the above-referred observations of Mr. Justice Frankfurter with
approval. It is a rule of administrative law which has been judicially evolved
as a check against exercise of arbitrary power by the executive authority.
19. In V. Punnan Thomas v. State of Kerala17, it is observed that “The
Government, is not and should not be as free as an individual in selecting the
recipients for its largesse. Whatever its activity, the Government is still the
Government and will be subject to restraints, inherent in its position in a
democratic society. A democratic Government cannot lay down arbitrary and
capricious standards for the choice of persons with whom alone it will deal”.
20. Furthermore, we have to bear in mind the principles enunciated by the
Supreme Court in paragraph 94 of the decision in Tata Cellular (supra), so
often quoted, while answering the question posed for our consideration. To
what extent this Court can interfere in such matters is laid down in SILPPI
Constructions Contractors (supra) which is an authority for the proposition that
the Court should exercise a lot of restraint while exercising their powers of
judicial review in contractual or commercial matters.
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21. In a decision of recent origin rendered by this Court in Adani Ports and
Special Economic Zone Limited (supra), upon considering a plethora of
decisions of the Supreme Court in relation to tender matters which rules the
field, the following observations in paragraph 43 which are relevant reads
thus:–
“43. Our understanding of the law, drawing guidance from the
decisions noticed above, is that the terms and conditions of a tender
are not to be read and interpreted in the same manner a statute is read
and interpreted. The legislatures make laws actuated with some policy
to curb public evil or to effectuate public good. As and when an issue
arises before them, it is the duty of the constitutional courts to
interpret the law and declare what the law is. If the Courts find gaps
in the working of the law while interpreting and declaring what the
law is, it is not precluded from ironing out the creases by appropriate
technique of interpretation to infuse life into the law; but it is
impermissible for the Courts to alter the material of which the law is
woven. Such ironing out of the creases, inter alia, is generally
premised on the Court’s perception of what the legislative intent was.
In so doing, the Courts are entitled to interpret and declare the law
without consulting the legislature to explain what was intended while
enacting the law. Legislative functions come to an end once the law is
passed. When the constitutionality of a law is challenged or when the
Court is otherwise required to interpret and declare what the law is,
the parties opposing/supporting the law are only heard. However, in
regard to interpretation of tender terms and conditions, the
perspective is completely different and such an exercise, as can be
taken recourse to in interpreting a statute, would be impermissible.
Terms and conditions in a tender are set which would advance the
tendering authority’s interest. When the terms and conditions of a
tender fall for consideration and the need arises for the Court to
understand what is meant by a particular clause or what is the
requirement of a particular clause in such tender, the tendering
authority’s version has to be heard by the Court. If such version of
what it intended by inserting the relevant clause appears to the Court
not to be manifestly unfair, utterly unreasonable, totally arbitrary, or
thoroughly unjust, the Court cannot substitute its view of what would
have been a better course for the tendering authority to follow to
achieve the object of the tender. Deference to the view of the tendering
authority by the Courts is the general rule. The adverbs in the
preceding sentence would signify a level higher than, what in one’s
perception, the requirement of a clause would amount to being seen as
unfair, unreasonable, arbitrary or unjust. When a party invokes the
Court’s jurisdiction and claims that a clause in the tender ought to be
read in the manner he/it reads it, in such a case, the tender terms and
conditions have to be read by the Court and understood in the
language they are plainly expressed. Even if any particular clause is
ambiguous and upon a query being raised by the Court as to what the
clause precisely means or what is its requirement, the meaning that
the tendering authority gives has to be accepted without reservation
unless, of course, such meaning contravenes a constitutional right.
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play in the joints’, which is a necessary concomitant for an agency
working in the administrative sphere as in the present case.”
22. Applying the principles set out in the above decisions, there is no doubt
that Sagar Lookouts ipso facto (without the partner’s experience) does not
possess the experience of erecting and handling 50 hoardings. As Sagar
Lookouts does not fulfil the eligibility criteria, it should not have been a
difficult task for us to dismiss the writ petition on this count itself. The
contention of Mr. Ravi Kadam, that the experience of the partner of Sagar
Lookouts has to be regarded as the experience of the firm, in the light of the
decisions of the Supreme Court in New Horizons Limited (supra), Maa
Nabadurga Construction (supra) and one rendered by this Court in IMS Bhatia
Transport Contractor (supra), that we deliberated on this aspect further.
23. Let us consider the objection of Dr. Milind Sathe that considering the
experience of the bidder firm’s partner in some other enterprise, as the
experience of the bidder, for the purpose of eligibility, would virtually be
permitting a consortium to participate which is in the teeth of Clause 2.1. The
argument of Mr. Milind Sathe at first blush sounds attractive. There is no
dispute that the bidder in the present case is Sagar Lookouts. It is not as if
Sagar Lookouts, along with Urja, has submitted its bid as a consortium.
The Concise Oxford English Dictionary defines ‘consortium’ as an association,
typically of several companies. Black’s Law Dictionary assigns a historical
meaning to the word ‘consortium’ as a group of companies that join or
associate in an enterprise. Such is not a case here, as Sagar Lookouts and Urja
have not joined or associated as an enterprise for the purpose of the RFP, to
bid as a consortium. The point is, whether the experience of the partner of the
firm in Urja, can be considered as the experience of the bidder firm, for the
purpose of the present RFP, to qualify the eligibility criteria of experience or
will it tantamount to mean a bid by a consortium.
24. To answer this question posed for our consideration, we need to take the
help of the decision of the Supreme Court in the case of New Horizons
Limited (supra), Maa Nabadurga Construction (supra) and that of this Court
in IMS Bhatia Transport Contractor (supra).
32. In the present case, undoubtedly, the eligibility criteria provides for the
experience which the bidder must possess is of erecting and handling 50
hoardings. The bidder Sagar Lookouts is a partnership firm registered under
the provisions of the Indian Partnership Act, 1932. Though documents were
produced about the partner’s experience in Urja, the Committee refused to
look into these documents as the same were not in the name of the bidder –
Sagar Lookouts. It is pertinent to note that the partners of Sagar Lookouts are
Mr. Prashant Joshi and his mother Mrs. Shubhada Nishikant Joshi. Urja is a
private limited company of which the only
shareholders/Directors/Stakeholders are Mr. Prashant Joshi, Mrs. Shubhada
Nishikant Joshi and Mrs. Ashwini Prashant Joshi. Thus, two of the
shareholders of Urja are partners of Sagar Lookouts. We are not considering
the documents pertaining to Mystical Polyplast and Mystical Technoplast
private Limited in view of the contention of Mr. Ravi Kadam, that the
experience of the partner in Urja itself is sufficient to satisfy the requirement
of fulfilling the eligibility criteria of 50 hoardings. There are on record,
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documents in the nature of agreements between Sagar Lookouts and Urja,
which though produced, were not considered by the Committee. At Exhibit
‘N’ is an agreement for the assignment of the rights of marketing for the
advertisement Display sites dated May 1, 2011 between Urja and Sagar
Lookouts. The said agreement pertains to the assignment of the marketing
rights by Urja to Sagar Lookouts in respect of 7 number of hoardings allotted
by MSRDC and other private entities Ltd. At page 433 of the paper book is an
agreement dated May 1, 2012 for construction, erection and maintenance of
various advertisement sites between Urja and Sagar Lookouts. These
agreements are signed by Mrs. Ashwini Prashant Joshi as a Director of Urja
and Mr. Prashant Joshi in his capacity as a partner of Sagar Lookouts. The
said agreement for construction, erection and maintenance inter alia provided
that Sagar Lookouts agreed to conduct fabrication, erection, maintenance of
the hoarding sites according to the norms of government and other
authorities. The details of the advertisement sites are listed in Schedule I.
Exhibit ‘M’ at page 421 of the paper book is a chart pertaining to Urja in
respect of these 8 hoardings. These 8 hoardings which have valid MCGM
permits are of dimension more than 450 sq.ft. and situated within the city
limits of Bombay. The MCGM permits, at least in respect of 6 hoardings are
on record, enclosed from page nos. 422 to 427. Even on as many as five
permits, the name of the firm is indicated as Urja and the name of permit
holder is recorded as Mr. Prashant Joshi. There are thus overwhelming
documents on record to demonstrate that the partner of Sagar Lookouts, apart
from being a shareholder of Urja, has actually the experience of erecting and
handling the hoardings of the stipulated dimensions to fulfil the eligibility
criteria of experience. The authenticity of these documents is not in dispute
nor is it the case of any of the parties that the said hoardings have not been
fabricated or erected at the sites mentioned in the agreement. The Committee
simply refused to look into these documents on the ground that these
documents do not pertain to Sagar Lookouts.
33. In these facts, let us test if the approach of the Committee in discarding
these documents, in view of its understanding that the experience of the firm
itself is relevant for consideration and not that of its partner, is justified. What
happens in a situation where the firm has the requisite experience but the
partners fall short of the experience? Will such firm be held eligible? There
may be a situation where the firm may not have the experience but the
partners who are to execute the work are experienced. The term ‘bidder’ is
not defined in the RFP.
34. In the present case, the partner (Prashant Joshi) of Sagar Lookouts has the
experience, but the firm itself does not have the experience. The approach of
the tendering authority is that the firm – Sagar Lookouts – is an independent
person distinct from its partners and that the firm is carrying on the business
independently from that of the partners. On behalf of the tendering authority,
the submission is that the experience of the partner cannot be the experience
of the partnership firm. Their Lordships in New Horizons Limited (supra) have
observed in paragraph 23 quoted hereinabove, that it is possible to visualise a
situation where a person having past experience has entered into a
partnership and a tender has been submitted in the name of the partnership
firm which may not have any past experience in its own name; that does not
mean that the earlier experience of one of the partners of the firm cannot be
taken into consideration. The bidder – Sagar Lookouts – has experience of
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erecting 47 hoardings, 3 short of the eligibility. The partner of Sagar Lookouts
as a shareholder of Urja has the experience of erecting 8 hoardings. While
considering the requirement regarding the experience, it has to be borne in
mind that the said requirement is contained in a document inviting offers for
a commercial transaction. The terms and conditions of such a document have
to be construed from the stand point of a prudent businessman. When a
businessman enters into a contract whereunder some work is to be
performed, he seeks to assure himself about the credentials of the person who
is entrusted with the work. He would not go by the name of the firm but the
persons behind the firm. Had the Committee examined the tender of Sagar
Lookouts in this perspective, it would have found from the documents, that
the bidder – Sagar Lookouts-fulfiled the experience criteria. Their Lordship
in Maa Nabadurga Construction (supra) referred to the meaning of the word
‘experience’ given in Black’s Law Dictionary. It is a settled law that a
partnership has been held to be a compendious name for its partners and that
the experience is a human attribute which does not form part of the property
or the assets of the firm in the usual sense. It is the experience of the persons
executing the work that will have to be considered. This is our understanding
of what Their Lordships observed in New Horizons Limited (supra).
35. Looking at the issue from another angle, will a prudent businessman like
MHADB hand over a tender in favour of a firm of which partners do not have
the requisite experience stipulated? As a prudent businessman, it is of course
best left to MHADB to look after its business interest and the scope of
interference in such decisions is extremely limited. But to allow MHADB to
construe the term ‘Bidder’ in a literal manner, that it is the firm’s experience
itself will qualify, is something which does not commend to us. It is here that
the observations of His Lordship Mathew J. in V. Punnan Thomas (supra)
which we have quoted in paragraph 19 of this judgment assume significance.
There is no provision in the RFP that the Bidder is given a restricted meaning
to mean the firm itself and not the person in charge of it. The Bidder has to be
understood to mean the person in charge of the firm, though the bid is by or
on behalf of the firm. The notice inviting tender does not preclude adoption
of this course of action. If the contention of MHADB is to be accepted, then
once a bid is by a firm having experience, irrespective of whether the person
in charge is experienced or not, the firm’s bid will have to be held eligible for
consideration.
36. The argument of Dr. Milind Sathe and Mr. Ram Apte that considering the
experience of the partner of Sagar Lookouts in Urja would tantamount to a
bid being submitted by a consortium does not also commend to us. We have
to bear in mind that the tender condition required the bidder to have an
experience of erecting and handling 50 hoardings each of minimum 450 sq.ft.
in corporation/Authority area. From the stand point of MHADB, the
credentials of the person who is entrusted with the performance of work viz.
the background of the firm and the persons who are in control of the same
and their capacity to execute the work has to be seen. The tendering authority
will not go by the name of the firm but the person/s behind it. We have no
hesitation in concluding that the Committee completely erred in
discarding/ignoring the documents relating to the experience of the partner
of the bidder firm. It is not disputed that the bid of the petitioner is held
ineligible only on the ground that it does not have the experience of erecting
and handling 50 hoardings and on no other ground.
Page No.24 of 25 19 June 2025 ::: Uploaded on - 19/06/2025 ::: Downloaded on - 19/06/2025 23:44:56 ::: Neeta Sawant WP-4761-2024-FC 19) The judgment of Division Bench of this Court in
Sagar Lookouts is an authoritative pronouncement on twin points of
Courts showing restraint in tender matters and experience of partner
being capable of considered as experience of the firm. The judgment
thus applies squarely to the issue at hand.
20) After considering the overall conspectus of the case, we are
unable to interfere in the impugned decision of the tendering authority
in accepting the bids of Respondent No.6 in respect of the seven
warehouses. Petitioner himself has been successful in securing
allotment of one warehouse and Central Store Office in the same
tendering process. Since we are unable to trace any element of
perversity, irrationality or arbitrariness in the impugned tender process
implemented by Respondent Nos.1 to 5, there is no warrant for
interference in the decision of Respondent Nos.1 to 5. The petition must
fail. It is accordingly dismissed without any order as to costs.
[SANDEEP V. MARNE, J.] [CHIEF JUSTICE] Page No.25 of 25 19 June 2025 ::: Uploaded on - 19/06/2025 ::: Downloaded on - 19/06/2025 23:44:56 :::