1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 8216 OF 2010 M/s. Deshmukh Fish Seed Agencies, Through its Proprietor, Ezaz Asmat Deshmukh, Age 26 yrs., Occu. Business, R/o. Ambhai, Tq. Sillod. ....Petitioner. Versus 1. The State of Maharashtra, Through Secretary of Animal Husbandry, Diary and Fishery Development Department, Mantralaya, Mumbai 400 032. 2. The Managing Director, Maharashtra Fishery Development Corporation Ltd., N.K.M. International house, 3rd Floor, 178, Backbay Reclamation, B.M.C. Chinai Marg, Mumbai -20. 3. Irfan Traders, Yawatmal, Tq. Dist. Yavatmal. ....Respondents. Mr. S.S. Dambe, Advocate for petitioner. Mr. K.M. Suryawanshi, A.G.P. for respondent No. 1. Mr. Milind Patil, Advocate for respondent No. 2. Mr. S.B. Joshi, Advocate for respondent No. 3. CORAM : B.R. GAVAI AND A.A.SAYED, JJ. DATED : 28th September, 2010. 2 PER COURT : 1. By way of present petition, the petitioner prays for direction to the respondent Nos. 1 and 2 to consider and accept the tender of the petitioner for supply of fish seed and issue work order in favour of petitioner. 2. Respondent No. 2 had initially issued a tender notice for supply of Fresh Water Indian Major Carp Fish Fingerlings on 30th of July 2009. However, it appears that the said tender notice came to be cancelled and subsequently, another tender notice came to be issued on 9th of August 2009. Various bidders have submitted their bids in response to the tender notice. The petitioner also submitted his bid. However, the petitioner was not qualified and as such, his envelop "B" was not opened. Being aggrieved thereby, the petitioner has filed the present petition. 3. Shri. Dambe, learned counsel appearing for the petitioner submits that respondent No. 2 has malafidely cancelled the earlier tender notice dated 30th July 2009 and with malafide intention to give benefit to certain bidders, has issued the tender notice dated 9th August 2009. He further submits that the term "turnover" includes all sales and purchases made by the dealer and if these amount of sales and purchases made by the petitioner were considered, the petitioner would qualify in the conditions as prescribed, even under the second tender 3 notice. He, therefore, submits that the impugned action of rejection of petitioner's tender is not sustainable in eyes law. 4. An affidavit-in-reply has been filed by the respondent No. 1. It is stated in paragraph No. 6 that as per the summarized statement submitted by respondent No. 2, it is found that the turnover of the petitioner for the financial year 2007-08 was of Rs. 32,33,200/-, for the year 2008-09 it was of Rs.36,39,100/- and for the year 2009-10 it was of Rs. 39,50,100/-. It has further been found that the average turnover of the petitioner comes to Rs. 36,07,466/-. It is pertinent to note that the tender notice in question requires average turnover of Rs. 50 lakhs for the last three years. 5. It is further pointed out in the affidavit-in-reply that the petitioner has not fulfilled the condition No. VII of the tender form. It is stated that in accordance with the requirement of condition, the tender is required to be submitted along with last three years audited balance-sheets and P and L statements, duly signed by the Chartered Accountant. It is further submitted that the said documents are not signed by the Chartered Accountant as required. Another ground raised in the affidavit-in-reply is that the petitioner has also not enclosed non defaulter certificate from Assistant Fisheries Commissioner and the notarised affidavit of Rs. 100/-. In this premise, it is submitted that the envelop "B" of the petitioner was not opened and his bid was not considered as he was 4 found to be not qualified technically. 6. The perusal of tender notice would reveal that it has been specifically stated as under :- "The average total turn over for last three years of the tenderer should be of Rs. 50 lakhs. Clause IV of the tender notice reads, thus :- "IV. The tenderer should enclose a non defaulter certificate from Assistant fisheries commissioner, and Notarised affidavit on Rs. 100/- stamp paper should be enclosed, in a given format, which is enclosed with this tender document, for the private entrepreneurs, declaring them to be non defaulter of any government, semi government organisation, Government Undertakings/ and MFDC. Any defaulter of government, semi government organisation, Government undertakings/ and MFDC will not be entertained." Clause VI of the tender notice reads, thus :- "VI. The tenderer should enclose 3 years audited Balance sheet and P & L statement, duly signed by a Chartered Accountant." Clause VII of the tender notice reads, thus :- "VII. The average total turn over for last three years of the tenderer should be of Rs. 50 lakhs. 5 (Summarised statement of balance sheet should be filed in the format, enclosed with this tender document.) 7. The Apex Court in the case of M/s. G.J. Fernandez v. State of Karnataka and others reported in AIR 1990 SUPREME COURT 958 had an occasion to deal with the similar facts. In the said case the Apex Court in unequivocal terms has held that if a tenderer is required to supply inter-alia documents supporting his work experience and financial position along with application for tender book, furnishing of such a documents would be pre-condition and tenderer can be excluded from the zone of consideration for failure to supply the required documents. In the said case the Apex Court has further held that it is for the authorities calling tender to decide regarding the satisfaction of the compliance by tenderer and not by the Court. The limited scope that would be available in the extraordinary jurisdiction of this Court under Article 226 is, as to whether the authority in the present case has acted arbitrarily, irrationally or illegally. 8. The perusal of the aforesaid conditions cited supra would reveal that the pre-condition of average turnover of Rs. 50 lakhs for preceding three years has been specifically provided for. It would also reveal that the tenderer should enclose audited balance-sheet and P & L statement duly signed by the Chartered Accountant. The Apex Court in the case of M/s. Poddar Steel Corporation Vs. M/s. Ganesh Engineering Works and 6 others, reported in AIR 1991 SUPREME COURT 1579 followed the view taken by the Apex Court in the case cited supra and has observed thus :- "As a matter of general proposition it cannot be held that an authority inviting tenders is bound to give effect to every term mentioned in the notice in meticulous detail, and is not entitled to waive even a technical irregularity of little or no significance. The requirements in a tender notice can be classified into two categories - those which lay down the essential conditions of eligibility and the others which are merely ancillary or subsidiary with the main object to be achieved by the condition. In the first case the authority issuing the tender may be required to enforce them rigidly. In the other cases, it must be open to the authority to deviate from and not to insist upon the strict literal compliance of the condition in appropriate cases." 9. Reading the judgment of the Apex Court in the case of M/s. G.J. Fernandez and M/s. Poddar Steel Corporation cited supra, it would reveal that the condition which provides that average total turnover of tenderer for last three years should be of Rs. 50 lakhs and regarding the submission of the documents duly certified by the Chartered Account in that regard, would be essential conditions and deviating therefrom, would not be permissible in law. 10. We find that since the petitioner has failed to qualify the above essential conditions, no error could be found in the action of the 7 respondents in holding that the petitioner was not qualified for opening his financial bid. 11. In that view of the matter, no merit is found in the present petition and the same is dismissed. 12. At this stage, the learned counsel for the petitioner prays for continuation of interim protection for the period of one week from today. The learned counsel for the respondents has vehemently opposed the said prayer, on the ground that the seeds are perishable item and the delay in execution of contract would cause irrepairable loss. 13. In view of reasons given by us hereinabove and specific finding that the petitioner does not qualify the eligibility criteria, we are not inclined to consider the said prayer. The same is, therefore, rejected. [ A. A. SAYED ] [ B. R. GAVAI ] Judge Judge ssc/wp8216.10