1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR WRIT PETITION NO 4513 OF 2010. Harish Gopaldas Bajaj. .Vrs. State ofMaharashtra,thr.its Principal Secretary,department of Revenue,Mantralaya,Mumbai and Others. ----------------------------------------------------------------------------------- Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's or directions and Registrar's orders. Orders. (S/Shri S.P.Bhandarkar, O.S.Bajaj R.M.Pande and S.K.Ankar,Advocates for Respondent.) CORAM : B. P. DHARMADHIKARI & P.D.KODE, J J. DATED : 14.06.2011 Heard Mr. Bhandarkar, Learned Counsel for petitioner, learned Assistant Government Pleader for Respondent Nos. 1, 2, 4 and 5 and Mr. Bhisikar, Learned Counsel for respondent No.3. Contention is the eligibility and qualification condition of having VAT clearance certificate up to December 2009 is attracted in the case of respondent No.3 and as Respondent No.3 has not furnished the same, his bid could not have been processed further and hence, allotment 2 of SETU Center to him is illegal for this purpose. Our attention is invited to the document containing instructions to Bidders and also to the comparative chart prepared by the Department while evaluating the bids. It is urged that so far as the tender of Respondent No.5 for Bhandara work is concerned, initially there was a cross mark against column No.7 which deals with VAT clearance and latter on, the words ‘clearance Certificate submitted” are added. In the contradiction, similar comparative chart for Sakoli SETU Center is pointed out to show that there only cross mark appears and these words are not added. In this background, it is urged that admittedly, till today no such VAT clearance certificate is submitted by Respondent No.3 and attention is invited to reply/affidavit filed on behalf of Respondent Nos.4 and 5 to urge that they are attempting to justify non-submission of said certificate by pointing out that as Respondent No.3 is not a dealer as defined in Section 2(8) of Maharashtra Value Added Tax, 2002 (MVAT Act for short), the requirement is accordingly dispensed with. Learned Counsel contends that as it is an essential condition in relation to eligibility which cannot be waived and allotment of tender to Respondent No.3 is contrary to law and arbitrary. Mr. Bhisikar, learned counsel for respondent No.3 3 and learned Assistant Government Pleader for other respondents are supporting the action. According to Mr. Bhisikar, learned counsel, respondent No. 3 is involved only in the work of processing data received through affidavit and there is no sale or other similar step in the process. The affidavit furnished by Respondent No.3 on 26th November, 2007 is accordingly looked into by Sales Tax Officer ( Registration), Chandrapur and after considering relevant data, a certificate has been issued that respondent No.3 is not liable to get registration under M.V.A.T.Act and not liable to pay the tax. Learned Counsel states that this certificate issued on 18.10.2010 is final and has been rightly accepted and acted upon by other respondents. Section 2(8), defines “dealer”, as means any person who, for the purposes of or consequential to his engagement in or, in connection with or incidental to or in the course of, his business buys or sells, goods in the State whether for commission, remuneration or otherwise and includes,- (a) a factor, broker, commission agent,del- credere agent or any other mercantile agent, by whatever name called, who for the purposes of or consequential to his engagement in or 1[in connection with or incidental to or] in the course of the 4 business, buys or sells any goods on behalf of any principal or principles whether disclosed or not; Affidavit which has been looked in to by the Sales Tax Officer on 29th November, 2007, and sworn on behalf of present Respondent No.3 reveals that its main activity is to prepare the affidavit for proceeding work at SETU and other allied activities. This affidavit is appreciated by the Sales Tax Officer (Registration), Chandrapur in his communication dated 18.10.2010 where the details of stationary and computers purchased by Respondent No.3 for the period from 2005 to 2006 and 2009 to 2010 as shown in balance- sheet, profit and loss account are looked into and thereafter it has been opined that prima facie the main work of Respondent No.3 is to provide services to the Government for prescribed work i.e. for issuance of certificates and data entry work. The officer, therefore, has felt that Respondent No.3 is not liable to get registration under M.V.A.T. Act and not liable to pay tax. This certificate is not shown to be erroneous to us. It is not the case before us that Respondent No.3 is doing similar work or some other work, as a contractor elsewhere. The contention that the eligibility condition is imposed only for the purposes of getting an experienced 5 operator, is not very correct because the condition of ‘experience’ is mentioned separately vide Clause (i) in technical bid part of the document. In the light of the certificate issued by Sales Tax Officer (Registration), Chandrapur, the Respondents have processed the bid of Respondent No.3 and have accepted it. As such, it is not the case where the essential eligibility condition can be said to have been relaxed. We do not find any merit in the petition. Accordingly, the Writ Petition is rejected. No order as to costs. JUDGE JUDGE scd//