1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Writ Petition No.2661/2011 [Prakash Constrowell Private Limited .vrs. State of Maharashtra and others] ................................................................................................................................................................... Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's order of directions and Registrar's orders ................................................................................................................................................................... CORAM : B.P. DHARMADHIKARI AND P.D. KODE, JJ. DATE : JUNE 30, 2011. Heard Shri S.A. Mohta, learned counsel for the petitioner, Shri A.S. Sonare, learned AGP for respondent nos.1 to 4 and Shri I.N. Chaudhari, learned counsel for the applicant – intervenor. By this petition filed under Article 226 of the Constitution of India, the petitioner, a company duly registered under the provisions of the Companies Act, 1956, has questioned the rejection of its envelope no.1 on the ground that power of attorney supplied thereunder was not valid, inasmuch as it was not on stamp paper and was not executed before any Notary/Executive Magistrate. Advocate Shri Mohta contends that because of this defect in envelope no.1, the commercial bid in envelope no.2 has not been opened at all. He points out that as per the documents inviting bids, there is 2 no requirement of any power of attorney to be submitted by a company and in any case a proper resolution of Board of Directors authorizing the Directors/Employee as competent to sign the documents is already supplied. He, therefore, states that exclusion of the petitioner from tender process is arbitrary and liable to be quashed and set aside. Learned AGP has placed reliance upon the reply-affidavit to urge that not only the resolution authorizing the signatories was found to be improper but also then memorandum of association and article of association of the petitioner were found not duly attested by any gazetted officer as per the tender condition. According to him, this being the position, envelope no.1 was rightly rejected and there was no question of opening envelope no.2. Shri Choudhari, learned counsel for applicant-intervenor in CAW No.1537/2011, states that offer made by the applicant is being considered. He relies upon the judgment of the Division Bench of this Court in the case of Bee Jay Contractors, New Delhi .vrs. Hindustan Petroleum Corporation Limited, Mumbai, 2010(6) Mh.L.J. 392 to urge that even in case of procedural aberration the judicial review by this Court is not warranted and the petitioner must be left free to seek damages elsewhere. 3 After hearing respective counsel, we find that the tender invitation requires attested copy of the valid registration certificate, attested copy of registered partnership deed/memorandum and articles of association and attested copy of valid VAT registration certificate. Thus, attested copies are demanded specifically whenever they are found necessary by respondent no.4. At other places, this word “attested” is not used. Learned AGP has attempted to contend that opening part of this document titled check list itself states that documents in envelope no.1 should be duly attested by gazetted officer from Public Works Department/Irrigation Department, Government of Maharashtra. We find that the word “attested” has been used specifically for certain documents and it is not used in relation to certain other documents i.e. like earnest money, term deposit receipt, details of other works, list of machinery available, list of technical personnel and the details of other works including electrical work. The power of attorney is demanded by Clause 7 which does not use word “attested copy” and it reads as under : “Power of Attorney on behalf of firm issued in the name of person/s authorized to sign 4 agreements / bills etc. and collect cheques from department for the work done.” Rejection letter dated 26.5.2011 sent to the petitioner specifically states that power of attorney is not valid in accordance with the law as it is not on stamp paper and is not executed before any Notary / Executive Magistrate. Learned counsel for the petitioner has pointed out that being a company it has only passed appropriate resolution in its board meeting and empowered its Directors/Officers as authorized signatories. In reply to this contention, Executive Engineer has, in paragraph 8, stated that the signatures of the persons named in the resolution and authorized for the purposes of Clause 7 are not attested by Executive Magistrate/Notary on any stamp paper or by any company authority. There is no such requirement in the bid documents. It is not in dispute that signatures are received from the petitioner company. This stand is by the Executive Engineer while stand of power of attorney being illegal is by Superintending Engineer. The reason given for rejection on 26.5.2001 therefore appears to be given up and a new defence has been pressed into service which is not supported by terms and conditions of the 5 bid documents. Learned AGP has produced before us the memorandum and articles of association as supplied by the petitioner. Learned counsel for the petitioner has pointed out that its first page carrying certificate of incorporation and on last page (80) are attested on behalf of the petitioner company and it is self attestation. The requirement of the check list of documents supplied to the petitioner for general information reveals that it has to be duly attested by gazetted officer from Public Works Department/Irrigation Department of Government of Maharashtra. Though, the defect pointed out to this Court in paragraph 6 of the reply was not communicated to the petitioner, upon perusal of original papers contained in envelope 1, we are satisfied that the said defect, in fact, exists. The petitioner has not got that document attested from the officers as mentioned in above check list. Hence, we are not inclined to interfere, as refusal cannot be viewed as arbitrary. The petition is, therefore, rejected. JUDGE JUDGE Gulande