1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR WRIT PETITION NO. 5657 OF 2007 1. Laxmi Civil Engineering Services Pvt.Ltd., B-3, having its registered office at 1148-E- Sykes Extension, Kolhapur, Maharashtra – 419 001, through Managing Director. 2. Vijay Rajaram Shaha, Managing Director, Laxmi Civil Engineering Services Pvt. Ltd., 1148-E-Sykes Extension, Kolhapur, Maharashtra- 419 001. ... ... PETITIONERS VERSUS 1. State of Maharashtra through Collector, Chandrapur. 2. The Superintending Engineer Public Works Department, Chandrapur. 3. The Executive Engineer, Public Works Department, Division No.I, Chandrapur. ... ... RESPONDENTS Mr. S.G. Jagtap, Advocate, for the petitioners. Mr. N.W. Sambre, G.P., for respondents. CORAM : D.D. SINHA & SMT. VASANTI A. NAIK, JJ. RESERVED ON: MARCH 10, 2008 PRONOUNCED ON: MARCH 18, 2008 2 JUDGMENT (Per Smt. Vasanti A. Naik,J.) 1. Rule. Rule made returnable forthwith. The petition is heard finally at the stage of admission with the consent of learned counsel for the parties. 2. The petitioner no.1 is a private limited company incorporated under the Companies Act and specialized in construction of roads including cement roads. According to the petitioners, the petitioner no.1 has acquired requisite modern machineries, technical personnels and experience in construction of concrete roads and other types of roads as per the norms laid down by the Indian Road Congress. The respondent no.3 had issued a tender notice on 25/7/2007 for the improvement work of Jam- Warora-Chandrapur-Rajura-Asifabad Road. The petitioners approached the respondent no.3 for purchase of tender document on 26/10/2007 along with the necessary document and the respondent no.3, after verification of its credentials, issued a tender document on petitioners making a payment of Rs. 10,000/-. According to the petitioners, the petitioner no.1 fulfilled the eligibility criteria as laid 3 down in the tender notice and submitted the tender on 19/11/2007 along with the requisite documents. Three other contractors also submitted their tenders to the respondent no.3 on 19/11/2007. 3. The tender was to be submitted by the petitioners and other tenderers in two envelops, relating to technical bid and financial bid. The first envelop pertaining to technical bid was opened by the respondent no.3 on 23/11/2007. The respondent authorities thereafter, on 5/12/2007, issued a telegram/FAX to the petitioners informing the petitioners that the tender/bid shall be opened on 6/12/2007 in the office of the respondents at 3 P.M. at Chandrapur. In response to the notice, the petitioner no.2 attended the office of the respondents who was orally informed by the respondent no.2 that the petitioner no.1 was disqualified as it had not fulfilled the eligibility criteria as laid down for the technical bid. On the same day, the respondent no.3 had informed by the Superintending Engineer, Public Works Circle Chandrapur by a communication dated 6/12/2007 that the second envelop submitted by the petitioner was not opened in view of the fact that the petitioner had not submitted a VAT certificate with attestation, the copy of the certificate issued by 4 Chartered Accountant pertaining to the annual turn over of previous five years, was also not attested and the copies of invoices and machinery and deed of power of attorney were also not attested. According to the petitioners, it had fulfilled the eligibility criteria and the refusal of the respondents in opening the financial bid of the petitioners was unjust and illegal. The petitioners have, therefore, sought a writ of mandamus directing the respondents to open the financial bid/envelop no.2 submitted by the petitioner for the improvement work of Jam-Warora-Chandrapur-Rajura-Asifabad road. 4. Shri Jagtap, the learned counsel for the petitioners, submitted that the action on the part of the respondents in issuing the communication dated 6/12/2007 pertaining to the rejection of the technical bid and refusal to open the financial bid is clearly illegal and arbitrary in view of the fact that the technical bid was opened on 23/11/2007 and it was informed to the petitioners by the respondents by a telegram dated 5/12/2007 that the financial bid would be opened on 6/12/2007, which leads to the conclusion that at the time of the purchase of the tender form, the necessary documents pertaining to 5 the technical bid were perused and this clearly showed that the petitioners had the necessary documents pertaining to the technical bid which was a pre-condition for supply of tender forms/books. It is further submitted on behalf of the petitioner that the checklist of documents accompanying the tender were required to be marked by the respondents-authorities, but in the instant case, the checklist was neither marked nor was it communicated to the petitioners, after opening of the first envelop on 23/11/2007, that the petitioner no.1 was disqualified in view of the fact that it did not fulfill the eligibility criteria. It is then submitted on behalf of the petitioners that (Smt. Vasanti A. Naik) (D.D. Sinha) JUDGE JUDGE RMP