1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.7823 OF 2009 Date of decision: For approval and signature HON'BLE MR.JUSTICE NARESH H PATIL HON'BLE MR. JUSTICE K.U.CHANDIWAL 1. Whether the Reporters of Local Papers Yes/No. may be allowed to see the Judgment ? 2. To be referred to the Reporter or not ? No 3. Whether Their Lordships wish to see No. the fair copy of the Judgment ? 4. Whether this case involves a substantial? No. question of law as to the interpretation of the Constitution of India, 1950, or any order made thereunder ? 5. Whether it is to be circulated to the No. Civil Judges ? 6. Whether the case involves an important No question of law and whether a copy of the Order should be sent to Bombay, Goa and Nagpur Office ? (A.G. PARALIKAR) Private Secretary agp/office/wp7823-09 2 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.7823 OF 2009 1. SPM DRUGS (P) LTD. SF 51/1 Main road K.R.Palayam, Bhavani - 638 301 (TN) through its power of attorney holder, Shri Sharad Chatrabhuj Rathi, (Proprietor of Chandan Diagnostic and Surgical), age 52 yrs. occ. Business, r/o 192, Bhikamchand Jain Market, Jalgaon. 2. STERICAT GUTSTRINGS (P) LTD. Plot no.169, sector -4, IMT, Manesar, Gurgaon, Haryana Through its power of attorney holder Shri Sharad Chatrabhuj Rathi, (Proprietor of Chandan Diagnostic and Surgical) age 52 yrs. Occ. Business, r/o 192, Bhikamchand Jain Market Jalgaon. ...PETITIONERS VERSUS 1. The State of Maharashtra, Through its Secretary, Medical Education and Research Department, Mantralaya, Mumbai 32 3 2. The Director, Medical Education and Research Department, 4th floor, Government Dental College Building, Saint George Hospital Campus, V.T.Mumbai 400 001 3. Assistant Director (Purchase), Drug Purchase Cell, 4th floor, Government Dental College Building, Saint George Hospital Campus, V.T. Mumbai 400 001 ...RESPONDENTS ... Shri P.M.Shah, Senior Counsel for petitioner. Shri N.B.Khandare, G.P., for respondent State. ... CORAM : NARESH H. PATIL AND K.U.CHANDIWAL, J. DATE : *** Dt.of reserving the judgment:3.12.2009 Dt.of pronouncing the judgment: ... JUDGMENT: (Per K.U.Chandiwal, J.) 1. Heard. 2. Rule. With the consent of learned Counsel for the parties, Rule is made returnable 4 and heard forthwith. 3. The petitioners feel that the Government Resolution dt.17.6.2009 and the tender form published by the Directorate of Medical Education and Research ( For short, "DMER"), finalized for the Rate Contract, which is valid for a period of two years, display stringent terms and conditions which are unjust and illegal. 4. The petitioners feel that the following terms and conditions of the Tender form are unjust: "(i) Condition No.1 for of new registration to the tenderer who has already possessing and holding valid registration certificate issued by DMER. (ii) Condition No.1 (turn over clause) in respect of annual average turn over for the last 3 financial years shall be minimum Rs.25 Crores for supply of injections, minimum Rs.10 Crores for supply of disinfectants and minimum Rs.25 lakhs for supply of surgical drssing. (iii) Condition No.2.7 about the requirement of W.H.O. G.M.P. Certificate. 5 (iv) Condition No.9 of the security deposit @ 16 % of the estimated value of the quantity per year in the form of bank guarantee. " 5. According to the petitioner, when petitioner no.1 is already holding the valid registration certificate issued by the same authority and the validity period of the said certificate is not expired, there was no eventuality to direct petitioner no.1 to seek a new registration from the same authority. The turnover clause is not uniform as, in the States of Tamilnadu, Madhya Pradesh and Karnataka, the condition of minimum annual turnover is only upto Rs.2 crores. 6. The condition of heavy turnover is, apparently, incorporated, with an intention to award the tender to multi-nationals, who are favourable to the respondents. The condition of security deposit is contrary to the arrangement made by different States as, in few of the States, it is only 5 per cent of the estimated value of the quantity per year. 7. The requirement of valid certificate of W.H.O. G.M.P. Certificate ( condition no.2.7) is not warranted, the rate contract is only for supply of medicines and surgical items. In 6 Maharashtra State, the tender form does not expand its scope for exporting of the medicines or the surgical items. Consequently, the requirement of W.H.O. G.M.P. Certificate is not warranted. Hence, these actions are questioned. 8. Elaborate submissions were advanced on the high-handedness of the authorities and the position of law. Learned Government Pleader contended that the petitioner no.2 has no role in the matter and no cause to file the petition. The power of attorney of the petitioner no.1 is the same person who was representing the petitioners in another petition; being Writ Petition No.5890/2009. (Page No.123, para 7) ... (THIS PARAGRAPH TO BE TAKEN AT We find, there is no contract as yet between the petitioner no.1 or the Government. The terms of the tender, referred above, will have to be assessed, as to whether they demonstrate any high-handedness or unjustness. On analysis of factual matrix, we find they do not project de hors to the provisions or the powers vested in the Governmental authorities. The terms cannot be branded to be unconstitutional. There is no betrayal in these terms to the normal procedure, to cause 7 favouritism to anybody else. ) 8 ( K.U.CHANDIWAL) (NARESH H.PATIL) JUDGE JUDGE agp/