Case: M/S. Komal Construction &amp; Others Vs. The State of Maharashtra, Through Its Principal Secretary, Public Works Department &amp; Others

Clause 3.7.10 reads as under 3.7.10. Joint Venture.(i) In case of Joint Venture the scanned and digitally signed copy of registered partnership deed shall be submitted in Envelope No.1.(ii) Two or more contractors of any class may combine and tender for a work costing to the amounts upto which each individual contractor or the higher of two limits if they are of different categories are empowered to tender as per the original registration provided.(i) The combination is of the contractor as a whole and not individual partners and,(ii) They draw a registered partnership deed and submit a copy thereof to the authority at the time of purchase of the tender forms.Whenever the advantage of such combination of two or more contractors is to be taken for quoting for a work, the registered partnership deed should be irrevocable till the completion of the work for which they have combined and till all the liabilities there of are liquidated and the share of contractor of higher category should not be less than 50%. Further, the percentage share of the contractor of the lower category in such a partnership/combination should not be more than this limit of eligibility to quote for works divided by the estimated cost of work put to tender (i.e. when such a percentage is applied to the cost of the work, his share of cost should not exceed his own eligibility limit of tendering for works.) The lead partners shall meet not less than 50% of all qualifying without like annual turn over, single work, quantities of items and bid capacity of above. The Joint Venture must collectively satisfy the criteria of para annual turn over single work, quantities of items and Bid capacity above. The experience of the other Joint partner shall be considered if it is not less than 30% of the qualifying criteria like annual turn over, single work, quantities of items and Bid capacity of above.Language of this Clause therefore clearly shows that a registered Partnership Deed is must and a Joint Venture with unregistered Partnership Deed is not legally recognized. Respondents wanted to be certain that in case of any legal dispute, Partnership Firm must be registered and therefore, demanded its registration certificate. In case of a Joint Venture also, to get rid of the technical lacunae or defences, they envisage that a Partnership amongst its constituents should be registered. Petitioners before us do not have registration certificate, either as a Firm or then as a Joint Venture. They do not have even a registered agreement.19. This condition of eligibility which has got bearing on relationship of parties and legal implications flowing therefrom, clearly show that it cannot be viewed as a ancillary condition. Though contractor has been defined widely to include even a unincorporated company, in case of Firm or Joint Venture, there is insistence on registration of a Firm or of a agreement. This insistence by the respondents cannot be said to be misconceived or arbitrary. Petitioners do not satisfy this condition.20. Equipments to be made available by petitioners are dealt with in paragraph no.3.7.5. Chart in that clause contains names of 12 equipments/machineries. In last column number thereof or capacity of such machine is stipulated. Thereafter in bracket word own appears against column nos. 1 to 4, 6 to 8 and 10 to 12. Against entry no.9, dealing with Steel centering plate, there is no mention. Words Own/Hire are used only against entry no.5 i.e. Rotavator for GSB Mixing. Thus, when entire chart is construed in this backdrop, it only permits Rotavator required for GSB mixing to be hired. Rest of the equipments must be owned by the tenderer. Clause 3.6 (ix) require tenderer to give list of modern machinery and plants immediately available with it for use on tendered work as also list of machinery proposed to be used therefor, but, not immediately available and manner in which it is proposed to be procured. This therefore shows precaution taken by the respondents to obtain in different list of machineries, which can be immediately used by the tenderer. Simultaneously, he is also obliged to give a list of machineries which he can make available later on, but, then he has to disclose how he proposes to procure it. Petitioners, therefore, must show that Self-propelled Mechanical Sprayer owned by them. It is available to them at Pune and there they have taken it on hire from M/s. Shree Associates, vide agreement dated 09.03.2015. This does not meet the stipulation in the tender document which is an essential condition.21. In so far as the Rotavator is concerned, though the petitioners claim that they have offered a better machine, according to the respondents, said machine i.e. Batching Plant is not substitute for Rotavator. Respondent no.5 has come up with a specific case in this respect in paragraph no.7. This assertion on these lines in affidavit are not rebutted by the petitioners. Even otherwise, burden to show that Batching Plant is a better machine was upon the petitioners and they have failed to discharge the same.22. Insistence that Joint Venture must be registered in notice inviting tender or then insistence upon ownership of machinery is not shown to be arbitrary. When respondents permit only Rotavator to be made available on hire, in absence of express challenge to requirement of ownership, the contention that ownership of other machineries should also be viewed as only an ancillary requirement, cannot be accepted. Respondents can always take necessary precaution and prescribe safeguards to protect its own interest in contract matters. It is in absolute discretion of tender inviting authority to formulate reasonable terms and conditions in advance, and to act accordingly uniformly. A tenderer can complain of the deviation, arbitrariness or discrimination. In this situation, in the light of the arguments advanced, we find that the respondent nos. 1 to 4 have rightly disqualified the petitioners for first three reasons on 29.06.2015. There is no jurisdictional error or perversity. No case is made out warranting intervention in writ jurisdiction.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]Language of this Clause therefore clearly shows that a registered Partnership Deed is must and a Joint Venture with unregistered Partnership Deed is not legally recognized. Respondents wanted to be certain that in case of any legal dispute, Partnership Firm must be registered and therefore, demanded its registration certificate. In case of a Joint Venture also, to get rid of the technical lacunae or defences, they envisage that a Partnership amongst its constituents should be registered. Petitioners before us do not have registration certificate, either as a Firm or then as a Joint Venture. They do not have even a registered agreement.19. This condition of eligibility which has got bearing on relationship of parties and legal implications flowing therefrom, clearly show that it cannot be viewed as a ancillary condition. Though contractor has been defined widely to include even a unincorporated company, in case of Firm or Joint Venture, there is insistence on registration of a Firm or of a agreement. This insistence by the respondents cannot be said to be misconceived or arbitrary. Petitioners do not satisfy this condition.20. Equipments to be made available by petitioners are dealt with in paragraph no.3.7.5. Chart in that clause contains names of 12 equipments/machineries. In last column number thereof or capacity of such machine is stipulated. Thereafter in bracket word own appears against column nos. 1 to 4, 6 to 8 and 10 to 12. Against entry no.9, dealing with Steel centering plate, there is no mention. Words Own/Hire are used only against entry no.5 i.e. Rotavator for GSB Mixing. Thus, when entire chart is construed in this backdrop, it only permits Rotavator required for GSB mixing to be hired. Rest of the equipments must be owned by the tenderer. Clause 3.6 (ix) require tenderer to give list of modern machinery and plants immediately available with it for use on tendered work as also list of machinery proposed to be used therefor, but, not immediately available and manner in which it is proposed to be procured. This therefore shows precaution taken by the respondents to obtain in different list of machineries, which can be immediately used by the tenderer. Simultaneously, he is also obliged to give a list of machineries which he can make available later on, but, then he has to disclose how he proposes to procure it. Petitioners, therefore, must show thatMechanical Sprayer owned by them. It is available to them at Pune and there they have taken it on hire from M/s. Shree Associates, vide agreement dated 09.03.2015. This does not meet the stipulation in the tender document which is an essential condition.21. In so far as the Rotavator is concerned, though the petitioners claim that they have offered a better machine, according to the respondents, said machine i.e. Batching Plant is not substitute for Rotavator. Respondent no.5 has come up with a specific case in this respect in paragraph no.7. This assertion on these lines in affidavit are not rebutted by the petitioners. Even otherwise, burden to show that Batching Plant is a better machine was upon the petitioners and they have failed to discharge the same.22. Insistence that Joint Venture must be registered in notice inviting tender or then insistence upon ownership of machinery is not shown to be arbitrary. When respondents permit only Rotavator to be made available on hire, in absence of express challenge to requirement of ownership, the contention that ownership of other machineries should also be viewed as only an ancillary requirement, cannot be accepted. Respondents can always take necessary precaution and prescribe safeguards to protect its own interest in contract matters. It is in absolute discretion of tender inviting authority to formulate reasonable terms and conditions in advance, and to act accordingly uniformly. A tenderer can complain of the deviation, arbitrariness or discrimination. In this situation, in the light of the arguments advanced, we find that the respondent nos. 1 to 4 have rightly disqualified the petitioners for first three reasons on 29.06.2015. There is no jurisdictional error or perversity. No case is made out warranting intervention in writ jurisdiction.