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

1. By this petition filed under Article 226 of the Constitution of India, 3 petitioners, all artificial persons, question the action of respondent nos. 1 to 4 in rejecting their tender at the stage of opening of Envelope No.1 and to set aside the communication dated 29.06.2015 informing them about it. A further direction is sought by them to consider its price bid together with other price bids. This Court has issued notice in the matter on 09.07.2015. It appears that work order was issued on 21.07.2015 in favour of respondent no.5. Petition was allowed to be amended on 20.04.2016 and on 05.05.2016, upon grievance that filing of reply by respondents was being deliberately delayed, we stayed the work order.2. The tender No. 27254 floated by respondents inviting bids for construction of approach road to a Major Bridge across Purna River Ch. 106/400 near Gandhigram village and construction of slab drain at Ch. 105/00 to 108/00 onroad, State Highway No.204 in Akola District, forms subject matter of the petition.

Reasoning:
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.