High Court of Gujarat
YOGI CONSTRUCTION CO. A REGISTERED PARTNERSHIP FIRMversusTHE MUNICIPAL COMMISSIONER
- Disposal
- 26-DISMISSED @ ADM.STAGE
Holding
The court held that the Municipal Corporation’s arbitrary and mala‑fide rejection of the bids, including improper reliance on stamp‑paper value, irrelevant litigation‑history disclosure, and the partner’s experience, invalidated the tender process, necessitating the setting aside of the award to SNL & Co. and directing consideration of other eligible bids.
Summary
The Gujarat High Court examined two writ petitions challenging the award of a Rs 122.97‑crore sewage‑treatment‑plant contract. R & B Infra Project Ltd. argued that its bid was unfairly rejected first for incomplete online upload, then on a technical ground that its MoU was on a Rs 100 stamp paper instead of Rs 300, and finally for alleged non‑disclosure of litigation history. Yogi Construction Co. contended its bid was rejected for not submitting a site‑visit certificate and an MoU in the prescribed format. The Court found the Municipal Corporation’s successive rejections to be arbitrary, noting the stamp‑paper issue was irrelevant, the litigation‑history clause applied only to black‑listing for delay, and the corporation’s reliance on a partner’s experience violated the tender’s explicit experience requirements. Consequently, the award to SNL & Co. was set aside and the corporation was directed to consider other eligible bids, while Yogi’s petition was dismissed for non‑compliance with mandatory site‑visit requirements.
Issues considered
- Whether the Municipal Corporation’s rejection of R & B’s bid on the basis of stamp‑paper value and alleged non‑disclosure of litigation history was arbitrary and violative of tender conditions.
- Whether the corporation’s reliance on the experience of a partner’s black‑listed firm to satisfy the work‑experience criterion for SNL & Co. was permissible.
- Whether the absence of a geo‑tagged site‑visit photo and a specific MoU format justified the rejection of Yogi Construction’s bid.
- Whether the court should intervene under Article 226 to set aside the award of the contract to SNL & Co.
Subjects
Tender lawPublic procurementTechnical non‑responsivenessArbitrarinessMala fideBlacklistingMoU stamp paperWork experience requirementSite‑visit certificateArticle 226
Judgment
C/SCA/5436/2026 CAV JUDGMENT DATED: 08/05/2026
Reserved On : 01/05/2026
Pronounced On : 08/05/2026
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 5436 of 2026
With
R/SPECIAL CIVIL APPLICATION NO. 4647 of 2026
==================================================
M/S R AND B INFRA PROJECT LIMITED
Versus
THE MUNICIPAL COMMISSIONER & ORS.
==================================================
Appearance in SCA/5436/2026:
MR. MIHIR JOSHI, SENIOR ADVOCATE WITH MS. SIMRAN PAHWA,
ADVOCATE FOR THAKKAR AND PAHWA ADVOCATES(1357) for the
Petitioner(s) No. 1
MR. SAURABH SOPARKAR, SENIOR ADVOCATE WITH MR. D.M.
DEVNANI(5880), ADVOCATE for the Respondent(s) No. 1
MR. JAIMIN R. DAVE(7022), ADVOCATE WITH MS. MANVI A.
DAMLE(10805), ADVOCATE WITH MR. YASH SIKKA, ADVOCATE for the
Respondent(s) No. 4
Appearance in SCA/4647/2026:
MR. R. S. SANJANWALA, SENIOR ADVOCATE WITH MR.BHASH H.
MANKAD(6258), ADVOCATE for the Petitioner(s) No. 1
MR. SAURABH SOPARKAR, SENIOR ADVOCATE WITH MR. D.M.
DEVNANI(5880), ADVOCATE for the Respondent(s) No. 1
MR. JAIMIN R. DAVE(7022), ADVOCATE WITH MS. MANVI A
DAMLE(10805), ADVOCATE WITH MR. YASH SIKKA, ADVOCATE for the
Respondent(s) No. 2
==================================================
CORAM:HONOURABLE MR.JUSTICE N.S.SANJAY GOWDA
and
HONOURABLE MR.JUSTICE J. L. ODEDRA
CAV JUDGMENT
(PER : HONOURABLE MR.JUSTICE N.S.SANJAY GOWDA)
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[1] In these two writ petitions, the award of tender for
designing and construction of Sewage Treatment Plant of 11.00
and 3.00 MLD, and also the designing and construction of
various pumping stations along with allied works, awarded in
favor of SNL & Company, is under challenge by two rival
bidders whose bid has been rejected. The estimated contract
value of this tender is about Rs.122.97 crores.
[2] Special Civil Application No.5436 of 2026 is filed by M/s R
& B Infra Projects Limited (hereinafter referred to as “the R &
B”), who are aggrieved by the rejection of their tender on the
ground that the Memorandum of Understanding (MoU) that
they had entered into with the owner of an asphalt plant was on
a stamp paper of Rs.100/-, whereas the requirement of the
tender was that it ought to have been on an MoU of Rs.300/-.
[3] After the bid was rejected on the aforementioned ground,
a subsequent order has been passed by the Municipal
Corporation to the effect that R & B had suppressed material
facts in relation to its litigation history, despite a specific clause
in the tender requiring that all litigations in the past five years
be disclosed and this would also result in them being
disqualified.
[4] Special Civil Application No.4647 of 2026 is filed by Yogi
Construction Co., which is aggrieved by rejection of their tender
by the Corporation on the ground that they had not complied
with the six conditions of the tender, including the requirements
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of submission of a site visit certificate duly signed by the
engineer, and that the MoU submitted by it was not in
accordance with the format and requirement of the tender
conditions.
[5] The following facts are not in dispute:-
[5.1] On 15.01.2026, the Corporation issued an invitation for
bids in respect of the aforementioned work, i.e., designing and
construction of a Sewage Treatment Plant, having an estimated
contract value of about Rs.122.97 crores. The last date for
submission of the bids was 23.02.2026 at 5:30 PM. One of the
requirements for submission of the bids was that the bid was to
be submitted online. However, one of the conditions of the
tender was also that physical copies of the bid that had been
submitted online was also required to be submitted to the
Corporation.
[5.2] After the online submission, it was noticed by the R & B
that out of the 139 pages, only 106 pages had been uploaded, as
per the portal, and as a consequence R & B contacted the entity,
and it was informed that the discrepancy was due to the manner
in which the documents had been uploaded. It appears that the
bidder was required to upload four to five documents at a time,
wait for the message ‘files signed and saved successfully', and
only thereafter could the next set of files be uploaded.
Apparently, since R & B had not followed this procedure, the
entire set of documents had not been uploaded.
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[5.3] Clause 24 of the tender conditions required that all tender
documents should also be submitted through speed post so as to
reach the Municipal Corporation within seven working days
from the last date. R & B had, in fact, submitted all the tender
documents physically within the required time frame of seven
days. However, R & B was informed that their tender submitted
online would not be considered since all the documents had not
been uploaded.
[5.4] The petitioner, as a consequence, approached this Court in
Special Civil Application No.4641 of 2026, and this Court, by an
order dated 01.04.2026, disposed of the writ petition directing
the Corporation to consider the documents which R & B had
physically submitted and thereafter take a decision on the bids
submitted by R & B and also by the others, on their merits.
[5.5] The Corporation had, in fact, informed the Court that the
tender had been opened, negotiations had been undertaken, and
a work order had also been issued. It was, however, submitted
before the Court that the said decision would be kept in
abeyance till the case of R & B was considered.
[5.6] Pursuant to the said order, the case of R & B was
considered and the bid was rejected on 07.04.2026 on the
ground that the MoU executed between R & B and its DI Pipe
Supplier and DWC Pipe Supplier had been executed on a non-
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judicial stamp paper of Rs.100/- instead of a non-judicial stamp
paper of Rs.300/-. It appears that this defect had been pointed
out by the consultants engaged by the Corporation and this
defect had made the bid being technically non-responsive and
was therefore required to be rejected.
[5.7] R & B thereafter preferred a writ petition, i.e., Special
Civil Application No.11994 of 2026 on 13.04.2026, challenging
the said rejection.
[5.8] A week after the bid of R & B had been rejected, by way of
communication dated 20.04.2026, the Corporation informed R &
B that it was disqualified, as it had suppressed material
information regarding its blacklisting and the consequential
litigation in respect of the Black listing of a few of its other
tenders. As a consequence, this communication dated
20.04.2026, has also been challenged by R & B, by way of an
amendment.
[5.9] The facts, in so far as Yogi Construction Co. are
concerned, is that the Corporation refused to open its
commercial bid on 24.03.2026 and they are therefore
constrained to file a writ petition seeking a direction to be
issued to the Corporation to pen their bids and to evaluate their
Technical bid and also for opening of their financial bid. They
also seek rejection of the award of the tender in favor of SNL &
Company.
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[5.10] The tender submitted by the Yogi Construction Co.
was not rejected due to six defects in their bid. The grounds, on
which it was held that Yogi Construction Co. did not technically
qualify, were that they did not meet the minimum experience,
and they had failed to provide details regarding litigation
history and staff requirements; and more importantly, they had
not visited the site and submit a geotagged photo of the site
visit duly certified by the concerned engineer and upload the
same. Their tender was also considered technically non-
responsive since the MoU that they had produced was not in
accordance with the terms and conditions of the tender,
inasmuch as they did not abide by the prescribed format that
had been adhered to by all the other bidders, and they had
produced only an MoU regarding the drum mix plant.
[6] Shri Mihir Joshi, learned Senior Counsel, assisted by Ms.
Simran Pahwa, appearing on behalf of R & B, contended that:-
The entire process adopted by the Corporation was
manifestly arbitrary and was actuated by mala fides.
The Corporation had initially rejected the tender on a
hyper technical ground that all the documents had not
been uploaded, and thereafter, pursuant to the
intervention of this Court, which directed the bid to be
considered on the basis of the physical documents that
had been submitted. The Corporation, being annoyed by
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this, proceeded to reject the bid on the specious ground
that the MoU which R & B had entered into with their pipe
supplier was on a non-judicial stamp paper of Rs.100/-,
whereas it ought to have been for a sum of Rs.300/-. This
reason, which was not only trivial but totally unconnected
to the merits of the claim of R & B, itself indicated that the
Corporation was bent upon keeping R & B out of the entire
tender process.
The fact that after the bid of R & B was rejected, the
Corporation proceeded to issue a communication holding
that R & B was disqualified because they did not disclose
their litigation history also fortifies the contention that the
Corporation was discovering reasons to non-suit R & B.
The fact that there was a second order disqualifying R &
B, by itself, established that it had been pre-decided by the
Corporation that the bid of R & B would never be
considered.
The reason why the bid of R & B was rejected was
fundamentally because its financial bid was only 8% over
the contractual value, whereas the bid of SNL & company
was 33% over and it was therefore obvious that the
Corporation wanted to favor SNL & company to facilitate
them to earn a huge profit to the detriment of the public
exchequer.
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The requirement of disclosing a blacklisting in other
Tenders would not be relevant since the tender clause
clearly stated that only if the bidder had been blacklisted
for the delay in execution of the projects was the said fact
required to be disclosed. If the blacklisting was for any
reason other than delay, the bidder was not required to
disclose the said fact. The Corporation basically intended
to keep out only those bidders who were blacklisted
because they had delayed the execution of the works, and
it did not consider blacklisting for other reasons to be
relevant.
It is submitted that the litigation history, which R & B is
alleged to have not disclosed, essentially pertained to
litigation in respect of blacklisting of R & B for reasons
other than delay in execution of the projects. A reading of
the relevant clause relating to litigation history would
indicate that only litigation history in respect of executed
contracts or contracts being executed and awards
obtained thereof was relevant, and this by itself clearly
indicated that other kinds of litigation history was
unnecessary.
The litigation history sought was for the specific history
relating to a specific set of facts, and therefore,
demanding disclosure of litigation history with reference
to facts which are not considered germane by the
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Corporation is proof that the Corporation was seeking
reasons to keep R & B out of the bidding process.
The entire conduct of the Corporation in rejecting the bid
of the tender of R & B by citing three different reasons at
three different points in time, including a rejection after
the initial disqualification, indicates that the entire tender
process had a predetermined outcome, namely, to favour
SNL & Company.
SNL & Company was not even qualified to bid, inasmuch
as it, being a proprietary concern, had absolutely no work
experience in similar works.
SNL & company, a proprietary concern owned by Mr.
Siddharth Lunagariya and this Lunagriya was the main
partner in N. P. Patel and Company. The proprietor of SNL
& company, namely Mr. Siddharth Lunagariya was, in fact,
holding a stake of 90% in N. P. Patel and Company, a
partnership firm, indicating that the firm N. P. Patel and
Company was nothing, but an entity wholly owned and
controlled by him. The registration of N. P. Patel and
Company as AA+ contractor was itself fraudulent,
inasmuch as the work experience of N. P. Patel and
Company had been relied upon to secure such registration
and SNL & Co had absolutely no work experience as
required under the Tender notification.
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N. P. Patel and Company, in which SNL & Co, the fourth
respondent owned 90% of the firm, was admittedly a
blacklisted company, and this order of blacklisting was
confirmed by the High Court and also by the Hon’ble
Supreme Court.
In essence, since N. P. Patel and Company could not
participate in the present tender, the person who owned
90% in that firm created a proprietary concern, namely
the 4th respondent and had proceeded to utilize the
experience of N. P. Patel and Company, and submitted the
bid basically to overcome the fact that N. P. Patel and
Company could not have directly participated by virtue of
its blacklisting.
The tender notification did not permit the work experience
of any person other than the bidder to be relied on, and
since admittedly SNL & company had absolutely no work
experience, it was wholly ineligible to participate in the
tender.
[7] Shri Saurabh Soparkar, learned senior counsel assisted by
Shri D. M. Devnani, appearing on behalf of the Corporation put
forth the following submissions:-
The rejection of the petitioner's tender cannot be assailed,
since the bid contained defects which were incurable.
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Though the bid of the petitioner had been found to be
defective and liable for rejection, it was later discovered
that there was a glaring contravention of the tender
condition, inasmuch as the petitioner had suppressed the
history of litigation in which it had been engaged in
respect of other tenders.
The question of the petitioner's blacklisting was not of
relevance, but the fact that he had litigated in various
courts over a period of time would constitute a vital factor
in determining the legitimacy of the petitioner’s bid. If a
bidder had deliberately suppressed not just one but a
large number of litigations, it was apparent that he was
trying to mislead the Corporation, and therefore, on
discovery of these suppressed facts, the Corporation was
entitled to reject the bid.
The petitioner had submitted its bid on 23.02.2026, and as
on that day, he had in fact been blacklisted by two entities
and despite a query raised by the Corporation regarding
the blacklisting, the petitioner had not disclosed the
litigation arising from such blacklisting.
It is settled law that the satisfaction of the tender inviting
authority was paramount, when it comes to the question of
determining the practicality of awarding tender to a
bidder. If the antecedents of the bidder were doubtful or
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suspicious, the tender inviting authority had the legal right
to reject the bid, since the authority cannot be expected to
take the risk of trusting a bidder who had not been fair in
the submission of the bid.
Insofar as the work experience of SNL & Company is
concerned, the Corporation had followed the PWD Manual
and had accepted the work experience of N.P. Patel &
Company, in which the fourth respondent was a 90%
partner. The PWD Manual permitted taking into
consideration the work experience of a partner for the
purpose of meeting the eligibility criteria, and thus, the
decision of the Corporation cannot be found fault with.
It was submitted that the Courts cannot minutely examine
the assessment of a bid, as this is the prerogative of the
tender inviting authority. The Courts are restrained from
sitting in judgment over the decision of the tender
accepting authority insofar as it relates to its satisfaction
regarding the desirability of selecting a particular bidder
to satisfy the terms of the contract.
He submitted that a disqualified or an in eligible bidder
cannot possess the legal right to challenge the award of a
tender to any other bidder and hence the petition itself
was not maintainable.
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He placed reliance on the following cases in support of his
arguments:-
i. In the case of State of Madhya Pradesh and
another versus Uttar Pradesh State Bridge
Corporation Limited and Another reported in
(2022) 16 SCC 633.
ii. In the case of Silppi Construction Contractors
versus Union of India and another reported in
(2020) 16 SCC 489.
iii. In the case of Municipal Corporation, Ujjain and
another versus BVG India Limited & others
reported in (2018) 5 SCC 462.
iv. In the case of Afcons Infrastructure Limited
versus Nagpur Metro Rail Corporation Limited
& another reported in (2016) 16 SCC 818.
v. In the case of A.G.Construction through its
Authorised Signatory versus State of
Maharashtra and others reported in 2023 SCC
OnLine Bom.
vi. In the case of Mohammad Arif Shaikh versus
Madhya Pradesh Paschim Kshetra Vidyut Vitran
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Co. Ltd. through Managing Director reported in
2017 (3) M.P.L.J.
vii. In the case of Akash Infra Projects Limited
versus Ahmedabad Municipal Corporation
reported in 2020 (O) AIJEL-HC247918.
[8] Shri Jaimin R. Dave, learned counsel appearing on behalf
of SNL & Company supported the argument of Shri Soparkar,
learned senior counsel and stated that the acceptance of the bid
of SNL & Company could not be called in question. He placed
reliance on the following case in support of his arguments:-
i. In the case of N.G.Projects Limited versus Vinod
Kumar Jain and others reported in (2022) 6 SCC
127.
[9] Shri R. S. Sanjanwala, Learned Senior Counsel assisted by
Shri Bhash H. Mankad, appearing for the Yogi Construction and
Co. submitted that:-
The rejection of Yogi's bid was on frivolous reasons. He
submitted that the reason put forth, namely the absence of
a site visit certificate along with a geo-tagged photograph
was an insignificant requirement. Even assuming, for the
sake of argument, that the site visit had not been
conducted by the petitioner, the same would not render
the bid defective.
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He further submitted that the requirement of a site visit
certificate along with a geo-tagged photograph was
insignificant, and even if such a visit had not been
undertaken, that would not render with bid defective.
Even if it is assumed that the site visit had not been
carried out, at best, the petitioner would be taking a risk
in the execution of the contract and could not obviously
thereafter contend that he was unaware of the site
conditions. If a bidder does not comply with a condition
that was designed for his benefit, the same cannot be used
as a ground to reject a tender.
Yogi Construction Co. had produced an MoU in relation to
hiring a drum-mix plant, and this satisfied the condition of
the tender. He emphasized that the tender document
required an MoU evidencing an understanding or
agreement in relation to an asphalt plant. However, the
corrigendum to the tender permitted a bidder to use a
drum-mix plant, which is the same as an asphalt plant, and
thus the requirement of the tender notification stood
satisfied.
He submitted that a drum-mix plant is the same as an
asphalt plant, and possessing of either of the two was
sufficient; therefore, the tender condition stood satisfied
the moment there was a lease agreement in respect of a
drum-mix plant.
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[10] Insofar as the writ petition filed by Yogi Construction Co.
is concerned, Shri Saurabh Soparkar, learned senior counsel
contended that:-
Though the bid was rejected on six grounds, the writ
petition was liable to be dismissed only on the ground that
the required documents along with the necessary
certification had not been produced by Yogi Construction
Co., and also because the MoU, which was a mandatory
requirement, had not been submitted.
It was contended that the tender document categorically
stated that if the required documents were not submitted
along with the tender, the same would be rejected.
It is, in fact, admitted by the petitioner that the geo-tagged
photograph, along with the certification of the concerned
engineer regarding the site visit, was not furnished, and
the MoU in the required format was also not produced;
therefore, the rejection of Yogi Construction's bid cannot
be found fault with.
When the tender specified the requirement of an MoU in
relation to an asphalt plant and a drum-mix plant, it was
not open for the bidder to decide which of the two would
satisfy the tender condition. Having participated in the
tender, knowing fully well that certain conditions were
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required to be complied with, it was not open to the bidder
to thereafter contend that those conditions were
unnecessary or superfluous. He submitted that so long as
the tender conditions had been accepted, adherence to
them was mandatory.
[11] In the light of the above submissions, the following
questions would arise for consideration:-
Whether R & B has established that the processing of the
tender is manifestly arbitrary so as to warrant interference
by this Court in exercise of its powers under Article 226 of
the Constitution of India?
Whether R & B has established that the Corporation was
not justified in rejecting its bid on the ground that
litigation history of the petitioner had not been disclosed?
Whether R & B has established that it had satisfied the
conditions of the tender and its bid was required to be
considered on its merits?
Whether R & B had established that SNL & Co was not
entitled to be awarded the contract since it had no work
experience at all?
Whether the R & B has established that SNL & Co could
not have relied on the work experience of NP Patel & Co,
which was Blacklisted Concern and the properties of SNL
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& Co owned 90% of the firm and for all purposes was the
true owner of the firm?
[12] At the outset, it is to be stated that the legal position in
relation to the interference of the Courts in matters related to
tenders is rather well settled. The Courts can only examine the
manner in which the tender is processed and consider whether
the terms of the tender have been adhered to by both the tender
inviting authority as well as the bidders. Though the scope of
interference by Courts is limited and lies within a narrow
compass, nevertheless, the law is also well settled that the
Courts are obliged to interfere when the procedure adopted in
the tendering process is manifestly arbitrary and is plainly
evident from the pleadings and also if the conduct of the parties
on the basis of admitted materials establish that the entire
tendering process was vitiated by wanton acts of mala fides.
[13] Since, this is the settled position of law, it would be
unnecessary to reiterate all the judgments cited by both the
parties, as they essentially convey the same principle. Thus, the
overarching concern of this Court is to examine whether the
procedure adopted by the Corporation for processing the tender
is fair, just and proper, and does not smack of arbitrariness or
mala fides.
[14] As noticed above, the tender is for the purpose of
establishing a Sewage Treatment Plant with an estimated
contract value of 122.97 crores. Thus, it is clear that the tender
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is not in relation to a work which can considered of a minor or a
trivial nature. The establishment of a Sewage Water Treatment
Plant would affect the entire city of Porbandar which houses
lakhs of people and hence, it would all the more be necessary to
examine whether the processing of the tender by the
Corporation has been just and proper and is in accordance with
established norms of law.
[15] In the present case, it is not in dispute that the bid
submitted by R & B was initially rejected on the ground that the
complete set of bid documents had not been uploaded. The
Corporation, though had received the hard copy of the tender
document as stipulated in the tender notification, refused to
consider the physical copy to consider the bid of R & B.
Admittedly, in the physical copy submitted by the petitioner, all
the documents, including those which had not been properly
uploaded, were available. Significantly, the hard copy had also
been furnished within the stipulated time. Nevertheless, the
Corporation chose to reject the tender. It was only upon the
intervention of this Court that the Corporation had to consider
the bid of R & B. It may be pertinent to note that the
Corporation has not found any deficiency in the bid which
affects it validity.
[16] On consideration of the petitioner's bid, the Corporation
has proceeded to reject the bid on a ground which is rather
strange. It appears that the Corporation had engaged the
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services of a consultant, who advised that the MoU submitted by
R & B could not be acted upon since it was executed on a non-
judicial stamp paper of Rs.100/-, as against the requirement of
Rs.300/-. In respect of a tender relating to the establishment of
a Sewage Treatment Plant, wherein one of the conditions
required an MoU to establish that the bidder had an agreement
with the supplier of pipes, the essential requirement for the
Corporation was to satisfy itself there existed a valid
arrangement between the bidder and the supplier for the supply
of those items which were essential for the execution of the
contract. The Corporation does not dispute the fact that there
was, in fact, an MoU between R & B and the supplier. The
Corporation has also not taken the stand that it had received
any complaint from the contracting party, i.e., the supplier, that
no such MoU had been executed.
[17] If the MoU was not executed on a stamp paper of the
requisite value, the authorities could, at best, have taken action
to ensure recovery of the stamp duty. By no stretch of the
imagination could the Corporation have rejected the bid on that
ground. The fact that the Corporation, through its consultant,
went into such microscopic details indicates that it was
essentially searching for some reason to reject the bid.
[18] This suspicion of the Court regarding the conduct of the
Corporation stands fortified by a further analysis of the manner
in which the Corporation has conducted itself thereafter.
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[19] This rejection of the bid submitted by R & B for the second
time on the ground of insufficient stamp paper was made on
07.04.2026, and this writ petition challenging the same was
filed on 13.04.2026.
[20] On 18.04.2026, i.e., nearly 11 days after the bid was
rejected, the Corporation has addressed an email to R & B
(which is produced by the Corporation at Annexure R1), seeking
to raise a query as to whether it had been blacklisted by any
Municipal Corporation or Central Government or State
Government, and sought for the details of any such blacklisting.
A second notice was issued on the 20.04.2026, alleging that the
petitioner had not furnished details of its litigation history, and
related matters. This act of the Corporation, in issuing notices
after it had already rejected the tender bid of R & B on
07.04.2026 and after the filing of the writ petition, itself
indicates that the Corporation was aware that the reasons for its
earlier rejection were on weak grounds and it basically wanted
to discover new grounds to non-suit R & B.
[21] R & B, in fact, furnished a reply on 23.04.2026, wherein it
provided details of the litigation history in which it had been
engaged with other entities. At first blush, this admission by R &
B that it had engaged in litigation in respect of other tenders
would ordinarily have led this Court to conclude that there had
been suppression of material facts, necessitated dismissal of the
writ petition on that ground alone.
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[22] The Corporation, on receipt of the reply of R & B,
thereafter, proceeded to pass an order to the effect that there
had been suppression of facts, and consequently, R & B was
declared disqualified from the tender. In essence, this was the
third time that bid of R & B was being rejected. The first
rejection was on 25.03.2026, when the bid was rejected on the
ground that all the documents had not been uploaded. The
second rejection was on 07.04.2026, on the ground that the
MoU produced by R & B was not on the requisite value of stamp
papers. The third rejection on 24.04.2026 was an order whereby
the Corporation declared R & B to be disqualified from
participating in the tender.
[23] This relentless conduct of the Corporation in finding
different grounds to reject the bid of R & B, not once but thrice,
raises serious doubts about its bona fides and the manner in
which it has evaluated the tenders submitted by the petitioner.
[24] Be that as it may, it would be desirable to examine
whether there has been a flouting of the tender condition by R
& B on the ground that it had not disclosed the litigation history
as required under the tender notification.
[25] The clause relating to litigation history reads as follows:-
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“4.5.8. Litigation History
The Applicant should provide accurate information on any
litigation or arbitration resulting from contracts completed or
under execution by him over the last five years. A consistent
history of awards against the Applicant or any partner of a joint
venture may result in failure of the applicant.”
[26] The clause relating to blacklisting would first have to be
considered to understand the import of the above clause. That
the relevant clause relating to blacklisting is Clause 4.7.8, which
reads as follows:-
“VI) The Bidder/JV MEMBER/MOU partners contract should not
have been terminated/blacklisted/debarred in any State Govt/
Municipal Corporations/ Central Govt./ Any state Govt
Organization, Urban Local body and/or its undertaking company
or its SPV, Asian Development Bank/ World Bank or similar
international funding agencies organizations due to delay in
projects during last five years.”
[27] A plain reading of this particular clause would indicate
that the a contract of the bidders with other entities, which they
had executed should not have been terminated, the bidder
should not have been blacklisted or debarred on the ground that
there had been a delay in the execution of the projects in the
preceding five years. Thus, through the said clause in the tender
notification, the Corporation was only interested in knowing for
a fact whether the contract of bidder had been terminated or
whether the bidder had been blacklisted or debarred because
they had delayed the execution of the projects. In other words,
the capability of the bidders to execute the work within the
prescribed time frame was all that the Corporation was interested
in, which is understandable given the nature of the project.
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[28] The unmistakable consequence of a plain reading of this
clause is that if the contract of the bidder had been terminated,
or if the bidder had been blacklisted or debarred on any other
ground was not considered to be a disqualification for the
bidder to apply. To put up differently, it is only if a bidder had
suffered the termination of the contract, or blacklisting or
debarment in other contracts in the past five years, for the
reason that there was a delay in the execution of the projects, it
is only then that the bidder would be ineligible to succeed in his
bid.
[29] The further consequence of this clause is that if a bidder
had been blacklisted for any reason other than delay in
execution of the projects, then, the Corporation did not consider
it as a disqualification and that it was basically not interested in
knowing whether there had been a
termination/blacklisting/debarring for any other reason.
[30] If it was the intention of the Corporation that all kinds of
blacklisting, debarment or termination of other contracts,
irrespective of the reason, were material facts to be disclosed by
the bidder, the tender clause would not have indicated that the
blacklisting, debarment or termination of the contract should
only be for the specific reason of delay in execution of the
project.
[31] It is the admitted case of R & B that in respect of three
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contracts it had been blacklisted. However, it is specifically
contended that the blacklisting was not because there was any
delay in the execution of the contract and the blacklisting was
for other technical reasons. This assertion of R & B that the
blacklisting was not for reasons relating to the execution of its
other contracts, is not disputed by the Corporation.
[32] It may also be pertinent to state here that R & B had, in
fact, given a reply in response to the query raised by the
Corporation after its contract was terminated, and in this reply
also they have stated the blacklisting suffered by them and also
narrated the reasons. R & B also produced the copies of the
order passed by the High Courts of Rajasthan, which clearly
established that the blacklisting was not because of any delay
on their part in the execution of the contract. In fact, the
blacklisting was on account of submission of false experience
certificate. It is thus clear that as the contracts of R & B with
other entities had not been terminated or they had been
blacklisted or debarred for causing a delay in the execution of
the contracts and they were as a consequence not disqualified
to participate in the tender as contemplated in the tender
condition referred to above.
[33] Shri Soparkar, learned Senior Counsel, however, argued
that even assuming that the blacklisting was not for delay in the
execution of the projects, nevertheless, R & B was guilty of
flouting a vital tender clause, namely the clause relating to
litigation history.
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[34] The clause in relation to litigation history, as cited above,
would clearly indicate that the bidder is required to provide
accurate information on any litigation or arbitration in respect
of completed contracts or contracts which are under execution
in the last preceding five years. This clause indicates that if
there is a consistent history of awards against the bidder or any
partner of a joint venture, that could result in failure of the
applicant. It is rather obvious that this clause could not be
pressed into service by the Corporation to non-suit the
petitioner.
[35] As noticed above, the Corporation was interested in
knowing only kind of blacklisting i.e., blacklisting for the delay
in execution of the project. The Corporation, by necessary
implication, was not holding the blacklisting of a bidder for any
other reason as a disqualification of the bidder. To put it
differently, the Corporation only wanted to know whether the
blacklisting was for the reason of causing a delay in the
execution of the project. If this is the admitted position, the
litigation arising out of a blacklisting which was a reason other
than delay in the execution of the projects, would really be of no
consequence and would not be a material fact which had to be
disclosed to the Corporation.
[36] It is also important to note that the clause relating to
litigation history is also specifically worded to state that the
litigation should be in relation to the contracts which are
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completed or which are under execution. The further use of the
term "the consistent history of awards against the bidder" would
indicate that the litigation was obviously only in relation to the
execution of the contract.
[37] In other words, only if there was litigation in relation to
the manner in which a contract had been executed was the
bidder required to really disclose the same. The reason for such
disclosure is also found in the very same clause, which states
that the bid of the applicant could be rejected if there was a
consistent history of awards against him. This would therefore
remove all ambiguity regarding the litigation history that was to
be disclosed by a bidder. It is clear that the litigation history in
relation to the actual execution of a work or the contracts that
were still under execution by him was a fact which was to be
disclosed to the Corporation.
[38] As far as R & B is concerned, the blacklisting in respect of
other tenders was due to their lapse in such as submission of
false experience certificate, and all the litigation that R & B had
engaged into was in relation to this aspect of blacklisting only.
[39] As already noticed above, if blacklisting was for reasons
other than delay in execution of the project, the same was
irrelevant as regards the corporation's term of disclosure, and
as a logical consequence, the subsequent litigation in relation to
such an irrelevant factor need not be disclosed or the non-
disclosure of this irrelevant factor would not affect the integrity
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of the bidder. It is therefore clear that the Corporation has
searched for reasons to disqualify the petitioner. It is therefore
clear that the manner in which the Corporation has undertaken
the tender process smacks of arbitrariness and, as a
consequence, this Court will be obliged to intervene and annul
the arbitrariness.
[40] There is yet another reason to interfere in this tender
process which is much more weighty and is a crucial factor in
relation to the execution of the project.
[41] Shri Mihir Joshi, learned Senior counsel pointed out that
the tender condition required the bidder to possess certain
qualification criteria which was spelt out in Clause 4.5.3 of the
tender condition, which related to general experience, and the
same is reproduced here for the sake of clarity:-
“4.5.3. General Experience.
The Applicant shall meet with the following minimum criteria:
(e) Achieved a minimum annual financial turnover (defined as
billing for works in progress and completed in all classes of civil
engineering construction works only) in any one year, over the
last five years of the annual value of contract / contracts applied
for as per below criteria.
(b) Experience in successfully completing or substantially
completing at least one contract of Sewerage at least percent
mentioned in below criteria of the value of proposed contract
within the last five years.
The works may have been executed by the applicant as prime
contractor or as a member of a joint venture or as a nominated
sub-contractor. As subcontractor, he should have acquired the
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experience of execution of all major items of works under the
proposed contract. In case a project has been executed by a joint
venture, weight towards experience of the project would be given
to each joint venture in proportion to their financial participation
in the joint venture.
Substantially completed works means those works which are at
least 90% completed as on the date of submission (i.e. gross
value of work done up to the last date of submission is 90% or
more of the original contract price) and continuing satisfactorily.
For these, a certificate from the employers shall be submitted
along with the application incorporating clearly the name of the
work, contract value, billing amount, date of commencement of
works, satisfactory performance of the contractor and any other
relevant information.
[42] Clause 4.5.3 sub-clause (b) categorically states that the
applicant should have experience in successfully completing or
substantially completing at least one contract of Sewage
Treatment Plant with the percentage prescribed therein of the
value of the proposed contract in the preceding five years. This
would therefore mean that SNL & Company which should have
substantially completed at least one contract of Sewage
Treatment Plant of the prescribed value in the preceding five
years.
[43] The second para of Clause (b) also states that the works
could have been executed by the bidder, either as a prime
contractor or as a member of a joint venture or as a nominated
subcontractor.
[44] It is not in dispute that SNL & Company has not executed
any work either as a prime contractor or as a member of a joint
venture or as a nominated subcontractor. Thus, on a plain
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reading of this particular clause, it is obvious that SNL &
Company did not possess any experience at all in the
construction of a Sewage Treatment Plant in the preceding five
years.
[45] However, the Corporation has embarked upon an
ingenious defense to get over this lacuna and defend their
acceptance of bid of SNL & Company. The Corporation, in its
affidavit in reply (in para 8), has stated that SNL & Company
was holding a valid “AA class” certificate and it was therefore
entitled to participate. It has also gone on to state that if R & B
had any grievance regarding AA class certificate, they would
have to challenge it, and so far as the Corporation was
concerned, it is bound by the certification.
[46] Insofar as the work experience, in para 33 it is stated as
follows:-
“33. Furthermore, it is submitted that according to PWD
manual Page No. 679 Point B Subpoint (i), experience gained by
individual partners in the execution of works in the past can be
taken into consideration while deciding the category of the
contractors, if the partner concerned has to his credit the
execution of such works by virtue of monetary share and other
Interests. Therefore, experience gained by Mr. Siddharth
Narendrakumar Lunagariya i.e. proprietor of M/s S. N. L. & Co.
in execution of works of M/s N. P. Patel and Co. can be
considered for the purpose of technical and financial criterion. In
other words, considering the monetary share of Mr. Siddharth
Narendrakumar Lunagariya i.e. proprietor of M/s S. N. L. & Co.
in M/s N. P. Patel and Co., Mr. Siddharth Narendrakumar
Lunagariya i.e. proprietor of M/s S. N. L. & Co. can rely upon
technical and financial criterion of M/s N. P. Patel and Co.
Furthermore, there are no terms and conditions in the tender
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document, whereby bidder is prohibited from relying upon the
experience of M/s N. P. Patel and Co. for technical and financial
criterion. On the contrary, the PWD manual permits M/s S. N. L.
& Co. to rely upon the experience of M/s N. P. Patel and Co. for
technical and financial criterion considering the financial share
of Mr. Siddharth Narendrakumar Lunagariya. It is submitted that
out of abundant caution the answering Respondent No. 1 has
also obtained opinion of consultant for the said project, namely
Savjani Architecture & Engineering Consultants. It is submitted
that vide opinion dated 09.04.2026, one Savjani Architecture &
Engineering Consultants has confirmed the above-mentioned
position and confirmed the eligibility of the Respondent No. 4. (A
copy of opinion obtained from Savjani Architecture &
Engineering Consultants is marked and annexed hereto as
Annexure - "R4"). Hence, the present petition is required to be
rejected even on the count that as on date Respondent No. 4 is
holding valid "AA Class" certificate and Respondent No. 4 was
evaluated in accordance with terms and conditions of the
tender.”
[47] The Corporation is seeking to contend that SNL &
Company satisfies the criteria of experience as prescribed under
the PWD Manual and not in terms of the tender notification. The
Corporation is essentially shifting its goalposts and is finding
ways and means to accommodate the bid of SNL & Company,
and this is further proof of the mala fides and the arbitrary
manner in which it has undertaken this tender process.
[48] The argument that the Corporation can rely upon the PWD
Manual and, as a consequence, allow SNL & Company to glean
the experience of N. P. Patel and Company is basically perverse.
As noticed above, the work experience of the bidder is essential.
If the bidder was a part of a joint venture, the experience of the
joint venture was acceptable. Similarly, if the bidder was a
nominated subcontractor, that experience was also acceptable.
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[49] The tender notification does not, by any stretch of
imagination, contemplate the experience of a partner of the
bidder would be adequate. The tender notification, in fact,
specifically states that the bidder is required to have the
requisite prescribed work experience and there is not mention
either directly or indirectly that experience of any entity related
to the bidder is acceptable. This attempt by the Corporation is a
deliberate attempt not only to mislead but also to skew the
entire qualification criteria.
[50] It is not in dispute that SNL & Company is a proprietary
concern. It is the admitted position of SNL & Company, that the
proprietor Mr. Siddharth Narendrakumar Lunagariya, is a
partner in the partnership firm, N. P. Patel and Company, and in
that partnership firm he owned 90% of the shares.
[51] In other words, the individual proprietor, is a partner in a
firm. A partnership firm, in law, is a distinct entity. The
experience of a firm would be material if the firm had been the
bidder. A partner of such a firm, when bidding for a contract as
an individual proprietor, cannot claim that the experience of the
firm to which he is a partner as his own experience, even if he
owns substantially the entire share of the firm.
[52] The PWD Manual, on which reliance is placed, contains a
clause which reads as follows:-
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“(B) PROFESSIONAL CAPACITY AND RELIABITY:
Supported by certificates or recommendations of officers who
have had personal knowledge of applicant and his work and a list
of works executed showing their nature, year of construction and
actual cost of construction. Technical quali fications and
experience of all the partners and leading tech-nical employces
in the Firm should also be on record.
(i) The experience gained by individual partners in the exe-cution
of works in the past may be taken into consideration while
deciding the category of the contractors , if the partner
concerned has to his credit the execution of such works by virtue
of monetary share and other intcrests. Experience gained merely
as a servant may not count as a proof of the capabi-lity of the
Firm as a whole,
(ii) While considering the application for registration/up
radation/renewal, the certificates regarding satisfactory com-
pletion of works as well as works in progress or works for which
teader have been quoted by the contractor shall be examined by
the Department. Information of such works has to be given in a
statement, as per Fortn No. 3. In addition to this, information in
Form No. 3-A shall be furnished for cach and every work done or
in progress in last 3 years alonge with the application Form and
other documents.”
[53] As could be seen from this extract, which is produced by
the Corporation, this would indicate that, it is in respect of
registration of category of Contractors and in that regard it is
stated that in respect of professional capacity and reliability,
certificates or recommendations of officers who had personal
knowledge of the bidder and his work are acceptable. It is also
indicated that the technical qualifications and experience of all
the partners and lead technical employees in the firm should be
on record.
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[54] In the context of a firm, sub-clause (i) states that the
experience gained by individual partners in the execution of
works in the past may be taken into consideration while
deciding the category of contractors, if the partner has to his
credit the execution of such works by virtue of his monetary
share and other interest.
[55] In other words, if the applicant was a firm seeking for
registration as a particular class of contractor, which was
dependent on the value of the works already executed, then, the
experience of an individual partner of the firm had secured
could be considered for the purpose of registering the firm as a
particular class of contractor. This would thereby mean that the
clause upon which Corporation has relied upon was essentially
in relation to the registration of partnership firm as particular
class of Contractor.
[56] To illustrate, if the firm was seeking for registration as
AA+ contractor and for this it was required to show that it had
executed say, Rs. 10 crores of work, then, in such a case, the
work executed by the firm and also by the individual partners
would be collectively considered for registration as AA+
contractor.
[57] However, this clause is sought to be twisted to mean that
a bid by a proprietary concern, which, by itself, has no
experience can still participate in the tender by taking
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advantage of the experience of the firm to which the proprietor
was a partner. This kind of an interpretation of a clause
providing for registration of a contractor as a particular class of
contractor and importing the clause into a tender notification to
determine the eligibility of a bidder is perverse, to say the least.
This would virtually amount to completely disregarding,
probably the most vital aspect of the tender, i.e., the ability of
the tenderer to execute specialized work.
[58] The reason that we are constrained to make these
observations regarding the conduct of the Corporation is
because, it is an admitted fact in the present case that N. P.
Patel and Company, the partnership firm to which Mr.
Siddharth Narendrakumar Lunagariya, the proprietor of SNL &
Company is a partner, has been blacklisted in respect of other
tenders, and this blacklisting has also been upheld by the
Courts. As a result of this blacklisting, N. P. Patel and Company
would have been disqualified from participating in the present
tender. In order to get over this disqualification, on NP Patel &
Co, its major partner i.e., the proprietor of SNL & Company has
submitted its bid as a proprietary concern.
[59] It may also be pertinent to state here that SNL & Company
obtained its classification as a AA class contractor by once again
placing reliance on the work of the blacklisted firm, i.e., N. P.
Patel and Company. To put it in simple terms, since N. P. Patel
and Company was disqualified from participating in the tender,
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it has submitted the bid through Mr. Siddharth Narendrakumar
Lunagariya, who incidentally holds 90% shares of the
partnership firm N. P. Patel and Company. In our view, this
clearly establishes that the entire tender process is sought to be
skewed in order to ensure SNL & Company is awarded the
contract.
[60] as already noticed above, that as per clause 2 of the PWD
Manual, reliance upon which reliance is placed, relates to the
registration, upgradation and renewal of a contractor. This
would mean that the PWD Manual is basically in relation to the
registration of a contractor and assigning the contractor to a
particular category. This would therefore not mean to state that
the PWD Manual would accept the work experience of an entity
to which the bidder, i.e., a proprietary concern, was a partner.
[61] Another argument is sought to be advanced by the
Corporation to the effect that it is bound to abide by the terms
of the PWD Manual, and this is also made clear in the Technical
Approval, that has been granted by the Corporation (vide
Annexure R2 to its additional affidavit). Reliance is sought to be
placed on Clause 11, which states that the approval is granted
subject to the condition that the work is to be executed in
compliance of the terms of the PWD Manual. It is to be stated
here that Annexure R2 is admittedly a technical approval
granted by the Corporation for the project. This would obviously
mean that the technical requirements of the project should
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satisfy the terms of the PWD Manual. This clause cannot be
stretched to contend that a clause relating to registration of a
contractor of a firm, can be utilized to hold that the bidder
satisfies the work experience criteria specified in the tender
notification.
[62] Reliance is also sought to be placed on Section 493 and
Appendix IV the Gujarat Provincial Municipal Corporation Act to
contend that any notification, rule, by-law established, issued
under the provision of the Gujarat Panchayats Act or the Gujarat
Municipalities Act would continue to apply. It is contended that
since the technical approval contains a clause regarding
adherence to the terms PWD Manual, the PWD Manual would
also be ipso facto applicable in all aspects. This is, once again, a
deliberate attempt to misread a provision.
[63] The provision under the Gujarat Provincial Municipal
Corporation Act is a transitory provision which comes into
operation when a either a Panchayath or a Municipality is being
upgraded to a municipal corporation,. This transitory provision
would basically indicate that any act done in exercise of
statutory powers, either under the Gujarat Panchayats Act or
the Municipalities Act, would continue to operate. Admittedly,
the PWD Manual is not a manual enacted in exercise of
statutory powers conferred either under the Gujarat Panchayats
Act or the Gujarat Municipalities Act or the Gujarat Municipal
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Corporations Act. The purpose of the transitory provision is to
ensure that there is continuity whenever a panchayat or
municipality becomes a part of the Corporation and there is no
conflict which emerges when this event occurs. In our view, the
argument that the PWD Manual enables the Corporation to rely
upon the work experience of N. P. Patel and Company, a
blacklisted company, for the purpose of satisfying the work
experience of the bidder, i.e., SNL & Company, a proprietary
concern, cannot be accepted.
[64] In the result, we have no other option but to quash the
award of contract in favor of SNL & Company, i.e., the fourth
respondent, and, as a consequence, the Corporation is directed
to consider the other eligible bids, including the bid of R & B,
the petitioner, in accordance with law.
[65] To clarify, if there are any other eligible bidders apart
from R & B still in the fray, the Corporation can consider those
bids and, on comparative analysis on the merits of the bids, take
an appropriate decision. Special Civil Application No.5436 of
2026 filed by M/S R and B Infra Project Limited is allowed.
[66] As far as the petition filed by Yogi Construction Co. is
concerned, the argument of the learned senior counsel Mr. R. S.
Sanjanwala is that the non-production of a certificate required
under the terms of the tender is not a material aspect and could
be disregarded. In our view, this argument is unacceptable.
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[67] Clause 4.6.3 of the tender condition reads as follows:-
“Joint venture is not allowed
4.6.3. The bidder has to attach MOU with Road work agencies as
a part of technical bid. A contractor should have a Asphalt plant
owned by him within an aerial radius of 10 km from the limits of
Porbandar Municipal Corporation and a contractor having a
Asphalt plant owned by him inside an aerial radius of 10 km from
the limits of Porbandar Municipal Corporation and an existing
batch owned by another within an aerial radius of 10 km from
the limits of Porbandar Municipal Corporation. If the contractor
wants to use a plant which is a Asphalt, then the contractor has
to submit an on a stamp paper of Rs.300 and an MOU with the
owner for the usual time frame. Along with this, proofs showing
the latest ownership of the plant must also be given and
mentioned and this MOU with the owner will be valid for the
duration of the work and the performance guarantee of the work
will be in force. Which also has to be mentioned. Performa of
MOU with the owner will be given by Authority.ez If more than
one contractor signs an MOU with a Asphalt plant, the MOU
signed with the first contractor will be consider valid and the
MoU signed with the second contractor thereafter will be
disqualified.
The Agency may establish their own asphalt plant incase they are
not willing to execute MOU with locally available asphalt plant.”
[68] As could be seen from the said clause, Yogi Construction
Co. was required to attach an MoU with road work agencies as
a part of the technical bid, and it ought to have either owned an
asphalt plant within a radial distance of 10 kilometers from the
limits of the Corporation and, in the event Yogi Construction Co.
wanted to use an asphalt plant of some other entity, it had to
submit an MoU on stamp paper with the owner of the plant. In
such an event, proof of ownership of the plant was also required
to be given. The proforma of the MoU was also prescribed as a
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part of the tender (at page 124 of the writ petition). It is the
case of the Corporation that all the other bidders had submitted
the MoU in the prescribed format, but Yogi Construction Co.
had not produced the MoU and therefore its bid was rejected.
[69] The case of Yogi Construction Co. is that a corrigendum
had been issued by the Corporation (at page 301 of the papers)
which permitted the bidder to produce only an MoU in respect
of a drum mix plant, along with proof of ownership, and since
this condition was satisfied by Yogi Construction, the bid was
compliant. Moreover, it is their case that as the drum mix plant
was sufficient to adhere to the terms of the tender as a drum
mix plant would meet the requirement of possessing access am
Asphalt plant. This argument cannot be accepted.
[70] It is an admitted fact that the corrigendum issued a
Corrigendum to the tender, which reads as follows:-
“CORRIGENDUM 2 FOR PORBANDAR DRAINAGE TENDER ID NO.-264909
The present provision in tender as per column no.4 of below given table shall be
replaced/ added as per column no.5 of blow given table:
Tender Page Tender Present Provision To be replaced
Volume No. Clause
No.
1 2 3 4 5
--- --- --- --- ---
--- --- --- The bidder has to attach MOU with Please add following:
Road work agencies as a part of MOU within an Arial
technical bid. A contractor should radius of 10 km from
have a Asphalt plant owned by him the limit of
within an aerial radius of 10 km from Porbandar Municipal
Page 40 of 44
C/SCA/5436/2026 CAV JUDGMENT DATED: 08/05/2026
the limits of Porbandar Municipal Corporation or
Corporation and a contractor having owner ship proof
a Asphalt plant owned by him inside (drum mix plant bill)
an aerial radius of 10 km from the must be produced.
limits of Porbandar Municipal
Corporation and an existing batch
owned by another within an aerial
radius of 10 km from the limits of
Porbandar Municipal Corporation. If
the contractor wants to use a plant
which is a Asphalt, then the
contractor has to submit an on a
stamp paper of Rs.300 and an MOU
with the owner for the usual time
frame. Along with this, proofs
showing the latest
--- --- --- --- ---
[71] As could be seen from this corrigendum, it is not like as if
Clause 4.6.3 was to be substituted and the requirement of an
MOU in respect of an asphalt plant was done away with. The
corrigendum only added one more clause, i.e., the requirement
of having an MoU in respect of a drum mix plant also. Thus, the
Corporation required an MoU in respect of an asphalt plant as
well as a drum mix plant.
[72] It is settled law that the requirements of the tender
inviting authority for executing the work lie within the exclusive
domain of the tender inviting authority. It is not for the bidder
to determine which of the conditions are necessary or which of
the terms are unnecessary. Since admittedly, an MoU in relation
to an asphalt plant has not been produced, the bid of Yogi
Construction Co. was defective and was correctly rejected by
the Corporation.
Page 41 of 44
C/SCA/5436/2026 CAV JUDGMENT DATED: 08/05/2026
[73] It is also to be noticed here that there was a specific
clause regarding site visit, which reads as follows:-
“7. Site Visit
7.1. The Bidder, at the Bidder's own responsibility and risk is
encouraged to visit and examine the Site of work and its
surrounding and obtain all information that may be necessary for
preparing the Bid and entering into a contract for construction of
the Works.
The costs of visiting the site shall be at the Bidder's own expense.
7.2 The bidder should visit the site, mentioned in the tender
document along with Deputy Municipal Commissioner or his
representative before submitting the tender and get the site visit
certificate duly signed by City/Municipal Engineer, Porbandar
Municipal Corporation. It is mandatory for bidder to submit
the Geo-tagged photo of site visit and also upload the site
visit certificate duly signed City/Municipal Engineer,
Porbandar Municipal Corporation in Annexure-01
(attached separately), without this bid will be considered
invalid. The same should be upload with technical bid.”
[74] Though Clause 7.1 indicates that the bidder was being
encouraged to visit the site and obtain information, Clause 7.2
categorically states that it would be mandatory for the bidder to
submit the geo-tagged photo of the site visit and also upload the
site visit certificate, which was to be duly signed by the
concerned engineer of the Porbandar Municipal Corporation. It
was also clearly stated that if this requirement was not satisfied,
the bid would be considered invalid.
Page 42 of 44
C/SCA/5436/2026 CAV JUDGMENT DATED: 08/05/2026
[75] It is the argument of the Learned Senior counsel Shri
Sanjanwala that the engineers of the Corporation were not
present when a site visit was actually undertaken by Yogi
Construction Co. It is averred in the affidavit-in-rejoinder that
representatives of Yogi Construction Co. had visited the office of
the Corporation on 23.02.2026 and had intimated the officials
that they had visited the spot on 18.02.2026, which was
accepted by them and also ratified. It is stated that the absence
of a geo-tagged photo was only due to the fact that the officials
of the Corporation were not present at the site. It is also sought
to be argued that the non-production of a site visit certificate,
did not have any bearing on the tender, and thus would be of no
consequence and reliance of the Corporation on this aspect of
the matter to reject the tender was not justified. This affidavit-in-
rejoinder clearly indicates that the requirement of a geo-tagged
photo was not complied with along with the tender document.
What was sought to be produced was only a site visit certificate,
which was signed by two officials, but admittedly was not done by
the officials at the site.
[76] In light of the fact that the terms of the tender relating to
site visit mandated the production of a geo-tagged photo, and
also made it clear that the absence of producing a geo-tagged
photo would render the bid invalid, this argument of the learned
senior counsel cannot be accepted, and it has to be held that the
rejection of the bidder, Yogi Construction Co., was justified.
Consequently, there is no merit in the writ petition filed by Yogi
Construction Co., and the same is dismissed.
Page 43 of 44
C/SCA/5436/2026 CAV JUDGMENT DATED: 08/05/2026
[77] Special Civil Application No.5436 of 2026 filed by M/S R
and B Infra Project Limited is allowed and Special Civil
Application No.4647 of 2026 filed by Yogi Construction Co. is
dismissed.
(N.S.SANJAY GOWDA, J.)
(J. L. ODEDRA, J.)
DHARMENDRA KUMAR
Original copy of this order has been signed by the Hon'ble Judges.
Digitally signed by: KUMAR DHARMENDRA(HC01071), GOV, at High Court of Gujarat on 08/05/2026 18:05:19
Page 44 of 44
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