Bombay High Court
M/S. GAURIMAL MAHAJAN AND SONS THR. PARTNER MS. TANIA BALDEVRAJ MAHAJAN THR. ITS PARTNER T. B. MAHAversusMILITARY ENGINEER SERVICES AND ANR
- Decided
- Disposal
- Disposed Off
Holding
The Court held that the department must reconsider the petitioner's claim and may re‑enlist the firm if the submitted works are satisfactory, thereby allowing the writ petition.
Summary
The petitioners, a partnership firm formerly a proprietorship, challenged a communication dated 09‑07‑2021 that removed their name from the Military Engineer Services (MES) approved contractor list. They argued that after the death of the original proprietor, the firm was reconstituted under the two daughters as partners, and they had submitted a list of works executed under a Power of Attorney, along with a succession certificate, to satisfy the re‑enlistment criteria in the Contract Manual 2007. The respondents held that the legal heirs had not provided evidence of having executed any work as Power of Attorney holder, and therefore the firm did not meet the conditions of Clause 1.20 and 1.21 of the Manual, justifying its removal. The Court examined the Manual’s provisions, held that the department must assess the submitted list of works and, if satisfactory, may re‑enlist the firm under the revised constitution. Consequently, the Court allowed the writ petition, directing the respondents to reconsider the petitioner's claim and restore its enlistment if the works meet the required standards.
Issues considered
- Whether the removal of the firm from the MES approved contractor list was justified under Clause 1.20 and 1.21 of the Contract Manual, 2007.
- Whether the legal heirs satisfied the requirement of having acted as Power of Attorney holder and executed work to the department's satisfaction.
- Whether the department is obligated to reconsider the petitioner's submitted list of works and re‑enlist the firm under a changed constitution.
Subjects
- contractor enlistment
- re‑enlistment
- partnership conversion
- Power of Attorney
- Military Engineer Services
- Contract Manual 2007
- legal heir
- approved contractor list
Judgment
905-WP-13424-2022.odt
rajshree
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.13424 OF 2022
M/s.Gaurimal Mahajan & Sons ....Petitioner
V/S
Military Engineer Services & Anr. ....Respondents
Mr.Rushab Sheth a/w Mr.Akshay Zantye and Sanath Warkar for
the Petitioner.
Mr.Vijay Killedar for the Respondents.
CORAM : BHARATI DANGRE &
ASHISH S. CHAVAN, JJ
DATE : 27th AUGUST 2026
JUDGMENT (PER BHARATI DANGRE, J) :
1. The Petitioner, a partnership firm, through one of its
partners, has approached this Court, being aggrieved by the
impugned communication dated 09/07/2021 addressed by the
Director (Contracts) for Chief Engineer of HQ Chief Engineers,
Southern Command, Pune, thereby removing the name of the
Proprietorship Firm from the approved list of Contractors.
2. We have heard Mr.Sheth, the learned counsel for the
Petitioner and the learned counsel Mr.Killedar representing
KISHOR
MORE
Digitally signed
RAJSHREE KISHOR
by RAJSHREE
Date:
MORE
2026.08.29
Respondent Nos.1 and 2.
18:06:14 +0530
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By consent of parties, we deem it appropriate to issue Rule,
which is made returnable forthwith. Petition is taken up for
hearing by consent of the parties.
3. The Petitioner is an erstwhile Proprietorship Firm
incorporated in the year 1952 and it is the pleaded case of the
Petitioner that after demise of their father, late Baldevraj
Gaurimal Mahajan on 11/02/2018, it devolved upon his daughters
and was subsequently converted into a Partnership Firm with two
partners.
By a registered Will, their late father bequeathed his right in
the firm in favour of the two daughters and in fact, during his
lifetime also, based on the general Power of Attorney, the
daughters continued to manage the business of the Petitioner
Firm and the copy of the general Power of Attorney as well as the
copy of the registered Will are annexed alongwith the Petition.
Upon the demise of their father, the Petitioner Firm was
reconstituted on the basis of the last Will and the Succession
Certificate as well as the general Power of Attorney and Ms.Khiya
Randhir Shinde and Ms.Tania Baldevraj Mahajan, become
partners in the share of 51% and 49% respectively, though they
chose to continue the name of the firm as M/s. Gaurimal Mahajan
& Sons.
4. Upon the demise of their father, the firm was informed on
26/10/2020 that the action of re-enlistment of the firm has been
taken on the basis of the news published in Maharashtra Times
paper dated 13/02/2018. However, to consider the request for
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change in the constitution of the firm, subject to fulfilling the
criteria as mentioned in para 1.2 of the Manual on Contracts
2007, it was intimated that if the legal heirs had executed works
in the original firm as a Power of Attorney holder of the original
proprietorship of the firm to the satisfaction of the Department,
the same shall be forwarded alongwith the Power of Attorney.
The directions were complied with as the relevant
documents were forwarded and this included the copy of the
works executed satisfactorily and even the Succession Certificate
was forwarded to the HQ Chief Engineer, Southern Command,
Pune on 31/12/2020. The list of works compile 16 works with
reference to the details offered, including the date of
commencement and completion as well as the amount of the
contract.
5. Repeated correspondence followed this, when specific
details and particulars duly supported with the documentary
evidence of contracts by one of the legal heir in the capacity of
Power of Attorney was sought and this request was reiterated on
26/03/2021. On 31/03/2021, a list of works executed
satisfactorily by the Power of Attorney i.e. the legal heir and
partner for M/s.Gaurimal Mahajan & Sons, Ms.Tania Baldevraj
Mahajan was furnished.
However, this resulted in passing of impugned order on
09/07/2021, when it is directed that the name of the Petitioner
Firm shall be removed from the approved list of Contractors and
the aforesaid direction is preceded by the following reasoning.
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“2. Legal heir of the firm, were not been able to provide any evidence of
having executed work in MES as power of Attorney Holder in spite of
reminders. Secondly MES formations have confirmed that legal heir of
the firm have not executed any work in MES as power of Attorney
Holder of the firm.
3. It is thus evident that the legal heirs do not fulfill requirement of
enlistment, the Enlisting authority has therefore not agreed to your
request of enlistment with revised constitution.
4 The name of your firm is therefore removed from the approved list of
contractor of this HQ.
5. It is requested to submit 'No Demand Certificate (IAFW-451)'
enclosed herewith in triplicate duly signed by the GE/AAO GE, where
firm executed last work alongwith original SDR issued against the SSD.
6. Please also ensure that 'No Demand Certificate' (IAFW-451) has to be
signed by each of the legal heir of the deceased proprietor. The name of
signatory shall be mentioned in Block letters below the signature(s).”
6 It is this order, which is subject matter of challenge in the
Writ Petition and we find that the reason for removal of the name
of the Petitioner Firm is that the legal heir of the Firm was not
able to provide any evidence of having executed work in MES as
Power of Attorney holder in-spite of reminders, and secondly that
MES formations have confirmed that the legal heirs of the firm
have not executed work in MES as Power of Attorney holder.
The specific stand of the Petitioner is, the list which is
furnished by the Petitioners alongwith their communication
dated 31/12/2020 include various types of works and this include
the work of the Chief Engineer, Pune as well as GE Central, Kirkee
and CWE Kirkee. The ground for rejection of the claim of the
Petitioner is not that the work is not to the satisfaction of the
Respondent, but the ground is that no such list has been
furnished and no such work has been carried out.
7. The learned counsel Mr.Killedar would place reliance upon
the guidelines contained in the Contract Manual and his emphasis
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is on clause 1.20 which deals with re-enlistment of the
proprietorship firm with revised constitution in favour of legal
heirs of Contractors in case of death of Proprietor.
Clause 1.20 reads thus.
“1.20 Re-enlistment of Proprietorship Firm with Revised
Constitution in Favour of Legal heirs of Contractors in case of death of
the Proprietor.
The Government has accorded sanctions to enlist one of the legal heir
of a proprietorship firm with revised constitution in case of death of the
proprietor provided they meet the following conditions :
(a) A newly constituted firm shall meet all the criteria as laid down for
fresh enlistment of Contractors.
(b) One of the partners (in case the newly re-constituted firm seeking
re-enlistment as partnership firm) or the legal heir seeking re-
enlistment as a proprietorship firm was the power of attorney holder of
the original proprietorship firm and had executed work in the original
firm in such capacity to the satisfaction of the department.
(c) Only one firm will be enlisted as reconstituted firm of the original
proprietory concern and all the legal heirs other than those who are
part of the reconstituted firm shall render irrevocable under taking in
the form of affidavit to the newly constituted firm in this regard.
(d) Reconstituted firm shall take over all liabilities and assets of the
original proprietory concern.”
We must also make reference to Clause 1.21, which pertain
to the change in the constitution of enlisted contractors, which
reads thus :-
“1.21 Change in Constitution of Enlisted Contractors.
Reconstitution of enlisted Contractors/Firms should be approved by
the enlisting authorities after proper scrutiny and verification that
newly constituted firm meets the enlistment criteria and is considered
capable of executing the works. Due inquiry shall be conducted about
the bonafides of newly inducted partners to avoid any proxy
enlistment/transfer of enlistment.”
8 Reading of the two clauses together, lead us to an inference,
that it is open for the Respondents to enlist one of the legal heir of
the proprietorship firm with revised constitution in case of death
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of the proprietor, provided that the newly constituted firm meet
the criteria laid down for fresh enlistment of the Contractors and
one of the partners or the legal heir seeking re-enlistment as a
proprietorship firm was the Power of Attorney holder of the
original proprietorship firm and had executed work on behalf of
the original firm in such capacity to the satisfaction of the
department.
Since Clause 1.21 also permit change in the constitution of
the enlisted Contractors/firms, it can be easily presumed that it
is permissible to convert a Proprietorship Firm into a Partnership
Firm, subject to ascertaining that the work that is carried out by
one of the heir of Proprietorship Firm is upto the satisfaction of
the department.
9. With all the above provisions in place, we expect the
department to apply its mind to the list of works that has been
furnished by the Petitioner and whether it fit into the criteria of
enlisting the proprietor/partnership firm and prima facie we are
satisfied that the list of works alongwith the Power of Attorney
clearly fit into the criteria of enlistment and we see no difficulty
as to why, the Respondent should insist that there should be a
fresh enlistment as it is the department who only indicated to
the Petitioner, that it is open for them to file a list of works
undertaken on behalf of the proprietary firm and it was
imperative for the department to scrutinize the list of work that
has been submitted and ascertain whether it fit into the criteria of
enlistment for the Military Engineer Services.
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The Petition is, therefore, allowed by directing the
Respondent to consider the claim of the Petitioner afresh and if
the works are being found to be satisfactory, enlistment of the
Petitioners in a change format shall be restored.
We make it clear that if the Respondent intend to afford an
opportunity of hearing to the Petitioner, it may do so.
Writ Petition is made absolute.
[ASHISH S. CHAVAN, J.] [BHARATI DANGRE, J.]
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