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Bombay High Court

PRAGATI CONSTRUCTION LATUR AND R B KRISHNANI PUNE JOINT VENTURE THR ITS AUTHORISED SIGNATIORY KAPILversusSTATE OF MAHARASHTRA THR ITS PRINCIPAL SECRETARY AND OTHERS

Disposal
DISPOSED OFF

Holding

The failure to upload the mandatory bank statement constitutes a breach of an essential condition, justifying the rejection of the technical bid.

Summary

M/s. Pragati Construction, a joint venture, filed a writ petition under Article 226 challenging its disqualification from an e‑tender for a gravity pipeline project because it failed to upload a bank statement, though it had uploaded the EMD receipt. The tender documents and a 2023 Government Resolution expressly required the bank statement as a mandatory condition, stating that non‑upload would render a bid non‑responsive. The petitioner argued that the e‑tender notice overrode this requirement and that natural justice demanded an opportunity to rectify the defect. The Court held that the bank‑statement requirement was an essential condition, not overridden by the notice, and that the tender‑issuing authority’s interpretation was reasonable and not perverse. Consequently, the petition was dismissed, upholding the respondents’ rejection of the technical bid.

Issues considered

  • The bank statement requirement is an essential condition of the e‑tender or a directory clause.
  • Whether the e‑tender notice overrides the detailed tender document’s requirement to upload a bank statement.
  • Whether the petitioner was denied natural justice by not being given a chance to rectify the omission.

Legislation cited

Subjects

  • e‑tender
  • technical bid disqualification
  • bank statement requirement
  • essential condition
  • natural justice
  • public procurement
  • judicial restraint

Judgment

2026:BHC-AUG:46456-DB
                                                                               WP-9698.2026.doc




                        IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                                   BENCH AT AURANGABAD

                                 WRIT PETITION NO. 9698 OF 2026

              M/s. Pragati Construction, Latur
              & M/s. R. B. Krishnani, Pune,
              Joint Venture (JV) having its
              Registered Office at : Kapilanand,
              Plot No.23, Central Bank Colony,
              Pragati Nagar, Ring Road, Latur – 413 512
              Through its Authorised signatory,
              Kapil s/o Govindrao Makne,
              Age : 35 years, Occu.: Business and
              social work, R/o. society chowk,
              House No.1394, Tq. Chakur, Dist. Latur           ...Petitioner

                    Versus

              1.    State of Maharashtra
                    Through its Principal Secretary,
                    Water Resource Department,
                    Mantralaya, Mumbai – 32.

              2.    TAPI Irrigation Development Corporation,
                    Jalgaon, Chief Engineer Office, Sinchan
                    Bhawan, Near Akashwani Chowk, Prabhat
                    Colony, Jalgaon, Maharashtra – 425 001.

              3.    Chief Engineer,
                    TAPI Irrigation Development Corporation,
                    Jalgaon.

              4.    Executive Engineer,
                    Minor Irrigation Division, Jalgaon.

              5.    Sub-Divisional Engineer,
                    Minor Irrigation Survey No.1 Division,
                    Jalgaon.

              6.    M/s. Phaloudi Construction and
                    Infrastructure Pvt. Ltd. Indore,
                    Through its Managing Authority,


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      203, Panama Tower, Near Hotel
      Crown Palace, Kanchanbaug Indore,
      Madhya Pradesh – 452 001
      Email ID : [email protected]

7.    M/s. Jagdish Gupta, Indore,
      Through its Managing Authority,
      63, Ushanagar Extension, Sudama Nagar,
      Madhya Pradesh – 452 009
      [email protected]
      [email protected]
      [email protected]               ...Respondents

      _____________________________________________________
Mr. V. D. Salunke h/f. Mr. M. V. Salunke, Advocate for the Petitioner.
Mr. N. S. Tekale, AGP for Respondent No.1-State.
Mr. R. N. Dhorde, Senior Counsel a/w Mr. P. S. Dighe i/by Mr. V. R.
Dhorde, Advocate for Respondent Nos.2 to 5.
Mr. A. I. Deshmukh, Advocate for Respondent Nos.6 & 7.
       _____________________________________________________


                                  CORAM : KISHORE C. SANT &
                                          JITENDRA JAIN, JJ.
                           RESERVED ON : 1st OCTOBER, 2026

                       PRONOUNCED ON : 5th OCTOBER, 2026


JUDGMENT :- (Per - Jitendra Jain, J.)

1.        Rule. Rule made returnable forthwith. By consent, heard finally.

2.        This petition is filed by the petitioner under Article 226 of the

Constitution of India challenging its disqualification by the Technical Bid

Evaluation Committee of respondent no.2-TAPI Irrigation. Respondent

nos.2 to 5 are collectively referred to as “the respondents”.



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BRIEF FACTS :-

3.       Respondents floated an E-tender for the work of construction of

a gravity closed pipeline distribution system from the Head Regulator of

Padmalaya II Dam for a command area of 1982 Ha more particularly

described in E-Tender Notice No.14 of 2026-27. The estimated cost

mentioned in tender is Rs.65.67 crores. Various parties, including the

petitioner and respondent no.6 and 7, applied in response to the said

tender. The parties applying for the tender were required to make an

online payment of Earnest Money Deposit (EMD). The petitioner made

the payment of EMD and uploaded receipt but the bank statement was

not uploaded.

4.       On 4 August 2026, technical bids were opened and respondent

nos.6 and 7 were declared as qualified, whereas the petitioner and other

two bidders were declared as disqualified. The reason for petitioner’s

disqualification, as mentioned in the statement, is its failure to upload

bank statement as mandated by Point no.25 of Volume – I of Detailed

Tender Notice.

5.       On 6 August 2026, financial bids of respondent nos.6 and 7

were opened.

6.       The petitioner being aggrieved by its disqualification has

instituted the present petition on 7 August 2026. This Court on 7 August

2026 directed respondents not to finalise the tender process without prior

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permission of this Court. Pleadings of the respondents and the petitioner

were filed and the matter is heard today finally.


SUBMISSIONS OF PETITIONER :-

7.         Mr. Salunke, learned counsel for the petitioner submitted that

the tender conditions only provided for uploading the receipt of online

payment of tender fee and EMD. There is no requirement of uploading

the bank statement as per E-Tender Notice No.14. He relied upon over

ruling clause at page 62 of the petition on guidelines to contractors

mentioned in E-Tender Notice No.14 which reads as under :-

      Guidelines of Contractors Regarding Government of Maharashtra e- tendering system
       These conditions will over-rule the conditions stated in the Tender
       Documents, wherever relevant and applicable. However, in case of
       dispute on any contradictory meaning of two or more clauses, decision of
       the Superintending Engineer shall be final and binding on both parts.



8.         He submitted that the condition of uploading bank statement is

appearing in tender documents and not in the tender notice and,

therefore, by overriding clause in E-Tender Notice, rejection by the

respondents on the ground that bank statement has not been uploaded is

manifestly arbitrary and unreasonable. He, in alternative, further

submitted that no opportunity of hearing was given by the respondents to

rectify the said defect and, therefore, there has been a violation of

principles of natural justice. He also submitted that petitioner was not

made aware of reason for disqualification. He also submitted that on a



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comparison of the financial bids, the petitioner’s quote is lower than the

quotes of the successful bidders. He submitted that this being a public

project, the Court should interfere and quash the disqualification of the

petitioner. Mr. Salunke further pointed out to the reply of the

respondents, wherein it is stated that the technical evaluation bid has

been uploaded on 3 August 2026 and the bidders were given an

opportunity of two days for raising objections, whereas in effect the

technical bid was uploaded on 4 August 2026. He also attacked the

Technical Evaluation Report filed with reply at page 92 and submitted

that respondents have intentionally not mentioned date of this report. He

relied upon the decision of the Hon’ble Supreme Court in the case of

Poddar Steel Corporation vs. Ganesh Engineering Works 1 and prayed for

permitting the petitioner to file bank statement and rectify the defect.


SUBMISSIONS OF RESPONDENT NOS.2 TO 5 :-

9.           Per contra, Mr. Dhorde, learned senior counsel appearing for

respondent nos.2 to 5 vehemently opposed the petition. He referred to

various clauses of tender documents and notices and submitted that time

and again and at more than one place, the bidders were informed that if

the bank statement is not uploaded, then the bids will be considered as

non-responsive. He also further referred to 1983 Government Resolution

(GR), which deals with the online tender conditions in support of this

1    (1991) 3 SCC 273


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submission. Learned senior counsel further submitted that the tender

process is online and it is expressly provided that no physical document

will be accepted. He also gave the rationale for requiring such bank

statement to be uploaded alongwith the tender namely, cartelisation etc.

He further submitted that the petitioner, in the petition itself, has

admitted that they were aware about the reason for disqualification on 4

August 2026. Learned senior counsel relied upon following decisions in

support of his above submissions that Court ought to exercise restraint in

interfering with tender matters and prayed for dismissal of the petition.

      (a) Glodyne Technoserve Limited vs. State of Madhya Pradesh & Ors. 2
      (b) K. K. Vidyut, Ahmednagar vs. Union of India & Ors.3
      (c)   N. G. Projects Limited vs. Vinod Kumar Jain & Ors.4
      (d) Prasad Sheth vs. State of Goa5
      (e) Utkal Suppliers vs. Maa Kanak Durga Enterprises & Ors.6


SUBMISSIONS OF RESPONDENT NOS.6 & 7 :-

10.         Mr. Deshmukh, learned counsel for respondent nos.6 and 7-

successful bidders adopts the arguments of learned senior counsel

Mr. Dhorde and further submits that in special instructions to the bidders,

it is specifically stated that the bidder should read the terms and

conditions of the tender and accept the same to proceed further to submit

the bids. He further referred to E-Tender Notice No.14, wherein it is
2 (2011) 5 SCC 103
3 2016 (6) Mh.L.J. 806
4 (2022) 6 SCC 127
5 2022 SCC OnLine Bom 1179
6 (2021) 14 SCC 612

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stated that tender documents should be downloaded from the

Government website, on which detailed instructions and information

regarding E-Tender are made available. He also prayed for dismissal of

the petition.


11.         We have heard Mr. Salunke, learned counsel for the petitioner,

Mr. Tekale, learned AGP for respondent no.1-State, Mr. Dhorde, learned

senior counsel for respondent nos.2 to 5 and Mr. Deshmukh, learned

counsel for respondent nos.6 and 7 and with their assistance have also

perused the relevant pages of the documents which were brought to our

notice by all the counsel.

ANALYSIS & CONCLUSIONS :-

12.         There is no dispute that the bank statement has not been

uploaded alongwith tender document. The petitioner has, however, now

annexed the relevant bank statement in the rejoinder to the reply of

respondents to show that the EMD money has been paid from its account.

13.         The issue which arises for our consideration is whether the

failure to upload the bank statement alongwith tender document would

entitle the respondents to reject the technical bid of the petitioner.

Therefore, it is relevant to quote clauses of the tender notice and tender

documents in this regard, on which the parties have placed heavy

reliance.


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14.        Following are the clauses of Notice Inviting Tender annexed at

page 133 which reads as under:-

       2) The forms of Tender documents are available on the e Tendering
       website of Govt. of Maharashtra https://mahatenders.gov.in. The aspiring
       Bidders will have to download Tender form, from the website mentioned
       above. The bidder has to fill in formats given in downloaded tender
       document and upload to the above said website. Also he has to upload
       the scanned copy of duly filled in formats, along with scanned copies of
       required documents.
       4) Blank tender forms will have to be downloaded by the contractor only
       from the website of Govt. of Maharashtra https://mahatenders.gov.in.
       While submitting the dully filled in Tender Documents, the Bidder are
       required to deposit Tender processing fee of Rs. 5,900/- and E.M.D.
       Rs.32,83,850/- through e-payment gateway. The E.M.D. online shall be
       submitted in NEFT / RTGS from contractor’s own bank account, tender
       fee and EMD transferred from any other account shall not be considered
       and in such a case, the tender shall be considered as non-responsive. As
       per GR Nivida/0417/(pr.kr.247/17) Mo. pr.-1 Date.18/10/2023 and
       Point No. 3.3 and 9.2 (ii), the contractor has to prepare & submit the
       required Documents Online on or before as per schedule. Hard copy of
       tender documents will not be accepted.
       7) Additional details regarding e-tendering are available in the Tender
       Document on portal. If any assistance is required regarding e-tendering
       (Uploading and Downloading), please contact on NIC’s e-procurement
       help line Number 0120-4001002, 4001005, 6277787.
       Page No. 142 of Section I of Detailed Tender Notice :-
       1.3-A e-Tendering Instruction to Applicants :
       …
       .…
       7. Bidder should arrange for the EMD as specified in the tender and EMD
       to be deposited Online/e-payment gate way available on web site
       (https://mahatenders.gov.in) within the stipulated date and time from
       the account of concerned contractor. The scan copy of receipt of
       online/NEFT/RTGS is required to be uploaded along with tender
       document.
       As per Gov GR (WRD) Nivida 0417/(pra.kra.247/117) Mo.pra.-1 date
       18/10/2023 mentioned in para No. 3.3 & 9.2(ii), Online EMD amount
       must be invariably deposited / transferred from the contractors own bank
       account only. Bank statement showing the transaction shall be submitted


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in the envelope No. 01. Bid submitted without bank statement shall be
considered as nonresponsive. EMD transferred from any other account
shall not be considered & in such a case the tender shall be considered as
non-responsive.
Page No. 149 of Rejoinder :-
7.0 MANNER OF ON-LINE SUBMISSION OF e-TENDER AND ITS
ACCOMPANIMENTS:
Tender is to be submitted on-line on the Government of Maharashtra
website (https://mahatenders.gov.in) in two separate e-covers.
A) Cover No.1:-
Note: - Only Scan Copy of Original Certificate will be considered
The first cover on the portal as clearly marked as Technical Cover No.1
shall contain the following documents duly scanned and uploaded.
I) Detail of online deposit of tender fee & earnest money through
payment gateway by the bidders by modes e-payment gate way available
on web site (https://mahatenders.gov.in) transfer of bank having core
banking facility as stated in 1.3 of Annexure ‘A’. Certificates of exemption
for payment of earnest money shall not be accepted. Actual payment
receipt of EMD deposited online through e-payment Gateway available
on website (https://mahatenders.gov.in) shall be uploaded with tender
documents within stipulated date and time. EMD and SD to be paid from
Bidders account only, Bidder should upload bank statement clearly
showing transaction and bidders details such as Name, Account no., etc.
Page Nos. 158, 164 and 165 of Rejoinder :-
8.1 TECHNICAL Cover No.1
First of all, TECHNICAL Cover No.1 of the tenderer will be on-line
opened to verify its contents as per requirements. For the purpose of this
particular contract, the tenderer shall meet the requirement as stated at
Sr.No.8 in Annex-"A" of this section. If the various documents contained
in this 'covers' do not meet the requirements of the department, a note
will be recorded accordingly by the tender opening (on-line) authority,
and the said tenderers Cover No.2 will not be considered for further
action, and the same will be recorded. The decision of the tender opening
authority shall be final in this regard and binding on the contractors.
19) Tender documents from bidders will not be accepted in physical form
(hard copy) in any circumstances except original Demand Draft, Bank
Guarantee.
22) All Conditions laid down in the Government of Maharashtra
Resolution WRD Department Marathi Gr. No. Nivida 0417/ (Pra.Kra
247/17) Mopra-1 Date.18/10/2023 and guideline issued by Govt. of


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       Maharashtra from time to time shall be applicable for uploading /
       opening and acceptance of the tender.
       24) No Evaluation will be done when no documents are submitted with
       the bid and tender will not be qualified for the work.
       25) It shall be mandatory to pay EMD Amount through online RTGS/
       NEFT from Concerned Deposit Account of the Tenderer. Online EMD
       amount must be invariably deposited/transferred from the contractor’s
       own bank account only. Bank statement showing the transaction shall be
       submitted in envelope No.1 Bid Submitted without bank statement shall
       be considered as non-responsive.


15.      Certain clauses of Government Resolution dated 18 October

2023 reads as under :-

         ९.२ लिफाफा क्र.१ :- यामध्ये खालील कागदपत्रांच्या प्रती निविदाकाराने सादर
         कराव्यात.
         i. … … …
         ii. आवश्यक बयाणा रक्कम भरल्याचा पुरावा (Scan copy of bank statement
         showing EMD payment made)
         ९.५ कोणती कागदपत्रे निविदेसोबत सादर न केल्यास मुल्यांकन केले जाणार नाही
         (No evaluation will be done) व निविदा अपात्र ठरविण्यात येईल याची स्पष्ट
         तरतुद निविदेत करावी.
         १७.५ निविदाकाराने सादर केलेल्या कागदपत्रांची तपासणी करताना नवीन
         कागदपत्रे मागविण्यात येऊ नयेत. फक्त सादर केलेल्या कागदपत्रांमध्ये स्पष्टता
         नसल्यास त्याबाबतचे स्पष्टीकरण (Clarification) मागविण्यात यावे.
         11. The bidder reads the terms and conditions and accepts the same to
         proceed further to submit the bids.


16.      On a perusal of the above clauses which are mentioned in the

detailed tender notice and tender document, it is clear that uploading of

the bank statement alongwith tender document is a mandatory pre-

condition before evaluating the technical bid. There is an express clause

which states that no physical document will be accepted. The authority


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issuing the tender is best placed to decide what conditions should be

mentioned to be complied with while uploading the tender. This Court

cannot sit in appeal over every such condition which the bidders have,

with open eyes, accepted before bidding. The petitioner, at more than one

place, was made aware in these documents that if the bank statement is

not uploaded the bid will be treated as non-responsive.

17.       It is also important to note that these are commercial

documents, though relating to a public project, but when a private

commercial person files its bid, and moreso when he has accepted all the

terms and conditions of the tender documents, it cannot be permitted to

argue that such a condition should be dispensed with or an opportunity

should be given for its compliance. The above clauses expressly state that,

in the absence of the bank statement being uploaded, the bid will be

treated as non-responsive. The petitioner, having agreed to these

conditions, cannot now seek its dispensation, and more particularly from

this Court in its extraordinary jurisdiction while dealing with tender

matters where minimum interference is to be exercised by this Court.

18.       There could be various reasons for uploading of the bank

statement to be made mandatory, namely, to ascertain whether the

bidders have made multiple bids, whether the bidder has the financial

capacity to make the payment of EMD, whether multiple bidders have

used the same account for depositing EMD, etc. The clause itself indicates

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that it is to verify that EMD has been paid from bidder’s own account that

bank statement is to be uploaded and consequences of its failure to do so

is also provided therein. These are the reasons which the authority

issuing the tender, to safeguard itself, has provided, and therefore, this

Court cannot step into the shoes of the issuing authority.

19.       The GR dated 18 October 2023 is also referred to in these

tender conditions and documents, wherein the parties have agreed that

the same would be applicable to the present tender. The various clauses

of this GR reproduced above also indicates that the whole process of

filing the tender will be online, no physical document will be accepted,

and if any deficiency is found on account of non-furnishing of certain

documents alongwith tender, then such bid would not be considered.

There is no challenge to this GR and rightly so because the petitioner

while bidding has agreed to all the terms and conditions of the tender

including the terms and conditions of the GR, which is specifically

incorporated in the present tender.

20.       It is not a case of a venial breach, but in respect of every

document to be uploaded as per the requirement of the tender, there is a

reason and object, and therefore, permitting such filling up of gaps after

the technical bid is rejected would derail the process of tender, and such

course of action cannot be permitted in matters relating to a tender of a

public project, moreso in this part of the State which invariably has to

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face the wrath of drought.

21.       The petitioner should have taken utmost care in complying

with all the requirements of uploading the documents alongwith the

tender, moreso, when it was expressly made clear, in no uncertain terms

and at more than one place, that if the bank statement is not uploaded,

then such a bid will not be considered.

22.       The E-Tender at pages 61-62 of the petition, relied upon by the

petitioner, itself states that the right to accept or reject the tender is

reserved by the Chief Engineer and a conditional tender will not be

accepted. At page 62, it is specifically mentioned that the contractor shall

study the guidelines regarding e-tendering to get clarification on the e-

tendering process. At page 61, it is also mentioned that tender document

should be downloaded from website and detailed instructions are given

on that website. At page 63, terms and conditions are accepted by the

bidder. Therefore, tender documents form part of the tender notice.

23.       It is also important to note that the technical bid was opened on

4th August 2026, and the same was uploaded, wherein it was specified

that the bid of the petitioner is rejected on the ground of failure to

upload the bank statement. The petitioner himself, in the petition, in

paragraph Nos. 11 and 9, has admitted this. In our view, therefore, it

cannot be said that the petitioner was not made aware of the reason for



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disqualification. If the petitioner’s submission is accepted, then we fail to

understand how the petitioner has annexed page 68A, which contains

reason for disqualification coupled with their admission. The petitioner

did not raise any objection with respondents but filed present writ

petition on 7 August 2026 by which time financial bids were already

opened as per the schedule. The challenge to date not being mentioned

at page 92 of the petition on Technical Evaluation Report, on these facts,

does not carry the case of the petitioner any further.

24.       Learned counsel for the petitioner has not brought to our notice

any clause of the tender condition or tender document which states that

the petitioner should be given an opportunity to rectify the defect of not

uploading the bank statement. In the absence of any clause giving such

an opportunity to rectify the defect as provided in the tender document,

such a requirement cannot be read into the present matter. The present

tender matter stands on a different footing than the other matters where

principles of natural justice are read into by the Courts. On the contrary,

it is expressly mentioned that if bank statement is not uploaded then bids

will be treated as non-responsive. This clearly shows that the chance of

rectification to upload bank statement is given a go-by.

25.       The learned counsel for the petitioner submitted, by referring

to the e-tender notice guidelines, that it is specified therein that the

conditions in the e-tender notice will overrule the conditions stated in the

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tender document wherever relevant and applicable, and since uploading

of the bank statement is not specified in the e-tender notice, but only

uploading of the EMD payment receipt is mentioned, which is complied

with, the reason for rejection is unjustifiable. In our view, this submission

cannot be accepted for more than one reason. Firstly, in the e-tender

notice, there is nothing mentioned regarding uploading of the bank

statement, whereas the same is mentioned in the tender document. The

guidelines relating to overruling would apply where there is a conflict

between the conditions mentioned in the e-tender notice and tender

document. In the absence of any contradiction with respect to uploading

of the bank statement between what is specified in the e-tender notice

and tender document, this clause cannot be made applicable. In any case,

the said guidelines further state that, in case of a dispute between two or

more clauses, the decision of the Superintending Engineer will be final

and binding on both the parties. Assuming that there is any contradiction,

the Superintending Engineer, in this case, who has approved the technical

bid and who has evaluated the technical bid, has rejected the bid of the

petitioner on the ground of non-compliance with the requirement of

uploading the bank statements. Therefore, even on this count, the

submission made by the petitioner cannot be accepted. Thirdly, the notice

inviting tender itself provides for rejection of the bid if the bank

statements are not uploaded, and therefore, the submission made that


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such a condition is not there in the e-tender notice also cannot be

accepted. We have also reproduced the relevant clauses of the e-tender

notice and tender documents above. Therefore, this submission of the

petitioner cannot be accepted.

26.       The learned counsel for the petitioner has also advanced a

submission with respect to his bid being lower than that of the successful

bidder and, therefore this Court should interfere in the matter. We are

afraid, we cannot accept such a submission. We have already upheld the

rejection of the technical bid of the petitioner and, therefore, price

quoted cannot be considered because financial bid will be considered

only if technical bid is accepted. Even otherwise, the difference between

financial bid of the petitioner and that of the successful bidder is only

+1% -1% which is not a material factor for this Court to shock its

conscience, moreso when the estimated cost as per tender is Rs.65 crores.

Therefore, this submission is also rejected.

27.       The decision relied upon by the petitioner in the case of Poddar

Steel Corporation (supra) is distinguishable on facts. In that case, the

tender was accompanied by a banker’s cheque issued by the Union Bank

of India and not the State Bank as required under Clause no.6 of the

tender, but the banker’s cheque was enclosed alongwith the tender

document. It is on this fact that the Hon’ble Supreme Court classified

tender conditions into two categories, namely, essential conditions of

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eligibility and ancillary object to be achieved by the condition and since

the banker’s cheque was filed alongwith tender document, the Hon’ble

Supreme Court observed that the eligibility condition was satisfied,

though the banker’s cheque was issued by the Union Bank of India and

not the State Bank. In the instant case, the tender process is online and

not physical as was the case before the Hon’ble Supreme Court. Secondly,

in the instant case before us, there is an express condition that no

physical document will be accepted and further if the bank statement is

not uploaded, then the bid will not be considered at all. There was no

such clause before the Hon’ble Supreme Court in the case of Poddar Steel

Corporation (supra). In our view, the facts being different in the case of

Poddar Steel Corporation (supra), the said decision cannot be of any

assistance to the petitioner.

28.       Learned senior counsel Mr. Dhorde for respondent nos.2 to 5 is

justified in relying upon the decisions which are referred to above which

caution this Court to exercise restraint in interfering with tender matters.

The relevant paragraphs of these decisions are reproduced hereunder.

29.       The relevant paragraphs of Glodyne Technoserve Limited vs.

State of Madhya Pradesh & Ors. (supra) read as under :-

        13. It was urged by the learned counsel that this is not a case of a
        tenderer not having a valid certification as required, but a case of not
        filing it with the bid documents despite having the same. Mr Salve urged
        that in view of Clause 9 of Section 7.1.1, the appellant's bid documents
        had been wrongly rejected at the technical bid stage, without even

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       considering the financial bid which had been submitted by it.

       46. The above provision obliges a tenderer to produce along with the bid
       document a copy of the quality certificate which is valid and active on the
       date of submission of the bid and it does not enable a bidder to withhold
       the copy of such quality certificate. Where the quality certificate will be
       expiring shortly and is due for renewal, the bidder is also obliged to
       produce the renewed certificate at the time of signing of the contract. The
       appellant claimed to have a valid and active ISO 9001:2000 certificate at
       the time of submission of the bid, but did not produce a copy of the said
       certificate along with the bid document.

       47. The submissions made on behalf of the appellant proceeds on the
       basis that it was entitled, almost as a matter of right, not to submit the
       documents required to be submitted along with the bid documents on the
       supposition that, even if such documents were valid and active, they
       could be submitted at the time of signing of the memorandum of
       understanding. The appellant had a valid and active ISO 9001:2000
       certification which it did not submit along with the bid documents, may
       be due to inadvertence, but whether such explanation was to be accepted
       or not lay within the discretionary powers of the authority inviting the
       bids. The decision taken to reject the technical bid of the appellant cannot
       be said to be perverse or arbitrary. We need not refer to the decisions cited
       by the learned Attorney General or the appellant in this regard, as the
       principles enunciated therein are well established.



30.       The relevant paragraphs of K. K. Vidyut, Ahmednagar vs. Union

of India & Ors. (supra) read as under :-

       11. Perusal of clause (e) would clearly reveal that if the tenderers fail to
       submit the above details along with their offer, their offer will be
       summarily rejected. It could, thus, be seen that the said clause makes it
       mandatory to submit the documents mentioned therein and provides for
       consequences of non-submission of the documents. It could further be
       clearly seen that it is essential for the bidder to be qualified in the
       financial bid, to submit the documents mentioned in the said clause. It
       even provides that in case any fresh contract is awarded to the tenderer
       in between the date of submission and prior to finalization of the instant
       tender, the tenderer must immediately inform in writing to the tender
       inviting authority for the purpose of evaluation of their bidding capacity.
       12. It would thus be clearly seen that the aforesaid clauses were
       applicable to all the tenderers. We may say that they were not only
       applicable but they were very much essential because in the absence of


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       those documents, the employer could not have ascertained the technical
       and financial viability of the bidder to participate in the process.
       Admittedly, the documents as required under subclause (c) and (e) of
       Clause 6, have not been submitted by the petitioner.


31.      The relevant paragraphs of N. G. Projects Limited vs. Vinod

Kumar Jain & Ors. (supra) read as under :-


       11. The learned counsel for the appellant also referred to a judgment
       reported as Central Coalfields Ltd. v. SLL-SML (Joint Venture
       Consortium) [Central Coalfields Ltd. v. SLL-SML (Joint Venture
       Consortium), (2016) 8 SCC 622 : (2016) 4 SCC (Civ) 106] wherein it
       was held that it was not for the Court to substitute its opinion in respect
       of acceptance of bank guarantee. It was held that when a particular
       format for a bank guarantee is prescribed, then the bidder is required to
       stick to that particular format alone with the caveat that the State
       reserves the right to deviate from the terms of the bid document within
       the acceptable parameters. This Court held as under : (SCC pp. 632-33 &
       638, paras 32, 37, 47 & 49)
          “32. The core issue in these appeals is not of judicial review of the
          administrative action of CCL in adhering to the terms of NIT and the
          GTC prescribed by it while dealing with bids furnished by participants
          in the bidding process. The core issue is whether CCL acted perversely
          enough in rejecting the bank guarantee of JVC on the ground that it
          was not in the prescribed format, thereby calling for judicial review by
          a constitutional court and interfering with CCL's decision.
          37. For JVC to say that its bank guarantee was in terms stricter than
          the prescribed format is neither here nor there. It is not for the
          employer or this Court to scrutinise every bank guarantee to
          determine whether it is stricter than the prescribed format or less
          rigorous. The fact is that a format was prescribed and there was no
          reason not to adhere to it. The goalposts cannot be rear-ranged or
          asked to be rearranged during the bidding process to affect the right
          of some or deny a privilege to some.
          47. The result of this discussion is that the issue of the acceptance or
          rejection of a bid or a bidder should be looked at not only from the
          point of view of the unsuccessful party but also from the point of view

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  of the employer. As held in Ramana Dayaram Shetty [Ramana
  Dayaram Shetty v. International Airport Authority of India, (1979) 3
  SCC 489] the terms of NIT cannot be ignored as being redundant or
  superfluous. They must be given a meaning and the necessary
  significance. As pointed out in Tata Cellular [Tata Cellular v. Union of
  India, (1994) 6 SCC 651] there must be judicial restraint in interfering
  with administrative action. Ordinarily, the soundness of the decision
  taken by the employer ought not to be questioned but the decision-
  making process can certainly be subject to judicial review. The
  soundness of the decision may be questioned if it is irrational or mala
  fide or intended to favour someone or a decision ‘that no responsible
  authority acting reasonably and in accordance with relevant law could
  have reached’ as held in Jagdish Mandal [Jagdish Mandal v. State of
  Orissa, (2007) 14 SCC 517] followed in Michigan Rubber [Michigan
  Rubber (India) Ltd. v. State of Karnataka, (2012) 8 SCC 216].
  49. Again, looked at from the point of view of the employer if the
  courts take over the decision-making function of the employer and
  make a distinction between essential and non-essential terms contrary
  to the intention of the employer and thereby rewrite the arrangement,
  it could lead to all sorts of problems including the one that we are
  grappling with. For example, the GTC that we are concerned with
  specifically states in Clause 15.2 that ‘Any bid not accompanied by an
  acceptable Bid Security/EMD shall be rejected by the employer as non-
  responsive’. Surely, CCL ex facie intended this term to be mandatory,
  yet the High Court held [SLL-SML (Joint Venture Consortium) v.
  Central Coalfields Ltd., 2015 SCC OnLine Jhar 4819] that the bank
  guarantee in a format not prescribed by it ought to be accepted since
  that requirement was a non-essential term of the GTC. From the point
  of view of CCL, the GTC has been impermissibly rewritten by the High
  Court.”

17. Therefore, the position of law with regard to the interpretation of
terms of the contract is that the question as to whether a term of the
contract is essential or not is to be viewed from the perspective of the
employer and by the employer. Applying the aforesaid position of law to
the present case, it has been the contention of Respondent 1 that the
format for bank guarantee was not followed strictly by the State and that
the relaxation given was not uniform, in that Respondent 1 was singled


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       out. The said contention has found favour with the courts below.

       18. In the present matter, Respondent 1 submitted its first bank
       guarantee on 8-7-2019 in relation to the first tender for the same project.
       However, this first tender was cancelled through a notice, as
       acknowledged by Respondent 1. This being the case, being fully aware of
       the fact that the first tender was no more in force and given that there
       was specifically a new tender in place, Respondent 1 was required to
       submit a bank guarantee in the format specified as per the agreement.
       However, Respondent 1 opted to use the same bank guarantee which was
       drawn on 8-7-2019, albeit with a letter from the bank indicating that
       there is now an amendment with regard to the dates and the contract
       therein. It is patently clear that if the format for a bank guarantee is an
       essential condition of the contract, the format in which the respondent
       has opted to submit it is a substantial variation in the terms of the
       contract. If the variation that is done by Respondent 1 is considered to be
       an acceptable variation, then it would create an onerous burden on the
       tendering authority to ensure that each underlying bank guarantee is
       valid and further to consider whether the amendment letter itself was
       with the full knowledge and consent of the bank. As it were, on the facts
       of the case, the State informed the High Court that it had attempted to
       verify the amendment but there was no response from the Bank. This
       being the case, it is submitted that the relaxation in the format to bank
       guarantee was rightly not provided to the respondent.


32.        The relevant paragraphs of Utkal Suppliers (Supra) read as

under :-


       14. This Court has repeatedly held that judicial review in these matters is
       equivalent to judicial restraint in these matters. What is reviewed is not
       the decision itself but the manner in which it was made. The writ court
       does not have the expertise to correct such decisions by substituting its
       own decision for the decision of the authority. This has clearly been held
       in the celebrated case of Tata Cellular v. Union of India [Tata Cellular v.
       Union of India, (1994) 6 SCC 651] , para 94 of which states as follows :
       (SCC pp. 687-88)
           “94. The principles deducible from the above are:


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     (1) The modern trend points to judicial restraint in administrative
     action.
     (2) The court does not sit as a court of appeal but merely reviews
     the manner in which the decision was made.
     (3) The court does not have the expertise to correct the
     administrative decision. If a review of the administrative decision is
     permitted it will be substituting its own decision, without the
     necessary expertise which itself may be fallible.
     (4) The terms of the invitation to tender cannot be open to judicial
     scrutiny because the invitation to tender is in the realm of contract.
     Normally speaking, the decision to accept the tender or award the
     contract is reached by process of negotiations through several tiers.
     More often than not, such decisions are made qualitatively by
     experts.
     (5) The Government must have freedom of contract. In other
     words, a fair play in the joints is a necessary concomitant for an
     administrative body functioning in an administrative sphere or
     quasi-administrative sphere. However, the decision must not only
     be tested by the application of Wednesbury principle of
     reasonableness (including its other facts pointed out above) but
     must be free from arbitrariness not affected by bias or actuated by
     mala fides.
     (6) Quashing decisions may impose heavy administrative burden
     on the administration and lead to increased and unbudgeted
     expenditure.”
15. Equally, this Court in Afcons Infrastructure Ltd. v. Nagpur Metro Rail
Corpn. Ltd.[Afcons Infrastructure Ltd. v. Nagpur Metro Rail Corpn. Ltd.,
(2016) 16 SCC 818, para 15] (“Afcons”), has laid down : (SCC p. 825,
paras 14-15)
     “14. We must reiterate the words of caution that this Court has
     stated right from the time when Ramana Dayaram Shetty v.
     International Airport Authority of India [Ramana Dayaram Shetty v.
     International Airport Authority of India, (1979) 3 SCC 489] was
     decided almost 40 years ago, namely, that the words used in the
     tender documents cannot be ignored or treated as redundant or
     superfluous — they must be given meaning and their necessary
     significance. In this context, the use of the word “metro” in Clause


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     4.2(a) of Section III of the bid documents and its connotation in
     ordinary parlance cannot be overlooked.
     15. We may add that the owner or the employer of a project,
     having authored the tender documents, is the best person to
     understand and appreciate its requirements and interpret its
     documents.    The    constitutional   courts   must   defer    to   this
     understanding and appreciation of the tender documents, unless
     there are mala fides or perversity in the understanding or
     appreciation or in the application of the terms of the tender
     conditions. It is possible that the owner or employer of a project
     may give an interpretation to the tender documents that is not
     acceptable to the constitutional courts but that by itself is not a
     reason for interfering with the interpretation given.”
  This view of the law has been subsequently followed repeatedly — see
  Montecarlo Ltd. v. NTPC [Montecarlo Ltd .v. NTPC, (2016) 15 SCC
  272] [at SCC para 25], Caretel Infotech Ltd. v. Hindustan Petroleum
  Corpn. Ltd. [Caretel Infotech Ltd. v. Hindustan Petroleum Corpn. Ltd.,
  (2019) 14 SCC 81] [at SCC paras 38 and 39], and State of M.P. v. U.P.
  State Bridge Corpn. Ltd. [State of M.P. v. U.P. State Bridge Corpn. Ltd.,
  (2022) 16 SCC 633 : 2020 SCC OnLine SC 1001] [at SCC paras 24 to
  26].
16. In Galaxy Transport Agencies v. New J.K. Roadways, Fleet Owners &
Transport Contractors [Galaxy Transport Agencies v. New J.K. Roadways,
Fleet Owners & Transport Contractors, (2021) 16 SCC 808 : 2020 SCC
OnLine SC 1035] , after referring to para 15 of Afcons [Afcons
Infrastructure Ltd. v. Nagpur Metro Rail Corpn. Ltd., (2016) 16 SCC 818,
para 15] , it was held : (Galaxy Transport Agencies case [Galaxy
Transport Agencies v. New J.K. Roadways, Fleet Owners & Transport
Contractors, (2021) 16 SCC 808 : 2020 SCC OnLine SC 1035] , SCC
paras 15-17)
  “15. In the judgment in Bharat Coking Coal Ltd. v. AMR Dev Prabha
  [Bharat Coking Coal Ltd. v. AMR Dev Prabha, (2020) 16 SCC 759] ,
  under the heading “Deference to authority's interpretation”, this Court
  stated : (SCC p. 776, paras 50-52)
  ‘50. Lastly, we deem it necessary to deal with another fundamental
  problem. It is obvious that Respondent 1 seeks to only enforce terms
  of the NIT. Inherent in such exercise is interpretation of contractual


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  terms. However, it must be noted that judicial interpretation of
  contracts in the sphere of commerce stands on a distinct footing than
  while interpreting statutes.
  51. In the present facts, it is clear that BCCL and India have laid
  recourse to clauses of the NIT, whether it be to justify condonation of
  delay of Respondent 6 in submitting performance bank guarantees or
  their decision to resume auction on grounds of technical failure. BCCL
  having authored these documents, is better placed to appreciate their
  requirements and interpret them. [Afcons Infrastructure Ltd. v. Nagpur
  Metro Rail Corpn. Ltd., (2016) 16 SCC 818, para 15]
  52. The High Court [AMR Dev Prabha v. Union of India, 2018 SCC
  OnLine Jhar 2708] ought to have deferred to this understanding,
  unless it was patently perverse or mala fide. Given how BCCL's
  interpretation of these clauses was plausible and not absurd, solely
  differences in opinion of contractual interpretation ought not to have
  been grounds for the High Court to come to a finding that the
  appellant committed illegality.’
16. Further, in the recent judgment in Silppi Constructions Contractors v.
Union of India [Silppi Constructions Contractors v. Union of India,
(2020) 16 SCC 489] , this Court held as follows : (SCC pp. 501-02, para
20)
  ‘20. The essence of the law laid down in the judgments referred to
  above is the exercise of restraint and caution; the need for
  overwhelming public interest to justify judicial intervention in matters
  of contract involving the State instrumentalities; the courts should
  give way to the opinion of the experts unless the decision is totally
  arbitrary or unreasonable; the court does not sit like a court of appeal
  over the appropriate authority; the court must realise that the
  authority floating the tender is the best judge of its requirements and,
  therefore, the court's interference should be minimal. The authority
  which floats the contract or tender, and has authored the tender
  documents is the best judge as to how the documents have to be
  interpreted. If two interpretations are possible then the interpretation
  of the author must be accepted. The courts will only interfere to
  prevent arbitrariness, irrationality, bias, mala fides or perversity. With
  this approach in mind we shall deal with the present case.’
17. In accordance with these judgments and noting that the


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         interpretation of the tendering authority in this case cannot be said to be
         a perverse one, the Division Bench [New JK Roadways v.Union Territory
         of J&K, 2020 SCC OnLine J&K 733] ought not to have interfered with it
         by giving its own interpretation and not giving proper credence to the
         word “both” appearing in Condition No. 31 of the NIT. For this reason,
         the Division Bench's conclusion that JK Roadways was wrongly declared
         to be ineligible, is set aside.”


33.         The decision of Poddar Steel Corporation (Supra) came up for

consideration before the Hon’ble Supreme Court in the case of Central

Coalfields Limited and Another vs. SLL-SML (Joint Venture Consortium)

& Ors.7. The issue before the Hon’ble Supreme Court was whether the

condition of furnishing a bank guarantee in a prescribed form mentioned

in the tender document is an essential condition or not and whether a

bank guarantee filed otherwise than in the prescribed form can be a

ground for rejection of the tender. The decision in the case of Poddar

Steel Corporation (supra) was cited for the proposition that the bank

guarantee format is not an essential condition but an ancillary condition.

The Hon’ble Supreme Court, in paragraph 42, observed that Poddar Steel

Corporation (supra) did not advert to the “privilege of participation”

principle laid down in Ramana Dayaram Shetty vs. The International

Airport Authority of India8. This principle was ignored, as per the Hon’ble

Supreme Court, in the case of Poddar Steel Corporation (supra). In

paragraph 46, the Hon’ble Supreme Court accepts that in Poddar Steel

7 (2016) 8 SCC 622
8   (1997) 3 SCC 489


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Corporation (supra), a distinction has been drawn between essential and

ancillary or subsidiary conditions in the bid documents. The Hon’ble

Supreme Court, in paragraph 47, after considering Poddar Steel

Corporation (supra) and other decisions, especially Ramana Dayaram

Shetty (supra) observes that the issue of acceptance or rejection of a bid

should be looked at not only from the point of view of the unsuccessful

party but also from the point of view of the employer. The Court relies

upon the decision in the case of Ramana Dayaram Shetty (supra) and

observes that the terms of the contract cannot be ignored as being

redundant or superfluous. They must be given a meaning and the

necessary significance. The Court further went on to observe in

paragraph 48 that whether a term of the tender is essential or not is a

decision which should be taken by the employer and which the Court

should respect. The decision of the employer to treat the condition as an

essential condition cannot be questioned by the Court. If the Court starts

questioning the decision of the employer, then the Court would be taking

over the function of the tender-issuing authority, which it cannot do.

34.       Applying the ratio of this decision, which has considered the

earlier decision of Poddar Steel Corporation (supra), to the facts before

this Court in the instant case, the respondents have, in the tender

document, clearly spelt out their intention that non-uploading of the

bank statement would result in the bid not being considered. On a

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reading of various clauses of the tender document and e-tender notice,

the respondents have treated non-uploading of the bank statement as an

essential condition. Therefore, this Court cannot treat non-compliance

with such a condition, which has been treated by the respondents as

mandatory, as directory and permit the petitioner to comply with the

same at this stage.

35.        The decision in the case of of Poddar Steel Corporation (supra)

once again came up for consideration before the Hon’ble Supreme Court

in the case of Vidarbha Irrigation Development Corporation & Ors. vs.

M/s. Anoj Kumar Agarwala & Ors.9. In this case, the bidder was put to

notice that if any deviation from terms of the tender is found, then the

tender will be treated as non-responsive. The bidder furnished a bank

guarantee for a period lesser than what was required by the tender. The

bid came to be rejected on this ground. The Hon’ble Supreme Court after

considering the decision in the case of Poddar Steel Corporation (supra)

upheld the rejection. The facts of present case before us is similar to that

of Vidarbha Irrigation Development Corporation & Ors. (supra) and,

therefore, we do not see any reason to interfere in the decision of the

respondents in rejecting technical bid of the petitioner.

36.        Therefore, in our view, the decision of Poddar Steel Corporation

(supra), in the light of the subsequent development in law by the Hon’ble

9 (2020) 17 SCC 577

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Supreme Court in various decisions referred to hereinabove, cannot come

to the assistance of the petitioner for seeking rectification of an essential

condition so as to treat the petitioner as qualified in the technical bid.

37.          The Hon’ble Supreme Court has repeatedly cautioned and

advised the Court to exercise judicial restraint in matters dealing with

tenders since the Constitutional Court does not have the expertise to

correct decisions by substituting its own decision for the decision of the

authority.

38.          For all the above reasons, the writ petition is dismissed. Rule is

discharged and interim relief stands vacated.



   (JITENDRA JAIN, J.)                            (KISHORE C. SANT, J.)



Sayyed




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