It’s Hardly A Month Left For Ganpati Festival When Distribution Of Food Kits Are To Start: Bombay HC Dismisses Pleas Challenging Tender Process

The Bombay High Court dismissed a batch of petitions challenging the tender process of the State Government regarding distribution of food kits during the Ganesh Chaturthi festival.

The challenge in the batch of petitions was made to a tender condition described in Clause 4 (PQ5) of the Request for Proposal (RFP) floated on July 18, 2024 by the Department of Food and Civil Supply and Consumer Protection of the Government of Maharashtra for supply of food kits (Anandacha Shidha) for Gauri Ganpati festival in the Financial Year 2024-2025.

A Division Bench comprising Chief Justice Devendra Kumar Upadhyaya and Justice Amit Borkar observed, “Festival is to commence from 7th September 2024 that is to say, it is hardly a month left when the distribution of food kits are to start and accordingly; having regard to such a short time left for distribution of food kits in terms of the subject tender, unless we find that the impugned tender condition No.PQ5 is manifestly arbitrary or irrational, in our considered opinion, interference in the instant matter at this juncture would not be warranted as it will not be in public interest.”

The Bench noted that in case at the instance of the petitioners the impugned tender condition is quashed by the Court, it would entail a direction to re-tender the subject work, however, having regard to the constraint of time for the reason that the festival is to start from September 7, 2024, any order of re-tendering will not be in public interest.

Senior Advocates Sharan Jagtiani, Girish Godbole, and Gautam Ankhad appeared for the petitioners while Advocate General Birendra Saraf appeared for the respondents.

Brief Facts -

The impugned condition was a pre-qualification criterion which requires the tenderers to have experience of providing at least 300 labourers in 70 multiple locations in Government and semi-Government establishments within the State in a single work order which ought to have been completed during the last three years. It further stipulated that the value of such work shall not be less than Rs. 25 Crores. An RFP was issued by the State Government in July month for supply of food kits which were to be distributed during Gauri Ganpati festival commencing in September month. The supplier is required to provide food kits containing (i) 1 kg pack of sugar, (ii) 1 kg pack of rawa, (iii) 1 kg pack of chana dal, (iv) 1 litre pouch of edible soyabean oil with 1 polypropylene bag containing these items.

The food kits are to be supplied during the festival at various delivery points across all the districts in the State. According to RFP, the selected supplier will be responsible for packaging, transportation and deliver of these food kits to different locations to be specified by the Department. Clause 4 of the RFP gives in detail the pre-qualification criteria which have been summarized in a chart which includes the impugned criterion viz. criterion No. PQ5. The Instructions to the Bidders contained in the RFP provide that the bidding process will be on-line in two steps and the bid will comprise of two envelopes viz. (a) Envelop 1 : Pre-qualification, and (b) Envelop 2 : Commercial Proposal.

The High Court in the above regard said, “We have already noticed that the Hon'ble Supreme Court in Tata Motors Limited (supra) has observed that even when some defect is found in the decision making process the Court must exercise its discretionary powers under Article 226 of the Constitution of India with great caution and such powers should be exercised only in furtherance of public interest and not merely on the making out of a legal point.”

The Court added that while forming an opinion whether in the present matter the Court should intervene, the larger public interest has to be borne in mind.

“Hon'ble Supreme Court in Tata Motors Limited (supra) has also emphasized that the Court will not interfere in exercise of its powers of judicial review in tender matters even if a procedural aberration or error in assessment or prejudice to a tenderer is made out if the decision complained of is found to be in public interest”, it further noted.

The Court observed that even if some error or prejudice to a tenderer is made out, the powers under Article 226 cannot be invoked to protect private interest at the cost of public interest.

“In case such a direction is issued, such entities/parties will be deprived of participation in the tender which will be in direct conflict with Article 14 of the Constitution. Such a direction as has been prayed for by the petitioners, in our opinion, will be impermissible to be issued by the Court”, it said.

The Court also noted that the task of supplying 1,70,82,086 food kits throughout the State in 35 districts and many taluka places is extremely large and if the State authorities, based on their past experience where they were flooded with complaints of untimely supply and not so smooth distribution of food kits, have prescribed such a condition, the same is not liable to be interfered with, especially keeping in view the limited time available within which re-tender process would not be possible and hence, it would not be in public interest to interfere with such condition.

“In light of what has been discussed above, we are of the considered opinion that in the facts and circumstances of the case especially having regard to the stage of the tender and the short time left for ensuring timely and smooth supply and distribution of the food kits, any interference in this matter in exercise of our discretionary jurisdiction under Article 226 of the Constitution of India, is not called for”, it concluded.

Accordingly, the High Court dismissed the petitions.

Cause Title- Indo Allied Protein Foods Pvt. Ltd. v. The State of Maharashtra (Neutral Citation: 2024:BHC-AS:30983-DB)

Appearance:

Petitioners: Senior Advocates Sharan Jagtiani, Girish Godbole, Gautam Ankhad, Advocates Mayur Khandeparkar, Aniesh S. Jadhav, Siddharth Joshi, Rushikesh S. Kekane, Abhinav Chandrachud, Jayan Jain, Ashish S. Vernekar, Aniesh Jadhav, Samruddhi Lodha, Ankur Shah, Mahadji Phalake, and Nikhil Adkine.

Respondents: Advocate General Birendra Saraf, Government Pleader P.P. Kakade, Additional GPs O.A. Chandurkar, G.R. Raghuwanshi, and Advocate Jay Sanklecha.

Click here to read/download the Judgment