Case Note & Summary
Three writ petitions were filed before the Nagpur Bench of the Bombay High Court challenging conditions in an e-tender notice dated 29 September 2023 and corrigendum dated 10 October 2023 issued by the Collector and District Election Officer, Nagpur for renting polling booths, furniture and auxiliary materials for the 2024 Parliamentary General Elections in Nagpur District. Petitioners included Minakshi Traders, Harish Gopaldas Bajaj (proprietor of Laxmi Enterprises), and Nagpur Tent House Association. They sought quashing of the tender notice and corrigendum, particularly the non-refundable tender application fee of Rs.2,40,000, requirement of 40% average financial turnover over three years with CA certificate, experience certificate for supply in two districts in previous Parliamentary elections, and certificate of completing work up to 60% of estimated amount in any one year of the seven years prior to 30 September 2023. Petitioners alleged these conditions were arbitrary, unreasonable, malafide, and discriminatory to Vidarbha tenderers, making them ineligible while favoring big contractors from Mumbai and Nashik. They argued estimated tender value of Rs.15 crores was inflated and similar tenders in Dharashiv, Palghar, Washim, Yavatmal and Amravati did not contain such conditions. They relied on Article 14 and Supreme Court decisions in Michigan Rubber (India) Limited v State of Karnataka and Shivajirao Nilangekar Patil v Dr. Mahesh Madhav Gosavi. The Collector and District Election Officer filed an affidavit raising maintainability, stating tender conditions are not challengeable unless manifestly arbitrary, and authority is best judge. On merits, respondents explained the conditions were rational and modified in a pre-bid meeting on 6 October 2023; tender fee was fixed as per clause 3.1.2.1 of Government Resolution dated 1 December 2016 with 10% yearly increase, EMD as per Appendix-8. The estimated cost of Rs.15 crores was based on types of goods to be rented and compared to actual Rs.11 crores spent in 2019 Lok Sabha elections. The court heard arguments and delivered oral judgment on 17 October 2023, but the available extract ends before the final analysis and operative directions; therefore the final decision is not recorded in the provided text.
Headnote
A) Constitutional Law - Arbitrariness and Discrimination - Tender Conditions Challenged as Violative of Article 14 - Constitution of India, Article 14 - Petitioners contended that conditions requiring a non-refundable tender application fee of Rs.2,40,000, a 40% average turnover for the last three years, experience certificates for two districts in previous Parliamentary elections, and completion of 60% of earlier tender value in any one of seven years prior to 30 September 2023 were arbitrary, unreasonable, malafide and tailored for big contractors from Mumbai and Nashik, excluding Vidarbha tenderers. Respondents asserted the conditions were rational and based on Government Resolution dated 1 December 2016. Held: no final determination extracted from available text (Paras 6-8). B) Administrative Law - Judicial Review of Tender Conditions - Limited Interference - The authority inviting tender is best judge of conditions; conditions not challengeable unless manifestly arbitrary - This principle was argued by respondent Collector/District Election Officer, relying on Supreme Court precedents. The court noted the submissions but no final reasoning available. Held: not ascertainable (Paras 8-9). C) Government Contracts - Tender Fee and Earnest Money Deposit - Fixation under Government Resolution - Maharashtra Government Resolution dated 1 December 2016, clause 3.1.2.1, Appendix-8 - Respondents stated tender fee was determined on estimated cost as per GR, with 10% yearly increase allowed and discretion for departments where cost exceeds Rs.10 crores; estimated cost was Rs.15 crores compared to Rs.11 crores spent in 2019. Held: not stated in extract (Paras 10-11).
Issue of Consideration
Whether the tender conditions in e-tender notice dated 29 September 2023 and corrigendum dated 10 October 2023 (tender fee of Rs.2,40,000, 40% turnover, experience certificate for previous Parliamentary elections, 60% work completion in prior seven years) are arbitrary, unreasonable, malafide and discriminatory under Article 14; whether tender fee was validly fixed under Government Resolution dated 1 December 2016; whether writ petitions maintainable against tender conditions
Law Points
- Article 14 prohibits arbitrary and discriminatory state action
- tender conditions are normally within domain of tendering authority and interference limited to manifest arbitrariness
- Government Resolution dated 1 December 2016 provides framework for fixation of tender fee
- estimated cost and past expenditure may justify tender fee and eligibility norms
- authority inviting tender is best judge of its requirements
