Bombay High Court
M/S. Food Safety Services, Thr. Prop. ... vs The State Of Maharashtra, Thr. ... on 3 May, 2023
Author: A.S. Chandurkar
Bench: A. S. Chandurkar, M.W. Chandwani
WPs 2108 & 2269-23 1 Common Judgment
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 2108/2023
M/s Food Safety Services, through its Proprietor,
Radharaman S/o Kamalkishor Lahoti, aged about
32 years, R/o Rammandir Galli, House No.m211,
Vallabhbhai Patel Ward, Bhandara, Maharashtra - 441904. PETITIONER
.....VERSUS.....
1. State of Maharashtra, through it Secretary,
Ministry of School Education & Sports, Mantralaya,
Madam Cama Road, Mumbai - 440 032.
2. Directorate of Primary Education, Maharashtra State,
Through Director of Education (Primary) Mid-day
Meal Scheme, 12, Pune Regional Office, 17,
Dr.Ambedkar Road, Pune - 411 001.
3. Shree Analytical Testing and Research Laboratory, through
its Proprietor Arjun Govinda Mahajan, Office address at
Shop No.31-35, Suresh Jain Bhaji Pala Market,
Ajintha Road, Jalgaon, Maharashtra - 425 003. RESPONDENTS
WITH
WRIT PETITION NO. 2269/2023
M/s Global Institute for Education and Research Foundation,
through its authorized representative Swapnil Vijayrao Banode,
Aged adult, Office Address at 264-265, Wework, Vaswani
Chambers, 1st Floor, Dr.Annie Besant Road, Municipal Colony,
Worli Shivaji Nagar, Worli. Mumbai - 400 030. PETITIONER
.....VERSUS.....
1. State of Maharashtra, through it Secretary,
Ministry of School Education & Sports, Mantralaya,
Madam Cama Road, Mumbai - 440 032.
2. Directorate of Primary Education, Maharashtra State,
Through Director of Education (Primary) Mid-day
Meal Scheme, 12, Pune Regional Office, 17,
Dr.Ambedkar Road, Pune - 411 001.
3. Shree Analytical Testing and Research Laboratory, through
its Proprietor Arjun Govinda Mahajan, Office address at
Shop No.31-35, Suresh Jain Bhaji Pala Market,
Ajintha Road, Jalgaon, Maharashtra - 425 003. RESPONDENTS
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WPs 2108 & 2269-23 2 Common Judgment
Shri S.P. Dharmadhikari, Senior Advocate with Shri Kaustubh Kadasane, counsel
for the petitioner in Writ Petition No. 2108 of 2023.
Shri A.A. Naik, counsel for the petitioner in Writ Petition No. 2269 of 2023.
Ms N.P. Mehta, Assistant Government Pleader for the respondent nos.1 and 2.
Shri D.V. Chauhan with Shri A.D. Choudhari, counsel for the respondent no.3.
CORAM : A. S. CHANDURKAR AND M.W. CHANDWANI, JJ.
DATE ON WHICH ARGUMENTS WERE HEARD : APRIL 13, 2023
DATE ON WHICH JUDGMENT IS PRONOUNCED : MAY 03, 2023
JUDGMENT (PER : A.S. CHANDURKAR, J.)
RULE. Rule made returnable forthwith and heard the learned counsel for the parties.
2. In these writ petitions, challenge is raised to the Technical Summary Report holding the technical bids of the petitioners to be non- responsive thus preventing them from further participation in the tender process.
3. On 02.03.2023 the respondent no.2-Directorate of Primary Education, Pune floated an E-Tender inviting bids for allotting the work of imparting training to Cooks and Helpers under the Mid-Day Meal Scheme that is to be implemented under Pradhan Mantri Poshanshakti Nirman Yojana. The petitioner in Writ Petition No. 2269 of 2023 is a public trust registered under the Maharashtra Public Trusts Act, 1950 having its office at Mumbai. It claims to have operations in the entire State of Maharashtra with a Regional Office at Akola. Its technical bid has been held to be non-responsive under the Technical Summary Report dated 29.03.2023. Similarly, the petitioner in Writ Petition ::: Uploaded on - 04/05/2023 ::: Downloaded on - 05/05/2023 12:41:45 ::: WPs 2108 & 2269-23 3 Common Judgment No. 2108 of 2023 is a proprietary firm having its Office at Bhandara, Maharashtra and claims to be interested in undertaking such work within the State of Maharashtra. Its technical bid has been held to be non-responsive under the same E-Tender process.
4. The respondent no.3 being the successful bidder has raised a preliminary objection to entertaining these writ petitions at the Nagpur Bench on the ground that no part of cause of action has arisen within the territorial limits of the Nagpur Bench.
Shri D.V. Chauhan, learned counsel for the respondent no.3 by inviting attention to the E-Tender document submitted that the Principal issuing the E-Tender notice had its Office at Pune. The bids were invited from Pune. Though online submission of bids and payment of deposit was permitted online, the relevant pre-bid meeting as well as consideration of the bids of all the bidders including the technical evaluation was undertaken at Pune. The work in question of providing training was to be carried out in the entire State by dividing it into eight divisions. Two bidders were to be selected and the work was to be distributed amongst them with regard to the eight divisions. The allotment of work was to be undertaken by the Director of Education (Primary), Pune. Since the entire decision making process was to be undertaken at Pune under the authority of the Director of Education (Primary), Pune and the fact that the bids of the petitioners were found to be non- responsive pursuant to such decision being taken at Pune, no part of cause of action had arisen within the territorial jurisdiction of the Nagpur Bench. ::: Uploaded on - 04/05/2023 ::: Downloaded on - 05/05/2023 12:41:45 :::
WPs 2108 & 2269-23 4 Common Judgment Referring to the averments in paragraphs 24-A to 24-C in Writ Petition No.2108 of 2023, it was submitted that only on the basis of the intimation given to the petitioners through an online Zoom meeting, the petitioner had sought to invoke the jurisdiction of this Bench. Similar averments were made in paragraph 28-B of Writ Petition No. 2269 of 2023. Since the petitioner in Writ Petition No. 2269 of 2023 had its establishment at Mumbai as per the relevant registration certificate and no part of cause of action having arisen here, there was no basis to file the writ petition at the Nagpur Bench. Merely because the petitioners uploaded their documents at Nagpur, the same would not be sufficient to confer upon them a right to invoke the jurisdiction at the Nagpur Bench. In support of the aforesaid contentions, the learned counsel for the respondent no.3 relied upon the decisions in Megha Engineering and Infrastructures Ltd. Versus Oil India Ltd. [2020 SCC OnLine Gau 4869], Kusum Ingots & Alloys Ltd. Versus Union of India & Another [(2004) 6 SCC 254], M/s Sterling Agro Industries Ltd. Versus Union of India & Others [ILR (2011) VI Delhi 729], Oil and Natural Gas Commission Versus Utpal Kumar Basu & Others [(1994) 4 SCC 711], Rajasthan High Court Advocates' Association Versus Union of India & Others [(2001) 2 SCC 294], Union of India & Others Versus Adani Exports Ltd. & Another [(2002) 1 SCC 567], Kohli Road Lines Versus Maharashtra State Power Generation Company Limited [2023 SCC OnLine Bom 638], V.S.P. Acqua Mist Fire Pvt. Ltd. Nagpur Versus M.S.E.T.C.L. Mumbai [2010(2) Mh.L.J. 575] and Writ Petition No.5444 of 2021 [Balaji Ventures Pvt. Ltd. Versus Maharashtra State Power Generation Company Limited].
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WPs 2108 & 2269-23 5 Common Judgment
5. Shri S.P. Dharmadhikari, learned Senior Advocate for the petitioner in Writ Petition No. 2108 of 2023 and Shri A.A. Naik, learned counsel for the petitioner in Writ Petition No. 2269 of 2023 opposed said submissions and contended that since a part of cause of action had arisen within the territorial limits of the Nagpur Bench, the petitioners were justified in invoking such jurisdiction in view of Article 226 of the Constitution of India.
Shri S.P. Dharmadhikari, learned Senior Advocate referred to the provisions of the Information Technology Act, 2000 (for short, 'the Act of 2000') and especially the provisions of Section 2(1)(b), 2(1)(za) and Section 13(3) to urge that while the Principal inviting offers would be the originator of the tender document in terms of Section 2(1)(za), the prospective bidders such as the petitioner would be the addressee as per Section 2(1)(b) of the Act of 2000. The invitation to offer was put into transmission by the Principal and was responded to by the petitioner from Nagpur. Since the petitioner was informed of its bid being non-responsive in the Zoom meeting in which the petitioner had participated from Nagpur, it was submitted that part of cause of action would arise at Nagpur. The petitioner was seeking the quashing of the decision of the Principal dated 29.03.2023 holding its bid to be non-responsive as being arbitrary. Hence, the provisions of Article 226(1) of the Constitution of India were being invoked and hence the objection raised by the respondent no.3 on the premise that part of cause of action had not arisen at Nagpur under Article 226(2) of the Constitution of India would not arise. It was necessary for the Court to consider the reliefs sought in the writ petition and since the petitioner was communicated the rejection of its bid through the Zoom ::: Uploaded on - 04/05/2023 ::: Downloaded on - 05/05/2023 12:41:45 ::: WPs 2108 & 2269-23 6 Common Judgment meeting, invocation of jurisdiction at the Nagpur Bench was justified. It was further submitted that purchase of the tender document, deposit of security amount as well as submission of the bid had been undertaken at Nagpur and the hence preliminary objection raised by the respondent no.3 did not deserve acceptance. In support of his submissions, the learned Senior Advocate placed reliance on the decisions in Bhagwandas Goverdhandas Kedia Versus M/s Girdharlal Parshottamadas & Co. & Others [AIR 1966 SC 543], State of Maharashtra Versus Narayan Shamrao Puranik & Others [(1982) 3 SCC 519] and Rajasthan High Court Advocates' Association Versus Union of India & Others [(2001) 2 SCC 294]. He also sought to distinguish the decisions on which reliance was placed by the learned counsel for the respondent no.3.
In addition to aforesaid, Shri A.A. Naik, learned counsel for the petitioner in Writ Petition No. 2269 of 2023 submitted that the work of training was to be carried out in eight divisions out of which the Amravati and Nagpur divisions were located within the territorial limits of the Nagpur Bench. Since the rejection of the petitioner's technical bid prohibited it from carrying on business the rights guaranteed under Article 19(1)(g) of the Constitution of India were being agitated. This would indicate that the provisions of Article 226(1) of the Constitution of India were attracted. Attention was invited to the notice of the Zoom meeting issued on 28.03.2023 as well as the rejection of the petitioner's technical bid on 29.03.2023. Even otherwise part of cause of action had arisen at Nagpur and therefore the writ petition as filed ought to be entertained on merits. The learned counsel also referred to the provisions of Chapter XXXI Rule 1 of the Bombay High Court Appellate Side Rules, 1960 to ::: Uploaded on - 04/05/2023 ::: Downloaded on - 05/05/2023 12:41:45 ::: WPs 2108 & 2269-23 7 Common Judgment indicate that allotment of work at the Benches was only for administrative convenience. Reliance was placed on the decisions in Laxman Bhagwan Chaudhari Versus State of Maharashtra & Others [2015(5) Mh.L.J. 311] in that regard. It was thus urged that since part of cause of action had arisen at Nagpur the writ petition ought to be entertained and decided on merits.
6. We have heard the learned counsel for the parties on the aforesaid preliminary objection to the tenability of the writ petitions at the Nagpur Bench. Undisputedly, the E-Tender notice inviting bids has been issued by the respondent no.2 from Pune. The E-Tender notice indicates that the entire tender process was to be undertaken by virtual mode. The E-Tender document was made available online and the bids had to be submitted online. The pre- bid meeting was to be held at Pune. The final decision with regard to rejection/acceptance of bids was to be undertaken at Pune. In accordance with the E-Tender notice, the technical bids came to be opened on 20.03.2023. For finalizing the acceptance of the technical bids, a notice of Zoom meeting came to be issued from Pune by the respondent no.2 on 28.03.2023. The said meeting was held under the Chairmanship of the Director of Education (Primary), Pune on 28.03.2023 at 12.00 noon. It is in this meeting wherein the petitioners participated online that they were communicated the decision of their technical bids being held to be non-responsive. This online communication by the respondent no.2 is the subject mater of challenge in the present proceedings.
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WPs 2108 & 2269-23 8 Common Judgment
7. For considering the cause of action leading to filing of the present proceedings, it would be necessary to first refer to the relevant averments in both the writ petitions. In Writ Petition No. 2108 of 2023 it has been pleaded in paragraph 24-B as under:-
"24B. Though the tendering process has been conducted online and the rejection has been communicated to the Petitioner through a Zoom meeting online, the notice for the Zoom meeting dated 28.03.2023 was given to the bidders at their respective address and for the Petitioner at Nagpur."
In Writ Petition No. 2269 of 2023 the averments in paragraph 28-B reads thus:-
"28B. Though the tendering process has been conducted online and the rejection has been communicated to the Petitioner through a Zoom meeting online. That even the notice for the Zoom meeting dated 28.03.2023 was given to the bidders at their respective address and for the Petitioner at Nagpur. In view of the aforesaid facts and circumstances the part of cause of action for filing the instant Petition arises in Nagpur and thus the instant petition is maintainable before this Hon'ble Court and this Hon'ble Court has jurisdiction to hear and try the instant Petition."
From these averments it is clear that the petitioners are aggrieved by the rejection of their technical bids which rejection was communicated to them during the Zoom meeting held on 28.03.2023. It is not in dispute that the representatives of the petitioners had participated in the said Zoom meeting from Nagpur and during the course of such Zoom meeting they were informed of rejection of their technical bids. In the light of these pleadings, it would be necessary to consider whether any part of cause of action has arisen within the territorial limits of the Nagpur Bench.
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WPs 2108 & 2269-23 9 Common Judgment
8. According to the petitioners since the rejection of their technical bids was communicated to the petitioners at their Office located within the territorial jurisdiction of this Bench, part of cause of action for filing the writ petitions would arise here. On the other hand according to the respondent no.3, the Zoom meeting dated 28.03.2023 was conducted from Pune and merely for the reason that the petitioners were communicated the fate of their technical bids being non-responsive in the said meeting, no part of cause of action arose within the territorial limits of this Bench. It is well settled for considering the aspect of territorial jurisdiction it is only the material facts that have nexus or relevance with the lis involved that would have bearing on the said issue. Facts that have no bearing on the lis or dispute involved in the case would not give rise to any cause of action. It is well settled that cause of action means every fact, which if traversed would be required to be proved for succeeding in the proceedings. In State of Rajasthan & Others Versus M/s Swaika Properties & Another [(1985) 3 SCC 217], the question considered was whether service of notice under Section 52(2) of the Rajasthan Urban Improvement Act, 1959 that was served on the respondents at their registered Office at Calcutta was an integral part of the cause of action and was sufficient to invest the Calcutta High Court with jurisdiction to entertain a writ petition under Article 226 of the Constitution of India for challenging the validity of the notification under Section 52(1) of that Act dated 08.02.1984 for acquiring the lands located at Jaipur. It was held that the cause of action was a bundle of facts which taken with the law applicable would give plaintiff a right to relief against the defendant. The mere service of notice under Section 52(2) of that ::: Uploaded on - 04/05/2023 ::: Downloaded on - 05/05/2023 12:41:45 ::: WPs 2108 & 2269-23 10 Common Judgment Act on the respondents at their registered Office at Calcutta would not give rise to a cause of action within that territory unless the service of such notice was an integral part of the cause of action. In the facts of the said case it was held that it was not necessary for the respondents therein to plead the service of notice on them for challenging the notification issued by the State Government under Section 52(1) of the said Act. It was held that cause of action did not arise within the limits of the Calcutta High Court.
9. Reference can also be made to the decision in National Textile Corporation Limited & Others (supra). The petitioners in the writ petitions were situated at Mumbai and entered into contracts for purchasing cloth. With regard to contractual obligations, it was their grievance that the National Textile Corporation which had taken over the mills in question failed to abide by the contractual obligations. Writ petition in that regard was filed before the Calcutta High Court by urging that since the said petitioners were carrying business at Calcutta, letters were sent by them from Calcutta and replies to the same had been received at Calcutta, a part of cause of action had accrued in the State of West Bengal. On the question of territorial jurisdiction, the Hon'ble Supreme Court held that the mills in question were situated in Mumbai and supply of cloth was to be made ex-factory at Mumbai. The mere fact that the petitioner carried on business at Calcutta or that reply to the correspondence made by it was received at Calcutta would not be an integral part of the cause of action and therefore the High Court at Calcutta had no jurisdiction to entertain the writ petition.
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WPs 2108 & 2269-23 11 Common Judgment
10. From the aforesaid decision it thus becomes clear that it is only that relevant fact which has nexus with the lis in question that would give rise to a cause of action to seek legal remedy. In the present case it can be seen that the E-Tender notice came to be published at Pune, bids were invited online from Pune and participation of bidders was permitted online. The evaluation and assessment of the technical bids was undertaken at Pune and in the Zoom meeting conducted by the respondent no.2 the bidders were communicated the result of such technical assessment. In our view since the petitioners are aggrieved by the rejection of their technical bids, assessment of which took place at Pune. The rejection of the technical bid is the material factor that gives rise by way of a cause of action to the petitioners to challenge such rejection. The fact that the communication of rejection of the technical bid was in the Zoom meeting in which the petitioners participated through their representatives from Nagpur would have no nexus or relevance with the decision of the respondent no.2 of rejecting the technical bids. The petitioners are aggrieved by the rejection of their technical bids and not by the mode of communication of such rejection so as to urge that by communicating such rejection in the Zoom meeting in which the petitioners participated from Nagpur would give rise to the part of cause of action to approach the Nagpur Bench. We therefore find that participation of the petitioners in the Zoom meeting conducted by the respondent no.2 cannot be the basis for holding that a part of cause of action arose at Nagpur.
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WPs 2108 & 2269-23 12 Common Judgment
11. Considerable reliance was placed on the provisions of the Act of 2000 to urge that since the respondent no.2 was the originator of the tender documents in view of Section 2(1)(za) of the Act of 2000 and the petitioners were the addressees located at Nagpur as per Section 2(1)(b) of the Act of 2000, said aspect was relevant in determining the place where part of cause of action arose. It is to be noted that with the advent of technology and with a view to make it convenient for bidders to participate in the bidding process, the tender documents have been made available online. The facility of purchase of tender documents, payment of requisite charges and uploading of the tender documents online are with a view to facilitate hassle free participation in the bidding process. The communication of the results of technical evaluation is also done through the online mode. In our view participation in the tender process through the online mode is aimed more at making the tender process transparent and convenient for the bidders rather than to treat such participation through the online mode as a basis for conferring a cause of action for challenging the evaluation of the bids by the Principal. Participation of the bidders in the present case through the online mode would not constitute an integral part of the cause of action since it is not the grievance of the petitioners that they were either precluded from whole heartedly participating in the tender process online or that it was not possible for them to submit their bid document online. The grievance is the conclusion of the Principal that their technical bids were non-responsive. Since such decision was taken at Pune and the petitioners were merely communicated such rejection through the Zoom meeting which their representatives attended from Nagpur, the same ::: Uploaded on - 04/05/2023 ::: Downloaded on - 05/05/2023 12:41:45 ::: WPs 2108 & 2269-23 13 Common Judgment would not give rise to any part of cause of action since such communication through the Zoom meeting is not an integral part of the cause of action. To reiterate, the petitioners are not aggrieved by the mode of communication of their technical bids but are aggrieved by the rejection of the same. We therefore find that the provisions of the Act of 2000 enabling online participation in the tender process would not give rise to any part of cause of action in the present facts when the decision of the Principal is under challenge.
12. Another relevant aspect that is required to be borne in mind is that the E-Tender process is at the bidding stage and the technical bids of the petitioners have been found to be non-responsive. At the bidding stage, what would be relevant is the evaluation of all bids by the Principal which could result in conferring a cause of action to an aggrieved bidder to challenge such rejection. It cannot be lost sight of that it is likely that bidders would participate from various parts of the country given the fact that the tender process is conducted online. In such a situation where the Principal has assessed the bids as received and has found a bid to be non-responsive, challenge to such decision merely on the basis of online participation from a distant part of the country by itself cannot be said to confer jurisdiction at the place from which such participation has taken place. It would be a different matter if a prospective bidder is aggrieved by the mode of participation as a result of which he is prevented from participating in the tender process. In the given facts where a challenge is raised to the actual decision of the Principal, the decision alone would give rise of a cause of action at the place where the Principal has ::: Uploaded on - 04/05/2023 ::: Downloaded on - 05/05/2023 12:41:45 ::: WPs 2108 & 2269-23 14 Common Judgment evaluated the bid and not on the basis of communication of such decision through online mode at a distant place. All relevant records leading to such decision would be available at the Office of the Principal. For this reason we find that the fact that the part of the work was to be carried out at Nagpur and Amravati would not be of much relevance at this pre-contractual stage when the work order is yet to be issued. We therefore find that no part of cause of action has arisen within the territorial limits of the Nagpur Bench.
13. For aforesaid reasons, we decline to entertain the writ petitions on merits since it has been found that no part of cause of action has arisen within the territorial jurisdiction of the Nagpur Bench of this Court. With liberty to the petitioners to invoke appropriate jurisdiction for pursuing the prayers made in the writ petitions, the same are disposed of as not entertained. The points raised in the writ petitions are kept open. We are informed that with regard to the same tender process, the co-ordinate Bench at the Principal Seat in Writ Petition No. 5420 of 2023 [National Management Training Institute Versus The State of Maharashtra & Others ] decided on 25.04.2023 has found only one bidder has been found eligible. The Principal has been directed to consider this aspect. The observations in paragraph 9 of the said order dated 25.04.2023 would take care of the petitioners' apprehensions till they invoke appropriate remedy. Rule accordingly. There shall be no order as to costs.
(M.W. CHANDWANI, J.) (A.S. CHANDURKAR, J.)
APTE
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