Bombay High Court
Omkar Construction And Anr vs State Of Maharashtra Thr Public Work ... on 28 July, 2025
2025:BHC-AS:32096-DB
Ajit Pathrikar WP-10415-2025.docx
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 10415 OF 2025
M/s Onkar Construction,
Through Proprietor
Shri. Sachin Mahadev Koli & Ors. ....Petitioners
: Versus :
State of Maharashtra & Ors. ....Respondents
Mr. Sandeep Koregave, for Petitioners.
Mr. Neha S. Bhide, Government Pleader with Smt. Apurva Thipsay, 'B'
Panel Counsel for State, Respondent Nos. 1 to 5.
CORAM : ALOK ARADHE, CJ. &
SANDEEP V. MARNE, J.
DATED : 28 July 2025
ORDER:(Per Sandeep V. Marne, J.)
1) By this petition, Petitioners challenge E-Tender Notice dated 2 July 2025 issued by Respondent No. 3 for execution of work of improvement and widening of road. They also challenge the modified terms and conditions relating to Item Nos. 9 and 10 issued in pursuance of the pre-bid meeting held on 10 July 2025 to the extent of prescription of the specification of "Batch Mix Type Hot Mix Plant With Scada- (Owned)" instead of "Drum Type Hot Mix Plant-owned".
Page No.1 of 7 28 July 2025 ::: Uploaded on - 30/07/2025 ::: Downloaded on - 02/08/2025 09:27:52 ::: Ajit Pathrikar WP-10415-2025.docx 2) Brief facts leading to the filing of the petition are as under :-
Petitioners are contractors having licenses for construction inter alia of roads. E-tender notice was published on 2 July 2025 by Respondent No. 2, inviting bids for execution of work "Improvements with Widening of Road Top Sambhapur Tasgaon Sawarde Narande Kumbhoj Danoli Jaysingpur Railway Station to MDR 3 Connective Road SH 199 Km. 19/600 to 28/000 Tal. Hatkangale Dist. Kolhapur" (Work). Petitioners claim that they were eligible to apply for Work No. 2, Type B-1. Petitioners submit that the specification for Item Nos. 9 and 10, indicated in Schedule-B of the tender notice permitted the use of 'Drum Type Hot Mix Plant with Supervisory Control and Data Acquisition (SCADA)'. That after pre-bid meeting, Respondents changed the specifications for Item Nos. 9 and 10 by specifying use of 'Batch Mix Type Hot Mix Plant with SCADA'. It is the case of the Petitioners that specifications of 'Batch Mix Type Hot Mix Plant with SCADA' is contrary to the requirement prescribed in the Government Resolutions. That the value of Item Nos. 9 and 10 is less than Rs. 4 Crores and that therefore the specification of 'Drum Type Hot Mix Plant' ought to have been retained in the tender as per GR dated 7 August 2014. Petitioners have accordingly challenged the impugned tender notice on account of change in specification relating to Item Nos. 9 and 10.
3) Mr. Koregave, the learned counsel appearing for Petitioners would submit that the tendering authority has erroneously altered the eligibility criteria after the currency of the tender process. That the modified clause providing for deviation as per pre-bid meeting held on 10 July 2025 is contrary to the GR dated 7 August 2014. That as per the said GR, the work is required to be executed by use of Drum Type Hot Mix Plant and not by use of Batch Type Hot Mix Plant with SCADA. That for the applicability of GR dated 7 August 2014, entire value of the tender is irrelevant and what needs to be taken into consideration is Page No.2 of 7 28 July 2025 ::: Uploaded on - 30/07/2025 ::: Downloaded on - 02/08/2025 09:27:52 ::: Ajit Pathrikar WP-10415-2025.docx only the value of the concerned items. That the estimated tender cost of Item No. 9 is Rs. 2.12 Crores, whereas the estimated cost of Item No. 10 is Rs. 1.05 Crores. That the aggregate value of Item Nos. 9, 10 and 16 is Rs. 3.60 Crores. That since the aggregate value of three item is less than Rs. 4 Crores, specification of Drum Type Hot Mix Plant was correctly incorporated in the original tender notice, which has been erroneously modified by the tendering authority on the basis of pre-bid meeting held on 10 July 2025. He would accordingly pray for setting aside the entire tender process.
4) The petition is opposed by Ms. Bhide, the learned Government Pleader along with Ms. Thipsay, learned 'B' Panel Counsel appearing for Respondent-State. They would submit that the tender specifications have rightly been modified in accordance with the Government Resolution dated 7 August 2014, which prescribe use of Batch Type Hot Mix Plant with SCADA. That the total tender value is Rs.7.86 Crores. That tender estimate of individual works cannot be taken into consideration for applicability of the criteria prescribed in the GR dated 7 August 2014. It is therefore submitted that the deviation in the tender condition is in strict conformity with Government Resolutions dated 26 May 2014 and 7 August 2014. They would pray for dismissal of the petition.
5) We have considered the submissions canvassed on behalf of the rival parties and have perused the documents annexed with the petition.
6) Petitioners are seeking to espouse their grievance about change of specifications in the original tender in respect of Item Nos. 9 and 10 by way of "Common Set of Deviation" published in pursuance of pre-bid meeting held on 10 July 2025. It would be apposite to Page No.3 of 7 28 July 2025 ::: Uploaded on - 30/07/2025 ::: Downloaded on - 02/08/2025 09:27:52 ::: Ajit Pathrikar WP-10415-2025.docx reproduce the original and modified clauses relating to Item Nos. 9 and 10, which read thus :-
Sr. Existing Para / Clause Modified Para / Clause 1 2 3 1 Page No. 183 and 197 Page No. 183 and 197 Schedule B and C Schedule B and Item No. 9 :- Proving and laying bituminous Should be read as - macadam using crushed aggregates of Item No. 9 :- Proving and laying grading-I premixed with bituminous binder bituminous macadam using crushed @ 72.60 kilogramme per 100 Cubic meter, aggregates of grading-I premixed with transported at site with vehicle tracking bituminous binder @ 72.60 Kilogramme system, laid over a previously prepared per 100 Cubic meter, transported at site surface, finished to the required grade, with vehicle tracking system, laid over a level, alignment and rolling to achieve the previously prepared surface, finished to desired density for 80 / 100 millimeter the required grade, level, alignment and compacted thickness - Using drum mix rolling to achieve the desired density for type hot mix plant with Supervisory 80 / 100 millimeter compacted thickness - Control and Data Acquisition having Using Batch type hot mix plant with complying essential features of Hot mix Supervisory Control and Data plant as per Indian Road Congress-27-2009 Acquisition having complying essential specified conditions and attachments such features of Hot mix plant as per Indian as electronic load sensor based belt Road Congress-27-2009 specified conveyers, automatic synchronization of conditions and attachments such as bitumen and aggregate feeder, built in dust electronic load sensor based belt controller system and Programmable Logic conveyers, automatic synchronization of Controller for Drum Mix plant, Sensor paver bitumen and aggregate feeder, built in and Vibratory roller, excluding prime/Tack dust controller system and Programmable coat, excetra complete - Bitumen specified Logic Controller for Batch Type hot Mix grade 3.30 percent. (Using VG-30 bulk plant, Sensor paver and Vibratory roller, bitumen) excluding prime/Tack coat, excetra complete - Bitumen specified grade 3.30 percent. (Using VG-30 bulk bitumen) 2 Page No. 184 and 197 Page No. 184 and 197 Schedule B and C Schedule B and C -
Item No. 10 :- Providing and Laying open Should be read as graded premix surfacing of 20 millimeter Item No. 10 :- Providing and Laying open thickness composed of 13.2 millimeter to 5.6 graded premix surfacing of 20 millimeter millimeter aggregates premixed with thickness composed of 13.2 millimeter to bituminous binder @ the rate of 134 5.6 millimeter aggregate premixed with kilogramme per 10 Square meter, bituminous binder @ the rate of 134 transported to site with vehicle tracking kilogramme per 10 Square meter, system, laid over a previously prepared transported to site with vehicle tracking surface, finished to the required grade, level, system, laid over a previously prepared alignment, and rolling to achieve the desired surface, finished to the required grade, compaclion, excluding prime / tack coat and level, alignment, and rolling to achieve the seal coat. For Bitumen VG-30 bulk (Grade desired compaction, excluding prime / 60/70) - Using batch type or drum mix tack coat and seal coat. For Bitumen VG-30 type hot mix plant with Supervisory bulk (Grade 60/70) - Using Batch type Control and Data Acquisition, Paver and hot mix plant with Supervisory Control vibratory roller. (Over modified penetration and Data Acquisition, Paver and macadam surface), including waste plastic vibratory roller. (Over modified to be used in bituminous treatment as per penetration macadam surface), including Indian Road Congress Special Publication waste plastic to be used in bituminous 98-2013 at the rate of 8 percent by weight of treatment as per Indian Road Congress Page No.4 of 7 28 July 2025 ::: Uploaded on - 30/07/2025 ::: Downloaded on - 02/08/2025 09:27:52 ::: Ajit Pathrikar WP-10415-2025.docx bitumen. Special Publication 98-2013 at the rate of 8 percent by weight of bitumen.
7) Thus, the original tender condition specified the use of 'Drum Mix Type Hot Mix Plant with SCADA' for execution of works in Item Nos. 9 and 10. Under the modified condition, the use of 'Batch Type Hot Mix Plant with SCADA' is now prescribed. Petitioners apparently become non-eligible on account of specification of 'Batch Type Hot Mix Plant with SCADA'.
8) By Government Resolution dated 26 May 2014, instructions were issued for execution of works of asphalting of roads. Under Government Resolution dated 26 May 2014, it is made mandatory to install Batch Type Mix Plant with SCADA in respect of every tender work exceeding Rs. 75 Lakhs. In respect of works with a tender estimate of less than Rs. 75 Lakhs, the use of Drum Mix Plant with SCADA was permitted. By subsequent Government Resolution dated 7 August 2014, the instructions issued vide Government Resolution dated 26 May 2014 were modified. It is provided under Government Resolution dated 7 August 2014 that if the tender estimate of a work was in excess of Rs. 50 Lakhs but less than Rs. 4 Crores, use of Drum Mix Plant with SCADA is mandatory. The works which have tender estimate of less than of Rs. 50 Lakhs, the use of only Drum Mix Plant (without SCADA) was permissible.
9) According to the Petitioner, the total tender value of the works at Item Nos. 9, 10 and 16 is Rs. 3.60 Crores. It is contended that since the tender value is less than Rs. 4 Crores, the use of Drum Type Mix Plant is permissible under the GR dated 7 August 2014. This is how the modified tender condition providing for use of Batch Type Hot Mix Plant with SCADA is challenged by the Petitioners.
Page No.5 of 7 28 July 2025 ::: Uploaded on - 30/07/2025 ::: Downloaded on - 02/08/2025 09:27:52 ::: Ajit Pathrikar WP-10415-2025.docx 10) The tendering authority has considered the total value of
tender of Rs. 7.86 Crores. The tendering authority is of the opinion that since the total tender value exceeds Rs. 4 Crores, the use of Batch Type Hot Mix Plant with SCADA becomes mandatory under the Government Resolutions dated 26 May 2014 and 7 August 2014. We do not find any arbitrariness on the part of the tendering authority in forming such opinion. On the contrary, Petitioners' determination of value of works at Item Nos. 9, 10 and 16 for the purpose of applicability of Government Resolution dated 7 August 2014 is clearly flawed. The classification provided in the Government Resolution dated 7 August 2014 depends on the value of the tender work, and not on the value part-work of laying bituminous macadam or laying open graded premix surfacing with bituminous binder. The tendering authority has rightly issued the common set of deviation after pre-bid meeting held on 10 July 2025. The Government Resolution dated 26 May 2014 in fact indicates the objective behind the use of Batch Type Hot Mix Plant, which is maintenance of temperature of bituminous mix for better quality of work.
11) It is well settled law that the tendering authority is the best judge of its requirements, and the Court cannot sit in appeal over the decision of the tendering authority in providing particular specification for execution of the work. If the tendering authority has thought it appropriate that use of Batch Type Hot Mix Plant with SCADA is necessary for execution of better quality of work, it is beyond the scope of power of judicial review of this Court to insist that Drum Mix Type Hot Mix Plant with SCADA should also be permitted for the execution of the work. These are technical matters are beyond the expertise of the Court. Execution of better quality of work is of paramount importance and the said objective would prevail over the personal interests of bidders in securing a tender work. In that view of the matter, we are not Page No.6 of 7 28 July 2025 ::: Uploaded on - 30/07/2025 ::: Downloaded on - 02/08/2025 09:27:52 ::: Ajit Pathrikar WP-10415-2025.docx inclined to interfere in the impugned decision of the tendering authority in prescribing Batch Type Hot Mix Plant with SCADA for execution of the tender work.
12) Petitioners have thus failed to make out a case for interference in the decision of the tendering authority. Petition must fail. It is accordingly dismissed.
[SANDEEP V. MARNE, J.] [CHIEF JUSTICE]
Digitally
signed by
NEETA
NEETA SHAILESH
SHAILESH SAWANT
SAWANT Date:
2025.07.30
15:20:22
+0530
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