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2021 DIGILAW 707 (MP)

Ghanshyam Seva Samiti v. State of M. P.

2021-10-28

RAVI MALIMATH, VIJAY KUMAR SHUKLA

body2021
JUDGMENT : Vijay Kumar Shukla, J. [Hearing convened through virtual/physical modes] The present intra-court appeal has been filed under Section 2(1) of the Madhya Pradesh Uchcha Nyayalaya (Khand Nyaypeeth to Appeal) Adhiniyam, 2005, being aggrieved by the order passed by the learned Single Judge in W.P. No.26431 of 2019, dated 28-7-2021, whereby the writ petition preferred by the appellant has been dismissed. 2. The appellant filed the writ petition seeking quashment of Clause 3.1.1(4) of the Circular dated 9-10-2019 contained in Annexure-P/7 and to direct the respondent No.3, Chief Executive Officer, Jila Panchayat, Jabalpur to undertake selection process in furtherance of Expression of Interest, dated 4-11-2019. 3. The facts of the case adumbrated in a nutshell, are that Office of Jila Panchayat, Jabalplur published an Expression of Interest dated 4-11-2019 for supply of nutritious mid-day meal through centralized kitchen to schools situated in Jila Panchayat, Jabalpur. Bid was to be made in the Office of the Chief Executive Officer, Jila Panchayat, Jabalpur before 12:00 a.m. on 9-11-2019. As per Expression of Interest marks are to be allotted to eligible bidders and bidder getting highest marks shall be declared successful. 10 marks are to be allotted to such firms and societies which were registered under the M.P. Firm and Societies Act. If all members (100%) are domicile in State of M.P. then 10 marks are to be allotted and if 50% of members are domicile in State of M.P., then 5 marks are to be allotted. If 100% members of Society and Firms are domicile in India then 10% marks are to be allotted and if 50% of members are domicile in M.P. then 5% marks are to be allotted. 4. A challenge is made by the appellant to Clause 3.1.1(4) of Expression of Interest on the ground that the same is arbitrary and violative of Articles 14, 19, 21 and 301 of the Constitution of India. By awarding marks as aforesaid, meritorious and eligible applicants like the appellant herein, have been excluded. It is put forth that the impugned order directly stares in the face of principle of "Level Playing Field" in the realm of government contract. The appellant has filed a detailed representation on 02-112019, but the same has not been decided. The aforesaid system of allotment of marks is devised to give some advantage to particular individual Society/Firm. It is put forth that the impugned order directly stares in the face of principle of "Level Playing Field" in the realm of government contract. The appellant has filed a detailed representation on 02-112019, but the same has not been decided. The aforesaid system of allotment of marks is devised to give some advantage to particular individual Society/Firm. There is freedom of trade, commerce and intercourse as per Article 301 of the Constitution of India and only such restrictions can be imposed which are in public interest. 5. It is asseverated by the learned counsel for the appellant that the instructions imposed in this case are not in public interest and are violative of Article 301 of the Constitution of India. There is no rational nexus of giving benefit of domicile to Society/Firm. The condition imposed by such clause has no rational nexus with the object sought to be achieved and would frustrate the very purpose of the tender. It is strenuously urged that exclusion of clause regarding experience has no rational basis and same amounts to arbitrary exercise of power on the part of the respondents/authority and the conditions are tailored to suit a particular candidate. 6. The learned counsel for the appellant placed reliance on the judgments of the Apex Court rendered in the cases of Nagar Nigam Meerut vs. Al Faheem Meat Exports (P) Ltd. and others, (2006) 13 SCC 382; Kailash Chand Sharma vs. State of Rajasthan and others, (2002) 6 SCC 562 ; and Meerut Development Authority vs. Association of Management Studies and another, (2009) 6 SCC 171 . 7. On the bedrock of the above referred judgments, the learned counsel for the appellants submitted that inclusion of domicile condition of firm and society and grant of marks on the basis of the same amounts to discrimination and the same is violative of Articles 16, 19, 21 and 301 of the Constitution of India and prays for striking out the said Clause and grant tender excluding the said condition to a successful bidder. 8. Confronting the submissions advanced on behalf of the appellant the learned counsel for the State submitted that the appellant is a Society registered in Delhi and it is not registered under the provisions of the M.P. Society Registration Act, 1973. Its members are not domicile of Madhya Pradesh, therefore, the appellant/Society was not awarded the marks as per Clause 3.1.1(4). Confronting the submissions advanced on behalf of the appellant the learned counsel for the State submitted that the appellant is a Society registered in Delhi and it is not registered under the provisions of the M.P. Society Registration Act, 1973. Its members are not domicile of Madhya Pradesh, therefore, the appellant/Society was not awarded the marks as per Clause 3.1.1(4). A preliminary objection is raised regarding maintainability of the writ petition on the ground that the writ-petitioner/appellant has already participated in the tender process and has accepted all the conditions. The appellant was unsuccessful and, therefore, it has filed the writ petition with ulterior motive and hence, it is not maintainable. A reference is made to the Revised Guidelines, 2017 for Engagement of Civil Society Organization (CSO) and Non-Government Organization (NGO) in Mid-day Meal Scheme. As per Clause 2 of the said Revised Guidelines, operation of centralized kitchen should be done under PPP Model with local presence and familiarity with the needs and culture of the State. In view of the Revised Guidelines of 2017, the State of M.P. incorporated Clause 3.1.1(4) in policy in the Expression of Interest dated 9-10-2019. The impugned clause is in conformity with Clause 2.4 of the revised guidelines issued by the Government of India. The decision taken to award 10 marks to Society whose members are domicile in M.P. is classification, which is not arbitrary or malafide but is a reasonable classification based upon domicile status of the prospective bidder. The impugned clause included in the policy, is also applicable in other parts of the State of M.P., therefore, the decision is not arbitrary but a reasonable classification is made to cater the needs of the children of the State of M.P.. Six bidders had submitted their bids and Akanksha Sangram Vikas Samiti is declared as successful bidder for securing highest marks in assessment process. The State Government is providing opportunity of trade to local persons and policy dated 9-10-2019 is framed in a balanced manner. The main clause does not forbid Societies, which are not registered Societies in the State of M.P. from participating in tender process, therefore, there is no restriction on free trade. The State Government is providing opportunity of trade to local persons and policy dated 9-10-2019 is framed in a balanced manner. The main clause does not forbid Societies, which are not registered Societies in the State of M.P. from participating in tender process, therefore, there is no restriction on free trade. Additional marks are to be allotted and firms registered in the State of M.P. whose members are domicile in the State of M.P. In view of the aforesaid submission, the learned counsel for the State prayed for dismissal of the writ petition vis-a-vis the writ appeal. 9. The learned counsel appearing for the intervener submitted that the impugned clause in the policy is inserted to promote local societies of Madhya Pradesh, so that they become better and compete in open market. The said condition cannot be termed to be arbitrary, illegal or unconstitutional. The classification is reasonable and contrary to the constitutional mandate of free trade, profession and intercourse. The impugned clause is not violative of Articles 14, 19, 21 and 301 of the Constitution of India. It is urged that the impugned policy does not stare in the face of principle of "Level Playing Field". It is further submitted that Rules of 26.7.2016 provides to give marks to those bidders, who are working in two or more States. The said Rules virtually created monopoly in favour of such societies which are working in two or more States. Societies of M.P. which were not working outside the State of M.P. were adversely affected by the said order. To correct the anomaly, Clause 3.1.1(4) in the policy dated 9-10-2019 was rightly framed to provide equal opportunity to all the bidders and not granting marks to Societies which were working in two or more States also created "Level Playing Field" in policy dated 9-102019. The appellant had participated in the tender process knowing the rules beforehand and now when it became unsuccessful, he cannot challenge the rules and clauses of the Expression of Interest dated 9-10-2019. 10. The question for consideration before this Court is whether Clause 3.1.1(4) of the Expression of Interest dated 9-10-2019 is arbitrary and violative of Articles 14, 19, 21, 301 and 302 of the Constitution of India. 11. 10. The question for consideration before this Court is whether Clause 3.1.1(4) of the Expression of Interest dated 9-10-2019 is arbitrary and violative of Articles 14, 19, 21, 301 and 302 of the Constitution of India. 11. Clause 3.1.1(4) lays down that 10 marks are to be awarded to the Firms and Societies which are registered in the State of M.P., if all the members (100%) of Working Committee are domicile in the State of M.P. and 5 marks are to be allotted if 50% members of the Working Committee of Society and Firm registered under the State of M.P. are domicile in the State of M.P. 10 marks are to be allotted not on the basis of total members of the Society and Firm registered in the State of M.P., but on the basis of percentage of Members of Working Committee. The appellant has misdirected itself that 10 or 5 marks are to be awarded on the basis of total members of Society/ Firm registered in the State of M.P., 10 or 5 marks are to be allotted, if Society and Firms are registered in the State of M.P. and Society/ Firm is controlled and managed by Working Committee members, who are domicile in the State of M.P. No restriction has been imposed by said Clause for freedom of trade or intercourse. The appellant/Society is not forbidden from making bid for supply of mid-day meal. Clause is inserted in the Expression of Interest as per Revised Guidelines, 2017 by Govt. of India to promote local firms and societies having more members in the working committee. Such clause gives advantage and protection to indigenous societies or firms registered in the State of M.P., where 100% Working Committee Members or 50% Working Committee Members are domicile in the State of M.P. Thus additional marks or edge is given to those societies / firms whose 100% or 50% members of Working Committee are domiciled in the State of M.P. Clause 3.1.1(4) will give decision making power and economic power to such society whose members domiciled in Madhya Pradesh are in Working Committee or Management which ensures distribution of economic and decision making power to members of Society and Firm. Thus, the aforesaid clause aims at socio-economic equality and equal distribution of State largesse. 12. Thus, the aforesaid clause aims at socio-economic equality and equal distribution of State largesse. 12. Insertion of the impugned clause will give some added advantage to firms and societies registered in State of M.P. to create Level Playing Field between Societies which are registered in State of M.P. with 100 % or 50% working committee members domiciled in State and those which are not registered in State of M.P. In the field of commerce and trade, State or nation imposes taxes and duties on import from other countries or States. Such taxes and duties are only imposed to create Level Playing Field between indigenous industries and industries from outside the State or nation. Impugned clause is protective in nature and creates Level Playing Field for Societies and Firms registered in State of M.P. and better distribution of resources for public good. Such reasonable classification is permissible and not discriminatory. It does not violate fundamental rights of the appellant under Articles 14, 19(1) (6), 21, 301 and 302 of the Constitution of India. Article 19(1)(6) provides that reasonable restriction can be imposed by State for the interest of general public. Such clause also does not violate Articles 301 or 302 of the Constitution of India. 13. In view of the aforesaid by virtue of Clause 3.1.1 (4) additional 10 marks or 5 marks is to be given to such Firms and Societies which are registered in State of M.P. and if Working Committee of such body have 100% of domicile members than 10 marks and if Working Committee have 50% domicile members, then 5 marks and not on the basis of total membership of Society or Firm. Clause 3.1.1(4) is valid and is neither arbitrary nor discriminatory. 14. Thus, the learned Single Judge has rightly held that Clause 3.1.1(4) is valid and the same is neither arbitrary nor discriminatory. We do not perceive any illegality in the impugned order passed by the learned Single Judge warranting interference in the present intra-court appeal. 15. Ex-consequenti, the writ appeal, being sans substance, is dismissed. Pending interlocutory application (s), if any, also stands disposed of. No order as to costs.