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 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 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 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 Schedule B and C Item No. 9 :- Proving and laying bituminous macadam using crushed aggregates of grading-I premixed with bituminous binder @ 72.60 kilogramme per 100 Cubic meter, transported at site with vehicle tracking system, laid over a previously prepared surface, finished to the required grade, level, alignment and rolling to achieve the desired density for 80 / 100 millimeter compacted thickness – Using drum mix type hot mix plant with Supervisory Control and Data Acquisition having complying essential features of Hot mix plant as per Indian Road Congress-27-2009 specified conditions and attachments such as electronic load sensor based belt conveyers, automatic synchronization of bitumen and aggregate feeder, built in dust controller system and Programmable Logic Controller for Drum Mix plant, Sensor paver and Vibratory roller, excluding prime/Tack coat, excetra complete – Bitumen specified grade 3.30 percent. (Using VG-30 bulk bitumen) Page No. 183 and 197 Schedule B and C Should be read as - Item No. 9 :- Proving and laying bituminous macadam using crushed aggregates of grading-I premixed with bituminous binder @ 72.60 Kilogramme per 100 Cubic meter, transported at site with vehicle tracking system, laid over a previously prepared surface, finished to the required grade, level, alignment and rolling to achieve the desired density for 80 / 100 millimeter compacted thickness – Using Batch type hot mix plant with Supervisory Control and Data Acquisition having complying essential features of Hot mix plant as per Indian Road Congress-27-2009 specified conditions and attachments such as electronic load sensor based belt conveyers, automatic synchronization of bitumen and aggregate feeder, built in dust controller system and Programmable Logic Controller for Batch Type hot Mix plant, Sensor paver and Vibratory roller, excluding prime/Tack coat, excetra complete – Bitumen specified grade 3.30 percent. (Using VG-30 bulk bitumen) 2 Page No. 184 and 197 Schedule B and C Item No. 10 :- Providing and Laying open graded premix surfacing of 20 millimeter thickness composed of 13.2 millimeter to 5.6 millimeter aggregates premixed with bituminous binder @ the rate of 134 kilogramme per 10 Square meter, transported to site with vehicle tracking system, laid over a previously prepared surface, finished to the required grade, level, alignment, and rolling to achieve the desired compaclion, excluding prime / tack coat and seal coat. For Bitumen VG-30 bulk (Grade 60/70) – Using batch type or drum mix type hot mix plant with Supervisory Control and Data Acquisition, Paver and vibratory roller. (Over modified penetration macadam surface), including waste plastic to be used in bituminous treatment as per Indian Road Congress Special Publication 98-2013 at the rate of 8 percent by weight of Page No. 184 and 197 Schedule B and C - Should be read as Item No. 10 :- Providing and Laying open graded premix surfacing of 20 millimeter thickness composed of 13.2 millimeter to 5.6 millimeter aggregate premixed with bituminous binder @ the rate of 134 kilogramme per 10 Square meter, transported to site with vehicle tracking system, laid over a previously prepared surface, finished to the required grade, level, alignment, and rolling to achieve the desired compaction, excluding prime / tack coat and seal coat. For Bitumen VG-30 bulk (Grade 60/70) – Using Batch type hot mix plant with Supervisory Control and Data Acquisition, Paver and vibratory roller. (Over modified penetration macadam surface), including waste plastic to be used in bituminous treatment as per Indian Road Congress Page No. 4 of 7 28 July 2025 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 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 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] Page No. 7 of 7 28 July 2025 NEETA SHAILESH SAWANT Digitally signed by NEETA SHAILESH SAWANT Date: 2025.07.30 15:20:22 +0530