Tender awarded based on fake Chartered Accountant certificate is liable to be set aside

Suraj Enterprises Vs Nashik Municipal Corporation (Bombay High Court)

Bombay High Court held that award of tender of work related to daily spraying and fogging activity for control of Vector Borne Disease by Nashik Municipal Corporation on the basis of fake Chartered Accountant Certificate is liable to be set aside.

Facts- The Petitioner which is a proprietary firm, has invoked our jurisdiction under Article 226 of the Constitution of India with a prayer to issue writ of certiorari or any other appropriate writ to quash and set aside the order dated 7^th February 2023 to the extent it holds that Respondent No.2 – M/s. S and R Pest Control Services as qualified in the technical bid submitted for award of Tender No.2 pursuant to e-tender notice No.3/2022 floated by Respondent No.1 – Nashik Municipal Corporation for executing the work related to daily spraying and fogging activity for control of Vector Borne Diseases under the Urban Malaria Scheme and to supply man power, machinery and equipments in Nashik Municipal Corporation.

It is the case of the Petitioner that Respondent No.2 had submitted a certificate from a Chartered Accountant certifying that its total turn-over in last three years (2018-19, 2019-20 and 2020-21) is more than Rs.4.50 Crores on account of execution of work carried out relating to spraying and fogging, though on inquiries it was revealed that Respondent No.2 had not carried out spraying and fogging work in the relevant period worth more than Rs.4.50 Crores and that the certificate submitted for the said years by Respondent No.2 was incorrect.

Conclusion-The Addi tional Commissioner, while appending his note and accepting the technical bid of Respondent No.2 has not acted with requisite fairness. The justification sought to be given in Affidavit-in-Reply by Respondent No.2 for declaring Respondent No.2 to have technically qualified, cannot be taken aid of to protect such a decision taken by the Additional Commissioner of the Corporation as such reasons or justification are missing in his note appended to the minutes of the meeting of the Tender Committee. We have already observed that three members of the Tender Committee have clearly opined on the basis of the documents submitted by Respondent No.2, including the work orders for work of spraying and fogging submitted by Respondent No.2 amounting to total Rs.60,03,384/- only that it did not fulfill the tender condition No.6. Though the Chartered Accountant of the Corporation has given opinion that the total turn-over of Respondent No.2 is Rs.5.64 Crores, however, three members of the Committee had scrutinized the said opinion as well and have concluded that the work orders submitted by Respondent No.2 evidenced total works amounting to Rs.60,03,384/- only. The conclusion, thus, drawn by three members of the Committee is based on the documents and evidence available on record. The Additional Commissioner has based his conclusion only on the Chartered Accountant Certificate submitted by Respondent No.2 and has not made any mention even of the opinion submitted by the Chartered Accountant of the Corporation viz. Shri Yogesh Kataria.

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