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2007 Supreme(Bom) 151
Bombay High Court
P. V. Hardas, P. R. Borkar
MEGA ENTERPRISES -Appeallant
Versus
STATE OF MAHARASHTRA -RESPONDENTS
W. P. 623 Of 2007
Decided On: 02/06/2007
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The terms of the tender notice are not open to judicial scrutiny unless they are arbitrary, discriminatory, or actuated by malice.
Headnote:
TENDER NOTICE - CHALLENGE - [Bombay Provincial Municipal Corporations Act, 1949, Section 73] - The court examined the challenge to the tender notice conditions, specifically clause 3 and clause 6, which were alleged to be arbitrary, discriminatory, and mala fide. The court referred to the judgment of the Supreme Court in Directorate of Education and others vs. Educomp Datamatics Ltd and others, AIR 2004 SC 1962, emphasizing that the terms of the invitation to tender are not open to judicial scrutiny unless they are arbitrary, discriminatory, or actuated by malice. The court held that the conditions were not open for judicial review and dismissed the petitions.
Fact of the Case:
The petitions challenged the terms of a tender notice, specifically clause 3 and clause 6, as arbitrary, discriminatory, and mala fide. The petitioners argued that the conditions shut out other competitors and were tailored to favor a specific respondent.
Finding of the Court:
The court found that the conditions of the tender notice were not arbitrary, discriminatory, or actuated by malice. It held that the terms of the notice inviting tender are not open for judicial review unless they offend Article 14 of the Constitution of India.
Issues: The issues revolved around the eligibility criteria specified in the tender notice and the alleged favoritism towards a specific respondent. The petitioners also raised concerns about financial loss to the Corporation due to limited competition.
Ratio Decidendi: The court emphasized that the terms of the tender notice are not open to judicial scrutiny unless they are arbitrary, discriminatory, or actuated by malice. It held that the conditions were not open for judicial review and dismissed the petitions.
Final Decision: The court dismissed the petitions challenging the conditions of the tender notice, citing that the terms were not open for judicial review unless they offended Article 14 of the Constitution of India.
"3. Earnest Money : Unless the earnest money of Rs. 2,18,00,000/- (Rupees Two Crore Eighteen Lakhs only) through pay order or DD of nationalized Bank or Scheduled Bank in favour of Aurangabad municipal Corporation is paid, the tender form will not be issued.
"6. ELIGIBILITY : The bidder/s shall have experience of minimum one year of collection of octroi of 50 per cent of amount of the estimated offer of realization, and the bidders shall have executed the tender for one full year. The certificate to this effect should have been issued by the municipal Commissioner or the competent authority".
( 2 ) AT this juncture we may point out that a similar challenge had been raised earlier before us in Writ Petition No. 177 of 2007 and by our order dated 15-10-2007 we had dismissed the aforesaid petition in limine. We are informed by Mr. B. L. Sagar Killarikar, learned Counsel appearing on behalf of the respondent Municipal Corporation that the Special Leave Petition filed by the unsuccessful petitioner in the said petition has been dismissed by the Supreme court on 5th February, 2007.
( 3 ) THE aforesaid conditions, namely, clause 3 and clause 6 are being challenged before us on the ground that the aforesaid conditions are arbitrary, discriminatory, mala fide and insertion of these conditions is actuated by bias. We have heard Mr. P. M. Shah, learned Senior Counsel appearing in Writ petition No. 624 of 2007, Mr. R. N. Dhorde, learned Counsel appearing in Writ petition No. 607 of 2007 and Mr. Suryawanshi, learned Counsel appearing in writ Petition No. 623 of 2007. Writ Petition No. 607 of 2007 and Writ Petition no. 624 of 2007 have been filed by the unsuccessful tenderer whose tenders have not been accepted by the respondent Municipal Corporation. Writ Petition No. 623 of 2007 has been filed principally in public interest questioning the aforesaid conditions in the tender notice on the ground that by virtue of the said conditions in the tender notice, the respondent Municipal Corporation is being deprived off of the sizable amount of money.
( 4 ) THE tender of the petitioner in Writ Petition No. 607 of 2007 and 624 of 2007 was not considered by the respondents as the petitioners did not fulfil the eligibility criteria which is prescribed by virtue of the said conditions. By virtue of the said conditions, it is prescribed that a bidder should have experience of one year of collection of octroi of 50 per cent amount of the estimated offer of realization and the bidders ought to have executed the tender for one full year. It was also the requirement of clause 6 that a certificate to this effect should have been issued by the Municipal Commissioner or the competent authority. Obviously, according to the petitioners in the said two writ petitions, they have not executed a contract in respect of 50 per cent of the amount of the estimated offer of realization prior to the issuance of the present tender notice. A similar notice inviting tender had been issued some time in December, 2006 and the present two petitioners had submitted their tenders. For reasons which are not germane for the decision of this petition the aforesaid tender notice came to be recalled and a fresh tender notice has been issued. In response to the earlier tender notice, the petitioners, though realizing that they were not eligible, had also submitted their bids. In the present case also the petitioners though realizing that they were not eligible had submitted their bids.
( 5 ) M
