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2010 Supreme(Bom) 93
High Court of Judicature at Bombay
THE HONOURABLE MR. JUSTICE B.H. MARLAPALLE & THE HONOURABLE MR. JUSTICE R.Y. GANOO
M/s.Makhija Developers Pvt.Ltd.
Versus
City and Industrial Development Corporation of Maharashtra Ltd. (CIDCO) & Others
Civil Writ Petition Nos. 539 Of 2005 With 1944 Of 2009
Decided on : 20-01-2010
For the Petitioner:Srihari Aney, Senior Advocate with Sachin Shetye i/b. Avinash Fatangare Advocates. For the Respondents:A.A.Kumbhakoni, Senior Advocate with A.M. Kulkarni i/b. G.S. Hegde for R1,– CIDCO. S.D.Rayrikar, AGP for R2, Pritesh Rajgar i/b. PDS & Associates for R3, Vijay Thorat, Senior Advocate with Vaibhav Mehta & Deepti Mistry i/b. Divyakant Mehta & Associates for R4., Advocates.
Headnote:New Bombay Disposal of Land Regulations, 1975 - Regulations 5 and 6 - Tender for golf course - Contract for development of golf course to respondent - Petitioner request for reconsideration or give contract to anybody else - At initial stage respondent was disqualified as he could not qualify to submit tenders - Decision to award tender to respondent quashed - Review petition filed - Proposed signature golf course of an international golf course - Prayed to consider his application - Court considered technical evaluation and decided in favour of respondent as he was qualified for bidding - Decision challenged - Petitioner was in race even when board of directors passed resolution and referred to Government of Maharashtra for decision - Committee was not even required to open offer - Petitioner was unsuccessful bidder - Over period of six years land Courtsmultiplied in Mumbai - Letter of allotment quashed - Court directed CIDCO to invite fresh tenders. - The development work of the Golf Course has not yet been commenced and the investments allegedly made by the respondent No. 4 beyond the lease amount are by way of engaging agencies and other expenditures. The impugned letter of allotment as well as the subsequent lease deed in favour of respondent No. 4 is on the basis of the tender received in November.
It cannot be accepted that despite the lapse of six years the reserved bid of Rs. 33,00,33,000/- would be a justifiable lease amount for a public property and, in fact, it was a grossly undervalued reserved bid. Over a period of six years the land costs in and around Mumbai have multiplied. Despite this reality, CIDCO proceeded to award the tender to respondent No. 4 for a lease amount of Rs. 33,00,33,000/-. We have noted with serious concern the actions of CIDCO either in allowing the respondent No. 4 to file additional documents after the tenders are opened on 3.12.2002, inviting the order of consent dated 18.8.2004 from this Court and allowing Writ Petition No. 908 to be withdrawn without notice to the other side and without disclosing to this Court that the said petition was clubbed and was directed and was directed to be hears with this petition.
It is possible that the reserved bid, as of now, may not work out to even less than Rs. 100 crores for the suit land, however, it is for CIDCO management to estimate the same on the basis of the present market value i.e. in the first quarter of the year 2010. It would be necessary for CIDCO to fix reserved bid afresh while inviting fresh tenders and in case fresh tenders are invited, the parties before us i.e. the petitioner and respondent Nos. 3 and 4 cannot be prevented from participating in the same. Undoubtedly, such fresh bids are required to be circulated at the national level so that there is a scope for much wider response and CIDCO gets a competitive lease amount while maintaining the development of the golf course strictly as per the experts’ guide-lines. It would also be necessary for CIDCO to constitute an Evaluation Committee which would consist of experts in the field i.e. golf players and golf course developers.
The petitioner as well as respondent Nos. 3 and 4 are at liberty to respond to the proposed bids and in case the respondent No. 4 succeeds in the fresh bids, the amount deposited with CIDCO till now i.e. Rs. 33,00,33,000/- by the said respondent shall be adjusted. However, if the respondent No. 4 does not succeed in the fresh bids, the amount shall be refunded to respondent No. 4 with simple interest at the rate of 8% per annum. The fresh process of tendering and awarding the tender shall be completed as expeditiously as possible.
B.H.MARLAPALLE,J.
1. This petition filed under Article 226 of the Constitution impugns the decision of the Respondent no.1 – Corporation, of allotment of land admeasuring 35.55 Hectares in A to E Pockets of Nerul, Navi Mumbai for the development of 18 Holes International Standard Golf Course and Country Club and further prays either to reconsider the proposal submitted by the petitioner or to invite fresh bids from the petitioner as well as the respondent nos.3 and 4 and award contract on the assessment of these fresh bids by quashing and setting aside the lease agreement dated 22/8/2009 signed between the respondent no.1 and respondent no.4.
2. The petitioner is a Private Limited Company and represented through its Director. Whereas the respondent no.1 is a fully owned undertaking of the Government of Maharashtra and has been incorporated under the Companies Act, 1956. It is also the New Town Development Authority for Navi Mumbai so designated by the State Government under the Maharashtra Regional and Town Planning Act, 1966. It is a Government Company within the meaning of Section 617 of the Companies Act, 1956 and by virtue of Section 291 of the said Act the power of disposal of property put in possession of the said Corporation is exercisable by its Board of Directors. Respondent no.1 has with the previous sanction of the State Government framed the New Bombay Disposal of Land Regulations, 1975.
3. It appears the respondent no.1 proposed to develop an international standard golf course on its own and invited expression of interest on three different occasions since the year 1997 but nothing further materialised. In August 2001 it invited fresh bids for development of golf course and country club by leasing out about 35.55 Hectares of land in Pockets A to E in Nerul, from private parties and in response thereto 18 parties submitted their proposals. However, nothing further materialised and the Corporation was not clear in its own thinking as to how an international standard golf course could be developed. The expressions of interest so received were cancelled and the Corporation appointed M/s. Mahajan and Aibara as Consultants to submit a feasibility report for setting up the golf course of international standard. On consideration of this report the Board of Directors in its meeting held on 12/6/2002 decided to invite bids to develop the golf course and country club and accordingly Request For Proposal (RFP) in the month of October / November 2002 were invited. In response thereto three parties viz. the petitioner, respondent no.3 and respondent no.4 submitted their bids within the stipulated time and in two envelopes system i.e. (a) technical bid and (b) financial bid. The land in different pockets and to be leased out, admeasured as under
Pocket A 12 H.
Pocket B 20 H.
Pocket C 0.85 H.
Pocket D 1.20 H.
Pocket E 1.50 H.
The Technical Evaluation Committee consisting of the (i) Chairman, (ii) Vice Chairman and Managing Director of the Respondent – Corporation, (iii) Chief Executive Officer of MIDC and (iv) Director of Sports, Government of Maharashtra evaluated the technical bids as well as the financial bids and gave the following weightage
Technical Bids :
TABLE
Financial Bids
TABLE
It appears that the respondent no.4 did not furnish a Bank Guarantee for Rs.20 crores and instead it suggested to accept the Bank Guaratnee for Rs.5 crores and, therefore, the Committee marked it as a non responsive bidder.
4. It is pertinent to note at this stage that as per the Tender Terms the technical proposal submitted would carry a weightage of 50 per cent and the presentation would carry a weightage of 50 per cent and the minimum qualifying score in each part was to be 60 per cent and over all minimum qualifying score in each part was to be 75 per cent. As per the Technical Evaluation Committee the combined score of all the three bidders after opening the bids on 3/12/2002 reflected as under:
TABLE
The petitioner, there
