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2018 Supreme(Bom) 1333
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Naresh H. Patil, G.S.Kulkarni, JJ.
M.E. Infra-projects Pvt. Ltd. and Ors. – Petitioners
Versus
Municipal Corporation of Greater Mumbai and Ors. – Respondents
Writ Petition (L) No.2544 of 2018
Decided On : 03-09-2018
For the Petitioner:Mr. P.K. Dhakephalkar, Senior Advocate with Mr. Vishwajeet P.Sawant, Mr. Kirit J. Hakani, Mr. Rahus Hakani, Ms.Niyati Hakani I/b. Kirit J. Hakani
For the Respondent:Dr. Milind Sathe, Senior Advocate with Mr. Simil Purohit, Ms. Debashree, Mandpe I/b. Ganesh And Co., Mr. J. Reis, Senior Advocate with Mr. Rajiv Chavan, Senior Advocate with Ms. Priyanka Chavan, Ms. Anupama Pawar, Ms. Neelam Kaintura, Ms. Vandana Mahadik, for MCGM
Headnote:
Constitution of India, 1950 - Article 226 - Municipal Corporation - Past performance of bidder - Petition Article Constitution petitioner have formed joint venture namely are bidders in an Extender issued by respondent Municipal Corporation for Greater Mumbai short Municipal Corporation for Hire of vehicles for Collection and Transportation of Municipal Solid Waste including Materials Removed from Slums in wards for period of seven years - Respondent also in joint venture have participated in tender and have submitted their bid - This tender is invited for fourth time since last one year - Earlier three invitations were cancelled by municipal corporation due to low response – Held, Constitutional courts must defer to this understanding and appreciation of tender documents unless there is fide or perversity in understanding or appreciation or in application of terms tender conditions - It is possible that owner or employer of project may give an interpretation to tender documents that is not acceptable to constitutional courts but that by itself is not reason for interfering with interpretation given - Court may profitably refer recent decision of Supreme Court in Municipal Corporation Versus BVG India which was case dealing with award of contract to carry out work of municipal solid waste door to door collection and transportation ‘which was work similar to work in present case - As statement of law court has observed that government is guardian of finances of State and is expected to protect financial interest of State - Right to refuse lowest any other tender is always available to government subject to fulfillment principles enshrined article Constitution - It was held that Court does not sit in appeal but merely reviews manner in which decision was made - If review of administrative decision is permitted it will be substituting its own decision without necessary expertise which itself would be fallible - Adverting to above principles of law court are certain that decision municipal corporation in evaluating tender of respondent in context of tender condition providing for disclosure litigation history cannot be said to be in any manner arbitrary and against public interest and/or volatile of petitioners rights Article Constitution - If respondent are qualifying on all other technical and commercial conditions it cannot be expected that on plea as urged on behalf of petitioners bid of respondent should be held to be non responsive or disqualified – Order accordingly
G. S. Kulkarni, J.
1. In this petition under Article 226 of the Constitution, the petitioner nos. 1 and 2 who have formed a joint venture namely M/s M.E.KK (JV), are bidders in an Etender issued by the respondent no.1Municipal Corporation for Greater Mumbai (for short “Municipal Corporation”) for the “Hire of vehicles for Collection and Transportation of Municipal Solid Waste (MSW) including Materials Removed from the Slums in wards for the period of seven years.”. Respondent nos.8, 9 and 10 also in a joint venture, have participated in the said tender and have submitted their bid. This tender is invited for the fourth time since last one year. The earlier three invitations were cancelled by the municipal corporation, due to low response.
2. For an earlier period, the municipal corporation had awarded the tender work to the Petitioner No.1 alongwith another firm, for the period 2012-2017. The contract having expired in August 2017, the petitioner no.1 as on date continues to undertake the contract work on adhoc basis at rates stated to be thirty percent higher than the bids received under the present tender.
3. The grievance of the petitioners is in regard to the decision of the municipal Corporation as taken in the tender process, whereby, according to the petitioners the municipal corporation has not strictly adhered to the following tender condition appearing in the tender document at section 2-namely the section prescribing “Eligibility Criteria”:
“Even though the bidders meet the above qualifying criteria, they are subject to be disqualified if they:
Have made misleading or false representation in the forms, statements and attachments submitted in proof of the qualification requirements, and/or
Have record for poor performance such as abandoning the works, not properly completing the contract, inordinate delays in completion, or financial failures etc.
Did not disclose litigation history during last five years”
(Emphasis supplied) .
4. The contention of the petitioners is that, respondent nos. 8 to 10 have not made a full disclosure of the ‘litigation history’ during the last five years as required by the above tender condition and thus respondent nos.8 to 10 are disqualified from participating in the tender and/or for award of the contract. To support this contention, in paragraph 4.4 of the petition, the petitioners have given the following details of the five proceedings/litigation concerning respondent nos. 8 to 10, which is stated to be not disclosed :
(a) Appeal from order No.573 of 2017 and the Civil Application no.725 of 2017 taken out therein, filed in the Hon’ble Bombay High Court against the said M/s Dev Engineers.
(b) WP/2167/2015 field by Mr.Chirag Ramesh Shah against M/s Dev Engineers & Ors in the Hon’ble Bombay High Court.
(c) WPL/397/2018 filed by M/s Konark Structural Engineers Pvt. Ltd against M/s Dev Engineers in the Hon’ble Bombay High Court.
(d) Income Tax Appeal NO.1021/Mum/2015 filed by Mr.Pratap Uttam Purohit (Proprietor of M/s Dev Engineers) in the Income Tax Appellate Tribunal.
(e) SS Cases W/6800147/2015 filed against Mr.Pratap Uttam Purohit (Proprietor of M/s Dev Engineers) (one of the accused in a complaint filed by Mr.Yadunath Bahadur Prajapati.”
5. The petitioners in the above circumstances have prayed for the following principal reliefs :
(a) This Hon'ble Court may be pleased to issue a Writ of Mandamus or a Writ in the nature of Mandamus or any other appropriate Writ, Order or Direction under Article 226 of the Constitution of India directing the Respondent Nos.1 to 7 to strictly enforce and implement the eligibility criteria originally set out in Section 2, particularly, the disqualification mentioned therein at clause 1.4 of the said tender (Exhibit 'A' hereto) as regard disclosure of litigation history of the bidders, particularly, the JV firm comprising of the Respondent Nos.8, 9 and 10 with further direction to cancel and/or set aside amendment and/or variation if made in the said mandatory
