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Gujarat High Court
Judgename :R.K.Abichandani
DEGREMONT INDIA LIMITED - Appellant
Versus
MUNICIPAL CORPORATION OF THE CITY OF SURAT - Respondent
S.C.A. 9523 of 1995
Decided On : 01/23/1996
The principles laid down in Art. 14 of the Constitution of India are required to be kept in mind while accepting or refusing a tender, but there can be no question of infringement of Art. 14 if the Government tries to get the best person or the best quotation. Judicial review in such matters is considered not on the merits of the decision, but on the decision making process itself. Thus, this Court cannot substitute its own decision for the decision of the Standing Committee which has given adequate opportunity to both the tenderers to put up their case in support of their tenders. The selection of the respondent No. 2 in the instant case cannot be said to be arbitrary or unjust nor can the rejection of the petitioner be said to be arbitrary. It is not the function of this Court to sit as a Super Board over the decision of the Standing Committee. Under these circumstances, there is no substance in this petition and it is rejected.
[Para 10]
(b) Bombay Provincial Municipal Corporation Act, 1949 - Sec. 73 (c) - Power of Standing Committee to grant contract - Municipal Commissioner has to assist the Committee which has wide powers to consider rival claims and decide in whose favour the contract should be accepted - In the instant case Committee adopted fair procedure and gave adequate opportunity to petitioner and respondent - Acceptance of tender of respondent was justified over petitioner.
The powers of the Standing Committee under the said clause are wide enough to enable it to consider the rival claims of contending tenderers and to come to its own conclusion as to in whose favour the contract should be approved and on its such prior approval, the Municipal Commissioner would be required to execute such contract on behalf of the Municipal Corporation. All the previous exercise which the Municipal Commissioner undertakes for the purpose of sending the matter before the Standing Committee for approval of a contract under Clause (c) of Sec. 73, is in the nature of assisting the Standing Committee for coming to its own conclusion. It therefore, cannot be accepted that the Standing Committee had no jurisdiction to accept the tender of the respondent No. 2 merely because the petitioner was recommended by the Municipal Commissioner.
[Para 4]
The decision making process of the Standing Committee shows that it had given fair and just consideration to the offers made by both the tenderers and exercised its choice in the matter of acceptance of the tender on relevant grounds.
[Para 5]
The facts brought on record clearly disclose that the procedure which was adopted by the Standing Committee was fair to both the contenders. The opportunity to put up their respective cases in support of their tenders including the one that was given to the petitioner, as also the personal audience which was given by the Standing Committee in the context is sufficient to answer the requirement of fairness of procedure which was adopted by the Standing Committee. There was therefore, no violation of the principles of natural justice as contended on behalf of the petitioner.
[Para 6]
The question of delay in performance of a previous contract is an important factor which is required to be considered by any authority which has to take a decision on the question of acceptance of a tender. In considering the question of delay, the Standing Committee did not disqualify or debar the petitioner but only weighed that as one of the factors which were required to be considered for taking a decision. In any even it cannot be said that the Standing Committee acted arbitrarily in taking into consideration the aspect of delay in performance of a previous contract by one tenderer.
[Para 7]
( 1 ) THE petitioner challenges the resolution bearing no. 566 dated 19/10/1995 of the Standing Committee of the Surat Municipal corporation, approving the contract for construction of 120 M. L. D. capacity Water treatment Plant at Katargam, in favour of the respondent No. 2 by accepting its tender. According to the petitioner its tender was lower than the respondent No. 2 being for an amount of Rs. 8. 75 crores as against the amount of Rs. 8. 89 crores. The acceptance of the tender of the respondent No. 2 by the Standing Committee is, according to the petitioner, without jurisdiction and arbitrary. It is the petitioners case that its tender was recommended for acceptance by the Municipal Commissioner and for no valid reasons, the approval has been refused by the Standing Committee. According to the respondent- Corporation, all the pros and cons of the matter were considered and for the reasons stated in the resolution, the Standing Committee had accepted the tender of the respondent No. 2.
( 2 ) TENDER notice was issued on 26/05/1995 by the Municipal Corporation inviting sealed tenders for construction of raw Water Treatment Plant at Katargam. These tenders were invited from the contractors who were pre-qualified as per the administrative resolution dated 23-5-1995. The petitioner and the respondent No. 2 were such pre-qualified contractors. The time-limit indicated in the tender notice was of 15 months. The Corporation reserved its right to accept the tender either in whole or in part, as considered expedient. It also reserved its right to reject any tender. Tender documents were offered to the tenderers who wanted to bid. Tenders were submitted by both these parties. Thereafter, admittedly, the tenders were returned to them as agreed and revised bids were called for which were submitted by these parties on 11-9-1995. Technical bid meetings were held with the petitioner and the respondent No. 2 and minutes were forwarded to them by the Municipal corporation. On 11-9-1995, technical bids were opened and the revised price bids were also made known. Thereafter, the Municipal Commissioner on 22-9-1995 recommended to the Standing Committee, acceptance of the tender of the petitioner. For option "b" which was exercised by the petitioner as well as respondent No. 2, they alone were the tenderers and there was no other contender. A meeting with the Standing Committee of these tenderers was arranged on 5/10/1995. After that meeting the respondent No. 2 addressed a letter on 5-10-1995 to the Standing committee. On 6-10-1995 the petitioner also addressed two letters. Thereafter, on 11-10-1995 petitioner addressed two further letters and the respondent No. 2 addressed one letter to the Standing Committee. Thereafter, on 17-10-1995, one more letter was addressed by the respondent No. 2 to the Standing Committee. All these communications were in context of tenders of these parties and they had a bearing on the time-limit, thickness of module, cost and other relevant aspects. Again on 12-10-1995, the parties were allowed to present their case before the Standing committee. Finally, on 19-10-1995 also, they were allowed to present themselves before the Standing Committee. On 19-10-1995, the impugned resolution came to be passed by the Standing Committee, accepting the tender of the respondent no. 2.
( 3 ) IT was strongly contended by the learned Counsel appearing for the petitioner that the impugned resolution passed by the Standing Committee was without jurisdiction as the Standing Committee could not have directed the Municipal commissioner to make a contract in favour of the respondent No. 2 when the proposal that was sent by him was for accepting tender of the petitioner. It was submitted that under Sec. 73 (c) of the Bombay Provincial Municipal Corporations act, 1949 (hereinafter referred to as "the Act"), the Standing Committee could have either approved or disapproved the proposal which was sent by the Municipal
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