Bombay High Court
Varniraj Group vs City Industrial And Development ... on 16 October, 2024
Author: Amit Borkar
Bench: Amit Borkar
2024:BHC-AS:40992-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.11732 OF 2023
BASAVRAJ Varniraj Group ..... Petitioner
GURAPPA
PATIL Vs.
Digitally signed by
BASAVRAJ GURAPPA
PATIL
Date: 2024.10.16
14:13:27 +0530
City Industrial and Development
Corporation of Maharashtra Ltd. & Anr. ..... Respondents
WITH
WRIT PETITION NO.13836 OF 2023
M/s. Hare Krishna Enterprises ..... Petitioner
Vs.
City Industrial and Development
Corporation of Maharashtra Ltd. ..... Respondent
Shri Arshad Shaikh, Senior Advocate a/w. Shri Sanjay Udeshi
with Shri Rahul Sanghvi and Shri Netaji Gawde i/b. M/s. Sanjay
Udeshi & Co. for the petitioner in WP/11732/2023
Shri Drupad S. Patil a/w. Shri Prasad Keluskar for the petitioner
in WP/13836/2023 and for respondent No.2 in WP/11732/2023
Shri G. S. Hegde a/w. Ms. Pinky Mohanlal Bhansali for
respondent - CIDCO, in both matters
CORAM: DEVENDRA KUMAR UPADHYAYA, CJ. &
AMIT BORKAR, J.
RESERVED ON : OCTOBER 14, 2024
PRONOUNCED ON : OCTOBER 16, 2024
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JUDGMENT (PER : CHIEF JUSTICE)
1. Since the subject matter of both these writ petitions are intertwined, they have been taken up and heard together and are being decided by the common judgment and order, which is as under.
2. For felicity, the facts from writ petition No.11732 of 2023 have been referred to and the petitioner in writ petition No.13836 of 2023 - M/s. Hare Krishna Enterprises has been described as respondent No.2 which has been arrayed as respondent No.2 in writ petition No.11732 of 2022.
3. Heard Shri Arshad Shaikh, learned Senior Advocate representing the petitioner, Shri G. S. Hegde, learned Senior Advocate representing respondent - City and Industrial Development Corporation - (hereinafter referred to as the respondent - Corporation) and Shri Drupad S. Patil, learned Counsel representing respondent No.2 - M/s. Hare Krishna Enterprises.
(A) Challenge:
4. By instituting writ petition No. 11732 of 2023 under Article 226 of the Constitution of India, the petitioner, which is a Basavraj Page|2 ::: Uploaded on - 16/10/2024 ::: Downloaded on - 17/10/2024 00:21:13 ::: 11732.23-wp+.docx partnership firm, has assailed the validity of the action on the part of the respondent - Corporation in cancelling the petitioner's bid, which was the highest, for lease of Plot No.14, Sector 9E, Kalamboli Node, Scheme No.MM/SCH-24/2021-2022. Initially, the petitioner had challenged the order dated 18 th May 2023 passed by the Marketing Manager (Commercial) of the respondent - Corporation whereby the representation made by the petitioner against the order dated 25 th July 2022 cancelling the bid offered by the petitioner, was rejected. We may note at this juncture itself that the order dated 18 th May 2023 on the representations preferred by the petitioner was passed in compliance of an order dated 22nd December 2022 passed by this Court in an earlier writ petition filed by the petitioner, viz. writ petition No.9977 of 2022.
5. Subsequent to the filing of the instant writ petition, by amendment the petitioner also challenged the order dated 25 th July 2022 whereby the decision of the respondent - Corporation cancelling the bid offered by the petitioner was communicated to it stating therein that the respondent - Corporation had decided to cancel the bid in respect of the subject plot due to administrative reasons. The petitioner also challenged the order Basavraj Page|3 ::: Uploaded on - 16/10/2024 ::: Downloaded on - 17/10/2024 00:21:13 ::: 11732.23-wp+.docx dated 17th October 2023 whereby the order of rejection of bid dated 25th July 2022 and the cancellation letter dated 18 th May 2023 issued by the Marketing Commercial Department of respondent - Corporation regarding the subject plot was affirmed by the Vice Chairman & Managing Director of respondent - Corporation.
(B) Facts of the case:
6. The respondent - Corporation issued an advertisement for grant of lease in respect of 20 residential-cum-commercial use of plots at Ghansoli, Vashi, Nerul, New Panvel (E), New Panvel (W), and Kalamboli Nodes in Navi Mumbai through e-tender process. The petitioner firm, accordingly, in pursuance of the said advertisement submitted its bid for lease of the subject plot. The petitioner's bid of Rs.68,899/- per square meter was found to be the highest. It is also to be noticed that the base rate for the plot in question was Rs.39,303/- per square meter. These facts are apparent from auction result enclosed at page No.93 appended as Exhibit-C to the writ petition. It is also to be noticed that respondent No.2 had not participated in the e- auction process pursuant to the advertisement.
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7. Vide letter dated 25th July 2022 a communication by the Marketing Manager (Commercial) of respondent - Corporation was made to the petitioner whereby the petitioner was apprised of the decision of the respondent - Corporation that it had cancelled the bid submitted by the petitioner in respect of the subject plot. It was also communicated to the petitioner by the said letter dated 25th July 2022 that earnest money deposit paid by the petitioner was being refunded in its bank account. The earnest money deposit was, thus, returned to the petitioner on 18th August 2022.
8. After issuing the rejection letter dated 25 th July 2022 the subject plot was re-advertised on 15 th August 2022 with the base rate of Rs.57,895/- per square meter. In the said re-advertised bid process the petitioner did not participate, however, respondent No.2 participated and the auction result of the subsequent bid was declared on 25th October 2022 whereby the bid submitted by respondent No.2 @ 92,995/- per square meter was declared to be the highest. The said bid result, which is available at page 157 of the writ petition as Exhibit-L, also reveals that the base price of the plot in question in the subsequent bid was Rs.57,895/- per square meter.
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9. The petitioner, being aggrieved by re-auction of the subject plot, instituted writ petition No. 9977 of 2022 wherein an interim order was passed on 7th September 2022 by a coordinate bench of this Court that till the next date the respondent shall not finalize the bid for the subject plot. It is to be noticed that writ petition No.9977 of 2022 was filed by the petitioner subsequent to the second advertisement wherein the bid submitted by respondent No.2 was found to be the highest. As already stated above, the bids submitted pursuant to the subsequent advertisement were opened on 25th October 2022 whereby respondent No.2 was declared to be the highest bidder.
10. Writ petition No.9977 of 2022 was finally disposed of by this Court by means of the order dated 22nd December 2022 providing therein that the petitioner may file representation/ application with the Managing Director/ Competent authority and if such a representation/ application is filed the Managing Director/ Competent authority of the respondent - Corporation shall consider the same and take decision according to its own merits and according to law/policy. It was further provided by this Court while disposing of writ petition No.9977 of 2022 by Basavraj Page|6 ::: Uploaded on - 16/10/2024 ::: Downloaded on - 17/10/2024 00:21:13 ::: 11732.23-wp+.docx means of order dated 22nd December 2022 that till decision is taken by the Managing Director/Competent authority, further proceedings regarding allotment of the subject land shall not be undertaken. The Court also provided that depending on the decision to be taken by the Managing Director/Competent authority, further steps shall be taken and in case the decision of the Managing Director/Competent authority goes against the petitioner, the said decision shall not be implemented for a period of two weeks.
11. The petitioner, accordingly, in pursuance of the order dated 22nd December 2022 passed by this Court, preferred a representation to the competent authority of the respondent - Corporation on 26th December 2022. On 9th February 2023 hearing on the representation preferred by the petitioner pursuant to the order dated 22 nd December 2022 passed by this Court was postponed on an objection raised by the petitioner that the matter cannot be heard as Shri Gajendra Jangam Marketing Manager (Commercial) was a part of the competent authority and it was he, who had filed affidavit on behalf of the Corporation in writ petition No.9977 of 2022.
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12. Thereafter, by means of the impugned order dated 18th May 2023, the representation preferred by the petitioner pursuant to the order of this Court, dated 22 nd December 2022 was rejected and the impugned rejection letter dated 25 th July 2022 was affirmed.
13. A writ petition bearing No.6475 of 2023 was filed by one TVP Ventures LLP before this Court in which an order was passed on 26th May 2023 based on the statement made by the learned Counsel representing the respondent - Corporation that the decision impugned in the said writ petition shall not be implemented.
14. The petitioner, thereafter instituted the instant writ petition, initially challenging the impugned rejection letter dated 18th May 2023. On filing of the instant writ petition, a notice was issued to the petitioner by the Marketing Manager (Commercial), of respondent - Corporation on 11 th October 2023 requiring the petitioner to be present before the authority concerned on 16 th October 2023 to represent its case. The petitioner, accordingly, submitted its representation once again to the respondent -
Corporation vide application dated 16th October 2023 in which
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apart from taking the earlier pleas, the petitioner also stated that even though the bid offered by the petitioner in the earlier tender process of Rs.68,899/- per square meter was in accordance with law, however, the petitioner was also interested and was ready to match the price of Rs.92,995/- per square meter as offered by respondent No.2 in the subsequent bid process.
15. We may notice that prior to the representation dated 16 th October 2023 the petitioner never expressed its desire to match the price offered by respondent No.2 in the subsequent bid in respect of the subject plot.
16. Considering the representation made by the petitioner, dated 16th October 2023, the Vice Chairman & Managing Director of respondent - Corporation passed an order on 17 th October 2023 whereby it was concluded that the respondent - Corporation was under obligation to protect public money and to get the best price for disposal of the public lands vested in it. It was also observed in the said order dated 17 th October 2023 that the respondent - Corporation was required to take into consideration commercial aspect of the matter as well and, Basavraj Page|9 ::: Uploaded on - 16/10/2024 ::: Downloaded on - 17/10/2024 00:21:13 ::: 11732.23-wp+.docx therefore, it was obligatory on its part to get the best price from disposal of lands which are required to be utilized for development of New Mumbai. The Vice Chairman & Managing Director, while passing the order dated 17th October 2023 also stated that it was well within the right of the Corporation to ascertain and decide whether the rates offered by the highest bidder ought to be considered and as to whether the bid should be proceeded with or discharged/cancelled. The Managing Director, thus, has observed in the said order dated 17 th October 2023 that since in the second bid the Corporation had received better rate for the subject plot, as such, the rejection letter dated 25th July 2022 and cancellation letter dated 18th May 2023 issued by the Marketing Manager (Commercial) of the respondent - Corporation regarding the subject plot was re- affirmed.
17. On passing of the impugned order dated 17 th October 2023, the petitioner, by way of an amendment in the writ petition, also challenged the orders dated 25th July 2022 and 17th October 2023.
18. So far as writ petition No.13836 of 2023 is concerned, the Basavraj Page|10 ::: Uploaded on - 16/10/2024 ::: Downloaded on - 17/10/2024 00:21:13 ::: 11732.23-wp+.docx said writ petition has been filed by respondent No.2 - M/s. Hare Krishna Enterprises, whereby a prayer has been made for issuing a writ of mandamus to the respondent Corporation to issue allotment letter in respect of the subject plot on the basis of the subsequent auction wherein bid submitted by respondent No.2 @ Rs.92,995/- was found to be the highest.
(C) Contentions of Shri Shaikh, learned Senior Advocate representing the petitioner :
19. Shri Shaikh, learned Senior Advocate has argued that the reasons given by the respondent - Corporation, while rejecting the bid submitted by the petitioner pursuant to the first auction, are not relevant and are absolutely arbitrary and further that in any case once the petitioner has offered the bid of Rs.92,995/- per square meter for the subject plot which matches the bid of respondent No.2 in the subsequent bid process, the subject plot ought to be allotted in favour of the petitioner.
20. He has also argued that the base price in first bid in respect of the subject plot was Rs.39,303 per square meter whereas the petitioner had offered Rs.68,899/- which is almost double the base price and the petitioner, being the highest Basavraj Page|11 ::: Uploaded on - 16/10/2024 ::: Downloaded on - 17/10/2024 00:21:13 ::: 11732.23-wp+.docx bidder, there was no sustainable reason to reject the bid offered by it. It is his further submission that though the subsequent bid in which respondent No.2 is the highest bidder having offered bid of Rs.92,995/- per square meter, has not been acted upon on account of interim orders passed by this Court from time to time, the bid offered by respondent No.2 has not been accepted and since the petitioner itself has offered the matching price of Rs.92,995/- per square meter, as such, it is incumbent on behalf of the respondent - Corporation to accept the bid offered by the petitioner in the first bid process or to accept the subsequent offer of the petitioner matching the bid price offered by the respondent No.2 in subsequent bid process, and to settle the lease in its favour.
(D) Submission on behalf of the respondent - Corporation :
21. Shri Hegde, learned Senior Advocate, representing the respondent - Corporation, on the other hand, submitted that in view of the law laid down by this Court in the case of Shree Ganesh Enterprises Vs. The City and Industrial Development Corporation & Ors.1, the commercial aspect of 1 Judgment dated 23rd July 2024 - writ petition No.15807 of 2022 Basavraj Page|12 ::: Uploaded on - 16/10/2024 ::: Downloaded on - 17/10/2024 00:21:13 ::: 11732.23-wp+.docx the matter cannot be ignored and while rejecting the bid offered by the petitioner, sufficient and sustainable reasons have been given and accordingly, the writ petition is highly misconceived.
22. Arguing further, Shri Hegde has stated that once the bid submitted by the petitioner in respect of the subject plot in the first bid process was found to be the highest, the matter was considered and all the relevant aspects were taken into account including a report dated 8 th June 2022, submitted by an expert valuer, viz. Knight Frank and it is only thereafter that the impugned decision has been taken. He has stated that the report of the valuer depicted that the market potential of the plot in question was in the range of Rs.71,638/- to Rs.1,00,067/- per square meter and accordingly, having regard to the commercial aspect of the matter, the bid submitted by the petitioner was not accepted and the subject plot was put to re-auction in which the bid submitted by respondent No.2 @ Rs.92,995/- per square meter has been found to be highest and thus, the lease in respect of the subject plot needs to be settled in favour of respondent No.2 and not in favour of the petitioner.
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23. It has further been submitted by Shri Hegde that accepting the matching offer made by the petitioner would not be appropriate for the reason that it may undermine the sanctity of the bid process and further that the petitioner has not participated in the subsequent bid. He has also argued that in case such a course is adopted by the respondent - Corporation, it will be an unending process and various other bidders will start making offers of matching bids equivalent to the bid offered by the highest bidder and hence, it will not be appropriate to accept the matching bid of the petitioner. He has also argued that by not participating in the subsequent bid, the petitioner cannot be settled with the lease in relation to the subject plot as the petitioner is a fence sitter and any offer, made by the fence sitter, cannot be accepted. Shri Hegde has also argued that the petitioner offered the matching bid for the first time only while making the representation dated 16th October 2023 and not before that and hence, accepting such an offer would amount to encouraging unfair practices which a public authority is not expected to indulge in. On these counts, the writ petition has vehemently been opposed by Shri Hegde.
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(E) Arguments on behalf of respondent No.2:
24. Shri Drupad Patil, representing the respondent No.2 in writ petition No.11732 of 2023 (petitioner in writ petition No.13836 of 2023) has, while adopting the submissions made by Shri Hegde, learned Senior Advocate representing the respondent - Corporation, stated that in the first representation preferred by the petitioner pursuant to the order passed by this Court on 22 nd December 2022, no offer matching the bid submitted by respondent No.2 was made by the petitioner and any such subsequent offer, thus, cannot be accepted. (F) Submissions in rejoinder on behalf of the petitioner :
25. Shri Shaikh, learned Senior Advocate representing the petitioner, in rejoinder, has submitted that in the facts of the case, the judgment of this Court in the case of Shree Ganesh Enterprises (supra) has no application. He has stated that in Shree Ganesh Enterprises (supra) no matching offer was made by the party who had succeeded in the first bid and accordingly, once an offer has been made by the petitioner matching the highest bid submitted by the respondent in the subsequent bid, in case the petitioner's bid is accepted and lease is settled in its favour, the respondent Corporation will not Basavraj Page|15 ::: Uploaded on - 16/10/2024 ::: Downloaded on - 17/10/2024 00:21:13 ::: 11732.23-wp+.docx suffer any pecuniary loss and accordingly in the fact situation, of this case, the plea raised on behalf of the respondent - Corporation regarding commercial aspect of the matter will not be tenable.
(G) Discussion:
26. Having regard to the pleadings of the respective parties and the submissions made by learned Counsel representing them, two aspects of the matter emerge, which need consideration and decision by this Court. The first aspect is as to whether the reason given by the respondent - Corporation while cancelling the bid submitted by the petitioner in the first round of bidding process, though the petitioner was the highest bidder, is tenable. The second aspect in the facts of the case which arises for our consideration is as to whether keeping in view the offer made by the petitioner matching the highest bid submitted by respondent No.2 in the subsequent bid, will it be appropriate for the Corporation to accept the matching bid offered by the petitioner and settle the lease rights in its favour.
27. So far as the first aspect of the matter is concerned, the reason given by the respondent - Corporation in not accepting Basavraj Page|16 ::: Uploaded on - 16/10/2024 ::: Downloaded on - 17/10/2024 00:21:13 ::: 11732.23-wp+.docx the highest bid submitted by the petitioner is that the expert valuer in its report dated 8th June 2022 had opined that the market potential of the subject plot is within the range of Rs.71,638/- per square meter to Rs.1,00,067/- per square meter and since the offer made by the petitioner in the first round of bid is less than the market potential as depicted in the report submitted by the expert valuer, it is not necessary for the Corporation to have accepted the highest bid offered by the petitioner keeping in view the commercial aspect of the matter. The law in this regard is well settled by Hon'ble Supreme Court in the case of Jaipur Vidyut Vitran Nigam Ltd. & Ors. Vs. MB Power (Madhya Pradesh) Limited & Ors.2 which has been followed by this Court in Shree Ganesh Enterprises (supra). Paragraph 136 to 138 of the judgment in the case of Jaipur Vidyut Vitran Nigam Ltd. (supra) are extracted hereunder:
136. In any case, we find that the High Court was not justified in issuing the mandamus in the nature which it has issued. This Court in Air India Ltd. v. Cochin International Airport Ltd. [Air India Ltd. v.
Cochin International Airport Ltd., (2000) 2 SCC 617 : 2000 INSC 39] has observed thus : (SCC pp. 623-24, para 7) ""7. The law relating to award of a contract by the State, its corporations and bodies acting as instrumentalities and agencies of the Government has been settled by the decision of this Court in Ramana Dayaram Shetty v. International Airport Authority of India [Ramana Dayaram Shetty v. International Airport Authority of India, (1979) 3 SCC 489] , Fertilizer Corpn. Kamgar Union v. Union of India [Fertilizer Corpn. Kamgar Union 2 2024 SCC OnLine SC 26 Basavraj Page|17 ::: Uploaded on - 16/10/2024 ::: Downloaded on - 17/10/2024 00:21:13 ::: 11732.23-wp+.docx v. Union of India, (1981) 1 SCC 568] , CCE v. Dunlop India Ltd. [CCE v. Dunlop India Ltd., (1985) 1 SCC 260] , Tata Cellular v. Union of India [Tata Cellular v. Union of India, (1994) 6 SCC 651 : 1994 INSC 283] , Ramniklal N. Bhutta v. State of Maharashtra [Ramniklal N. Bhutta v. State of Maharashtra, (1997) 1 SCC 134] and Raunaq International Ltd. v. I.V.R. Construction Ltd. [Raunaq International Ltd. v. I.V.R. Construction Ltd., (1999) 1 SCC 492] The award of a contract, whether it is by a private party or by a public body or the State, is essentially a commercial transaction. In arriving at a commercial decision considerations which are paramount are commercial considerations. The State can choose its own method to arrive at a decision. It can fix its own terms of invitation to tender and that is not open to judicial scrutiny. It can enter into negotiations before finally deciding to accept one of the offers made to it. Price need not always be the sole criterion for awarding a contract. It is free to grant any relaxation, for bona fide reasons, if the tender conditions permit such a relaxation. It may not accept the offer even though it happens to be the highest or the lowest. But the State, its corporations, instrumentalities and agencies are bound to adhere to the norms, standards and procedures laid down by them and cannot depart from them arbitrarily. Though that decision is not amenable to judicial review, the court can examine the decision-making process and interfere if it is found vitiated by mala fides, unreasonableness and arbitrariness. The State, its corporations, instrumentalities and agencies have the public duty to be fair to all concerned. Even when some defect is found in the decision-making process the court must exercise its discretionary power under Article 226 with great caution and should exercise it only in furtherance of public interest and not merely on the making out of a legal point. The court should always keep the larger public interest in mind in order to decide whether its intervention is called for or not. Only when it comes to a conclusion that overwhelming public interest requires interference, the court should intervene."
137. It could thus be seen that this Court in Air India case [Air India Ltd. v. Cochin International Airport Ltd., (2000) 2 SCC 617 : 2000 INSC 39] has held that the award of a contract, whether it is by a private party or by a public body or the State, is essentially a commercial transaction. In arriving at a commercial decision, considerations which are paramount are commercial considerations. It has been held that the State can choose its own method to arrive at a decision. It can fix its own terms of invitation to tender and that is not open to judicial scrutiny. It has further been held that the State can enter into negotiations before finally deciding to accept one of the offers made to it. It has further been held that, price need not always be the sole criterion for awarding a contract. It has been held that the State may not accept the offer even though it happens to be the Basavraj Page|18 ::: Uploaded on - 16/10/2024 ::: Downloaded on - 17/10/2024 00:21:13 ::: 11732.23-wp+.docx highest or the lowest. However, the State, its corporations, instrumentalities and agencies are bound to adhere to the norms, standards and procedures laid down by them and cannot depart from them arbitrarily. Though that decision is not amenable to judicial review, the Court can examine the decision-making process and interfere if it is found vitiated by mala fides, unreasonableness and arbitrariness. It has further been held that even when some defect has been found in the decision-making process, the Court must exercise its discretionary power under Article 226 with great caution and should exercise it only in furtherance of public interest and not merely on the making out of a legal point. The Court should always keep the larger public interest in mind in order to decide whether its intervention is called for or not. Only when it comes to a conclusion that overwhelming public interest requires interference, the Court should intervene.
138. As has been held by this Court in Tata Cellular [Tata Cellular v. Union of India, (1994) 6 SCC 651 : 1994 INSC 283] , the Court is not only concerned with the merits of the decision but also with the decision-making process. Unless the Court finds that the decision- making process is vitiated by arbitrariness, mala fides, irrationality, it will not be permissible for the Court to interfere with the same."
28. Thus, it is well settled by now that the State, its instrumentalities or agencies are bound to adhere to the norms, standards and procedures laid down by them and they cannot be permitted to depart from such norms, arbitrarily. However, in the same breath, it can also be observed, as enunciated by the Hon'ble Supreme Court in Jaipur Vidyut Vitran Nigam Ltd. (supra), that the award of contract, whether it is by a private party or by a public body or the State, is essentially a commercial transaction and in arriving at a commercial decision, considerations which are paramount are commercial considerations. In Jaipur Vidyut Vitran Nigam Ltd. (supra), the Hon'ble Supreme Court has observed that the State can Basavraj Page|19 ::: Uploaded on - 16/10/2024 ::: Downloaded on - 17/10/2024 00:21:13 ::: 11732.23-wp+.docx choose its own method to arrive at a decision and that the State may not accept the offer, though it is the highest or the lowest. It is further to be noticed that a Division Bench of this Court in Aditya Enterprises Vs. City Industrial and Development Corporation of Maharashtra Ltd.3 has in paragraph 24 held that no rights are created in favour of any party merely for the reason that the party is the highest bidder in the tender process. Paragraph 24 of the report in Aditya Enterprises (supra) is also extracted hereinbelow:
"24. We therefore hold that no right is created in favour of petitioners to have plots allotted to them by CIDCO by mere reason of they being the highest bidders in the tender process."
29. Therefore, having regard to the settled legal position, as discussed above, the commercial considerations of the respondent - Corporation cannot be lost sight of while considering the pleas raised by the petitioner in the instant case. If the market potential as per the report submitted by an expert, of the subject plot ranges between Rs.71,638/- to 1,00,067/- per square meter, the commercial considerations underneath the decision to be taken by the respondent - Corporation as to whether the bid offered by the petitioner to be accepted or not, 3 2023(3) Bom. C.R. 856 Basavraj Page|20 ::: Uploaded on - 16/10/2024 ::: Downloaded on - 17/10/2024 00:21:13 ::: 11732.23-wp+.docx cannot be ignored.
30. As already discussed above, merely because a party is the highest bidder, it cannot be said that any right stands vested in such a party for acceptance of the highest bid offered by it. For reasonable considerations even the highest bid can be refused. When we analyze the facts of the instant case and the pleas raised by the petitioner on the touchstone of the aforementioned legal position, what we find is that the reason given by the respondent - Corporation in not accepting the highest bid offered by the petitioner in the first round of bid cannot be said to be irrelevant or unreasonable. The commercial aspect of the matter is a guiding factor for the respondent - Corporation to arrive at a just and proper decision.
31. We are, therefore, unable to hold that the reasons given by the respondent - Corporation while rejecting the bid offered by the petitioner in the first round of bidding process are not tenable; rather the reasons given are acceptable and admissible in law.
32. The second aspect, as argued by the learned Counsel for the petitioner that the commercial consideration or the Basavraj Page|21 ::: Uploaded on - 16/10/2024 ::: Downloaded on - 17/10/2024 00:21:13 ::: 11732.23-wp+.docx commercial interest of the respondent- Corporation does not come in the way of acceptance of the bid offered by the petitioner matching the highest bid submitted by respondent No.2 in the subsequent bid process, in our opinion, is also not acceptable for the reason that if such a course is permitted, the same would be a dent to the fairness and sanctity of the bid process. Accepting the bid submitted by the petitioner which matches the highest bid submitted by respondent No.2 in the subsequent bid will be inappropriate for another reason, and the reason is that the petitioner chose not to participate in the subsequent bid process. We are also of the opinion that in case such a course is allowed, it may result in unending process of offers being made by various parties though such parties may not have participated in the bid process. It is to be seen that the petitioner did not participate in the subsequent bid process and if in the opinion of the respondent-Corporation the bid submitted by respondent No.2 is commercially viable, there is no reason why the bid offered by respondent No.2 in the subsequent bid process may not be accepted and the petitioner's matching bid may be accepted.
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33. We are further of the opinion that even if the petitioner offers a higher bid than the bid price offered in the subsequent bid, the same cannot be accepted for such a course would be against the doctrine of fairness to be observed by a public authority in the bidding process. The petitioner, in paragraph 11 of the rejoinder affidavit filed to the affidavit in reply on behalf of respondent No.2 has stated that it is ready to offer the bid of Rs.1,09,503/- per square meter which is higher than the bid offered by respondent No.2 and equivalent to the highest base rate of the plots in the vicinity. Such an offer, at this juncture, in our opinion, cannot be accepted as the same would again dilute the sanctity of the bid process and will be opposed to the principle of fairness which a public authority, in law, is excepted to observe.
(H) CONCLUSION:
34. For the discussion made and the reasons given above, in our opinion, the writ petition No.11732 of 2023 is highly misconceived, which, resultantly, is hereby dismissed.
35. We also direct that the respondent - Corporation shall take a decision in respect of the bid submitted by respondent No.2 -
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M/s. Hare Krishna Enterprises (petitioner in writ petition
No.13836 of 2023) pertaining to subject plot in accordance with law, rules and extant circulars with expedition, say within a period of four weeks from the date a copy of this judgment and order is produced before the authority concerned. Writ petition No.13836 of 2023 stands disposed of in these terms.
36. There will be no order as to costs.
37. Interim Application(s), if any, shall also stand disposed of accordingly.
(AMIT BORKAR, J.) (CHIEF JUSTICE)
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