Bombay High Court
M/S.Makhija Developers Pvt.Ltd vs City And Industrial Development on 20 January, 2010
Author: B.H.Marlapalle
Bench: B.H.Marlapalle, R.Y.Ganoo
1
srk
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE
CIVIL WRIT PETITION NO.539 OF 2005
WITH
CIVIL APPLICATION NO. 1944 OF 2009
M/s.Makhija Developers Pvt.Ltd. Petitioner
Vs.
1. City and Industrial Development
Corporation of Maharashtra Ltd.
(CIDCO)
2. State of Maharashtra
3. BSEL Infrastructure Realty Ltd.
4. Mistry Construction Co.Pvt. Ltd. Respondents
Mr.Srihari Aney, Senior Advocate with Mr.Sachin Shetye i/b.
Mr.Avinash Fatangare for petitioner.
Mr.A.A.Kumbhakoni, Senior Advocate with Mr.A.M. Kulkarni i/b.
Mr.G.S. Hegde for respondent no.1 - CIDCO.
Mr.S.D.Rayrikar, AGP for Respondent no.2.
Mr.Pritesh Rajgar i/b. PDS & Associates for resp.no.3.
Mr.Vijay Thorat, Senior Advocate with Mr.Vaibhav Mehta and
Ms.Deepti Mistry i/b. M/s.Divyakant Mehta & Associates for
resp.no.4.
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2
CORAM: B.H.MARLAPALLE & R.Y.GANOO,JJ.
Reserved on : December 19, 2009
Pronounced on: January 20, 2010
JUDGMENT (PER 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 ::: Downloaded on - 09/06/2013 15:31:53 ::: 3 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 ::: Downloaded on - 09/06/2013 15:31:53 ::: 4 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 ::: Downloaded on - 09/06/2013 15:31:53 ::: 5 evaluated the technical bids as well as the financial bids and gave the following weightage Technical Bids :
Name of the bidder Marks obtained out Marks obtained out of 65 of 100 M/s.BSEL 54.60 84 Infrastructure Reality Ltd.
M/s.Makhija 41.67 64.11
Developers
M/s.Mistry
Construction
Ltd.
Pvt.
57.43 37.33
Financial Bids
Name of the Bidder Marks obtained out of 35
M/s.BSEL Infrastructure Reality 35
Ltd.
M/s.Makhija Developers 24.50
Pvt.Ltd.
M/s.Mistry Construction Co. Non-responsive
Pvt. Ltd.
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.::: Downloaded on - 09/06/2013 15:31:53 ::: 6
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:
Bidder Marks Marks Total marks
obtained in obtained in the obtained out of
Technical bid financial bid 100
out of 65 out of 35
M/s.BSEL 54.60 35.00 89.60
Infrastructure
Reality Ltd.
M/s.Makhija 41.67 24.50 66.17
Developers
Pvt.Ltd.
M/s.Mistry 37.33 Non Non
Construction responsive responsive
Co. Pvt.Ltd.
The petitioner, therefore, contends that at the initial stage itself the respondent no.4 was disqualified as it did not score the minimum qualifying score in each part at 60 per cent and the ::: Downloaded on - 09/06/2013 15:31:53 ::: 7 over all minimum qualifying score of 75 per cent, and, therefore, only the petitioner and respondent no.3 ought to have been considered by deleting the name of respondent no.4.
5. However, it was the respondent no.4 who was awarded the tender vide the Corporation's letter dated 18/6/2004 pursuant to the resolution passed by its Board of Directors on 3/6/2004 and in response to the same the respondent no.4 deposited an amount of Rs.4 Crores with the Corporation.
ig It also deposited the security deposit of Rs.3.30 Crores (10 per cent of the bid amount) on 14/7/2004. On or about 29/6/2004 the present respondent no.3 approached this Court by filing Writ Petition No.5617 of 2004 and challenged the award of the tender made in favour of the respondent no.4. In the said petition the present petitioner was not impleaded as a party and despite the fact that the respondent no.1 - Corporation in its affidavit-in-reply pointed out that the present petitioner was one of the bidders, no steps were taken by the petitioner therein to implead the present petitioner as an additional respondent. On 18/8/2004 the present respondent no.1 and respondent no.3 arrived at a settlement and invited an order by way of consent minutes from this Court and accordingly the decision of the ::: Downloaded on - 09/06/2013 15:31:53 ::: 8 respondent no.1 to award the tender to the respondent no.4 came to be quashed and set aside. The said order read as under:
"Consent Minutes of Order signed by the learned counsel for the parties as also the petitioners and respondent nos.1 and 2 tendered, taken on record and marked "X" for identification. The order in terms of the Consent Minutes of Order.
The Committee constituted under Clause 2 of the Minutes of Order shall submit its report expeditiously and in any event within four months.
CIDCO will communicate the final decision of awarding of the contract to both the parties.
Liberty to the respondent no.1 to apply in case of difficulty.
Petition stands disposed of accordingly..."
6. On or about 16/12/2004 the respondent No.1 -
Corporation filed Review Petition No.89 of 2005 (Stamp No. 31933 of 2004), as it proposed to set up a Signature Golf Club in place of an International Golf Club. On or about 1st February 2005 the present petitioner filed the instant petition as well as ::: Downloaded on - 09/06/2013 15:31:53 ::: 9 Civil Application No.1584 of 2005. In the Civil Application it prayed for being impleaded as an additional party in Writ Petition No.5617 of 2004 and for further directions to the Committee constituted by this Court to consider its tender along with the other two tenders i.e. of M/s. Mistry Construction Co.
Pvt. Ltd. and M/s. BSEL Infrastructure Realty Ltd. On 7/7/2005 by separate orders the Review Petition filed by CIDCO and Civil Application No.1584 of 2005 filed by the present petitioner came to be disposed off. It would be appropriate to reproduce the said orders.
a) In Review Petition No.31933 of 2004 the order passed by this Court read as under, "Mr.Hegde, learned counsel appearing for the Applicant states that he has instructions to withdraw the review application. The Review Application is allowed to be withdrawn.
Time to implement the order dated 18th August, 2004 is extended by a period of four months without prejudice to the rights of the petitioner in Writ Petition No.539 of 2005."
b) In Civil Application No.1584 of 2005 the following order ::: Downloaded on - 09/06/2013 15:31:53 ::: 10 was passed:
"Mr.Aney, the learned counsel for the applicant prays for withdrawal of the Civil Application. Civil Application is allowed to be withdrawn."
It is apparent that on 7/7/2005 while allowing to withdraw Civil Application No.1584 of 2005 filed by the present petitioner, this Court granted extension of four months to implement the order dated 18/8/2004, and it was without prejudice to the rights of the petitioner in the instant petition. Therefore, the withdrawal of Civil Application No.1584 of 2005 has not in any way affected the rights and contentions of the petitioner in the instant petition which ought to be decided on its own merits.
7. After the Review Petition filed by CIDCO was disposed off by this Court on 7/7/2005, the Technical Evaluation Committee constituted by this Court held its meetings on 1/9/2005, 17/10/2005, 11/11/2005 and 15/12/2005 and by majority it decided in favour of the present respondent no.4, as being the bidder qualified for the award of the contract and accordingly submitted its report dated 15/12/2005. By accepting the said ::: Downloaded on - 09/06/2013 15:31:53 ::: 11 report CIDCO, on 24/1/2006, issued a letter of intent in favour of the present respondent no.4. This decision was sought to be challenged by the present respondent no.3 by filing a fresh writ petition registered as Writ Petition No.908 of 2006 on 14/2/2006.
On 17/2/2006 the following order came to be passed in the said writ petition:
1. The question as to the maintainability of the writ petition in the matter of tender and contract is open for adjudication.Rule. Returnable in four weeks. Rule on interim relief returnable in two weeks.
2. Shri Manohar, learned senior advocate for the petitioners requests for deletion of prayer clause A(f).
It is granted. Prayer clause (f) stands deleted. Rule on interim relief returnable in two weeks as aforesaid in terms of prayers (e) and (g). Learned counsel appearing for CIDCO submits that on the next date of hearing record and proceedings will be kept ready for inspection of the Court, if so required.
3. List the matter on 7th March, 2006 for further orders."
::: Downloaded on - 09/06/2013 15:31:53 ::: 128. On 13/6/2005 while issuing notice in the instant petition, returnable on 29th June 2005 this Court directed to place the petition along with Civil Application (Stamp) No.5918 of 2005 and Review Application (Stamp) No.31933 of 2004. However, on 15/2/2006 the instant petition came to be dismissed in default and it was restored on 14/7/2006 by allowing Civil Application No.1681 of 2006. Leave to amend the petition was granted on 18/8/2006 and on 18/9/2006 the petition was admitted and it was directed to be heard with Writ Petition No.908 of 2006 filed by the present respondent no.3 However, the prayer for interim relief was turned down. Civil Application No.2212 of 2009 filed by the petitioner was allowed for further amendments as in the mean while on 11/11/2008 Writ Petition No.908 of 2006 came to be withdrawn and the respondent no.4 deposited a further amount of Rs.29,70,29,700/- with Cidco on 21/11/2008 and in consequence thereto Cidco on 12/3/2009 issued a letter of allotment to respondent no.4 and the said respondent furnished a Bank Guarantee of Rs.20 crores with Cidco on 4/8/2009 and Lease Deed was signed between Cidco and the present respondent no.4 in respect of the land in Pockets A, D and E on 22/8/2009 and on 24/8/2009 the said Lease Deed came to be registered. Civil Application NO.1944 of 2009 came to be filed ::: Downloaded on - 09/06/2013 15:31:53 ::: 13 praying for interim relief and rather than deciding the said application, the petition was heard for final disposal. The order passed on 11/11/2008 allowing to withdraw Writ Petition No.908 of 2006 reads as under:
"This matter is not on Board. Taken on Board at the request of the learned counsel for the petitioners.
2. An affidavit has been filed, seeking withdrawal of the petition.
ig It is dismissed as withdrawn. The
Rule is discharged. All orders passed by this Court
during the pendency of the petition also stand withdrawn."
It was submitted by Mr.Aney, the learned Senior Counsel for the petitioner that when both the petitions i.e. the instant petition as well as Writ Petition No. 908 of 2006 were directed to be clubbed and heard together as per the order dated 18/9/2006, the respondent no.3 surreptitiously and without giving any notice to the present petitioner withdrew Writ Petition on 11/11/2008 when the matter was not on board in the normal course and at the request made by the learned counsel the petition was taken on board and dismissed as withdrawn. As per Mr.Aney this could not have been done and if notice was ::: Downloaded on - 09/06/2013 15:31:53 ::: 14 given to the counsel of the petitioner the same could have been brought to the notice of the Division Bench which allowed Writ Petition No.908 of 2006 to be withdrawn on 11/11/2008. It was alleged by Mr.Aney that these acts on the part of the respondent no.3 go to show that the said respondent, Cidco and respondent no.4 were in collusion with each other and so as to benefit the respondent no.4 Writ Petition No.908 of 2006 was withdrawn without notice to the present petitioner. In support of this Mr.Aney also referred to the affidavit in reply filed by the respondent no.3 in the present petition wherein the petition has been opposed and which implies that the respondent no.3 is supporting the lease agreement signed between Cidco and respondent no.4 in respect of the allotment of land admeasuring 35.55 H. It was further submitted by Mr. Aney that the order dated 11/11/2008, amounted to partly recall of the order dated 18/9/2006, passed in the instant petition and that too without notice to the petitioner.
9. CIDCO has filed more than one affidavits in reply and the first such affidavit in the present petition was on 15/7/2005 by Shri Ajay Kumar Verma working as EE (IT & SP) with CIDCO. The second affidavit has been filed by Shri Duvvuri Lakshmi ::: Downloaded on - 09/06/2013 15:31:53 ::: 15 Narsimha Murthy, General Manager (IT & SP) of Cidco whereas the third affidavit has been filed by Shri Duvvuri Lakshmi Narasimha Murthy opposing Civil Application No.1944 of 2009 in which it has been pointed out that after Writ Petition No.908 of 2006 was withdrawn on 11/11/2008, the present respondent no.4 approached the Corporation with a request to take further steps in relation to the tender in question and at that point of time he had already deposited a sum of Rs.3,30,03,300/- and on 21/11/2008 he deposited a further sum of Rs,29,70,29,700/- so as to make up the total lease premium of Rs.33,00,33,000/- as determined by this Court vide its order dated 18/8/2004 as being the minimum lease amount.
As per the CIDCO this petition is not maintainable and after Civil Application No.1584 of 2005 was withdrawn unconditionally by the present petitioner, challenge raised in this petition to the lease agreement signed between the Corporation and the respondent no.4 cannot be entertained.
The only remedy available to the petitioner was either to file a review petition in Writ Petition No.5617 of 2004 and pray for recall / modification of the order dated 18/8/2004 or to approach the Supreme Court so as to challenge the said order dated ::: Downloaded on - 09/06/2013 15:31:53 ::: 16 18/8/2004. It is further pointed out that on 3/12/2002 when all the three bidders were called upon to participate in the presentation, the petitioner did not participate and only the remaining two bidders i.e. respondent nos.3 and 4 participated in the presentation. On account of his not participating in the presentation, the petitioner is deemed to have withdrawn himself from the race and he has to be blamed for his own failures. In short it was submitted that when the first letter of allotment was issued in favour of the respondent no.4 on 18/6/2004 the present petitioner was out of the race and he ceased to be a bidder under consideration at any time after 3/12/2002. It was also pointed out that at no point of time the petitioner has taken due steps for being impleaded in Writ Petition No.5617 of 2004 till it was disposed by the consent order dated 18/8/2004. These latches on the part of the petitioner are also required to be taken into consideration by this Court and the reasonable conclusion that requires to be drawn is that the petitioner approached this Court only by way of an afterthought and though he was aware of the pendency of Writ Petition No.5617 of 2004, he did not apply for being impleaded in the said petition at any time before it was disposed off on 18/8/2004. The petitioner having been ::: Downloaded on - 09/06/2013 15:31:53 ::: 17 disqualified for not participating in the presentation held on 3/12/2002, he ceased to be a bidder under consideration and only two bidders remained in the race i.e. respondent no.3 and respondent no.4 and, therefore, CIDCO, pursuant to the directions given by this Court in the consent order dated 18/8/2004, rightly proceeded to constitute the Technical Evaluation Committee and the Committee has considered the bids of respondent nos.3 and 4 on merits. The order passed by this Court on 18/8/2004 has been thus fully complied with by Cidco and it has not committed any illegality or any act of arbitrariness in the procedural requirements to allot the land for development of the golf course as well as country club in favour of the respondent no.4 pursuant to the order passed by this Court on 18/8/2004. As per CIDCO this petition is, therefore, required to be dismissed as not maintainable as well as being devoid of merits. It was also pointed out that the petitioner's claim is based on his own proposal so as to include his own land adjacent to the land in pocket F of CIDCO and the petitioner cannot base his claim on such a proposal. The proposal of the petitioner to club his land is illusory and based on "ifs" and "buts" and CIDCO is not even required to look into such a proposal. The petitioner cannot sell his own proposal in a writ ::: Downloaded on - 09/06/2013 15:31:54 ::: 18 petition challenging the award of tender and/or the lease agreement entered between the parties.
10. On behalf of the respondent no.3 Shri Shashank Joshi, Managing Director of the said company has filed affidavit-in- reply on or about 30th July 2005 and opposed the petition.
However after the petition was amended, respondent no.3 has not filed any reply opposing the challenge of the petitioner to the allotment of land and the agreement of lease dated 22/8/2009 signed between CIDCO and respondent no.4.
Whereas the respondent no.4 has filed the first affidavit opposing the petition on 6th August 2005 and after the petition was amended additional affidavit came to be filed on or about 1st October 2009. While opposing this petition on the same lines as done by CIDCO, respondent no.4 has further stated that after the lease agreement was signed, it has incurred substantial expenses in addition to the amount of Rs.33,00,33,000/- paid to Cidco and the Guarantee of Rs.20 crores furnished to Cidco. It has stated that towards miscellaneous expenses it has spent about Rs.17,81,500/- and has appointed the following persons for acquiring the professional services:
::: Downloaded on - 09/06/2013 15:31:54 ::: 19(a) Mr.Bill Amick of USA for designing of the Golf Course
(b) M/s.Sree Logistics Ltd., Udaipur for reclamation of the Golf Course ((c) M/s. AMR Construction Ltd., Hyderabad for land scaping of the golf course
(d) M/s. Rushikesh H. Architect, Mumbai and M/s. Ajay Bhuta and Associates, Town Planner and Architect, Mumbai for Country Club and Residential Architect for the Golf Course.
(e) M/s. Viraj Projects Ltd., Pune - Country Club and Residential Project for the Golf Course.
It has further claimed that it was the highest bidder at Rs.
33 crores and either the petitioner or respondent no.3 were not anywhere near the said figure and when Cidco has allotted the land to the highest bidder, interference in the same is not called for by entertaining this petition. It has been further pointed out that respondent no.4 has till now incurred total expenditure of Rs.53.18 crores and on account of the pendency of this petition further progress in the development of the golf course as well as the country club has come to a stand still and the money ::: Downloaded on - 09/06/2013 15:31:54 ::: 20 invested by respondent no.4 is locked up. It is also stated that the respondent no.4 has paid the full stamp duty of the amount of Rs.1,65,01,650/- by taking into account the entire land in all the five pockets.
Mr.Thorat, the learned Senior Counsel has relied upon the following decisions of the Supreme Court, while opposing the petition:
1. Tata Cellular Vs. Union of India [(1994) 6 SCC 651]
2. BSN Joshi and Sons Ltd. Vs. Nair Coal Services Ltd. & ors.
[(2006) 11 SCC 548]
3. Jagdish Mandal Vs. State of Orissa & ors. [(2007) 14 SCC 517] The following observations made in the case of BSN Joshi (Supra) have been strongly relied upon, "56. It may be true that a contract need not be given to the lowest tenderer but it is equally true that the employer is the best judge therefor; the same ordinarily being within its domain, Court's interference in such matter should be minimal. The High Court's jurisdiction in such matters being limited ::: Downloaded on - 09/06/2013 15:31:54 ::: 21 in a case of this nature, the Court should normally exercise judicial restraint unless illegality or arbitrariness on the part of the employer is apparent on the face of the record."
11. On the issue of the respondent no.4 having been shown as non responsive by the Evaluation Committee on 3/12/2002, it was contended that the said respondent vide its letter dated 28th January 2003 pointed out its willingness to deposit an amount of Rs.20 crores Bank guarantee and, therefore, the Evaluation Committee did not disqualify the bid of respondent no.4. He was not at any time labelled as a disqualified bidder and it was only a technicality which was corrected in the case of respondent no.4. In short it was contended that the allegations of the petitioner that the respondent no.4 was disqualified right at the first stage by the Evaluation Committee and his financial bid was not required to be opened, are without any merits.
Mr.Thorat also urged before this Court that at no point of time the petitioner had revised his offer of lease premium and he being the lowest in that regard, it would not be in public interest to treat the petitioner as a bidder in the race and, therefore, while passing the order dated 18/8/2004 this Court rightly restricted the participation of respondent nos.3 and 4 before the ::: Downloaded on - 09/06/2013 15:31:54 ::: 22 newly appointed Technical Evaluation Committee and restricted the proposal for award of contract only between Respondent Nos. 3 and 4 and, therefore, the order dated 18/8/2004 must be maintained and so long as CIDCO has acted as per the said order, the agreement of lease has been rightly signed between Cidco and Respondent no.4 and no interference therein is required in this petition. Mr. Thorat also urged before us that the scope of entertaining a curative writ petition is very limited and it cannot be extended to imply entertaining a petition for judicial review of the order dated 18/8/2004 or as an appeal against the said order passed by this Court in terms of the consent terms.
12. The consent terms, which became an order of this court dated 18/8/2004, thereby partly allowing Writ Petition No. 5617 of 2004, read as under:-
" CONSENT MINUTES OF ORDER
1. By consent of the parties appearing in the matter and (without prejudice to their rights and contentions) the award of the Contract for development of a Golf Course and Country Club ::: Downloaded on - 09/06/2013 15:31:54 ::: 23 at Nerul, Navi Mumbai, by Respondent No.1 in favour of Respondent No.2 is set aside.
2. The Committee of the following persons is formed:-
(i) Mr.V.M. Lal, Vice Chairman & Managing Director, CIDCO;
(ii) Dr. Suresh Joshi, Metropolitan Commissioner, MMRDA, Bandra (East), Mumbai.
(iii) Mr. Jaydeo Patwardhan, Captain Indian Amateur Golf Team.
(iv) Mr. Kapil Dev, Sportsman & Developer of Golf Course.
(v) Mr. Agnelo Castilino, Incharge,
Chembur, Golf Course.
3. The aforesaid Committee shall assess the technical bids submitted by the Petitioners and ::: Downloaded on - 09/06/2013 15:31:54 ::: 24 Respondent No.2 in response to the tender on the basis of the documents, material and information including the documents, material & information submitted during the presentation made on 3rd December, 2002.
4. The aforesaid Committee shall submit a Report to Respondent No.1 as to whether the Petitioners and Respondent No.2 are technically qualified as per the terms of the Tender.
5. If both the parties are found to be technically qualified, then both the parties shall be called upon to submit their commercial bids in sealed cover including the commitment for bank guarantee of Rs.20 crores in accordance with the terms of the tender. The reserve bid shall be Rs.33,00,33,000 (Thirty Three Crores & Thirty Three Thousand only).
6. Upon receipt of the sealed commercial bid, if the commercial bid is in accordance with ::: Downloaded on - 09/06/2013 15:31:54 ::: 25 the Tender conditions, then and in that event, the highest bidder shall be awarded the contract.
7. If either of the party is found to be technically unqualified, then the other party, if technically qualified, shall be awarded the contract for Rs.33,00,33,000 (Thirty Three Crorers & Thirty Three Thousand only). "
13. CIDCO being an undertaking of the State Government and a body corporate managed through its board of directors, we called upon Mr. Kumbhakoni, the learned counsel for CIDCO, to submit before us any document, resolution or letter thereby indicating a corporate policy decision for inviting an order of consent by quashing and setting aside the letter of intent dated 18/6/2004. However, we were informed that there was no such decision or resolution by the board of CIDCO or its managing director. It was fairly conceded that none of its Officers had signed the said consent terms, nor was there any record to show ::: Downloaded on - 09/06/2013 15:31:54 ::: 26 that the draft of the consent terms was approved by the CIDCO or by any of its officials like the Managing Director or the Chairman. Obviously, the consent terms were singed on its behalf by its Advocate and the consent order dated 18/8/2004 was invited in this fashion. More surprisingly, CIDCO proceeded to accept that this court had quashed and set aside the letter of intent dated 18/6/2004 on merits and had constituted a new Technical Evaluation Committee of experts. This is unbelievable but a reality and unbelievable because it is an utter failure of the corporate accountability. It is most unexpected of a State undertaking to act in such a casual, negligent and irresponsible manner. For these reasons, the credibility of the corporate decision making of CIDCO is not beyond the pale of doubts and suspicions and, therefore, scrutiny of records by way of judicial review is imperative.
14. On the issue of maintainability of this writ petition, the law is well settled in terms of a constitution Bench decision of the Supreme Court in the case of Shivdev Singh and ors. vs. State of Punjab and ors. [AIR 1963 SC 1909]. In that case, certain agricultural lands in the village of Bhaini Bangar in District Gurdaspur (Punjab) were allotted to a number of displaced ::: Downloaded on - 09/06/2013 15:31:54 ::: 27 persons who were non fauji under the Administration of Evacuee Property Act, 1950 and the Rules made thereunder.
Subsequently, the Director of Rehabilitation (Rural), Jullunder declared the village to be a "fauji" village and by an order dated 10/7/1950 the allotments made earlier to non faujis were cancelled, which were about 27 in numbers. These non fauji moved a writ petition before the Punjab High Court and the same was allowed. But in the writ petition the fauji allottees, who were beneficiaries of the order dated 9/10/1951 were not impleaded as the party respondents though it was allowed by the High Court. Therefore, the fauji families in whose favour either allotment was made or was intended to be made, preferred a writ petition before the High Court under Article 226 of the Constitution for impleading them as parties in the non fauji's petition and rehearing the whole matter. This petition filed by the fauji families was entertained and allowed by the High Court (by the very same learned Judge). The non faujis preferred Letters Patent Appeal before the Division Bench and it was dismissed. It was under these circumstances, a preliminary issue was raised as to whether the petition filed by the fauji families was maintainable and in para 8 of the said judgment, the Constitution Bench stated as under:-
::: Downloaded on - 09/06/2013 15:31:54 ::: 28"8. The other contention of Mr. Gopal Singh pertains to the second order of Khosla, J., which, in effect, reviews his prior order. Learned counsel contends that Article 226 of the Constitution does not confer any power on the High Court to review its own order and, therefore, the second order of Khosla,J., was without jurisdiction. It is sufficient to say that there is nothing in Article 226 of the Constitution to preclude the High Court from exercising the power of review which inheres in every Court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. Here the previous order of Khosla,J., affected the interests of persons who were not made parties to the proceeding before him. It was at their instance and for giving them a hearing that Khosla,J., entertained the second petition. In doing so, he merely did what the principles of natural justice required him to do. It is said that the respondents before us had no right to apply for review because they were not parties to the previous proceedings. As we have already pointed out, it is precisely because they were not made parties to the previous proceedings, though their interests were sought to be affected by the decision of the High Court, that the second application was entertained by Khosle,J."::: Downloaded on - 09/06/2013 15:31:54 ::: 29
This position in law was reiterated by the Supreme Court in the case of Pohla Singh Alias Pohla Ram (D) By Lrs.
and ors. vs. State of Punjab and ors. [(2004) 6 SCC 126].
15. In the instant case, it was claimed by the respondents that the present petitioner was not a necessary party in Writ Petition No. 5617 of 2004 as he had not participated in the presentation stage and was, therefore, out of the race as early as on 3/12/2002 and the Evaluation Committee which considered the bids as per the tender terms was left with only two bidders for its recommendation. Such a statement made by a State undertaking like CIDCO is not only misleading but, in fact, suppression of material facts so as to defeat the petition and we say so on the basis of the affidavit filed by Shri D.L. Narasimha Murthy on behalf of the CIDCO in Writ Petition No. 5617 of 2004 and the relevant paras from the said affidavit are reproduced as under:-
"14. I further say and submit that upon opening of the bids on 03.12.2002, the Respondent No.2, M/s. Mistry Construction Co. Pvt. Ltd. submitted a letter dated 05.12.2002, wherein they have stated that their remark on financial bid regarding initial Bank ::: Downloaded on - 09/06/2013 15:31:54 ::: 30 Guarantee of Rs.5 crores was a suggestion as per the requirement of Request for Proposal and not a condition and if this suggestion is not acceptable to the Respondent Corporation, they are ready and willing to furnish Bank Guarantee of Rs.20 crores as per the bid condition. In the light of this letter, the Respondent Corporation decided to convene second meeting of the Technical Evaluation Committee.
15. I further say and submit that the Technical Evaluation Committee again met on 18.01.2003 and considered afresh the decision taken in its first meeting, specifically in respect of the financial bids. The Committee noted that the contention of the Respondent No.2 on submission of Bank Guarantee is valid. The Committee further opined to disqualify the technical bids of M/s. Makhija Developers Pvt. Ltd. and M/s. Mistry Construction Co. Pvt. Ltd. and to quality the petitioner's bid.
16. I further say and submit that in the light of the recommendation of the Technical Evaluation Committee in its second meeting held on 18.01.2003, the Respondent Corporation was left with two options, viz. (i) to reinvite the bids, or (ii) to consider award of contract to develop the Golf Course project to any one of the three bidders. The Respondent Corporation, after taking into consideration the period for reinviting fresh tenders felt that completing the formalities for ::: Downloaded on - 09/06/2013 15:31:54 ::: 31 reinvitation of tenders ultimately will cause delay in the development of the project, which is not in the large public interest. With a view to avoid delay, the Respondent No.1 thought it appropriate to select one of the bidders from these three bidders. In order to take a decision regarding award of the contract to a suitable bidder, the Technical Evaluation Committee was expanded with induction of the Joint Managing Director, CIDCO and Shri N.V. Merani, Technical Expert & Retired Principal Secretary, Public Works Department, Government of Maharashtra, as additional members. This Committee was requested to make comprehensive and proper reassessment and submit suitable recommendation which could be placed before the Board for appropriate decision.
17. I further say that the expanded Committed met on July 31, 2003 and made comprehensive assessment and also examined thoroughly the technical as well as financial bid documents submitted by the bidders. The Committee expressed their opinion that the difference between the financial bids of the Respondent No.2 at Rs.33 crores and that of the Petitioner at Rs.10 crores, is very large and considering the land valuation done by the Respondent Corporation at about Rs.33 crores, the offer of the Respondent No.2 was felt to be reasonable. Therefore, the Committee opined that the financial bid of the Respondent No.2 is highest ::: Downloaded on - 09/06/2013 15:31:54 ::: 32 amongst all the bidders and in order to strengthen technical capabilities, the Respondent Corporation may ask the Respondent No.2 to engage renowned architects and technical experts suggested by the Corporation to develop the Golf Course Project. The Respondent No.2 had shown readiness and willingness to that effect. Therefore, the Committee decided that in order to develop Golf Course and Country Club Project at Nerual, Navi Mumbai, the bid of the Respondent No.2 be accepted. Further, the Committee suggested that the Respondent No.2 should bring best technical talent/experts development of the Project to the satisfaction of the for Respondent Corporation. The Respondent No.2 should make upfront payment of the financial bid of Rs.33 crores upon award of contract or upon entering into the contract. The Respondent No.2 should develop Signature Golf Course. The Respondent Corporation shall in order to supervise the progress of the project, appoint its own expert advisor. The Committee felt that any deficiency in the bid document and irregularities in technical evaluation could be rectified by negotiating with the highest bidder and seeking written commitment to comply with all conditions regarding technical capabilities. The Committee also recommended to place their conclusions before the Board of Directors of the Respondent Corporation for consideration.::: Downloaded on - 09/06/2013 15:31:54 ::: 33
18. I say that the agenda note was submitted to the Board of Directors in its meeting held on 13.08.2003 along with the recommendation of the Technical Evaluation Committee and in the agenda note, final marks based on technical and financial bids of three bidders was incorporated.
Sr.No. Name of Marks Marks Total
Party obtained obtained marks
in the in the obtained
Technical Financial
Bid Bid
ig (out of 65) (out of 35) (out of
100)
---------------------------------------------------------------------------------
1. M/s.BSEL 54.60 10.61 65.21 Information Systems Ltd.
2. M/s.Makhija 41.67 7.12 48.79 Developers Pvt. Ltd.
3. M/s.Mistry 37.33 35.00 72.33
---------------------------------------------------------------------------------
The Board of Director, vide Resolution No. 8813 dated 13.08.2003 decided to refer this subject matter to the Government of Maharashtra for appropriate decision. A copy of the Board Resolution is annexed herewith as Annexure-I.
19. I further say and submit that as per the decision of the Board, the proposal was referred to the ::: Downloaded on - 09/06/2013 15:31:54 ::: 34 Government of Maharashtra, vide letter dated 19th September, 2003. A copy of the proposal submitted to the Government is annexed hereto as Annexure-II.
The State Government, in Urban Development Department, vide its letter dated 02.06.2004, informed the Respondent Corporation that CIDCO should take appropriate decision in the matter. A copy of the Government letter is annexed hereto as Annexure -III.
20. I further say and submit that accordingly the proposal was again placed before the Board of Directors of the Respondent Corporation and its meeting held on 03/06/2004 and the Board of Directors, vide Resolution No. 9063 dated 03.06.2004 approved the award of the contract for Development of Golf Course and Country Club at Nerual to M/s. Mistry Construction Co. Pvt. Ltd. (Respondent No.2). A copy of the said Board Resolution is annexed herewtih as Annexure - IV."
From the above stated averments of CIDCO in Writ Petition No. 5617 of 2004, it is very clear that the present petitioner was in the race for consideration even when the Board of Directors of CIDCO passed Resolution No. 8813 on 13/8/2003 and referred the subject matter to the Government of Maharashtra for appropriate decision. The options before CIDCO and on which ::: Downloaded on - 09/06/2013 15:31:54 ::: 35 the advise from the Government was sought, were, (i) to reinvite the bids, or (ii) to consider award of contract to develop the Golf Course project to any one of the three bidders.(emphasis supplied).
It is, therefore, a totally false statement and equally a false plea taken before us by CIDCO that the present petitioner was not in the race after 3/12/2002 and was not a necessary party in Writ Petition No. 5617 of 2004. We, therefore, reject the contentions of CIDCO as well as respondent Nos.3 and 4 that this petition is not maintainable and by following the law laid down by the Supreme Court in the case of Shivdev Singh (Supra) and Pohla Singh (Supra) we hold that the petition is maintainable and we proceed to decide the same on merits.
The withdrawal of Civil Application No. 1584 of 2005 filed by the petitioner cannot be read in isolation and it has to be read with the order passed by this court on the very same day on the review petition filed by CIDCO. This court specifically stated in its order passed in the review petition filed by CIDCO that it would not cause any prejudice to the rights and contentions of the petitioner set out in this petition which was subsequently directed to be clubbed and heard with Writ Petition No. 908 of ::: Downloaded on - 09/06/2013 15:31:54 ::: 36 2006. Thus, the challenge to the letter of intent dated 24/1/2006 issued in favour of respondent no.4 was under consideration along with the challenge raised in the instant petition. CIDCO as well as respondent nos.3 and 4 were fully aware of this legal position. CIDCO could not have taken any further steps on the letter of intent dated 24/1/2006 in view of the order of status quo passed in Writ Petition No. 908 of 2006 by this court. It is under these circumstances that respondent no.3 took out an oral motion on 11/11/2008 to withdraw Writ Petition No. 908 of 2006 (filed by it) and that too without notice to the present petitioner though both the petitions were clubbed. It appears that a copy of the clubbing order dated 18/9/2006 was not placed in Writ Petition No. 908 of 2006 though the petitions were clubbed. A reasonable inference, that may be drawn, is that CIDCO, respondent no.3 and respondent no.4 joined hands so as to remove the obstruction of the status quo order in the way of respondent no.4 to act further on the letter of intent by getting the status quo order vacated. A public body like CIDCO was not expected to act in such a callous manner and at least it was incumbent upon the part of its learned Advocate to bring to the notice of this court on 11/11/2008 the order passed in the present petition on 18/9/2006 and if it was so done, the order ::: Downloaded on - 09/06/2013 15:31:54 ::: 37 dated 11/11/2008 could not have been passed without notice to the present petitioner. It is also pertinent to note that after the order dated 11/11/2008 was passed, respondent no.4 deposited the balance lease amount of Rs.29,70,29.700/- with CIDCO on 17/11/2008 i.e. within less than a week. This course of action certainly caused prejudice to the rights and contentions of the petitioner and rendered the order dated 7/7/2004 passed by this court in CIDCO's writ petition meaningless. We, therefore, have no doubt to hold that CIDCO as a public body acted in an unfair and surreptitious manner. In para 6 above, we have also held that withdrawal of Civil Application No. 1584 of 2005 by the petitioner, as per the order dated 7/7/2005 passed by this court has not affected the rights and contentions of the petitioner, as raised in this petition and to be examined on merits.
16. Mr. Aney also relied upon the doctrine of restitution. He submitted that the petitioner is entitled to pray for corrections of the injustice caused to it by not impleading it as a party respondent in Writ Petition No. 5617 of 2004 and thereby taking away its right to remain in the race for consideration for gant of the tender, on the basis of the recommendations to be made by the newly constituted Technical Evaluation Committee, as per ::: Downloaded on - 09/06/2013 15:31:54 ::: 38 the order dated 18/8/2004 passed by this court while allowing the said Writ Petition partly and setting aside the letter of intent.
It was further submitted by Mr. Aney that the order dated 18/8/2004 confined the scope of consideration only between two bidders and though as per the affidavit filed by CIDCO in the said Writ Petition (filed by present respondent no.3), the petitioner was in the race all along, injustice was caused to the petitioner and the said order came to be passed behind the petitioner's back.
ig He relied upon the decision in the case of South Eastern Coalfields Ltd. vs. State of M.P. and ors. [(2003) 8 SCC 648] and submitted that to make restitution for what a party has lost is the duty of the court unless it feels that in the facts and circumstances of the case, the restitution far from meeting the ends of justice would rather defeat the same.
There is nothing wrong in an effort being made to restore the parties to the same position in which they would have been if the order would not have existed. He referred to the scheme of Section 144 of CPC and submitted that even otherwise the court has inherent jurisdiction to order restitution so as to do complete justice between the parties. Mr. Aney also relied upon a decision of this court (DB) in the case of M/s. Transasia Bio-
Medicals Ltd. vs. M/s. Revijay Clinical Laboratory and Hospital ::: Downloaded on - 09/06/2013 15:31:54 ::: 39 [AIR 2003 Bombay 331] and more particularly the following observations:-
"......Once we reach the satisfaction that it was a mistake committed by the Court, in our opinion, it is not only appropriate but also the duty of the Court to rectify the mistake by exercising inherent powers and there are no fetters on the powers of the Court in correcting its mistake which resulted in injury to the litigant for no fault of the litigant......"
Mr. Aney also relied upon the following observations made by the Apex Court in the case of A.R. Antulay vs. R.S. Nayak [AIR 1988 SC 1531]:
"To err is human, is the oft quoted saying. Courts including the apex one are no exception. To own up the mistake when judicial satisfaction is reached does not militate against its status or authority. Perhaps it would enhance both."
We find merit in the arguments advanced by Mr. Aney and we do not see any reason to hold that this petition filed, without resorting to the remedy of review petition, is not ::: Downloaded on - 09/06/2013 15:31:54 ::: 40 maintainable. The preliminary objections raised by CIDCO as well as respondent nos.3 and 4 of the maintainability of this petition must, therefore, fail and they are hereby rejected.
17. A three Judge Bench in the case of Tata Cellular vs. Union of India [(1994) 6 SCC 651] deduced the following principles for judicial review of administrative actions in the matters of awarding tenders by a State or a State undertaking:
(i) The modern trend points to judicial restraint in administrative action.
(ii) The court does not sit as a court of appeal but merely reviews the manner in which the decision was made.
(iii) The court does not have the expertise to correct the administrative decision. If a review of the administrative decision is permitted it will be substituting its own decision, without the necessary expertise which itself may be fallible.
(iv) The terms of the invitation to tender cannot be open to judicial scrutiny because the invitation to ::: Downloaded on - 09/06/2013 15:31:54 ::: 41 tender is in the realm of contract. Normally speaking, the decision to accept the tender or award the contract is reached by process of negotiations through several tiers. More often than not, such decisions are made qualitatively by experts.
(v) The Government must have freedom of contract.
In other words, a fair-play in the joints is a necessary concomitant for an administrative body functioning in an administrative ig sphere or quasi-administrative sphere. However, the decision must not only be tested by the application of Wednesbury principle of reasonableness (including its other facts pointed out above) but must be free from arbitrariness not affected by bias or actuated by mala fides.
(vi) Quashing decisions may impose heavy administrative burden on the administration and lead to increased and unbudgeted expenditure."
18. In the case of B.S.N. Joshi & Sons Ltd. vs. Nair Coal Services Ltd. [(2006) 11 SCC 548] the Supreme Court considered a catena of judgments rendered by it earlier right from 1963 onwards and summarized some broad principles ::: Downloaded on - 09/06/2013 15:31:54 ::: 42 for judicial review of the decision either to accept or reject a tender by a public body, which are as under:-
"(a) if there are essential conditions, the same must be adhered to;
(b) if there is no power of general relaxation, ordinarily the same shall not be exercised and the principle of strict compliance would be applied where it is possible for all the parties to comply with all such conditions fully;
(c) if, however, a deviation is made in relation to all the parties in regard to any of such conditions, ordinarily again a power of relaxation my be held to be existing;
(d) the parties who have taken the benefit of such relaxation should not ordinarily be allowed to take a different stand in relation to compliance with another part of tender contract, particularly when he was also not in position to comply with all the conditions of tender fully, unless the court otherwise finds relaxation of a condition which being essential in nature could not be relaxed and thus the same was wholly illegal and ::: Downloaded on - 09/06/2013 15:31:54 ::: 43 without jurisdiction;
(e) when a decision is taken by the appropriate authority upon due consideration of the tender document submitted by all the tenderers on their own merits and if it is ultimately found that successful bidders had in fact substantially complied with the purport and object for which essential conditions were laid down, the same may not ordinarily be interfered with;
(f) the contractors cannot form a cartel. If despite the same, their bids are considered and they are given an offer to match with the rates quoted by the lowest tenderer, public interest would be given priority;
(g) where a decision has been taken purely on public interest, the court ordinarily should exercise judicial restraint.
The Supreme Court further went on to hold in the said case as under:
"69.............It may be true that essential terms of the ::: Downloaded on - 09/06/2013 15:31:54 ::: 44 contract were required to be fulfilled. If a party failed and/or neglected to comply with the requisite conditions which were essential for consideration of its case by the employer, it cannot supply the details at a later stage or quote a lower rate upon ascertaining the rate quoted by others. Whether an employer has power of relaxation must be found out not only from the terms of the notice inviting tender but also the general practice prevailing in India. For the said purpose, the court may consider the practice prevailing in the past. Keeping in view a particular object, if in effect and substance it is found that the offer made by one of the bidders substantially satisfies the requirements of the conditions of notice inviting tender, the employer may be said to have a general power of relaxation in that behalf. Once such a power is exercised, one of the questions which would arise for consideration by the superior courts would be as to whether exercise of such power was fair, reasonable and bona fide. If the answer thereto is not in the negative, save and except for sufficient and cogent reasons, the writ courts would be well advised to refrain themselves in exercise of their discretionary jurisdiction."
In the subsequent decision in the case of Jagdish Mandal vs. State of Orissa and ors. [(2007) 14 SCC 517], the Supreme Court set out the parameters for judicial review of an ::: Downloaded on - 09/06/2013 15:31:54 ::: 45 administrative action while entertaining a writ petition under Article 226 of the Constitution in the following words:
"22. Judicial review of administrative action is intended to prevent arbitrariness, irrationality, unreasonableness, bias and mala fides. Its purpose is to check whether choice or decision is made "lawfully"
and not to check whether choice or decision is "sound". When the power of judicial review is invoked in matters relating to tenders or award of contracts, certain special features should be borne in mind. A contract is a commercial transaction. Evaluation of tenders and awarding contracts are essentially commercial functions. Principles of equity and natural justice stay at a distance. If the decision relating to award of contract is bona fide and is in public interest, courts will not, in exercise of power of judicial review, interfere even if a procedural aberration or error in assessment or prejudice to a tenderer, is made out. The power of judicial review will not be permitted to be invoked to protect private interest at the cost of public interest, or to decide contractual disputes. The tenderer or contractor with a grievance can always seek damages in a civil court. Attempts by unsuccessful tenderers with imaginary grievances, wounded pride and business rivalry, to make mountains out of molehills of some technical/procedural violation or some prejudice to ::: Downloaded on - 09/06/2013 15:31:54 ::: 46 self, and persuade courts to interfere by exercising power of judicial review, should be resisted. Such interferences, either interim or final, may hold up public works for years, or delay relief and succour to thousands and millions and may increase the project cost manifold. Therefore, a court before interfering in tender or contractual matters in exercise of power of judicial review, should pose to itself the following questions:
(i) Whether the process adopted or decision made by the authority is mala fide or intended to favour someone;
OR Whether the process adopted or decision made is so arbitrary and irrational that the court can say;
"the decision is such that no responsible authority acting reasonably and in accordance with relevant law could have reached";
(ii) Whether public interest is affected.
If the answers are in the negative, there should be no interference under Article 226."
19. The tender consisted two parts, namely, (1) Instructions to Developers and (2) Terms of Reference. It ::: Downloaded on - 09/06/2013 15:31:54 ::: 47 would be appropriate to reproduce the relevant clauses of both these:-
"Instructions to Developers
9. Validity The proposal shall be kept valid for a period of ninety (90) days from the stipulated last date for receipt of proposals as mentioned hereafter. The over all offer including key personnel proposed for the assignment and your quoted prices shall remain unchanged during the period of validity.
10. Evaluation of Offers Offers received and found valid will be evaluated by CIDCO to ascertain the best-evaluated offer in the interest of CIDCO, for the complete woks/services under these specifications and documents. The developer should take enough care to submit all the information sought by CIDCO in the desired formats. The proposals, in general, shall be evaluated using the following criteria, a. Technical Proposal - The Technical proposal to be submitted as per formats enclosed in Appendix 1, shall comprise the following:-
i. Letter of Transmittal (in given format) ::: Downloaded on - 09/06/2013 15:31:54 ::: 48 ii. Check list of the submission iii. A1- Organizational details and financial statement.
iv. A2- Agreement/MOU of Consortium if any v. A3- Information regarding Consortium vi. A4- Developers references. The developer must specify details of similar assignments carried out for the development of other Golf Course and Country Club projects as well as operation and maintenance of Golf Course.
vii. A5- Description of the methodology and work plan. The method statement for carrying out the assignment covering general approach and methodology including such detailed information as is relevant needs to be given. Work plan in the form of a bar chart also needs to be submitted.
viii. A6- Team Composition and task
assignments
ix. A7- Format of Curriculum Vitae For
Proposed Professional Staff
x. A8- Time schedule for professional
personnel
xi. A9- Comments/suggestions of
developers regarding the Terms of assignment and any specific proposal to save time and cost.
b. Presentation The Developer will have to make a ::: Downloaded on - 09/06/2013 15:31:54 ::: 49 presentation of the technical proposal to CIDCO. The presentation shall cover in sufficient detail the organizational details, appreciation of the project, method statement of the study covering approach & methodology for the study, proposed organizational structure, work program, implementation strategy, proposal to save time and cost. The objective of presentation is to evaluate the developer regarding their understanding and preparedness for the assignment and get clarifications, if any, as required by CIDCO. The developer must be ready to make his presentation any day after submission of the technical proposal. The date and venue of presentation will be decided by CIDCO and intimated at least three days in advance. During presentation it is expected that each key person will make presentation about his filed of work as indicated in the proposal.
The technical strength of the developer is evaluated after combining the marks scored under Clause 10(a)(iii) to (xi) above and the presentation. The technical proposal submitted by the developer would carry a weightage of 50% and the presentation that will follow the submission of proposal would carry a weightage of 50%. The technical proposal submitted by the developer would be evaluated on the basis of developer's experience, financial capabilities ::: Downloaded on - 09/06/2013 15:31:55 ::: 50 and key personnel. This combined score is treated as marking under Technical proposal.
The minimum qualifying score in each part would be 60% and overall minimum qualifying score shall by 75%.
c. Financial Proposal Those developers who secure more than or equal to 75% in the technical proposal shall only qualify for consideration of opening of financial proposal. Financial proposals of all qualifying bidders will be opened. evaluation of the financial proposal will be done The on the basis of quoted amount as given in the financial proposal. The score on financial proposal will be calculated in the following manner:
Proposal evaluation:100*(X/Y) Where, X=Amount quoted by the bidder.
Y=Amount quoted by the highest bidder.
The percentage marks allocated to the highest responsive bidder will be 100 and to any other bidder, 100*(X/Y).
The financial bid is to be submitted in the formats shown in the Appendix 2. Significant lack of clarity could lead to the offer being rejected, if it hinders a uniform evaluation ::: Downloaded on - 09/06/2013 15:31:55 ::: 51 process, even if the proposal meets all other proposal and technical criteria.
Total score will be worked out by adding the weighted marks on technical and financial proposals. Weightage to each of the aforementioned proposals would be as under:
------------------------------------------------------------
1. Technical Proposal 65%
2. Financial Proposal 35%
-------------------------------------------------------------
ig Total 100%
-------------------------------------------------------------
The Bidder scoring highest weighted score will be invited to negotiate a contract and will be awarded the work.
11. Award of Contract a. Notification on Award of Contract for the developer will be made in writing to the successful bidder by CIDCO. The proposals received and accepted will be evaluated by CIDCO to ascertain the best offer with due weightage to technical and financial proposals, for the complete assignment under these specifications and documents.
::: Downloaded on - 09/06/2013 15:31:55 ::: 52b. The contract for the project would be awarded to the best-qualified and responsive proposal offering the proposal in conformity with the requirements of these specifications and documents and CIDCO shall be the sole judge in this regard.
c. The selection of developers will be at the sole discretion of CIDCO who reserve their rights to accept or reject any or all the proposals without assigning any reason. CIDCO reserves the right to call for additional information from the bidding developers."
Terms of Reference
5. Scope of work The scope of work as given below outlines the broad idea of the project. The selected party is expected to develop the project keeping in view the objective as given above.
5.1 Development of Golf course Total area reserved for 18 hole Golf Course is about 34.0 ha. adjacent to the Sea Woods Estate complex and TS Chanakya marine Traiing Institute. The land is in possession of CIDCO.
The area shall be utilised only for Golf Course purpose and provision of certain incidental activities as enumerated here below. An additional area of 1.50 ha. is reserved for real ::: Downloaded on - 09/06/2013 15:31:55 ::: 53 estate development abutting the Golf Course area.
The entire area may be divided broadly into two land use zones viz. Residential Zone and Regional Park Zone. Permissible uses in these zone are as under.
Residential Zone: Incidental Residential
and commercial activities, Holiday
Resorts, Country Club, Cultural and
Welfare activities etc.
ig Regional Park Zone: Cultural and Welfare activities and Holiday Resorts with 0.33 FSI Incidental public utilities etc. The above uses may be permitted at designated places as the Managing Director / Chief Architect and Planner may specify at the time of agreement. Other provisions of the General Development Control Regulations in force shall be applicable.
The detailed information about different pockets of land forming part of the Golf Course (Please refer the plan placed at Appendix-III) are as ::: Downloaded on - 09/06/2013 15:31:55 ::: 54 under:
Pocket A: (Please refer the plan) The land use of this 12.0 ha pocket is changed from No Development Zone to Residential and the proposal is submitted to the Government for sanction. This pocket also falls under Defense Regulations Zone wherein the construction activities are restricted. The developer may utilise for the pocket for complimentary construction activities after obtaining clearance from Defense Department.
Pocket B: (Please refer the plan) The land use of this 20.0 ha pocket is changed from No Development Zone to Regional Park Zone and the proposal is submitted to the Government for sanction. Permissible uses shall be as per the uses in Regional Park zone mentioned above.
Pocket C: (Please refer the plan) The land use of this 0.85 ha pocket is changed from No Development Zone to Residential Zone and the proposal is submitted to the Government for sanction. The uses mentioned in the Residential Zone above may be permitted.
Pocket D: (Please refer plan) It is about 1.20 Ha. This falls in residential zone and is readily available for development. The ::: Downloaded on - 09/06/2013 15:31:55 ::: 55 uses mentioned in the Residential Zone above may be permitted.
Pocket E: (Please refer plan) It is about 1.5 ha. This falls in residential zone and is readily available for real estate development. In addition to the uses mentioned in the Residential Zone above the developer may provide the Bungalows and other Residential activities subject to Special Development Control Regulations specified here below.
Pocket F: (Please refer plan) At present this pocket is not a part of Golf Course as it is in Coastal Regulation Zone (CRZ-
I). It is about 47 ha. and is in possession of CIDCO. Land use is changed recently from No Development Zone to Regional Park Zone and a proposal under MRTP Act is submitted to the Government for approval.
Since it is contiguous to the Golf Course, the developer may use this pocket for the activities compatible to CRZ I provisions and complimentary to Golf Course activities, subject to clearance from the Ministry of Environment and Forests, Govt. of India and payment of certain premium as CIDCO may prescribe.
Note:
Areas mentioned for pockets C and D are ::: Downloaded on - 09/06/2013 15:31:55 ::: 56 subject to actual site demarcation. Area demanded by the developer for real estate development would be allotted after appropriating it with the demarcated area of these pockets. Maximum area for real estate development shall in any case not exceed the area of pocket E. Allocation of FSI In order to allow the required construction activities and to make the Golf Course a viable project, built up area upto two and half times the area of the pockets C, D and E will be permitted. The developer may nevertheless assess the consumption of the built up area as per the Development Control Regulations in force. Additional FSI upto 3.0 if required by the developer may be granted subject to Government approval and payment of premium prescribed by CIDCO.
Pocket D and E are readily available for development. Development of pocket C is subject to the Government approval for change of land use.
In addition to this, in case the developer gets clearance from the defense department, pocket A may also be utilized for construction activities without compromising to the open space ::: Downloaded on - 09/06/2013 15:31:55 ::: 57 requirements of Golf Course. The developer may be permitted additional built up area for this purpose, over and above the permitted built up area, subject to payment of premium, to be determined by CIDCO.
Special Development Control Regulations:
The developer shall seek all the approvals/ development permissions, required under the applicable law, for all the plans and designs from the Competent Authority before taking up any development.
The area likely to be allotted for real-estate development (Pocket E) shall be utilized only for the permissible activities, as per the development control regulations in force, in residential zone, in tune with the surrounding development.
The developer shall get all the design of golf course approved from CIDCO before seeking development permission.
The developer shall ensure adequate parking facilities, as per the standards prescribed by the competent authority, for the anticipated vehicles and a separate place shall be carved out for this purpose.
The Developer shall apply independently for drainage, sewerage, electricity and water supply connections and pay the necessary charges for ::: Downloaded on - 09/06/2013 15:31:55 ::: 58 this purpose.
5.2 Development of Country Club The facilities following minimum be offered at the country club:
24 residential rooms sports facilties- badminton, table tennis, squash courts, swimming pool etc. Children's play area Leisure facilities-card room, pool and billiards rooms ig Food & Beverages and conference -
restaurant, bar, meeting rooms, banquet hall, health club/spa In addition to this, the following facilities may be considered:
Food court Family entertainment centers like multiplex, go-carting, bowling alleys, games and retail Villas, apartments (sale/time share) The consultants report may be referred for further details in this respect.
5.3. Operation & management of Golf course and Country Club.
To operate and manage the golf course to the international standards 5.4 Development of Real Estate ::: Downloaded on - 09/06/2013 15:31:55 ::: 59 To develop area for real estate, the developer is allowed to develop this plot of land for residential purpose only. This should be carried out in accordance with the Special Control Development Regulations given in the subsequent paras.
5.5 Development conditions The disposal of the above land is governed by the New Bombay Disposal of Land Regulations (NBDLR), 1975 and other terms and conditions as set forth in the disposal of land by CIDCO. All above developments shall be governed by General Development Control Regulations (GDCR) in force and the provisions of MRTP Act of 1966 and other terms and conditions as set forth by CIDCO.
5.6 Special Development Control Regulations:
The developer shall seek all the
approvals/development permissions,
required under the applicable law, for all the plans and designs from the Competent Authority before taking up any development.
The area likely to be allotted for real-
estate development (Pocket E) shall be utilized only for the permissible activities, as per the development control regulations in force in residential zone.
The developer shall ensure adequate ::: Downloaded on - 09/06/2013 15:31:55 ::: 60 parking facilities, as per the standards prescribed by the competent authority, for the anticipated vehicles and a separate place shall be carved out for this purpose.
The Developer shall apply independently for drainage, sewerage, electricity and water supply connections and pay the necessary charges for this purpose.
6. Assignment Duration The duration of completing the Golf Course & Country Club is 36 months.
7. Release of land to the developer CIDCO would release the land (Pocket C, D and E) to the developer for the development of golf course and country club and also for the real estate development as under:
i. A Bank Guarantee (BG) for an amount equal to 100% of the Golf Course and Country Club and not less than Rs.20 crores shall be submitted on entering the contract.
ii. The developer, in consultation with CIDCO, shall phase out the project into 4 to 6 phases but not exceeding 36 months.
During the execution of each phase the developer shall submit a BG for an ::: Downloaded on - 09/06/2013 15:31:55 ::: 61 amount equal to the cost of the respective phase. The validity of such a BG shall for the period till completion of the phase.
Iii. CIDCO, at the end of the respective phase and upon satisfying itself with the completion of the work, would release the plot of land equivalent to BG amount. The cost of the land shall be based on the rate quoted by the bidder in his financial proposal as submitted to CIDCO."
20. Before we proceed further, it would also be appropriate to note down at this stage the land use in Pockets A to E which is as under:
Pocket Area Land Use
1. A 12 H. Residential
2. B 20 H. Regional Park Zone
3. C 0.85 H. Residential Zone
4. D 1.20 H. Residential Zone &
available for real-estate
development
5. E 1.5 H. Residential Zone &
available for real-estate
development.
As per the allocation of FSI, as stated in the Terms of ::: Downloaded on - 09/06/2013 15:31:55 ::: 62 Reference, built up area upto two and half times the area of the pockets C, D and E will be permitted and the developer may nevertheless assess the consumption of the built up area as per the Development Control Regulations in force.
Additional FSI upto 3.0 if required by the developer, may be granted subject to Government approval and payment of premium prescribed by CIDCO. Pockets D and E are readily available for real-estate development and Pocket C was subject to the Government approval for change of land use.
It further stated that the developer may be permitted additional built up area over and above the permitted built up area, subject to the payment of premium, to be determined by CIDCO.
21. CIDCO has placed before us the record pertaining to the opening of the tenders, evaluation of the technical proposal made by the Committee, presentations made by the Evaluation Committee and the notings indicating the views expressed by the officers concerned of CIDCO. The record shows that the bids were opened on 3/12/2002 and assessment was made by the Committee of four members.
Every bid was examined by the said Committee and ::: Downloaded on - 09/06/2013 15:31:55 ::: 63 evaluated for technical as well as financial proposal. The Committee's evaluation in respect of three bids was as shown in para 4 above and the respondent no.4 was shown non responsive in the financial proposal by the Committee.
In the technical proposal, the bid of respondent no.4 obtained 37.33 marks out of 65 marks which was less than 60% even in the technical proposal and the over all minimum qualifying overall score was fixed at 75% in terms of Clause 10(b) of the tender conditions.
ig As per Clause 10(c) of the said tender conditions, those developers who secure more than or equal to 75% in the technical proposal shall only qualify for consideration of opening of financial proposal and financial proposals of all qualifying bidders will be opened. Thus, the Committee was not even required to open and consider the financial proposal submitted by respondent no.4, as the said respondent was disqualified on account of failure to score minimum qualifying marks on technical proposal fixed at 60%. The respondent no.4 was disqualified at the threshold and ought to have been treated as such by the Committee, having regard to the terms of the tender.
::: Downloaded on - 09/06/2013 15:31:55 ::: 64As per Clause 9 of the tender conditions, the proposal was to be valid for a period of 90 days from the stipulated last date for the receipt of proposal. In the tender, the last date for receipt of proposal was fixed as 12/11/2002. The proposals were valid for 90 days from 12/11/2002. When the initial letter of intent was issued to respondent no.4 on 18/6/2004, its proposal was not valid. On 28/1/2003 the Evaluation Committee recorded its minutes and in para 7 of the same minutes it was clearly stated that the Evaluation Committee had decided to disqualify the bids of M/s.
Makhija Developers Pvt. Ltd. and M/s. Mistry Construction Co. Pvt. Ltd. and it had qualified the bid of M/s. BSEL Information Systems Ltd., based on the legal opinion of Shri K.N. Patil, the Legal Advisor and on the ground that both these bidders had failed to score the minimum overall score of 75% marks in the technical proposal. However, as noted in para 4 above, M/s. BSEL i.e. Respondent No.3 was the only bidder who had scored the minimum overall score above 75% i.e. 84%, leaving it as the only qualified bidder to open the financial proposal. On 17/6/2003 a detailed representation was made to the Management of CIDCO and it appears that on 28/1/2003 the Chairman of CIDCO called ::: Downloaded on - 09/06/2013 15:31:55 ::: 65 for second meeting of the Evaluation Committee which was held on the same day. In that meeting the letters dated 5/12/2002 and 16/12/2002 received from respondent no.4 were placed before the Management. Shri K.N. Patil, the Legal Advisor gave his opinion to the Management that such letters should be excluded. The second meeting of the Evaluation Committee qualified only respondent no.3. The Management was also informed that Shri A.K. Lakhina, Ex-
Managing Director
ig had recommended re-invitation of
tenders for the project, whereas Shri A.B. Kulkarni, Ex-
Managing Director had asked to proceed further on the project only after getting Government clearances on the land. It is also clear from the record that the Chief Economist had assessed the land component cost at Rs.
23.19 corers in the year 2000-2001 and despite the same, in the tender conditions such a minimum amount for land lease was not mentioned and, in fact, no minimum lease amount as such was mentioned in the tender. It was only after the Management of CIDCO accepted to proceed on the basis of the letters dated 5/12/2002 and 16/12/2002 of respondent no.4, that the expanded Committee reassessed the bids and on the basis of the offer of Rs.33 crores it was ::: Downloaded on - 09/06/2013 15:31:55 ::: 66 given 35 marks (100%) for the financial proposal and that is how respondent no.4 scored 72.33% marks, which was the highest score amongst all the three bidders. CIDCO constituted a third Evaluation Committee which was called as "the Expanded Committee" consisting of six members as against the old Committee of four members. The agenda note for the 443rd meeting of the Board of Directors of CIDCO, to be held on 13/8/2003, was prepared and it contained the legal opinion of Shri K.N. Patil in the following words:
"Shri K.N. Patil, Legal Advisor, opined that the letters received from M/s. Mistry Construction Co. Ltd. are to be excluded from consideration in accordance with the Supreme Court decision to the effect that any correspondence or modification of offer submitted by the bidder past appointed time is to be disregarded."
However, the third Evaluation Committee had recommended the award of tender to respondent no.4 as it scored highest marks amongst the three bidders. The Board passed a resolution to refer the issue to the State Government for ::: Downloaded on - 09/06/2013 15:31:55 ::: 67 appropriate decision and accordingly on 19/9/2003 such a proposal was submitted to the State Government. The State Government, in turn, by its reply dated 2/6/2004 informed CIDCO to take appropriate decision. On 3/6/2004 Resolution No.9063 was passed to approve the award of tender to respondent no.4 solely on the ground that respondent no.4 had quoted the highest amount of Rs.33,00,33,000/-
towards the lease payment and had scored the highest marks in the technical and financial proposals put together.
21A. While Writ Petition No.5614 of 2004 was heard by this court, CIDCO had not placed before the court the record as has been placed before u s and it had only submitted an affidavit-in-reply which we have referred to and the learned counsel appearing for the parties invited an order of consent by submitting the consent terms before the court. The order dated 18/8/2004 has, thus, not considered the merits of the decision taken by CIDCO to award the letter of intent on 18/6/2004 to respondent no.4.
22. The tender terms did not provide for constituting an expanded committee by Cidco to reconsider the ::: Downloaded on - 09/06/2013 15:31:55 ::: 68 recommendations made by the Evaluation Committee of four members which had opened the tenders on 3/12/2002 and assessed the bids. The expanded Committee virtually sat in appeal over the recommendations made by the earlier Evaluation Committee which was not envisaged or provided for in the tender terms and the letter of intent dated 18/6/2004 was awarded to the respondent no.4 solely on the basis of the recommendations made by the Expanded Committee, this allotment letter was thus not in keeping with the tender conditions and on that ground alone it was vitiated. The only alternative available to Cidco was to invite fresh bids rather than issuing the letter of intent dated 18/6/2004. Be that as it may, the said letter of intent has been quashed and set aside by the order dated 18/8/2004 passed in Writ Petition No.5614 of 2004, but without impleading the present petitioner as a party respondent.
We are, therefore, required to consider as to whether the subsequent allotment of tender to respondent no.4 is sustainable and more particularly when only two bidders i.e. respondent nos.3 and 4 were in the race to the exclusion of the petitioner.
::: Downloaded on - 09/06/2013 15:31:55 ::: 6923. Before we proceed further, we will have to consider,
(a) the doctrine of reasonableness based on the Wednesbury principle, (b) the principle of restitution and (c) the public policy to protect the interest of the State / State undertaking.
Under the Wednesbury principle, a decision of a public authority will be liable to be quashed or otherwise dealt with by an appropriate order in judicial review proceedings where the court concludes that the decision is such that no authority properly directing itself on the relevant law and acting reasonably could have reached it. In Associated Provincial Picture Houses Ltd. vs. Wednesbury Corporation [(1947) 2 ALL ER 680] the Wednesbury principle was summarized in the following words:
"The Court is entitled to investigate the action of the local authority with a view to seeing whether or not they have taken into account matters which they ought not to have taken into account, or, conversely, have refused to take into account or neglected to take into account matter which they ought to take into ::: Downloaded on - 09/06/2013 15:31:55 ::: 70 account. Once that question is answered in favour of the local authority, it may still be possible to say that, although the local authority had kept within the four corners of the matters which they ought to consider, they have nevertheless come to a conclusion so unreasonable that no reasonable authority could ever have come to it. In such a case, again, I think the court can interfere. The power of the court to interfere in each case is not as an appellate authority to override a decision of the local authority, but as a judicial authority which is concerned, and concerned only, to see whether the local authority has contravened the law by acting in excess of the power which Parliament has confined in them."
In the case of G.B. Mahajan vs. Jalgaon Municipal Council [(1999) 3 SCC 91], the concept of reasonableness in administrative law came to be dealt with elaborately. In the case of Food Corporation of India vs. Kamdhenu Cattle Feed Industries [(1993) 1 SCC 71], the Supreme Court held that in contractual sphere as in all other State actions, the State and all its instrumentalities have to conform to Article 14 of the Constitution of which non-arbitrariness is a significant facet. There is no unfettered discretion in public ::: Downloaded on - 09/06/2013 15:31:55 ::: 71 law: A public authority possesses powers only to use them for public good. This imposes the duty to act fairly and to adopt a procedure which is `fairplay in action'.
Coming to the principle of restitution, the Supreme Court, in the case of South Eastern Coalfields Ltd. (Supra), held that in law, the term restitution is used in three senses, namely, (a) return or restoration of some specific thing to its rightful owner or status; (b) compensation for benefits derived from a wrong done to another; and (c) compensation or preparation for the loss caused to another.
By referring to the scheme of Section 144 of C.P.C., the Supreme Court held that the scope of the provision is wide enough so as to include therein almost all the kinds of variation, reversal, setting aside or modification of a decree or order and Section 144 of C.P.C. is not the fountain source of restitution, it is rather a statutory recognition of a pre-
existing rule of justice, equity and fair play. In Jai Berham vs. Kedar Nath Marwari [ AIR 1922 PC 269], it is held that it is the duty of the court under Section 144 of the Civil Procedure Code to place the parties in the position which they would have occupied, but for such decree or such part ::: Downloaded on - 09/06/2013 15:31:55 ::: 72 thereof as has been varied or reversed. It is inherent in the general jurisdiction of the court to act rightly and fairly according to the circumstances towards all parties involved and that no one shall suffer by an act of the court is not a rule confined to an erroneous act of the court; the "act of the court" embraces within its sweep all such acts as to which the court may form an opinion in any legal proceedings that the court would not have so acted had it been correctly apprised of the facts and the law.
24. In the instant case, CIDCO in its affidavit has strongly contended, as noted hereinabove, that the petitioner did not participate in the presentation and, therefore, he was disqualified for further considerations and only respondent nos.3 and 4 were the bidders who were under consideration as per the consent order dated 18/8/2004 passed by this Court in Writ Petition No. 5617 of 2004. By reproducing certain averments made in the affidavit filed by CIDCO in Writ Petition No. 5617 of 2004, we have pointed out the falsity in these contentions. In addition, we may further refer to Clause No. 10(b) of the tender terms which, inter alia, stated that the date and venue of presentation will be ::: Downloaded on - 09/06/2013 15:31:55 ::: 73 decided by CIDCO and intimated at least three days in advance. The bids were opened on 3/12/2002 by the Evaluation Committee of four members and on the same day the bids were evaluated. If three days notice was required to be given for presentation and if the bidders had really participated in the presentation, the evaluation could not have been completed on 3/12/2002. In addition, perusal of the evaluation as made by the Committee from the record placed before us clearly went to show that the Committee while evaluating the technical proposal did not consider a separate marking for presentation. Hence to say that the petitioner was an unsuccessful bidder as he did not participate in the presentation is a totally fabricated ground placed before this court by CIDCO. Till the expanded Committee of six members was formed, the petitioner was in the race along with the two other bidders and even after the said expanded Committee qualified respondent no.4 as the only successful bidder, CIDCO in its proposal to the Government of Maharashtra had clearly set out various options available to it and one of them being to invite fresh bids.
::: Downloaded on - 09/06/2013 15:31:55 ::: 7425. In support of seeking the benefit of the principle of restitution, the petitioner had moved Civil Application No. 1584 of 2005 and prayed for directions to include his name along with respondent nos.3 and 4 for being considered by the expert Committee constituted as per the consent terms between CIDCO and respondent nos.3 and 4 and on the basis of which the order dated 18/8/2004 was passed by this court. If this application was allowed, the present writ petition would not have survived, at least at that stage.
However, this court observed that the instant petition would be considered on its own merits and the rights/contentions of the petitioner were left open. Consequently, Civil Application No. 1584 of 2005 filed in Writ Petition No. 5617 of 2004 by the petitioner came to be disposed as withdrawn.
We have pointed out earlier that the life of the tender was only for 90 days from 12/11/2002 i.e. the last date to receive the tenders and as on the date the initial letter of intent was issued in favour of respondent no.4 on 18/6/2004 or when the CIDCO invited the consent order dated 18/8/2004, the tenders were not valid. The only option left for CIDCO was to invite fresh bids and such an opinion was ::: Downloaded on - 09/06/2013 15:31:55 ::: 75 recorded in writing by the Legal Adviser of CIDCO, as has been referred to hereinabove. These material facts were not placed before this court when the consent order dated 18/8/2004 was invited. Similarly, the recommendations made by the expanded Committee of six members was the foundation for CIDCO to hold that the respondent no.4 was the only qualified bidder and this recommendation was contrary to the recommendation made by the original Committee of four members which, in fact, had disqualified the said respondent. We have noted that the tender terms did not provide for constitution of an expanded Committee as has been done by CIDCO and, therefore, the very foundation, on which the respondent no.4 succeeded is illegal. CIDCO acted arbitrarily and without any reasonableness and thus it violated the guarantee enshrined under Article 14 of the Constitution. We have already dealt with the manner in which CIDCO invited the consent order dated 18/8/2004.
26. It is well settled that the decision awarding the tender must be bona fide and in public interest. The law laid down by the Supreme Court in the case of Jagdish Mandal (Supra) ::: Downloaded on - 09/06/2013 15:31:55 ::: 76 clearly states that if the process adopted or decision made by the State/Authority is mala fide or intended to favour someone or whether the process adopted or decision made is arbitrary and irrational or if it is against the public interest, interference under Article 226 of the Constitution would be warranted. If the essential conditions set out in the tender terms have not been adhered to and if there was no power of relaxation of any of these conditions, the principle of strict compliance would be applied and, therefore, any deviation would vitiate the decision taken to award the tender. This view is supported by the law laid down in the case of BSN Joshi (Supra).
27. It was submitted by Mr. Thorat, the learned counsel for respondent no.4 that it has by now invested a substantial amount of Rs.53.8 crores and the fresh letter of allotment dated 12/3/2009, which resulted in the lease deed being signed between the parties on 22/8/2009, is in keeping with the terms of consent order dated 18/8/2004 and hence no interference is called for in this writ petition, more so when the lease deed has been registered on 24/8/2009 i.e. during the pendency of this petition. These submissions do not ::: Downloaded on - 09/06/2013 15:31:55 ::: 77 impress us in view of our findings that the impugned decision is arbitrary and violative of Article 14 of the Constitution and the decision fails to satisfy the test of bona fides and in public interest. Admittedly, 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, 2002 and the minimum reserved bid fixed at Rs.
33,00,33,000/- in the consent order dated 18/8/2004 was based on the bid made by the said respondent. It was not based on any contemporaneous record of valuation of the land admeasuring 35.55 H. 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 Mubai 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 ::: Downloaded on - 09/06/2013 15:31:55 ::: 78 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 to be heard with this petition. Lack of bona fides on the part of CIDCO are, thus, writ large and there is some room to believe that somewhere in the management of CIDCO efforts were made to favour respondent no.4. We have no doubt that CIDCO failed to come to the expectations as a public body to maintain transparency and to follow the tender terms in the process of granting the letter of allotment, at all stages, to respondent no.4. For all these reasons the decision taken by CIDCO to award the bid to respondent no.4 is unsustainable and the letter of allotment dated 12/3/2009 is required to be quashed and set aside. While this petition was pending, CIDCO, as a public body, ought to have refrained from signing the lease deed on 22/8/2009 or at least ought to hae approached with a Civil Application in this petition seeking leave to sign the lease deed when it was fully aware that ::: Downloaded on - 09/06/2013 15:31:55 ::: 79 way back on 7/7/2005 this court had, while extending the time to implement the order dated 18/8/2004 by a period of four weeks, clarified that it was without prejudice to the rights of the petitioner in the instant petition.
28. Once we have reached to the findings that even the fresh decision taken by CIDCO to award the tender to respondent no.4 is unsustainable, the obvious result, in the normal course, would be to direct CIDCO to consider all the three bids afresh. However, we are not inclined to follow this course in the peculiar facts and circumstances we have elaborately set out hereinabove. In addition to the appreciation of land in multiples, it is required to be noted that the land in pockets C to E is available for real estate development with a permissible FSI about three times and there is a further provision for enhancement of the same on payment of additional consideration that would be fixed by CIDCO. When a public property or the property of a public undertaking is being transferred/alienated, it must receive the best market price/lease amount. 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 ::: Downloaded on - 09/06/2013 15:31:55 ::: 80 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.
29. In the premises, we all this petition and hold that the entire tender process is vitiated and the letter of allotment dated 12/3/2009 issued by CIDCO in favour of respondent no.4 is illegal and void ab initio. The said letter of allotment dated 12/3/2009 stands quashed and set aside and consequently the lease deed signed on 22/8/2009 and ::: Downloaded on - 09/06/2013 15:31:55 ::: 81 registered on 24/8/2009 cannot be acted upon.
We direct CIDCO to invite fresh bids for the development of 18 Holes International Standard Golf Course and Country Club over the suit land admeasuring 35.55 H. after fixing the reserved bid amount. The reserved bid amount shall be fixed by CIDCO within a period of four weeks from today and thereafter fresh tenders shall be invited by publishing the proclamation in leading national newspapers. 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 said 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 and preferably by 30th June, 2010.
30. Rule is made absolute in the above terms with no order as to costs.
::: Downloaded on - 09/06/2013 15:31:55 ::: 8231. Civil Application No. 1944 of 2009 does not survive and shall stand disposed as such.
(R.Y.GANOO,J.) (B.H.MARLAPALLE,J.) The learned counsel for the respondent no.4 made an oral application for stay to the operation this order. The oral application is rejected.
(R.Y. GANOO,J.) (B.H. MARLAPALLE,J.)
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