Gujarat High Court
Montecarlo Limited vs Gujarat Rail Infrastructure ... on 23 April, 2021
Author: Sonia Gokani
Bench: Sonia Gokani, Vaibhavi D. Nanavati
C/SCA/6767/2021 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 6767 of 2021
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MONTECARLO LIMITED & 1 other(s)
Versus
GUJARAT RAIL INFRASTRUCTURE DEVELOPMENT CORPORATION
LIMITED (G RIDE)
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Appearance:
MR.PARTH CONTRACTOR(7150) for the Petitioner(s) No. 1,2
MR VIVEK V BHAMARE(6710) for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE SONIA GOKANI
and
HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 23/04/2021
ORAL ORDER
(PER : HONOURABLE MS. JUSTICE SONIA GOKANI)
1. By way of the present petition, the petitioners seek to challenge the action of the respondent authority disqualifying petitioner No.1 on the ground of technicality.
2. Petitioners have sought the following reliefs:-
" PRAYER A. That this Hon'ble Court be pleased to admit and allow the present Petition;
B. That this Hon'ble Court may be pleased to declare the action of the Respondent of disqualifying the Petitioner No.1 from the Bidding Process in relation to the Tender Notice No.RIDE/BRCL/EPC/2020-21 dated 16.01.2021 issued by the Respondent for Page 1 of 6 Downloaded on : Mon Apr 26 21:04:17 IST 2021 C/SCA/6767/2021 ORDER the "Gauge Conversion of Bechraji (63.83KM)-Ranuj ( 101.983 KM ) Section, Total length of 38.153KM Metre Gauge to Broad Gauge with 25KV AC Electrification in Ahmedabad Division of Western Railway"as being arbitrary, illegal and unjust;
C. That this Hon'ble Court may be pleased to issue a writ, order or direction to the Respondent to consider the Bid submitted by the Petitioner No.1 in relation to the Tender Notice No.RIDE/BRCL/EPC/2020-21/002 dated 16.01.2021 issued by the Respondent for the "Gauge Conversion of Bechraji (63.83 KM)- Ranuj (101.983 KM) Section, Total length of 38.153 KM Metre Gauge to Broad Gauge with 25 KV AC Electrification in Ahmedabad Division of Western Railway";
D. That pending the hearing and adjudication of the present Petition, this Hon'ble Court may be pleased to direct the Respondent not to proceed further in relation to the Tender Notice No.RIDE/BRCL/EPC/2020-21/002 dated 16.01.2021 issued by the Respondent for the "Gauge Conversion of Bechraji (63.83 KM)-Ranuj Ranuj (101.983 KM) Section, Total length of 38.153 KM Metre Gauge to Broad Gauge with 25 KV AC Electrification in Ahmedabad Division of Western Railway"
E. For Ex-parte interim and ad-interim reliefs in terms of prayer (D) above;
F. For such other and further reliefs as this Hon'ble Court may deem fit in the facts and circumstances of the present case."
3. When the matter was taken up for hearing on 20.04.2021, learned advocate Mr. G.H. Virk, appearing with Mr. Vivek Bhamre for the Caveator was ready to Page 2 of 6 Downloaded on : Mon Apr 26 21:04:17 IST 2021 C/SCA/6767/2021 ORDER proceed with the matter. Accordingly, at the request of the parties, matter has been heard finally as has been noted by this Court in its order dated 20.04.2021.
4. Realizing the interest of the third party from the submissions of the learned advocates, following order came to be passed on 22.04.2021:
1. We indicated on the last occasion that hearing of learned advocates on both the sides have been completed. Noticing the fact from the oral submissions of learned advocates for the Respondent that financial bid has been opened and the contract has been assigned by the Corporation to the third party, let the copy of the same be placed on the record. It is given to understand by learned advocate Mr. Virk representing the Corporation that he shall place the same with an additional affidavit within 24 hours.
2. Matter to be posted on 23.04.2021. "
5. Today, additional affidavit of the respondent in due compliance of the order dated 22.04.2021 has come on the record, where the Director of Project and Planning, Authorized Signatory of the respondent, has submitted that letter of award dated 12.04.2021 was issued by the respondent in favour of Ashoka Buildcon Limited ('ABL' for short) on determining ABL as qualified L1 bidder. It is further stated that in compliance of the Page 3 of 6 Downloaded on : Mon Apr 26 21:04:17 IST 2021 C/SCA/6767/2021 ORDER tender document, ABL has submitted its bank guarantee on 09.04.2021. Thereafter, bid security and money deposit for all the remaining nine bidders have been returned to the respective bidders including to the petitioner No.1.
6. Further submission on the part of the Director is that tripartite EPC contract/agreement has been executed on 19.04.2021. The entire EPC contract runs into 950 pages long and for the sake of brevity, parent contract agreement dated 19.04.2021 is enclosed. Respondent ensures to produce the entire EPC contract, if directed by the Court. It is also the stand of the respondent that this petition was filed by the petitioner on 15.04.2021 after letter of award was issued to the ABL. All the three documents mentioned in the affidavit are also produced by way of Annexure-R1, R2 and R3.
7. In wake of this revelations,an oral request has been made by Mr. Soparkar, learned Senior Advocate to permit the petitioner to join the ABL as the party respondent no.2. The other side can possibly have no objection to this impleadment of the third Page 4 of 6 Downloaded on : Mon Apr 26 21:04:17 IST 2021 C/SCA/6767/2021 ORDER party ABL as the party respondent, having categorically stated in the additional affidavit of issuance of the letter of award as also tripartite EPC contract/ agreement in favour of the third party ABL.
8. As this Court is examining various issues, factual as well as legal, raised by the petitioner, predominant of which is of non consideration of petitioner's technical and financial bids on account of non-submission of physical copies of Volume No.1,2 and 4 of the Bid documents and whether the same can be construed as vital, non-negotiable and essential condition of eligibility or an ancillary or subsidiary condition and, therefore, a mere technical irregularity, not permitting exclusion of the petitioner from being considered in both the technical as well as financial bid, request for joining the third party in whose favour the contract is awarded is a must and such a request will need to be acceded to.
9. ABL shall be joined as a party respondent by making necessary amendment in the cause title and since the Court is examining the vital aspect as referred to Page 5 of 6 Downloaded on : Mon Apr 26 21:04:17 IST 2021 C/SCA/6767/2021 ORDER hereinabove, It would be desirable to direct the parties not to proceed further in relation to the said contract till the returnable date of notice .
10. Notice for final disposal returnable on 28.04.2021. Mr. G.H. Virk, waives service of notice for and on behalf of the respondent No.1.
Direct service through the
electronic mode is permitted
today.
(MS. SONIA GOKANI, J. )
(VAIBHAVI D. NANAVATI,J)
Pallavi/sudhir
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