Gujarat High Court
Centre For Development Communication ... vs Surat Municipal Corporation on 19 June, 2017
Bench: M.R. Shah, B.N. Karia
C/SCA/2596/2017 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT
AHMEDABAD
SPECIAL CIVIL APPLICATION No. 2596 of 2017
FOR APPROVAL AND SIGNATURE :
HONOURABLE Mr. JUSTICE M.R. SHAH
and
HONOURABLE Mr. JUSTICE B.N. KARIA
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1 Whether Reporters of Local Papers may be allowed to
see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law
as to the interpretation of the Constitution of India or
any order made thereunder ?
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CENTRE FOR DEVELOPMENT COMMUNICATION TRUST....Petitioner(s)
Versus
SURAT MUNICIPAL CORPORATION....Respondent(s)
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Appearance :
Mr ABHISST K THAKER, ADVOCATE for the Petitioner(s) No. 1
Mr DHAVAL G NANAVATI, ADVOCATE for the Respondent(s) No. 1
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CORAM: HONOURABLE Mr. JUSTICE M.R. SHAH
and
HONOURABLE Mr. JUSTICE B.N. KARIA
19th June , 2017.
CAV JUDGMENT (PER : HONOURABLE Mr. JUSTICE M.R. SHAH)
1. By way of this petition under Article 226 of the Page 1 of 32 HC-NIC Page 1 of 32 Created On Sun Aug 13 16:01:08 IST 2017 C/SCA/2596/2017 CAV JUDGMENT Constitution of India, the petitioner - one of the bider who had submitted its bid pursuant to the Tender Notice inviting the tenders/bids for door to door refuse garbage collection and transportation using close body vehicles model of 2015 RTO passing, with tipping arrangement including labours in accordance with Solid Waste Management Rules, 2016 for the period of five years for all seven [East, West, South-West, South-East, South and Central] Zones of Surat City, has prayed for issuance of appropriate writ, order or direction to quash and set-aside the impugned decision of the respondent- Surat Municipal Corporation dated 10th February 2017 taken by the respondent thereby rejecting the technical bid of the petitioner as illegal and arbitrary. It is further prayed for issuance of appropriate writ, order or direction, directing the respondents to award the contract in question to the petitioner.
2. The facts leading to the present Special Civil Application in nutshell are as under :
2.1 That the notice inviting tenders came to be issued Page 2 of 32 HC-NIC Page 2 of 32 Created On Sun Aug 13 16:01:08 IST 2017 C/SCA/2596/2017 CAV JUDGMENT by the Surat Municipal Corporation ["SMC" for short] for doing the work for door to door refuse garbage collection and transportation using close body vehicles model of 2015 RTO passing, with tipping arrangement including labours in accordance with Solid Waste Management Rules, 2016 for the period of five years for all seven [East, West, South-West, South-East, South and Central] zones of Surat City on 22nd November 2016. That, on 9th December 2016, a corrigendum was issued extending the last date of submission of Earnest Money Deposit ["EMD" for short] in electronic form through on-line from 12th December 2016 to 19th December 2016, and whereas, the last date of submission of EMD in physical form was extended from 19th December 2016 to 26th December 2016. That, another corrigendum was issued on 17th December 2016 extending the last date of submission of EMD in electronic form through on-line from 19th December 2016 to 26th December 2016, and whereas, the last date of submission of EMD in physical form was Page 3 of 32 HC-NIC Page 3 of 32 Created On Sun Aug 13 16:01:08 IST 2017 C/SCA/2596/2017 CAV JUDGMENT extended from 26th December 2016 to 31st December 2016. That again, two further corrigendum s came to be issued extending the last date of submission of EMD in electronic form through on-line as well as in physical form. It appears that the EMD amount also came to be revised for the respective Zones; including West zone;
South-East zone and South zone. The last date for submitting the e-tenders was 26th December 2016. That, the SMC received Technical bids from 20 parties- bidders; including that of the petitioner. As observed hereinabove, for the aforesaid tender work, the Surat City was divided into seven zones viz., East, West, South-West, South-East, North, South and Central zones. That, the petitioner submitted different bids for all the seven zones. It appears that the technical bids received from the bidders came to be open for the purpose of scrutiny by M/s. Facile Mavan Private Limited. The above named consultant gave its report to the Technical Evaluation Committee of SMC, considering only six bidders as qualified. That, the Page 4 of 32 HC-NIC Page 4 of 32 Created On Sun Aug 13 16:01:08 IST 2017 C/SCA/2596/2017 CAV JUDGMENT Technical Evaluation Committee of SMC approved the same. As a result of the same, only six bidders came to be qualified, whereas, remaining 14 parties; including the petitioner herein were declared disqualified. That, the following six parties were declared technically disqualified :
[i] Global Waste Management Cell Private Limited;
[ii] Jigar Transport Company;
[iii] M/s. Western Imaginary Transcon Private Limited;
[iv] Aum Swachatha Corporation;
[v] P. Kavitha; and [vi] Swachtha Corporation.
2.2 That, the price bids of six aforestated technically qualified bidders came to be opened on 10th February 2017, while intimating to all the remaining 14 disqualified bidders about their disqualification. At that stage, the petitioner has preferred the present Special Civil Application under Article 226 of the Constitution of India for the aforestated reliefs.
2.3 From the pleadings, it appears that the petitioner has been declared disqualified on the ground that it did Page 5 of 32 HC-NIC Page 5 of 32 Created On Sun Aug 13 16:01:08 IST 2017 C/SCA/2596/2017 CAV JUDGMENT not submit required documents such as a copy of agreement, work order, work completion certification;
as required in view of the essential condition of technical criteria as contained in "General Terms & Conditions" read with Clause 2, read with Annexure XIII under the title - "Post-qualification Criteria & Evaluation Procedure".
3. Shri Abhisst K Thaker, learned advocate has appeared on behalf of the petitioner. Shri Kamal B Trivedi, learned Senior Advocate has appeared on behalf of the respondent-Surat Municipal Corporation. 3.1 It is vehemently submitted by Shri Abhisst Thaker, learned advocate appearing on behalf of the petitioner that in the facts and circumstances of the case, the action of the respondents in declaring the petitioner as technically disqualified is absolutely illegal, arbitrary, discriminatory and violative of Article 14 of the Constitution of India. It is further submitted by Shri Thaker, learned advocate for the petitioner that as such the respondent has rejected the technical bid of the Page 6 of 32 HC-NIC Page 6 of 32 Created On Sun Aug 13 16:01:08 IST 2017 C/SCA/2596/2017 CAV JUDGMENT petitioner without giving any justifiable reason, as the petitioner is very much qualified with regard to the technical qualification s as against the requirement of the respondent in the tender notice.
3.2 It is further submitted by Shri Thaker, learned advocate appearing on behalf of the petitioner that the petitioner had submitted all the required documents, which are required to be produced as per the Tender notice. It is submitted that as such, the petitioner had substantially complied with the terms and conditions of the tender agreement. It is submitted that the essential conditions of the tender notice have been complied with by the petitioner. It is submitted that therefore, the impugned action of the respondent in declaring the petitioner as technically disqualified is absolutely illegal and arbitrary.
4. In the Additional-Affidavit and Affidavit-in- Rejoinder filed on behalf of the petitioner, the petitioner has tried to make out a case that the impugned decision of the petitioner in considering the petitioner Page 7 of 32 HC-NIC Page 7 of 32 Created On Sun Aug 13 16:01:08 IST 2017 C/SCA/2596/2017 CAV JUDGMENT as technically disqualified is discriminatory and violative of Article 14 of the Constitution of India. It is the case on behalf of the petitioner that in the case of one M/s. Jigar Transports, who is considered to be technically qualified, the said M/s. Jigar Transports has not submitted the audited balance sheet for the last seven years and still M/s. Jigar Transports has been considered as technically qualified. It is submitted that as per the requirement of the tender notice/document, the bidder was required to submit audited balance- sheet for the last seven years. However, it is submitted that the audited balance-sheet of only last three years came to be submitted by the aforesaid bidder. It is submitted that despite the above, the said bidder M/s. Jigar Transports is held technically qualified. 4.1 It is further submitted by Shri Abhisst Thaker, learned advocate for the petitioner that even in the case of M/s. Om Swachatha, though it had not submitted EMD of the required amount within Page 8 of 32 HC-NIC Page 8 of 32 Created On Sun Aug 13 16:01:08 IST 2017 C/SCA/2596/2017 CAV JUDGMENT stipulated time as per the tender notice/document/ corrigendums, still the said M/s. Om Swachatha is held and/or considered technically qualified. 4.2 It is submitted that in case of one M/s. Western Transport Company also, though they have submitted experience certificate of joint venture and though the said M/s. Western Transport Company does not have any independent experience, and therefore, the said M/s. Western Transport Company was ineligible, still the said M/s. Western Transport Company has been considered technically qualified.
4.3 Therefore, it is the case on behalf of the petitioner that the aforesaid clearly shows that there is a favoritism in case of certain bidders and all those who were ineligible and/or technically disqualified are held to be and/or considered technically qualified. Therefore, it is the case on behalf of the petitioner that the action of the respondent in rejecting the bid of the petitioner on the ground that the technically disqualified is violative of Article 14 of the Constitution of India. Page 9 of 32 HC-NIC Page 9 of 32 Created On Sun Aug 13 16:01:08 IST 2017 C/SCA/2596/2017 CAV JUDGMENT 4.4 It is further submitted by learned advocate Shri Thaker appearing on behalf of the petitioner that as such it can be said that the petitioner had complied with the essential conditions of the tender notice. It is submitted that as such the petitioner had produced the work completion certificates issued by Vadodara Municipal Corporation and Surat Municipal Corporation. It is submitted that therefore, non submission of the agreement/work order cannot be said to be substantial non compliance of the terms and conditions of the tender notice. It is submitted that one of the work done by the petitioner was with Surat Municipal Corporation itself for which, the petitioner produced the work completion certificate. It is submitted that therefore, as such, the SMC could have verified the work completion certificate for the work done with Surat Municipal Corporation. It is submitted that in any case, when the work completion certificate was issued by the SMC itself, there was no question of doubting the same by Page 10 of 32 HC-NIC Page 10 of 32 Created On Sun Aug 13 16:01:08 IST 2017 C/SCA/2596/2017 CAV JUDGMENT the Corporation. It is submitted that therefore non submission of the work order and the agreement cannot be fatal and/or cannot be said to be substantial non compliance.
4.5 Making the above submission, it is requested to admit/allow the present petition and grant the reliefs as prayed in the present petition.
5. The present petition is vehemently opposed by Shri Kamal B Trivedi, learned Senior Advocate appearing on behalf of SMC.
5.1 A preliminary objection is raised by Shri Trivedi, learned counsel appearing on behalf of the respondent- SMC that the present petition deserves to be dismissed on the ground of non-joinder of necessary and proper parties.
5.2 It is vehemently submitted by Shri Kamal Trivedi, learned counsel appearing on behalf of SMC that as all the eligible bidders are not joined as party respondents, the present petition deserves to be dismissed. In support of his submissions, Shri Trivedi, learned counsel Page 11 of 32 HC-NIC Page 11 of 32 Created On Sun Aug 13 16:01:08 IST 2017 C/SCA/2596/2017 CAV JUDGMENT for the respondent has heavily relied upon a decision of the Hon'ble Supreme Court in the case of Afcons Infrastructure Limited v. Nagpur Metro Rail Corporation Limited & Anr., reported in AIR 2016 SC 4305.
5.3 It is further submitted by Shri Kamal Trivedi, learned counsel appearing on behalf of the respondent- SMC that even otherwise, the present petitioner deserves to be dismissed as though the allegations are made against M/s. Jigar Transports; against Om Swachatha and against M/s. Western Transport Company, none of them are joined as party respondents. It is submitted that therefore also, the present petition deserves to be dismissed on the aforesaid ground.
5.4 It is further submitted by Shri Trivedi, learned counsel for the respondent-SMC that even otherwise, as the petitioner has not complied with the essential condition of technical criteria; as contained in "General Terms & Conditions" read with Clause 2, read with Page 12 of 32 HC-NIC Page 12 of 32 Created On Sun Aug 13 16:01:08 IST 2017 C/SCA/2596/2017 CAV JUDGMENT Annexure XIII under the title - "Post-qualification Criteria & Evaluation Procedure, in as much as the petitioner had not submitted a copy of the work agreement and work order. It is submitted that as per the terms and conditions of the tender notice, the contractor/bidder is required to produce/submit a copy of the work agreement/work order/work completion certificate. It is submitted that therefore, the petitioner is rightly held to be technically disqualified. It is further submitted by Shri Kamal Trivedi, learned counsel appearing on behalf of SMC that even otherwise also, there is no substance in the allegations against [a] M/s. Jigar Transports; [b] Om Swachatha, and [c] M/s. Western Transport Company.
5.5 It is specifically denied that M/s. Jigar Transport Company was technically disqualified on the ground that M/s. Jigar Transport Company did not submit audited balance sheet for the past 7 years at the time of submitting tender documents. It is submitted that as such the said M/s. Jigar Transport Company had Page 13 of 32 HC-NIC Page 13 of 32 Created On Sun Aug 13 16:01:08 IST 2017 C/SCA/2596/2017 CAV JUDGMENT submitted audited balance sheet duly signed and certified by Chartered Accountant alongwith turnover certificates for the Year 2013-2014; 2014-2015 and 2015-2016 as per the tender requirement. It is submitted that as such the post qualification criteria and the evaluation procedure so adopted by the Surat Municipal Corporation, annual turnover means average turnover of last/past three years. It is submitted that therefore, it cannot be said that the said M/s. Jigar Transport Company was technically disqualified on the aforesaid ground.
6. Now so far as allegation made against Om Swachatha Corporation is concerned, it is submitted that M/s. Om Swachatha Corporation submitted bids for West zone, South-East zone and South zone respectively and submitted EMD of Rs. 3,42,300/- for West Zone; Rs. 2,99,684/= for South East zone, and Rs. 2,81,530/= for South zone respectively. It is submitted that however due to corrigendum, the amount of EMD came to be changed, and therefore, there was a Page 14 of 32 HC-NIC Page 14 of 32 Created On Sun Aug 13 16:01:08 IST 2017 C/SCA/2596/2017 CAV JUDGMENT shortfall of EMD. However, M/s. Om Swachatha Corporation on its own volition requested SMC for the settlement of the EMD amount paid in respect of South zone in favour and in respect of West Zone and South- East zone and thereby requested not to consider its bid for South zone. It is submitted that the said request of M/s. Om Swachatha Corporation came to be accepted by the Tender Evaluation Committed. It is submitted that therefore, it cannot be said that Om Swachatha Corporation did not submit the full amount of EMD. It is submitted that therefore, it cannot be said that the said Om Swachatha Corporation was ineligible and/or technically disqualified.
7. Now so far as allegations made with respect to M/s. Western Imaginary Transcon Private Limited is concerned, it is submitted that the said Western Imaginary Transcon Private Limited did submit the Work order, Agreement and Work Completion Certificates so issued by various Corporations ie., Municipal Corporation of Greater Mumbai and Surat Page 15 of 32 HC-NIC Page 15 of 32 Created On Sun Aug 13 16:01:08 IST 2017 C/SCA/2596/2017 CAV JUDGMENT Municipal Corporation in support of their bids alongwith bid documents for technial qualification. It is submitted that the said Western Imaginary Transcon Private Limited submitted bid for two zones viz., West Zone and South-East zone. It is submitted that in the case of work completion certificate and experience of door to door refuse garbage collection and transportation using close body vehicles with tipping arrangement; including labours in accordance with Solid Waste Management Rules carried out in Surat Municipal Corporation is considered and the work completion certificate issued by the Municipal Corporation of Greater Mumbai is not the sole basis for qualification of the bidder. It is submitted that therefore no favour has been made to M/s. Western Imaginary Transcon Private Limited; as alleged.
7.1 It is submitted that in any case so far as the petitioner is concerned, the petitioner had not complied with the conditions of the tender notice. It is submitted that therefore, the petitioner has to stand on its own Page 16 of 32 HC-NIC Page 16 of 32 Created On Sun Aug 13 16:01:08 IST 2017 C/SCA/2596/2017 CAV JUDGMENT legs. It is submitted that therefore, when considering the aforesaid facts and circumstances of the case, the petitioner is held to be technically disqualified/ineligible, the same is neither illegal nor arbitrary. It is submitted that the decision taken by SMC is absolutely in consonance with the terms and conditions of the tender agreement/notice. 7.2 Making the above submissions and relying upon a decision of the Hon'ble Supreme Court in the case of Bakshi Security & Personnel Services Private Limited v. Devkishan Computed Private Limited & Ors., reported in [2016] 8 SCC 446, it is requested to dismiss the present petition.
8. Heard learned counsels appearing on behalf of the respective parties at length.
9. At the outset, it is required to be noted that in the present petition, the petitioner has prayed for issuance of appropriate writ, order or direction, quashing and setting aside the impugned decision dated 10th February 2017 of the respondent-SMC, rejecting the Page 17 of 32 HC-NIC Page 17 of 32 Created On Sun Aug 13 16:01:08 IST 2017 C/SCA/2596/2017 CAV JUDGMENT technical bid of the petitioner.
9.1 It is required to be noted that in the present petition, neither the decision to treat Messrs. Jigar Transport; M/s. Om Swachatha Corporation and/or M/s. Western Transport Company as technically qualified is under challenge. Neither such a prayer is made in the writ petition or even those bidders against whom and/or with respect to whom the allegations of bias or favoritism is made are joined as party respondents. It is also required to be noted that as such, in the main petition, nothing was alleged against the aforesaid three bidders and the allegations are made against them only in the additional affidavit and/or affidavit-in- rejoinder. Therefore, as such, in the present petition we are not called upon to consider the legality and validity of the action of the respondent-Corporation in considering the bid by the aforesaid three bidders as technically qualified.
9.2 Therefore, the main question which is posed for consideration of this Court is whether in the facts and Page 18 of 32 HC-NIC Page 18 of 32 Created On Sun Aug 13 16:01:08 IST 2017 C/SCA/2596/2017 CAV JUDGMENT circumstances of the case, the respondent-Corporation is justified in rejecting the technical bid of the petitioner and/or in considering the bid submitted by the petitioner as technically disqualified ? 9.3 From the material available on the record and considering the submissions made by the learned advocates appearing on behalf of the respondent which are on the basis of pleadings, it appears that the bid submitted by the petitioner is technically disqualified on the grounds that the petitioner had not submitted the required/relevant documents, such as work-agreement, work-order which every bidder was required to submit alongwith the tender document, as per the General terms read with Clause 2, read with Annexure XIII under the title - "Post qualification Criteria & Evaluation Procedure". It is an admitted position that alongwith the tender and the tender documents, the petitioner had not produced/submitted copy of the work- agreement, work order, etc. As per Annexure XIII of Volume-I L Post qualification bid, alongwith the work Page 19 of 32 HC-NIC Page 19 of 32 Created On Sun Aug 13 16:01:08 IST 2017 C/SCA/2596/2017 CAV JUDGMENT completion certificate, a bidder is required to submit a copy of an Agreement, Work Order alongwith Work Completion Certificate. As per the note to Annexure XIII alongwith the work completion certificate with respect to the work successfully done by the bidder, a copy of the agreement, work order of such work done shall be submitted alongwith the work completion certificate. As per the general terms - Volume I : Post Qualification Bid, the following is mentioned :
[1] All the information shall have to be filled in the prescribed statement wherever mentioned.
[2] All the details required in the prescribed statement shall have to be duly filled up. No information shall be left out.
Relevant item without required information shall not be considered for evaluation.
[3] All the required attachments shall have to be invariably attached. Relevant item, without required attachment shall not be considered for evaluation.
9.4 As per the Post-qualification criteria and evaluation Page 20 of 32 HC-NIC Page 20 of 32 Created On Sun Aug 13 16:01:08 IST 2017 C/SCA/2596/2017 CAV JUDGMENT procedure, experience certificate for door to door garbage collection work from the employer shall be submitted along with the application incorporating clearly the name of the work, Contract value, billing amount, date of commencement of works, satisfactory performance of the Contractor and any other relevant information as per Annexure XIII.
9.5 As per the "Note to the Bidder", as mentioned in Volume-I post qualification bid, the bidder can be qualified if :
[i] Experience of bidder :
Bidder has carried out 3 separate Door
to Door Garbage collection and
transportation work, each meeting 40% of required quality* in any three years** of last 7 years***; or Bidder has carried out 2 separate Door to Door Garbage collection and transportation works, each meeting 50% of required quality* in any three years** or last 7 years***; or Bidder has carried out 1 Door to Door Garbage collection and transportation works, each meeting 80% of required Page 21 of 32 HC-NIC Page 21 of 32 Created On Sun Aug 13 16:01:08 IST 2017 C/SCA/2596/2017 CAV JUDGMENT quantity* in any three years** or last 7 years*** * Required quantity shall be as per table 2, ** Average quantity of any three years which are highest among last 7 years shall be considered for evaluation.
*** 7 years shall be calculated as April 2009 to March 2016, however, contractor experience certificate upto September 2016 shall be considered for evaluation [ii] Bidder has minimum 04 years experience of Door to Door refuse garbage collection and Transportation works as defined in para no. V."
9.6 At this stage, it is required to be noted that the tenders are invited for door to door refuse garbage collection and transportation using close body vehicles model of 2015 RTO passing, with tipping arrangement including labours in accordance with Solid Waste Management Rules 2016 for the period of five years for all seven [East, West, South-West, South-East, North, South and Central] Zones of Surat City. Therefore, the concerned contractor or bidder shall have experience Page 22 of 32 HC-NIC Page 22 of 32 Created On Sun Aug 13 16:01:08 IST 2017 C/SCA/2596/2017 CAV JUDGMENT for door to door refuse garbage collection and transportation using close body vehicles, as mentioned in the tender notice and general terms and conditions, as referred to hereinabove. Whether the concerned contractor is fulfilling the requisite eligibility criterion and/or is having the requisite experience for door to door refuse garbage collection and transportation by using close body vehicles, the bidder/contractor is required to submit the work completion certificate, a copy of agreement and work order. The format of work completion certificate is as per Annexure XIII. Annexure XII reads as under :
Annexure - XII WORK COMPLETION CERTIFICATE Format of Work Completion Certificate *Certificate shall be produced on letter head of certificate issuing authority. Certificate should be stamped and signed by officer not below the rank of Executive Engineer or equivalent.
This is to certify that M/s. ______ ______ have been awarded the following project and successfully executed the work.
Name of work : Page 23 of 32 HC-NIC Page 23 of 32 Created On Sun Aug 13 16:01:08 IST 2017 C/SCA/2596/2017 CAV JUDGMENT Address of Employer : Work Order No. : Agreement Date, No. : Date of Commencement of Work : Contract Duration : Total Amount [Rs.] as per Agreement : F. Year 2009- 2010- 2011- 2012- 2013- 2014- 2015- 10 11 12 13 14 15 16 Quantity of Door to Door Refuse garbage collectio n and transport ation [MT/Year ]
Note : 1. Copy of Agreement Work order shall be submitted alongwith this Certificate.
2.Work completion certificate must be submitted separately for each work order.
10. To satisfy whether the concerned bidder who has produced the work completion certificate had worked for door to door refuse garbage collection and transportation using close body vehicles model of 2015 RTO passing, with tipping arrangement including labour in accordance with Solid Waste Management Rules 2016 for the period of five years for all the seven zones of Surat City, and/or is having the requisite experience in the filed of door to door refuse garbage collection and transportation using close body vehicles, and what Page 24 of 32 HC-NIC Page 24 of 32 Created On Sun Aug 13 16:01:08 IST 2017 C/SCA/2596/2017 CAV JUDGMENT was the nature of work/work order for which the work completion certificate had been produced, a copy of the agreement work order are required to be submitted and only from the copy of agreement work order, the nature of work done for which the work completion certificate has been produced can be known. Then and then only, it can be seen whether the concerned bidder is fulfilling the requisite eligibility criteria and is having requisite experience for door to door refuse garbage collection and transportation using close body vehicles, for which the tenders/bids are invited. Therefore, submitting a copy of agreement, work order alongwith work completion certificate as part of the tender document can be said to be essential condition/requirement. As observed hereinabove, in absence of copy of agreement/work order, the authority will not be in a position to know the exact work carried out by the bidder and/or it will not be possible for th authority to know what type of experience the bidder is having. It is an admitted position that alongwith the work Page 25 of 32 HC-NIC Page 25 of 32 Created On Sun Aug 13 16:01:08 IST 2017 C/SCA/2596/2017 CAV JUDGMENT completion certificate, the petitioner had not produced a copy of the Agreement/Work order, and therefore, there is a non compliance of the tender condition.
11. At this stage, decision of the Hon'ble Supreme Court in the case of Bakshi Security & Personnel Services Private Limited [Supra] is required to be referred to. In the said decision, the Hon'ble Supreme Court has observed that the essential conditions of the tender are required to be strictly complied with. It is also further observed that essential conditions cannot be relaxed and/or deviated from, and therefore, rejection of bid for non compliance with essential conditions is valid.
11.1 In the aforesaid decision, while upholding that the essential conditions of tender are required to be strictly complied with, the Hon'ble Supreme Court in the said decision has considered its earlier decisions in the case of Poddar Steel Corporation v. Ganesh Engg. Works, [1991] 3 SCC 273 and in case of BSN Joshi & Sons Limited v. Nair Coal Services Limited, [2006] Page 26 of 32 HC-NIC Page 26 of 32 Created On Sun Aug 13 16:01:08 IST 2017 C/SCA/2596/2017 CAV JUDGMENT 11 SCC 548.
11.2 In the case of Jagdish Mandal v. State of Orissa, reported in [2007] 14 SCC 517, the Hon'ble Supreme Court has observed and held as under :
"21. 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. Evaluating 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 self, and persuade courts to interfere by exercising power of Page 27 of 32 HC-NIC Page 27 of 32 Created On Sun Aug 13 16:01:08 IST 2017 C/SCA/2596/2017 CAV JUDGMENT judicial review, should be resisted. Such interferences, either interim or final, may hold up public works for years, or delay relief and succor 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. Cases involving black-listing or imposition of penal consequences on a tenderer/contractor or distribution of state largesse (allotment of sites/shops, grant of licences, dealerships and franchises) stand on a different footing as they may require a higher degree of fairness in action."
12. Applying the law laid down by the Hon'ble Supreme Court in the aforesaid decision to the facts of the case, it cannot be said that the action of the respondent-Surat Municipal Corporation in rejecting the Page 28 of 32 HC-NIC Page 28 of 32 Created On Sun Aug 13 16:01:08 IST 2017 C/SCA/2596/2017 CAV JUDGMENT technical bid of the petitioner is arbitrary and/or irrational and/or unreasonable. It is an admitted position that the petitioner had not complied with/fulfilled the essential conditions of the tender; referred to hereinabove.
12.1 That, it is not disputed that the petitioner had not submitted a copy of agreement, work order alongwith work completion certificate and to that extent, there is non compliance of the tender notice. It is the case on behalf of the petitioner that in the additional affidavit and affidavit-in-rejoinder, as in case of other three bidders viz., [i] M/s. Jigar Transport Company; [ii] M/s. Western Transport Company and [iii] M/s. Om Swachatha Corporation, the Tender Evaluation Committee of SMC had accepted the technical bids submitted by them though they had not fulfilled all the conditions, and therefore, similar treatment may be given to the petitioner. As observed hereinabove, as such in the present petitioner, this Court is not required to consider the legality and validity of the action of the Page 29 of 32 HC-NIC Page 29 of 32 Created On Sun Aug 13 16:01:08 IST 2017 C/SCA/2596/2017 CAV JUDGMENT respondent-Corporation in treating the bids submitted by the aforesaid three bidders as technically qualified or not. As observed hereinabove, none of them have been joined as party respondents. Even otherwise, there cannot be any negative discrimination. No body can be permitted to claim that as in case of other persons some benefit is given, may be wrongly, the similar treatment should be given to it/him. The petitioner has to stand on its own merit. What is required to be considered is whether the petitioner has complied with the essential conditions and thereby the petitioner's bid is technically qualified or not. As observed hereinabove, the petitioner has not strictly complied with the essential conditions of the tender, referred to hereinabove. Under the circumstances, the decision taken in rejecting the technical bid of the petitioner and/or treating the bid submitted by the petitioner as technically qualified cannot be held to be illegal or arbitrary and or unreasonable. However, at the same time, it is made clear that as specifically Page 30 of 32 HC-NIC Page 30 of 32 Created On Sun Aug 13 16:01:08 IST 2017 C/SCA/2596/2017 CAV JUDGMENT observed that in the present petition and by this judgment, this Court has not expressed anything on merits whether the action of the respondent Corporation in considering the bids submitted by the aforesaid three bidders is technically qualified is legal or not.
13. As observed hereinabove, in absence of any such prayer and/or even in absence of the aforesaid three bidders as party respondents, it will not be proper for this Court to consider the legality and validity of the action of the Corporation in treating their bids as technically qualified.
14. In view of the above and for the reasons aforestated, more particularly when the petitioner has not complied with the essential conditions of the tender referred to hereinabove, more particularly, by not submitting the copy of the agreement and the work order, the respondent-Surat Municipal Corporation is justified in rejecting the technical bid of the petitioner.
15. Under the circumstances, the present writ petition Page 31 of 32 HC-NIC Page 31 of 32 Created On Sun Aug 13 16:01:08 IST 2017 C/SCA/2596/2017 CAV JUDGMENT fails and the same deserves to be dismissed and is accordingly dismissed. Notice discharged. Ad interim relief granted earlier stands vacated forthwith.
[M.R Shah, J.] [B.N Karia, J.] Prakash Page 32 of 32 HC-NIC Page 32 of 32 Created On Sun Aug 13 16:01:08 IST 2017