Bombay High Court
Maharashtra Enterprises vs The Union Of India, Ministry Of Commerce ... on 30 July, 2025
2025:BHC-OS:12271-DB
JPP 6-901 WPL 22479-23221.2025.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
JYOTI
Digitally signed
by JYOTI
ORDINARY ORIGINAL CIVIL JURISDICTION
PRAKASH
PRAKASH PAWAR
PAWAR Date: 2025.07.31
10:25:57 +0530
WRIT PETITION (L) NO. 22479 OF 2025
Prime Toll and Metal Recoveries Pvt. Ltd. ... Petitioner
V/s.
Deputy Development Commissioner
and Estate Officer ... Respondent
AND
WRIT PETITION (L) NO. 23221 OF 2025
Maharashtra Enterprises ... Petitioner
V/s.
Union of India, Ministry of
Commerce and Industry ... Respondent
_______________________________________
Mr. Surel Shah, Senior Advocate i/b. Mr. Jamshed Ansari for the Petitioner in
WPL 22479/2025
Mr. A.Y. Sakhare, Senior Advocate with Mr. Sandeep Raman for the Petitioner
in WPL 23221/2025
Mr. Gaurav Shah with Mr. Niraj Prajapati i/b. Mr. Mahesh Shukla for
Respondent No.1 in both Petitions
Ms. Usha Rahi, Addl.G.P. for Respondent No.3 - State in WPL 22479/2025
_______________________________________
CORAM : ALOK ARADHE, CJ. AND
SANDEEP V. MARNE, J.
DATE : 30 JULY 2025 1/11 ::: Uploaded on - 31/07/2025 ::: Downloaded on - 31/07/2025 22:02:52 ::: JPP 6-901 WPL 22479-23221.2025.doc Oral Order (Per Chief Justice) :
1. In both these Petitions, the Petitioners seek to quash and set aside the Corrigendum in relation to the tender dated 4 July 2025, issued by the Respondent No.2 viz. Deputy Development Commissioner and Estate Officer of SEEPZ-SEZ. The Petitioners seek quashment of aforesaid Corrigendum to the extent it omits the requirement of obtaining consent to operate from the Maharashtra Pollution Control Board (MPCB) for handling the hazardous sludge.
2. Facts giving rise to filing of these Petitions, in nutshell, are that the Deputy Development Commissioner and Estate Officer of SEEPZ-SEZ, issued a tender dated 4 July 2025 for engagement of contractor for removal and disposal of sludge from open and closed gutters, sewerage/drainage lines, Sewage Treatment Plant (STP) and Septic Tanks in SEEPZ-SEZ premises and residential staff quarters. The period of the said tender is one year, which is extendable by a further period of one year. The aforesaid tender, contained the following stipulation, which is extracted below for the facility of reference :-
"8. Bidder must possess a valid MPCB Copy of valid MPCB (Maharashtra Pollution Control Board) Consent to Operate license (Consent to Operate) for handling Certificate."
and disposal of sludge and waste.
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3. Thus, under the aforesaid clause, a bidder was required to have consent to operate from the Maharashtra Pollution Control Board (MPCB) for collection, handling and disposal of sludge and waste in order to be eligible to participate in the tender. However, Respondent No.2 viz. Deputy Development Commissioner and Estate Officer, SEEPZ-SEZ issued a Corrigendum on 17 July 2025, by which the requirement to possess consent to operate from the MPCB was deleted and instead it was provided that bidder can provide undertaking as per Annexure -1 of the Technical Corrigendum - 1. The aforesaid Corrigendum reads as under :-
"TECHNICAL CORRIGENDUM-1 Tender Title: "Engagement of Contractor for Removal and Disposal of Sludge from Open and Closed Gutters Sewerage Drainage lines Sewage Treatment Plant and Septic tanks in SEEPZ-SEZ premises and Residential Staff Quarters"
Tender Reference No.:- SEEPZM-EOPT/3/2025-PROC Tender ID: 2025_SEEPZ_867358_1 The following clarifications and amendments are issued as part of this Technical Corrigendum:
Sr. Reference Clause & Page Original Clause Text Changes/Addition to No. No. the Clause 1 Section 4- Evaluation and Bidder must possess a valid Deleted.
Qualification Criteria, MPCB (Maharashtra Clause 8 (Page 27) Pollution Control Board) license (Consent to The Bidder must Operate) for handling and provide Undertaking as disposal of sludge and per Annexure -1 of this waste. Technical Corrigendum-
1s"
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4. The Petitioners are aggrieved by the aforesaid Corrigendum to the extent it omits the requirement of obtaining consent certificate from the MPCB for handling and disposal of hazardous sludge. Hence these Petitions.
5. The learned Senior Advocates for the Petitioners submit that the mandatory tender condition of having consent to operate from the MPCB cannot be done away by way of Corrigendum. It is submitted that aforesaid deletion would affect public health as hazardous waste plant cannot be operated by someone who does not possess MPCB's valid consent to operate. That if contract is awarded to a successful bidder who does not possess valid consent to operate and its application for issuance of such consent is rejected by MPCB, the entire tender process would get frustrated. That therefore the original tender condition of possession of consent to operate was valid, which is erroneously deleted. That mere widening of competition cannot be aground to delete mandatory condition of valid consent to operate as such deletion would affect public health. It is also urged that the aforesaid deletion of condition is arbitrary and irrational and essential eligibility condition cannot be relaxed. In support of aforesaid submissions, reliance has been placed on the decisions of this Court in M/s. Watergrace Products v/s. Nashik Municipal Corporation and Ors. 1 and G.S. Commercial Corporation v/s. State of Maharashtra and Ors.2.
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6. On the other hand, the learned Counsel for Respondent No.1, who has appeared on advance notice, submits that the object of the Corrigendum is to widen the area of participation. It is submitted that till last year only 3 to 4 bids were being received by the Respondent No.1 whereas on account of the Corrigendum, the Respondent No.1 has received about 10 to 12 bids. It is further submitted that the tender would only be awarded to a bidder who procures consent to operate from the MPCB.
7. We have considered the submissions made on both sides and have perused the record.
8. It is well settled in law that the terms of invitation to tender are not open to judicial scrutiny as invitation to tender is in the realm of contract. However, it has been held that decision taken by a body functioning in an administrative or quasi administrative sphere can be tested on the application of Wednesbury principle of reasonableness and has to be free from arbitrariness and not effectuated by bias or mala fide. (See : Tata Cellular v/s. Union of India3).
9. It is equally a well settled legal proposition that it is open for the State to impose conditions in the tender prescribing the eligibility criteria and if the State can justify the tender conditions in the context of a particular 3 1994(6) SCC 651 5/11 ::: Uploaded on - 31/07/2025 ::: Downloaded on - 31/07/2025 22:02:52 ::: JPP 6-901 WPL 22479-23221.2025.doc contract, the Courts will not interfere and whenever there are different alternatives, it is not for the Courts to suggest that a particular alternative is justified. (See : Narendrakumar Maheshwari v/s. Union of India4).
10. Rule 6 of the Hazardous and Other Waste (Management, Handling and Trans-boundary Movement) Rules, 2008 (Rules of 2008) mandates grant of authorization by the State Pollution Control Board is necessary for handling, generation, collection, storage, packaging, transportation, use, treatment, processing and disposal of the hazardous and other wastes. Rule 6 is extracted below for the facility of reference :
"6. Grant of authorisation for managing hazardous and other wastes :- (1) Every occupier of the facility who is engaged in handling, generation, collection, storage, packaging, transportation, use, treatment, processing, recycling, recovery, pre-processing, co-processing, utilisation, offering for sale, transfer or disposal of the hazardous and other wastes shall be required to make an application in Form 1 to the State Pollution Control Board and obtain an authorisation from the State Pollution Control Board within a period of sixty days from the date of publication of these rules. Such application for authorisation shall be accompanied with a copy each of the following documents, namely :-
(a) consent to establish granted by the State Pollution Control Board under the Water (Prevention and Control of Pollution) Act, 1974 (25 of 1974) and the Air (Prevention and Control of Pollution) Act, 1981 (21 of 1981);
(b) Consent to operate granted by the State Pollution Control Board under he Water (Prevention and Control of Pollution) Act, 1974 (25 of 1974) and/or Air (prevention and Control of Pollution) Act, 1981 (21 of 1981);
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(c) in case of renewal of authorisation, a self-certified compliance report in respect of effluent emission standards and the conditions specified in the authorisation for hazardous and other wastes;
Provided that an application for renewal of authorisation may be made three months before the expiry of such authorisation.
Provided further that-
(i) any person authorised under the provisions of the Hazardous Waste (Management, Handling and Transboundary Movement) Rules, 2008, prior to the date of commencement of these rules, shall not be required to make an application for authorisation till the period of expiry of such authorisation;
(ii) any person engaged in recycling or reprocessing of the hazardous waste specified in Schedule IV and having registration under the provisions of the Hazardous Waste (Management, Handling and Trans-boundary Movement) Rules, 2008, shall not be required to make an application for authorisation till the period of expiry of such registration. (2) On receipt of an application complete in all respects for the authorisation, the State Pollution Control Board may, after such inquiry as it considers necessary, and on being satisfied that the applicant possesses appropriate facilities for collection, storage, packaging, transportation, treatment, processing, use, destruction, recycling, recovery, pre-processing, co-processing, utilisation, offering for sale, transfer or disposal of the hazardous and other waste, as the case may be, and after ensuring technical capabilities and equipment complying with the standard operating procedure or other guidelines specified by the Central Pollution Control Board from time to time and through site inspection, grant within a period of one hundred and twenty days, an authorisation in Form 2 to the applicant, which shall be valid for a period of five years subject to such conditions as may be laid down therein. For commonly recyclable hazardous waste as given in Schedule IV, the guidelines already prepared by the Central Pollution Control Board shall be followed:
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(3) The authorisation granted by the State Pollution Control Board under sub-rule (2) shall be accompanied by a copy of the field inspection report signed by that Board indicating the adequacy of facilities for collection, storage, packaging, transportation, treatment, processing, use, destruction, recycling, recovery, pre-processing, co-processing, utilisation, offering for sale, transfer or disposal of the hazardous and other wastes and compliance to the guidelines or standard operating procedures specified by the Central Pollution Control Board from time to time.
(4) The State Pollution Control Board may, for the reasons to be recorded in writing and after giving reasonable opportunity of being heard to the applicant, refuse to grant any authorisation under these rules.
(5) Every occupier authorised under these rules, shall maintain a record o hazardous and other wastes managed by him in Form 3 and prepare and submit to the State Pollution Control Board, an annual return containing the details specified in Form 4 on or before the 30 th day of June following the financial year to which that return relates.
(6) The State Pollution Control Board shall maintain a register containing particulars of the conditions imposed under these rules for management of hazardous and other wastes and it shall be open for inspection during office hours to any interested or affected person.
(7) The authorised actual user of hazardous and other wastes shall maintain records of hazardous and other wastes purchased in a passbook issued by the State Pollution Control Board along with the authorisation.
(8) Handing over of the hazardous and other wastes to the authorised actual user shall be only after making the entry into the passbook of the actual user."
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11. There is no dispute to the position that the work which would be awarded in pursuance of the implied tender notice would be governed by the provisions of Rules of 2008. The relevant clauses of the notice inviting tender read as under :-
"(b) To follow all the mandatory and applicable laws related to removal and disposal of hazardous waste from the SEEPZ, SEZ premises. Service provider has to ensure that the removal and disposal of such hazardous waste shall not harm environment and all the environmental laws/norms shall be followed.
(c) Bidders shall ensure all the compliances as per applicable laws/rules/norms applicable to provide such services in central government departments situated in Maharashtra (i.e. SEEPZ, SEZ, Mumbai)."
12. Thus, from perusal of the Corrigendum in conjunction with the clauses of the tender notice, which have been extracted supra, it is evident that the requirement of compliance with the Rules of 2008 has not been dispensed with. The object of Corrigendum is to ensure wider participation. A statement has already been made on behalf of the tendering authority that the successful bidder will have to produce the Consent to Operate from the MPCB.
13. The Corrigendum neither suffers from any arbitrariness nor any irrationality warranting interference of this Court in exercise of powers of judicial review. The Corrigendum has been issued with an object to ensure wider participation of the bidders.
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14. In so far as reliance placed on behalf of the Petitioners in Watergrace Products v/s. Nashik Municipal Corporation (supra) is concerned, in the said decision, the impugned tender conditions did not conform to the resolution dated 7 March 2024, passed by the Municipal Corporation. In that case tender condition were found to be contrary to CVC guidelines. Therefore, the Court had interfered with the impugned tender conditions. The aforesaid decision has no application to the obtaining factual matrix of the case. Similarly, in G.S. Commerce Corporation v/s. State of Maharashtra (supra), the tender was invited for supply of liquid chlorine gas which was to be used by the Municipal Corporation of Greater Mumbai for its water treatment plants. By the Corrigendum issued in that case, the requirement of bidders to have a liquid chlorine storage plant within the periphery of 150 kms. was dispensed with. The requirement of having a liquid chlorine storage plant in a close vicinity was held to be necessary to ensure the supply of chlorine for which the tender was invited. So far as substitution of requirement of registration and possession of PESO licence is concerned this Court has held that since tender was for supply of liquid chlorine gas, relaxation of condition of PESO licence would affect public health. In the aforesaid factual background, a Division Bench of this Court quashed the impugned tender condition. In the present case, the successful bidder needs to secure MPCB's consent to operate and that mandatory condition is not relaxed. Therefore, the aforesaid decision also 10/11 ::: Uploaded on - 31/07/2025 ::: Downloaded on - 31/07/2025 22:02:52 ::: JPP 6-901 WPL 22479-23221.2025.doc does not apply to the facts and circumstances of the case. It is trite law that a decision is an authority for the proposition of law which it decides. The aforesaid decisions have been rendered in different factual context and have no application to the facts and circumstances of the case.
15. In the present case, few handful bidders who already have consent to operate from MPCB want to ensure that the participation in tender process remains restrictive so as to increase their chances of securing the contract. Since the tendering authority is ensuring that the hazardous waste is not ultimately handled without securing MPCB's consent to operate, we find no reason to entertain the present petitions which are aimed at restricting the competition.
16. In view of preceding analysis, we do not find any merit in these Petitions. The same fail and are thereby dismissed.
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