Bombay High Court
Mahatma Phule Multi Services And Anr vs Nashik Municipal Corporation Through , ... on 5 April, 2022
Author: Abhay Ahuja
Bench: A.A. Sayed, Abhay Ahuja
1 16-WP 2837-22.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.2837 OF 2022
Mahatma Phule Multi Services & Anr. ... Petitioners
Versus
Nashik Municipal Corporation,
Through Commissioner of NMC, Nashik
& Ors. ... Respondents
-------
Ms. Sayali Subhash Gutte for the Petitioners.
Mr. Rohit P. Sachadeo for Respondent Nos.1 to 3-Corporation.
-------
CORAM : A.A. SAYED &
ABHAY AHUJA, JJ.
DATE : 5TH APRIL 2022 P.C. :
1. Heard learned Counsel for the parties. Respondent No.4 though served is not represented.
2. The Petitioners are seeking direction to the Respondent- Corporation to process E-Tender Notice No.6/2021-22 dated 17 th July 2021 by re-fiing the date for opening the tender through lucky draw in the presence of all the three bidders or their representatives and to declare the successful bidder.
Mugdha 1 of 8
2 16-WP 2837-22.odt
3. The aforesaid Tender Notifcation calling for providing services of drivers for driving various kinds of vehicles in various departments of the Municipal Corporation for the period of two years as per the subject Tender Notice was issued on behalf of the Respondent-Corporation. The Petitioner No. 1 and Petitioner No.2 had submitted their bids on 6th August 2021 along with the necessary earnest money deposit. A total of 12 bidders had participated in the online E-Tender process and out of them, Petitioner No. 1, Petitioner No.2 and Respondent No. 4 had qualifed in the technical bids. On 25th November 2021, the fnancial bids were opened and it emerged that the Petitioner No. 1, Petitioner No.2 and Respondent No. 4 had quoted the same rate/price pursuant to which the Respondent-Corporation directed the Petitioners as well as Respondent No. 4 by e-mail dated 4 th February 2022 to give a revised rate/price bid to be submitted in a sealed cover in the offce hours before 3 p.m. on 7 th February 2022, which bids were to be opened on the same day at 3:30 p.m. However, since 7th February 2022 came to be declared as a public holiday, the bidders were informed by e-mail as well as phone call to remain present in the offce on 8th February 2022 at 3 p.m. On 8 th February 2022 at the appointed time the bidders/their representatives were Mugdha 2 of 8 3 16-WP 2837-22.odt present; however upon opening the sealed cover it was found that all the technically qualifed bidders, viz., the Petitioner No. 1, Petitioner No.2 as well as Respondent No.4 had given the same lowest rate i.e. Rs. 0.01 as the service charge. Clause 8 of the said Tender Notice required that in such a case the Respondent- Corporation is required to conduct lucky draw on the same day. However, in the present case no lucky draw was held on 8 th February 2022, when all the bidders/representatives were present. The intimation for lucky draw was given on behalf of the Respondent-Corporation by e-mail dated 24th February 2022 at 7.12 p.m. and 7.07 p.m. respectively to the two Petitioners that the lucky draw would be on the neit day i.e. 25th February 2022 at 11:30 a.m., which e-mails, it is submitted were not seen by the Petitioners. It is further submitted that there was no phone call even from the offce of the Respondent-Corporation as had been done during the earlier part of the bidding process. Despite the absence of Petitioners, Respondent No. 4 and/or their representatives, the lucky draw was conducted and Respondent No.4 was declared as L-1.
4. The Petitioners raised a grievance on 28 th February 2022 as per Clause 14 of the E-Tender Notice. However, the same Mugdha 3 of 8 4 16-WP 2837-22.odt was not responded to. The Petitioners are also aggrieved that the Respondent-Corporation despite being fully aware that the head offces of the Petitioners were located outside Nashik, did not care to communicate by a phone call. It is submitted that all this has been done to favour Respondent No.4. It is submitted that the Respondent-Corporation appeared to be in a tearing hurry such that on 28th February 2022 the proposal before the standing committee for grant of approval of tender was also unanimously passed in favour of Respondent No.4 without even considering the 1 st Petitioner's grievances dated 28th February 2022 as per Clause 14 of the Tender Notice. It is submitted that the term of the members of the standing committee has eipired on 28 th February 2022 and the rush was only to favour Respondent No.4.
5. It is further submitted on behalf of the Petitioners that on the very same day i.e. on 25th February 2022, the Respondent- Corporation in the case of another Tender Notice has declared Walman as L-1 bidder through the lucky draw process in the presence of representatives and has also recorded the entire process through videography to maintain transparency which they have failed to do in the case of the Petitioners.
Mugdha 4 of 8
5 16-WP 2837-22.odt
6. It is further submitted that four standing Councillors of the Respondent-Corporation have raised objections on 7 th March 2022 and on 4th April 2022 with the Commissioner of the Respondent-Corporation and demanded re-conduct of lucky draw in the presence of bidders/representatives.
7. Learned Counsel for the Petitioners submits that in view of the aforesaid facts the declaration of Respondent No.4 as L-1 deserves to be set aside and lucky draw to be reconducted in accordance with the terms of the tender in the presence of the Petitioners, Respondent No. 4 and/or their representatives.
8. For the purpose of ready reference, Clause 8 of the Tender Notice is quoted as under:
"8½ tj nksu fdaok nksu is{kk tkLr fufonk/kkjdkaps nj lkj[ks vlrhy rj v'kk loZ fufonk/kkjdkauk can ikfdVkr fnysY;k eqnrhr nj lknj dj.ksl lkax.;kr ;sbZy o rs can ikdhVs R;k fufonk /kkjdkaleksj foHkkx izeq[k ;kaps dk;kZy;kr m?kM.;kr ;srhy- R;kr T;k fufonk /kkjdkaps nj deh ;srhy R;kl ,y&1 ?kks"khr dj.;kr ;sbZy- ;krgh tj iqUgk ,dkis{kk tkLr fufonk/kkjdkaps nj lkj[ks vkys rj foHkkx izeq[k ;kaps nkyukr lnj fufonk /kkjdkaleksj fpðh dk<wu T;k fufonk/kkjdkph fpðh mpyyh tkbZy R;kl ,y&1 Bjfo.;kr ;sbZy-"
Mugdha 5 of 8
6 16-WP 2837-22.odt
9. A plain reading of the aforesaid Clause indicates that in the event the rates quoted by two or more bidders are identical, then in such a circumstance all the bidders are required to submit their rates in a sealed cover which shall be opened in the offce of the head of the Department and the bidder with the lowest rate would be declared as L-1. However, if again the rates quoted by more than one bidders is identical then that bidder will be decided as L-1 whose name is picked through a lucky draw conducted in the presence of the bidders.
10. We have perused Eihibit R-5 on Page-61 to the Affdavit- in-Reply of the Respondent-Corporation, which is a copy of the record of the lucky draw process conducted on 25 th February 2022 at 11:30 a.m. The said Eihibit clearly indicates that none of the bidders/ representatives were present during the lucky draw process. In our view for the lucky draw process to be fair and transparent, Clause 8 of the Tender Notice has clearly provided that the said lucky draw process should be in the presence of the bidders, which is admittedly missing in the present case.
Mugdha 6 of 8
7 16-WP 2837-22.odt
11. Facts not being in dispute, the lucky draw has been conducted in the absence of the bidders, which in our view, is a breach of the essential condition of the tender process when no suffcient time and no proper opportunity was given to the parties to remain present. It is in public interest that the public works as contemplated in the subject E-Tender are not unduly delayed. We are therefore inclined to interfere in a limited way only to the eitent of setting aside the lucky draw process with respect to the subject E- Tender Notice.
12. The lucky draw process with respect to the subject E- Tender is accordingly set aside. The declaration of Respondent No. 4 as L-1 bidder is also hereby set aside.
13. The Respondent-Corporation is directed to re-conduct the lucky draw process in respect of E-Tender Notice No. 6/2021-22 dated 17th July 2021 in the presence of the Petitioners as well as Respondent No. 4 after duly intimating them with at least 48 hours advance notice.
Mugdha 7 of 8
8 16-WP 2837-22.odt
14. The Respondent-Corporation is directed to record the entire lucky draw process through videography as required under the tender.
15. Petition is allowed in the above terms with no order as to costs.
(ABHAY AHUJA, J.) (A.A. SAYED, J.) MUGDHA M PARANJAPE Digitally signed by MUGDHA M PARANJAPE Date: 2022.04.07 19:07:47 +0530 Mugdha 8 of 8