Bombay High Court
Saj Enterprises vs The Municipal Corporation Of Greater ... on 11 February, 2014
Author: Anoop V. Mohta
Bench: Anoop V. Mohta, A.A. Sayed
krs wpL299.14
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L) NO.299 OF 2014
Saj Enterprises : Petitioner
V/s.
The Municipal Corporation of Greater Bombay & Anr. : Respondents
...
Mr.K.H.Halai i/b. M/s.Halai & Co., for the Petitioner.
Mr.A.Y.Sakhare, Senior Advocate, with Ms Trupti Puranik for the Respondents.
...
ig CORAM : ANOOP V. MOHTA &
A.A. SAYED, JJ.
DATE : FEBRUARY 11, 2014.
ORAL JUDGMENT (Per Anoop V. Mohta, J.)
Rule, returnable forthwith.
Ms Puranik for the Respondents waives service.
Heard finally by consent of parties.
2. The Petitioner has invoked Article 226 of the Constitution of India and prayed for setting aside the tender condition regarding Financial Eligibility Criteria contained in the tender notice dated 20 January 2014 issued by the Respondent-MCGM in respect of operation and maintenance of dewatering pumps.
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3. The sale of e-tender started from 20 January 2014. The Petitioner filed the present Petition on 03 February 2014 and on 05 February 2014 the matter was listed on board. The tender will be opened on 12.02.2014. We have not passed any ad-interim order. The contesting Respondent filed affidavit dated 11 February 2014 and pointed out that Packet A & B were opened on 05 February 2014 and on scrutiny it is observed that the Petitioner has quoted its bids for six numbers of groups and out of which they have fulfilled the pre-qualification criteria in five groups. This itself means that the Petitioner participated in the proceedings since beginning to above extent and as recorded above fulfilled the pre-qualification criteria also. The submission, therefore, that the financial pre-
qualification criteria of the tender as 90% of average annual turnover of estimated cost during last three years in each group and work experience of 40% of quantity of pumps in each group during last five years is arbitrary, unreasonable and intended to deprive the persons like the Petitioner to participate in the process itself is unacceptable.
4. It is well-settled that the Respondent-Corporation is entitled to add or amend and/or put in suitable conditions for a particular contract, based on their experience. The eligibility criteria, therefore, so fixed by them thus cannot be tested at the instance of the Petitioner, at this stage of proceedings, specifically when such criteria so fixed cannot be stated to be contrary to any provisions of law and/or breach of any declared policy and/or any representations given at 2 of 6 ::: Downloaded on - 13/02/2014 23:14:32 ::: krs wpL299.14 any point of time. It is settled that they are free to fix and put in the tender conditions based on their requirements. No third person is entitled to interfere and/or suggest to them to have a particular rule or specific terms and conditions. The submission, therefore, that they have suddenly changed the terms and added in the tender which intends to disentitle persons like the Petitioner and/or support a particular party is also unsupported by any material.
5. Mere allegations and/or averments are not sufficient to prove mala fides or arbitrariness. It is required to be supported by the material on record especially when the Respondents in the reply have denied even those averments made in the Petition. These questions of fact, therefore, cannot be considered and/or accepted in the present Writ Petition, specifically when the facts on record, including the conditions so read and referred, cannot be stated to be arbitrary or discriminatory merely because the tender is of local authority. All the parties or persons who want to submit their tender based on the terms and conditions so announced are bound to accept the same. The concept of inviting tender itself is and includes that no person is forced and/or compelled to participate in the tender process if he does not accept the terms and conditions.
6. In Writ Petition no.2595 of 2012 (M/s.Akansha Apang Seva Shakari Sanstha v. Municipal Corporation of Greater Mumbai & Ors.), a Division Bench of this Court in judgment dated 03 December 2012, considered the 3 of 6 ::: Downloaded on - 13/02/2014 23:14:32 ::: krs wpL299.14 aspects of such types of commercial contracts of the Respondents and/or such local bodies in the following words:
"5. Mr.Sakhare has relied upon the decisions of the Supreme Court in Tata Cellular vs. Union of India, AIR 1996 S.C. 11, and in Shimnit Utsch India Pvt. Ltd. & Anr. vs. West Bengal Transport Infrastructure Development Corporation Ltd. & Ors., 2010 (6) SCC 303 in support of the contention that the terms of the invitation to tender cannot be open to judicial scrutiny because the invitation to 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.
6. In Directorate of Education and Others v.
Educomp Datamatics Ltd., 2004 (4) SCC 19, a two Judge Bench of the Supreme Court held as under:-
"12. ................................................................. The Courts cannot strike down the terms of the tender prescribed by the Government because it feels that
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(emphasis supplied)
7. In Association of Registration Plates v. Union of India, (2004) 5 SCC 364 a three Judge Bench of the Supreme Court laid down the following principles in paras 38 and 43 of the judgment:-
"38. .......................................................... Unless the action of tendering authority is found to be malicious and a misuse of its statutory powers, tender conditions are unassailable..............
43. Certain preconditions or qualifications for tenders have to be laid down to ensure that the contractor has the capacity and resources to successfully execute the work. ..............................
................................. Undisputedly, the legal position which has been fairly established from various decisions of this Court, cited at the Bar (supra) is that government contracts are highly valuable assets and the Court should be prepared to enforce standard of fairness on the Government in 5 of 6 ::: Downloaded on - 13/02/2014 23:14:32 ::: krs wpL299.14 its dealing with tenderers and contractors.
(emphasis supplied)
8. It is thus clear that unless the action of tendering authority is found to be malicious and a misuse of its statutory powers, tender conditions are unassailable.
Certain preconditions or qualifications for tenders have to be laid down to ensure that the contractor has the capacity and the resources to successfully execute the work."
7. Therefore, for the above reasons, as no case is made out, the Petition is accordingly dismissed. Rule is discharged. No costs.
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