Delhi High Court - Orders
M/S Rudraksh Envirocare Pvt. Ltd & Anr vs Delhi Pollution Control Committee & Anr on 17 May, 2021
Author: Vipin Sanghi
Bench: Vipin Sanghi, Jasmeet Singh
$~25
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 5123/2021
M/S RUDRAKSH ENVIROCARE PVT. LTD & ANR.
..... Petitioners
Through: Mr. Navneet Panwar, Mr. Priyanshu
Upadhyay, Advs.
versus
DELHI POLLUTION CONTROL COMMITTEE & ANR.
..... Respondents
Through: Mr. Biraja Mahapatra, Adv. for R-1/
DPCC
CORAM:
HON'BLE MR. JUSTICE VIPIN SANGHI
HON'BLE MR. JUSTICE JASMEET SINGH
ORDER
% 17.05.2021 CM APPL. 16473/2021-(EXEMPTION FROM FILING AFFIRMED AFFIDAVITS) Application allowed, subject to all just exceptions. The application stands disposed of.
CM APPL. 16472/2021 - (EARLY HEARING) By this application, the petitioner seeks early hearing of the writ petition which was adjourned to 27.08.2021, since the petitioner did not appear on the date fixed.
The application is allowed. The matter is taken up today itself.
Signature Not VerifiedW.P.(C) 5123/2021 Digitally Signed By:AMIT ARORA Page 1 of 10 Signing Date:28.05.2021 15:55:08 W.P.(C) 5123/2021
1. That the present petition has been filed by the petitioner seeking the following prayers:
i. To issue and appropriate writ, order and/or direction to the Ld respondent seeking production of the records of tender for Expressions of Interest (EOIs) no. DPCC/WMC-
I/ACBWTF/2020/EOI dated 20.01.2021 issued by the respondent;
ii. To issue and appropriate writ, order and/or direction declaring the action of the Respondent in inviting fresh EOIs vide letter dated 22.03.2021 as illegal, arbitrary and violative of Article 14 of the Constitution of India and to quash the Expressions of Interest (EOIs) no. DPCC/WMC-I/ACBWTF/2020/EOI dated 22.03.2021;
iii. To issue an appropriate writ, order and/or direction to the Respondents for selecting the highest bidder in Expressions of Interest (EOIs) no. DPCC/WMC-I/ACBWTF/2020/EOI dated 20.01.2021;
AND iv. For the issuance of any other order, direction or relief which this Hon'ble Court may deem fit and proper in the peculiar facts and circumstances of the case."
Signature Not VerifiedW.P.(C) 5123/2021 Digitally Signed By:AMIT ARORA Page 2 of 10 Signing Date:28.05.2021 15:55:08
2. The case of the petitioner is that the Govt. of NCT of Delhi initiated a process for setting up of two Common Bio-medical Waste Treatment and Disposal Facilities (CBWTFs) in Delhi.
3. The Expression of Interest (hereinafter called EOI) dated 20.01.2021 was issued by the respondent for setting up of two Common Bio- medical Waste Treatment and Disposal Facilities on Built, Own and Operate basis for collection, transportation, reception, storage, treatment and disposal of bio-medical wastes one each for the two regions of the NCT of Delhi. The last date of submission of EOI was 15.02.2021.
4. Nine parties including the petitioner submitted their tenders.
5. Screening of all the valid EOIs was to be carried out on the basis of minimum eligibility criteria provided under Clause 4 and only those EOIs meeting the minimum eligibility criteria were to be evaluated as per the evaluation criteria provided under Clause No. 6 of the tender. EoIders who scored minimum 50 marks were to be treated as technically qualified for EOI, and Request for Proposals (hereinafter called "RFP") would be sent to them.
6. On 17.03.2021, the respondent vide a letter uploaded on the website, informed that the tender of 20.01.2021 was cancelled. Thereafter the respondent issued impugned Tender No. DPCC/WMC- I/ACBWTF/2020/EOI (Request for Expression of Interest, hereinafter called tender dated 22.03.2021) dated 22.03.2021 inviting fresh EOIs.
Signature Not VerifiedW.P.(C) 5123/2021 Digitally Signed By:AMIT ARORA Page 3 of 10 Signing Date:28.05.2021 15:55:08
7. The petitioner in the present Writ Petition has challenged the cancellation of earlier tender dated 20.01.2021, and the issuance of Tender dated 22.03.2021.
8. The petitioner has argued that the eligibility criteria of the bidders and other conditions in the Tender dated 22.03.2021 had been changed with malafide intention to allow certain companies/ persons to participate in the tender process. The petitioner has further alleged that the change in the eligibility criteria clearly indicates favouritism and nepotism.
9. We have heard the counsel for the petitioner. The petitioner has tabulated a comparison of the relevant terms and conditions which have been amended by the respondent while issuing the impugned tender dated 22.03.2021. The same reads as follows:
Tender dated 20.01.2021 Tender Dated 22.03.2021 4.1 The EoIder should be registered The EoIder should be registered company in India under company in India under Companies Act. In case of Joint Companies Act/ society/ trust Venture (JV), at least one /partnership / proprietorship. In member of the JV should be case of Joint Venture (JV), at least Incorporated under the one member of the JV should be Companies Act. Incorporated under the Companies Act/ society/ trust/ partnership /proprietorship.Signature Not Verified
W.P.(C) 5123/2021 Digitally Signed By:AMIT ARORA Page 4 of 10 Signing Date:28.05.2021 15:55:08 4.2 The EoIder should have The EoIder should have average minimum turnover of Rs.10 turnover of Rs.10 crores (Rs. Ten crores (Rs. Ten crores) per year crores) for the last three for each of the last three successive financial years (i.e. successive financial years (i.e. 2017-18, 2018-19 & 2019-20) 2017-18, 2018-19 & 2019-20) preceding the last date of preceding the last date of submission of EOIs. EoIder is submission of EOIs. EoIder is required to submit the audited required to submit the audited financial statement along with financial statement along with Chartered Accountant (CA) Chartered Accountant (CA) certificate clearly mentioning year certificate clearly mentioning wise turn over. year wise turn over.
4.4 The EoIder should have past The EoIder should have past experience in handling and experience in handling and operating CBWTF for at least 5 operating CBWTF for at least years during the last 10 years. 5years during the last 10 years. In In Case of a JV, the Lead Case of a JV, the Lead/ JV member shall meet this criteria. member shall meet this criteria.
The years of experience of
handling & operating CBWTFs
shall be considered for one
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ARORA
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member only in case of JV.
4.6 The EoIder should have the The EoIder should have the land land of 0.5 acre or more (either of 0.5 acre or more (either owned/ owned/ on registered lease) for on registered lease) for setting up setting up of a CBWTF in an of a CBWTF in an approved approved industrial area. industrial area. The EoIder should EoIder shall submit the ensure that the land for the documentary evidence along proposed facility should be able to with the EOI showing proof of meet the environmental possession (i.e. ownership/ safeguards as per EIA notification registered lease) in the name of 2006. the EoIder/ any JV Member.
EoIder shall submit the documentary evidence along with the EOI showing proof of possession (i.e. ownership/ registered lease) in the name of the EoIder/ any JV member.
Alternatively, a MoU with land owner/ declaration on letter head by the EoIder to acquire land within 2 weeks of letter of award of work may also be considered.
However, address and Signature Not Verified W.P.(C) 5123/2021 Digitally Signed By:AMIT ARORA Page 6 of 10 Signing Date:28.05.2021 15:55:08 specifications of land identified are to be provided with the EoI. In case the EoIder fails to acquire land within stipulated time, the letter of award and concessionaire agreement deemed to be cancelled and the bidding amount shall be forfeited.
In addition, a penalty of 10% of the project value shall be recovered in the form of Bank Guarantee from the EoIder. In that case, the work shall be awarded to next qualifying EoIder.
10. A bare perusal of the comparative chart shows that the tender conditions have only been rationalised under the subsequent Tender dated 22.03.2021.
11. A tenderer has no vested right in tender conditions which has subsequently been cancelled.
12. In Meerut Development Authority vs Association of Management Studies and Anr.1 the Supreme Court clarified the rights of a 1 2009 (6) SCC 171 Signature Not Verified W.P.(C) 5123/2021 Digitally Signed By:AMIT ARORA Page 7 of 10 Signing Date:28.05.2021 15:55:08 Tenderer participating in the Tender Process as under:
"17. A tender is an offer. It is something which invites and is communicated to notify acceptance. Broadly stated it must be unconditional; must be in the proper form, the person by whom tender is made must be able to and willing to perform his obligations. The terms of the invitation to tender cannot be open to judicial scrutiny because the invitation to tender is in the realm of contract. However, a limited judicial review may be available in cases where it is established that the terms of the invitation to tender were so tailor-made to suit the convenience of any particular person with a view to eliminate all others from participating in the bidding process. The bidders participating in the tender process have no other right except the right to equality and fair treatment in the matter of evaluation of competitive bids offered by interested persons in response to notice inviting tenders in a transparent manner and free from hidden agenda. One cannot challenge the terms and conditions of the tender except on the above stated ground, the reason being the terms of the invitation to tender are in the realm of the contract. No bidder is entitled as a matter of right to insist the Authority inviting tenders to enter into further negotiations unless the terms and conditions of notice so provided for such negotiations."
13. Even otherwise the tender floating authority has complete freedom in formulating the terms and the requirements of the tender. The terms of a tender; the reasons for cancellation of a tender, the modification of terms in the new tender, would not be subjected to judicial scrutiny except on grounds of arbitrariness, unreasonableness - bias, malafides or discrimination. The petitioner has- apart from making a bald assertion that the modifications have been undertaken malafide - with a view to favour certain bidders, not disclosed any particulars as to on what basis this assertion is made. The terms of Tender dated 22.03.202 appear to be reasonable and there is nothing to Signature Not Verified W.P.(C) 5123/2021 Digitally Signed By:AMIT ARORA Page 8 of 10 Signing Date:28.05.2021 15:55:08 show any arbitrariness, or bias, or malafides in framing the same.
14. The Supreme Court in Michigan Rubber (India) Ltd. v. State of Karnataka,2 reiterated its decision taken in Tata Cellular vs. Union of India,3 wherein the Supreme Court emphasised the need to find a right balance between administrative discretion to decide the matters on the one hand, and the need to remedy any unfairness on the other, and observed:
"94. (1) The modern trend points to judicial restraint in administrative action.
(2) The court does not sit as a court of appeal but merely reviews the manner in which the decision was made.
(3) The court does not have the expertise to correct the administrative decision. If a review of the administrative decision is permitted it will be substituting its own decision, without the necessary expertise, which itself may be fallible.
(4) The terms of the invitation to tender cannot be open to judicial scrutiny because the invitation to tender is in the realm of contract.
...
(5) The Government must have freedom of contract. In other words, a fair play in the joints is a necessary concomitant for an administrative body functioning in an administrative sphere or quasi- administrative sphere. However, the decision must not only be tested by the application of Wednesbury principle of reasonableness (including its other facts pointed out above) but must be free from arbitrariness not affected by bias or actuated by mala fides."
2(2012) 8 SCC 216 3 (1994) 6 SCC 651 Signature Not Verified W.P.(C) 5123/2021 Digitally Signed By:AMIT ARORA Page 9 of 10 Signing Date:28.05.2021 15:55:08
15. In this view of the matter, we find no merit in the writ petition and the same is hence dismissed.
VIPIN SANGHI, J JASMEET SINGH, J MAY 17, 2021 / „ms‟ Signature Not Verified W.P.(C) 5123/2021 Digitally Signed By:AMIT ARORA Page 10 of 10 Signing Date:28.05.2021 15:55:08