Gujarat High Court
Sai Enterprise vs Mehsana Municipality on 17 August, 2021
Author: J.B.Pardiwala
Bench: J.B.Pardiwala, Vaibhavi D. Nanavati
C/SCA/12587/2020 ORDER DATED: 17/08/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 12587 of 2020
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SAI ENTERPRISE
Versus
MEHSANA MUNICIPALITY
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Appearance:
MR SHAKEEL A QURESHI(1077) for the Petitioner(s) No. 1
MR KAMLESH S KOTAI(6150) for the Respondent(s) No. 1
MR VIJAY H NANGESH(3981) for the Respondent(s) No. 2
NOTICE NOT RECD BACK(3) for the Respondent(s) No. 4
NOTICE UNSERVED(8) for the Respondent(s) No. 3
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CORAM:HONOURABLE MR. JUSTICE J.B.PARDIWALA
and
HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 17/08/2021
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE J.B.PARDIWALA)
1. By this writ application under Article 226 of the Constitution of India, the writ applicant has prayed for the following reliefs;
"(A) That the Hon'ble Court may be pleased to admit this petition;
(B) That the Hon'ble Court may be pleased to allow this Special Civil Application by issuing appropriate writ, order or direction and thereby to cancel the contract/award to respondent No.2 by respondent No.1 as well as Resolution No.97 dated 29.7.2020 in favour of respondent No.2 pursuant to the Notice of Inviting Tender for loading and unloading of waste/garbage.Page 1 of 7 Downloaded on : Sun Jan 16 08:26:52 IST 2022
C/SCA/12587/2020 ORDER DATED: 17/08/2021 (C) That the Hon'ble Court may be pleased to allow this Special Civil Application by issuing appropriate writ, order or direction and thereby to quash e-tender process pursuant to the Notice of Inviting Tender and further be pleased to direct respondent No.1 to process the bid of all participants in accordance with law in the interest of justice.
(D) Pending admission, hearing and final disposal of this petition, this Hon'ble Court may be pleased to stay further proceedings pursuant to the Resolution No.97 of 29.07.2020 and not to act upon further proceedings of actual execution of tender proceedings in respect of the description given in Notice of Inviting Tender in the interest of justice.
(E) Grant such other and further relief (s) as deemed just and proper by this Hon'ble Court in the interest of justice."
2. The writ applicant is in the business of loading and unloading of waste/garbage. In other words, transportation of waste/garbage within the territorial limits of the town of Mehsana. It appears that the respondent No.1-Mehsana Nagar Palika floated an online tender on 20th June, 2020 for the work of loading and unloading of waste/garbage. The last date of filling up the tender form was 30th June, 2020 and the tenders were to be opened on 3rd July, 2020. It is not in dispute that the writ applicant participated in the tender process and offered his bid. However, ultimately, the contract came to be awarded in favour of the respondent No.2 at the rate of 2490/- for tractor and Rs.2499 for the tripper. One of the eligibility criterias as provided in the tender notice was as under;
Page 2 of 7 Downloaded on : Sun Jan 16 08:26:52 IST 2022C/SCA/12587/2020 ORDER DATED: 17/08/2021 "The participant should possess at least five tractors- trolley and two trippers of his own ownership and the registration of the same should be after 2015. For the purpose of showing the proof of ownership, a copy of the R.C. Book shall be attached."
3. It is the case of the writ applicant that on the date he offered his bid, he was the lawful owner of four tractors and two trippers. So far as the fifth tractor is concerned, he had entered in to an agreement for the purchase of the same, however, the purchase was not completed. As the writ applicant failed to fulfill the required eligibility criteria, his bid was not taken into consideration.
4. In the aforesaid context, we may refer to the averments made in the para-9 of the affidavit-in-reply filed on behalf of the respondent No.2. The same reads thus;
"9. It is further submitted that the Petitioner has not fulfilled all the conditions laid down in the Proposal. It is submitted that as per the Eligibility for filing the Tender at Point 4 it is mentioned that "the applicant shall have in his ownership at least 5 Tractor/Trolley and 2 Tripper and whose registration shall be after 2015". it is submitted that all the Vehicles offered by the Petitioner are not registered after the year 2015 and some of them are registered before the year 2015. It is also further submitted that the Petitioner does not have under his ownership 5 tractors/trolley and 2 tripper, which clearly makes the Petitioner ineligible for the proposed project. It is submitted that Respondent No.2 has submitted all the documents as per the Tender Application and only after scrutiny of all the documents submitted by respondent No.2, it was found eligible and its bid was accepted. I deny that there is loss of any public money in awarding the tender to Respondent No.2."Page 3 of 7 Downloaded on : Sun Jan 16 08:26:52 IST 2022
C/SCA/12587/2020 ORDER DATED: 17/08/2021
5. We may also refer to the averments made in Para-4 of the reply filed by the Chief Officer of the Mehsana Municipality, which reads thus;
"4. At the outset, I state that there is clear condition No.4 mentioned that 'the applicant must have ownership of five tractor trolley and two trippers and registration of the vehicles after year of 2015 and for showing ownership of documents the applicant must produce R.C. Book' but the petitioner has not produced 5 R.C. Book of Tractor/Trolley he has produced 4 R.C.Book copy and one Sale Deed was produced by the petitioner which is not valid because there must be R.C. Book for Evidence of ownership, so the petitioner application for tender form was not open, A copy of the sale deed was produced by the petitioner here is Annexure-R-3, and the petitioner was known about the above reason because it is online floated tender, So on that ground pleased to be consider in the interest of justice"
6. We have heard Mr. Shakeel Qureshi, the learned counsel appearing for the writ applicant, Mr. Kamlesh Kotai, the learned counsel appearing for the respondent No.1-Mehsana Nagar Palika and Mr. Vijay Nangesh, the learned counsel appearing for the successful bidder, i.e, the respondent No.2.
7. Mr. Qureshi conceded to the fact that on the date when his client offered his bid, the eligibility criteria, as discussed above, was not being fulfilled. In other words, according to Mr. Qureshi, his client had four tractors and two trippers and was short only by one tractor. However, Mr. Qureshi tried to develop an argument that the price Page 4 of 7 Downloaded on : Sun Jan 16 08:26:52 IST 2022 C/SCA/12587/2020 ORDER DATED: 17/08/2021 quoted by his client was Rs.2100/- per tractor compared to Rs.2490/-, whereas the successful bidder, i.e, the respondent No.2 quoted 2490/- per tractor. He further pointed out that in the past, i.e, since 2008 his client had a contract with the Nagar Palika. At that point of time, his client had quoted the rate of Rs.1799/- per tractor and Rs.1599/- per tripper. According to Mr. Qureshi, he offered the Nagar Palika to render his services so far as tripper is concerned at the same rate. Mr. Qureshi pointed out that the Nagar Palika thought fit to pay Rs.77 Lakh more per year to the respondent No.2 in whose favour the contract ultimately came to be awarded. He would submit that having regard to such a huge amount, the Nagar Palika could have gone for a fresh tender notice.
8. On the other hand, Mr. Kotai, the learned counsel appearing for the Nagar Palika would submit that as the writ applicant was not fulfilling the eligibility criteria, his bid was not taken into consideration.
9. Mr. Nangesh, the learned counsel appearing for the successful bidder would submit that his client has already been awarded the contract and has put in almost one year of his services. Both Mr. Kotai and Mr. Nangesh would submit that there being no merit in the present writ application, the same be rejected.
10. We proceed on the footing and there is no escape for the writ applicant that he failed to fulfill the eligibility Page 5 of 7 Downloaded on : Sun Jan 16 08:26:52 IST 2022 C/SCA/12587/2020 ORDER DATED: 17/08/2021 criteria. However, the matter of concern is the way and the manner in which the Nagar Palika proceeded to award the contract in favour of the respondent No.2 at the cost of paying Rs.77 Lakh more for a period of two years. For any civic body, Rs.77 Lakh is a huge amount. This amount which the Nagar Palika would pay to the contractor is public money. People pay tax to the Nagar Palika and from such revenue, this amount is being paid to the contractors. It is true that sanitation and hygiene should be the top priority for any civic body. However, at the same time, the Nagar Palika should be careful and conscious of its dealings in this type of matters. It should not take a second for any Court to reject the argument of Mr. Qureshi that his client was short of only one tractor. In other words, it hardly matters whether the writ applicant was short of one tractor or two tractors. The fact is that he was not fulfilling the eligibility criteria. But at the same time, the rates quoted was a clear indication to the Nagar Palika to go for a fresh tender notice.
11. Be that as it may, it is too late in the day now to make the Nagar Palika realize of its rash decision contrary to public interest to award the contract in favour of the respondent No.2 at the cost of paying Rs.77 Lakh more. The contract is for a period of two years and one year period has already lapsed.
12. We could have rejected this writ application on the short ground of eligibility criteria, but this order is a Page 6 of 7 Downloaded on : Sun Jan 16 08:26:52 IST 2022 C/SCA/12587/2020 ORDER DATED: 17/08/2021 message not only to the Mehsana Nagar Palika but also to the people of the town so that people may realize how the Nagar Palika is functioning.
13. With the aforesaid, this writ application stands disposed of.
(J. B. PARDIWALA, J) (VAIBHAVI D. NANAVATI,J) Vahid Page 7 of 7 Downloaded on : Sun Jan 16 08:26:52 IST 2022