Gujarat High Court
R And B Infra Project Pvt Ltd vs Surat Municipal Corporation & on 13 June, 2017
Author: M.R. Shah
Bench: M.R. Shah, B.N. Karia
C/SCA/2610/2017 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 2610 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE M.R. SHAH
and
HONOURABLE MR.JUSTICE B.N. KARIA
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1 Whether Reporters of Local Papers may be
allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair
copy of the judgment ?
4 Whether this case involves a substantial
question of law as to the interpretation of the
Constitution of India or any order made
thereunder ?
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R AND B INFRA PROJECT PVT LTD....Petitioner(s)
Versus
SURAT MUNICIPAL CORPORATION & 1....Respondent(s)
======================================
Appearance:
MR MITUL K SHELAT, ADVOCATE with MS SALONI M SHAH,
ADVOCATE for the Petitioner(s) No. 1
MR KAMAL TRIVEDI, SENIOR ADVOCATE with MR DHAVAL G
NANAVATI, ADVOCATE for the Respondent(s) No. 1 - 2
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CORAM: HONOURABLE MR.JUSTICE M.R. SHAH
and
HONOURABLE MR.JUSTICE B.N. KARIA
Date : 13/06/2017
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HC-NIC Page 1 of 10 Created On Fri Aug 18 08:38:33 IST 2017
C/SCA/2610/2017 JUDGMENT
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE M.R. SHAH) [1.0] By way of this petition under Article 226 of the Constitution of India the petitioner - R & B Infra Project Pvt. Ltd., one of the bidder with respect to the tender notice in question, has prayed for an appropriate writ, order or direction directing respondent no.1 - Surat Municipal Corporation ("SMC" for short) to open and consider the price bid submitted by the petitioner in the tender notice No.PHD/DCHH/19/2016- 17 issued by the SMC for door to door refuse garbage collection and transportation for a period of five years.
[2.0] The facts leading to the present Special Civil Application in nutshell are as under;
[2.1] Notice inviting tender came to be issued by SMC on 23/11/2016 for the tender work i.e. door to door refuse garbage collection and transportation using closed body vehicles model of 2015 RTO passing with tipping arrangement including labours in accordance with Solid Waste Management Rule, 2016 for a period of five years for all seven (East, West, South-West, North, South and Central) Zones of Surat city. At this stage it is to be noted that the Surat City was divided into seven zones. The last date for submitting the tender on-line was 26/12/2016. The petitioner alongwith others submitted the bids /technical bids. SMC received technical bids from 20 parties /bidders. The bids received by SMC came to be opened for the purpose of scrutiny by the Consultant, Facile Maven Private Ltd. The above Consultant gave its report to the Technical Evaluation Committee of SMC, which approved the same on 08/02/2017. As as result of the same, 6 parties came Page 2 of 10 HC-NIC Page 2 of 10 Created On Fri Aug 18 08:38:33 IST 2017 C/SCA/2610/2017 JUDGMENT to be qualified whereas the remaining 14 parties, including the petitioner, were disqualified. The following 6 parties came to be technically qualified;
(i) Global Waste Management Cell Pvt. Ltd.
(ii) Jigar Transport Company
(iii) M/s. Western Imaginary Transcon Pvt. Ltd.
(iv) Aum Swachatha Corporation
(v) P. Kavitha
(vi) Swachtha Corporation
[2.2] The price bids of the aforesaid 6 technically
qualified bidders came to be opened while the remaining 14 bidders were intimated about their disqualification. At that stage, the petitioner has preferred the present Special Civil Application for the aforesaid reliefs inter alia challenging its disqualification.
[3.0] Shri Mitul Shelat, learned advocate has appeared on behalf of the petitioner, Shri Kamal Trivedi, learned Senior Advocate has appeared on behalf of respondents.
[4.0] It is vehemently submitted by Shri Mitul Shelat, learned advocate appearing on behalf of the petitioner that the tender bid submitted by the petitioner meets with the criteria mentioned in the tender notice. It is submitted that therefore the impugned action of the respondents in rejecting the bid of the petitioner at the preliminary evolution stage and thereby not opening the price bid of the petitioner is absolutely illegal, arbitrary, which deserves to be quashed and set aside. It is further submitted by Shri Mitul Shelat, learned advocate Page 3 of 10 HC-NIC Page 3 of 10 Created On Fri Aug 18 08:38:33 IST 2017 C/SCA/2610/2017 JUDGMENT appearing on behalf of the petitioner that as such the impugned tender process is vitiated by and on account of a cartel created by the existing bidders and supported by the consultant and officers of respondent no.1 - SMC. It is submitted that except one none of the qualified bidders had even submitted the bid for the South and Central Zone. It is submitted that non participation by the qualified bidders clearly makes it evident that a cartel has been created and the entire process has been made non-competitive.
[4.1] It is further submitted by Shri Mitul Shelat, learned advocate appearing on behalf of the petitioner that the price quoted by the petitioner is comparatively lower to that quoted by L - 1, and therefore, if the bid submitted by the petitioner is opened and considered, it will result in benefit of public revenue.
Making the above submissions, it is requested to admit /allow the present petition.
[5.0] The present petition is vehemently opposed by Shri Kamal Trivedi, learned Senior Advocate appearing on behalf of the respondents. Preliminary objection is raised by Shri Kamal Trivedi, learned Senior Advocate appearing on behalf of the respondents to the effect that as all eligible bidders are not joined as party respondents, and therefore, the present petition deserves to be dismissed. In support of his above submissions, Shri Kamal Trivedi, learned Senior Advocate appearing on behalf of the respondents has heavily relied upon the decision of the Hon'ble Supreme Court in the case of Afcons Infrastructure Ltd. Vs. Nagpur Metro Rail Corporation Ltd. and Another reported in AIR 2016 SC Page 4 of 10 HC-NIC Page 4 of 10 Created On Fri Aug 18 08:38:33 IST 2017 C/SCA/2610/2017 JUDGMENT 4305.
[5.1] It is further submitted by Shri Kamal Trivedi, learned Senior Advocate appearing on behalf of the respondents that even otherwise on merits also as the petitioner has not submitted the necessary documents and does not meet with the requisite eligibility criteria mentioned in the tender notice, the petitioner is rightly held to be not eligible, and therefore, the technical bid is rightly rejected and is rightly held to be disqualified.
[5.2] It is further submitted by Shri Kamal Trivedi, learned Senior Advocate appearing on behalf of the respondents that in the present case the petitioner has been disqualified because it did not comply with the requirements of Clause 3(V) relating to "Note to the Bidder" read with Annexure XIII, in as much as work completion certificate issued by the Brihanmumbai Mahanagarpalika to the petitioner was not for door to door garbage collection from residential area and transportation thereby, it was for "collection and transportation of common house gully materials and materials removed from slums" without exactly quoting as to how much quantity of solid waste was collected in residential area from door to door and transported thereafter. It is submitted that therefore the petitioner cannot be said to be qualified and /or eligible for the contract in question i.e. for door to door refuse garbage collection and transportation. It is further submitted by Shri Kamal Trivedi, learned Senior Advocate appearing on behalf of the respondents that in the present case the petitioner submitted the bids for two zones i.e. South zone and Central Zone. It is submitted that as per Clause 3(VII) relating Page 5 of 10 HC-NIC Page 5 of 10 Created On Fri Aug 18 08:38:33 IST 2017 C/SCA/2610/2017 JUDGMENT to "Note to the Bidder" read with Annexure XIV the petitioner was required to give /submit his preference of zone. It is submitted that therefore considering Annexure XIV the tender /bid submitted by the petitioner was liable to be rejected. It is submitted that therefore the petitioner is rightly held to be not eligible and his technical bid is rightly rejected and the petitioner is rightly held to be disqualified. It is submitted that therefore respondent no.1 - SMC is justified in not opening the bid of the petitioner. Shri Kamal Trivedi, learned Senior Advocate appearing on behalf of the respondents has vehemently submitted that the conditions mentioned in the tender notice requires strict compliance. It is submitted that in the present case there is non-compliance of the conditions mentioned in the tender notice, more particularly Clause 3(VII) read with Annexure XIV. It is submitted that therefore the petitioner is rightly held to be not eligible. In support of his above submission, Shri Kamal Trivedi, learned Senior Advocate appearing on behalf of the respondents has heavily relied upon the decision of the Hon'ble Supreme Court in the case of Bakshi Security and Personnel Services Private Ltd. Vs. Devkishan Computed Private Ltd and Others reported in (2016) 8 SCC 446. Shri Kamal Trivedi, learned Senior Advocate appearing on behalf of the respondents has also relied upon the decision of the Division Bench of this Court in the case of Om Sai Ventures Vs. State Government and Others rendered in Special Civil Application No.1994/2017 in support of his submissions that the petitioner does not have requisite experience of collecting garbage door to door for which tender notice has been issued.
Making the above submissions, it is requested to Page 6 of 10 HC-NIC Page 6 of 10 Created On Fri Aug 18 08:38:33 IST 2017 C/SCA/2610/2017 JUDGMENT dismiss the present petition.
[6.0] Heard learned Counsels appearing on behalf of the respective parties at length. At the outset, it is required to be noted that in the present petition the petitioner has prayed for an appropriate writ, order or direction directing the respondent authorities to open and consider the price bid submitted by the petitioner for the tender notice No.PHD/DCHH/19/2016-17 issued by SMC for door to door refuse garbage collection and transportation.
[6.1] However, it appears that the petitioner is held to be technically ineligible /disqualified inasmuch as the petitioner does not have the requisite qualification of door to door garbage collection from residential areas and transportation thereof, as is the essentially required criteria /qualification as per the tender notice. It is not in dispute that the tenders are invited for door to door refuse garbage collection and transportation using close body vehicles model of 2015 RTO passing with tipping arrangement including labours in accordance with Solid Waste Management Rule, 2016 for the period of five years for all seven (East, West, South-West, South-East, North, South and Central) Zones of Surat City.
[6.2] Petitioner submitted the bids for two zones i.e. South Zone and Central Zone. As per the tender notice one of the technical qualification criteria for work experience was that the bidder shall have minimum four years experience of door to door garbage collection and transportation work. As defined in paragraph (V) "door to door garbage collection and transportation works" is defined as per Clause (IV) of Page 7 of 10 HC-NIC Page 7 of 10 Created On Fri Aug 18 08:38:33 IST 2017 C/SCA/2610/2017 JUDGMENT paragraph 3 (Note to the Bidder), which reads as under;
"V. "Door to door garbage collection and
transportation works" means collecting solid
waste /segregated solid waste from residential area (i.e from societies, colonies, apartments, slums etc.), commercial area and institutional area etc. on day to day basis using own labours and close body vehicles with tipping arrangement, and transporting collected waste to nearest transfer station, storage site, dumping site etc."
As per paragraph 3 of the tender notice (Note to the Bidder) even the bidders shall have experience of required quantity in any three years of last seven years as mentioned in paragraph 3(I). As per Clause (VII) if the contractor has submitted bid for more than one zone and if he technically qualifies in lesser zone, then price bid of contractor shall be opened as per his preference of zone submitted with the technical bid. As per Annexure XIV the contractor is required to give the preference for opening of the price bid. As per Annexure XIV bidder must fill the preference table, failing to do so, may lead to disqualification. In the present case, in support of its claim that the petitioner has requisite experience in the field of door to door refuse garbage collection and transportation as required as per the tender notice, the petitioner has relied upon the work completion certificate issued by the Brihanmumbai Mahanagarpalika. However, from the said work completion certificate issued by the Brihanmumbai Mahanagarpalika, it appears that the petitioner can be said to have an experience of hire of vehicle for Page 8 of 10 HC-NIC Page 8 of 10 Created On Fri Aug 18 08:38:33 IST 2017 C/SCA/2610/2017 JUDGMENT collection and transportation of municipal solid waste including common house gully materials and materials removed from slums for a period of five years. Even in the said certificate it is mentioned that in the said contract the maximum services are provided for door to door collection of daily garbage. However, no specific quantity for door to door collection has been mentioned, and therefore, the work completion certificate, which has been relied upon by the petitioner, can be said to be vague as no specific and even approximate quantity for door to door collection of garbage has been mentioned. Even considering the nature of work for which the work completion certificate has been issued by the Brihanmumbai Mahanagarpalika, it cannot be said that the petitioner had an experience in the field of door to door refuse garbage collection and transportation using close body vehicles with tipping arrangement for which the tenders are invited.
[6.3] Apart from the above, considering the fact that the petitioner had quoted the bids for Central Zone and South Zone, as per the requirement mentioned in the tender notice the petitioner was required to submit the preference as per Annexure XIV. Admittedly, the petitioner had not filled in the preference table. As mentioned in Annexure XIV failing to fill the preference table may lead to disqualification. As held by the Hon'ble Supreme Court in the case of Bakshi Security and Personnel Services Private Ltd. (Supra) essential conditions of tender notice has to be strictly complied with. Under the circumstances also, more particularly, when the petitioner has failed to adhere to and /or comply with the aforesaid condition, the petitioner is rightly held to be ineligible Page 9 of 10 HC-NIC Page 9 of 10 Created On Fri Aug 18 08:38:33 IST 2017 C/SCA/2610/2017 JUDGMENT and /or disqualified for non fulfillment of and /or not complying with the eligibility criteria / conditions mentioned in the tender notice.
[6.4] At this stage, it is required to be noted that in the present petition that even the eligible bidders are not joined as party respondents. It is also required to be noted that though in the petition allegations are made against the contractors /bidders and /or about cartel, but none of the bidders are joined as party respondents.
[6.5] Considering the aforesaid facts and circumstances of the case, it cannot be said that the action of respondent no.1 - SMC in treating and /or considering the petitioner as technically ineligible and /or disqualified and thereby not opening the bid of the petitioner cannot be said to be illegal and /or arbitrary and /or mala fide. It is required to be noted that out of 20 bidders, as such, 14 bidders were found to be ineligible and 6 were found to be eligible.
[7.0] In view of the above and for the reasons stated hereinabove, the present petition fails and the same deserves to be dismissed and is accordingly dismissed. Notice is discharged. Ad-interim relief granted earlier stands vacated forthwith.
(M.R. SHAH, J.) (B.N. KARIA, J.) Siji Page 10 of 10 HC-NIC Page 10 of 10 Created On Fri Aug 18 08:38:33 IST 2017