Gujarat High Court
Om Sai Ventures vs State Of Government Of & 2 on 17 April, 2017
Equivalent citations: AIR 2017 (NOC) 781 (GUJ.)
Author: Anant S.Dave
Bench: Anant S. Dave, A.Y. Kogje
C/SCA/1994/2017 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 1994 of 2017
With
SPECIAL CIVIL APPLICATION NO. 1367 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE ANANT S. DAVE
and
HONOURABLE MR.JUSTICE A.Y. KOGJE
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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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OM SAI VENTURES....Petitioner(s)
Versus
STATE OF GOVERNMENT OF & 2....Respondent(s)
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Appearance:
SCA No.1994 of 2017
MR RR MARSHAL Senior Advocate with MR MRUGEN K PUROHIT,
ADVOCATE for the Petitioner(s) No. 1
MS MAITHILI MEHTA AGP for the Respondent(s) Nos.1
MR KAMAL TRIVEDI Senior Advocate with MR SATYAM Y CHHAYA,
ADVOCATE for the Respondent(s) No. 2 - 3
SCA No.1367 of 2017
MR MIHIR JOSHI Senior Advocate with MS TANAYA G SHAH ADVOCATE for
Page 1 of 58
HC-NIC Page 1 of 58 Created On Sat Aug 12 23:45:08 IST 2017
C/SCA/1994/2017 CAV JUDGMENT
petitioner(s) No.1-3
MS MAITHILI MEHTA AGP for the Respondent(s) No.1
MR KAMAL TRIVEDI Senior Advocate with MR SATYAM Y CHHAYA,
ADVOCATE for the Respondent(s) No. 2
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CORAM: HONOURABLE MR.JUSTICE ANANT S. DAVE
and
HONOURABLE MR.JUSTICE A.Y. KOGJE
Date :17/04/2017
CAV JUDGMENT
(PER : HONOURABLE MR.JUSTICE ANANT S. DAVE) 1 These two petitions filed under Articles 226 and 227 of the Constitution of India are challenging the "E" Tender notice issued by the Ahmedabad Municipal Corporation ("the respondent Corporation" for short) dated 31.12.2016 for "Door to door /gate refuse garbage collection and transportation upto Refuse Transfer Station /Dumping Site /Treatment Plant using own close body vehicles with tipping arrangement including labours in accordance with Solid Waste Management Rules, 2016 for the period of five years" for Ahmedabad city.
2 Though the challenge is to the same tender, the grounds on which the challenge is made by the petitioners are different. However, with consent of all, the petitions are taken up for hearing and disposal together.
Page 2 of 58HC-NIC Page 2 of 58 Created On Sat Aug 12 23:45:08 IST 2017 C/SCA/1994/2017 CAV JUDGMENT 3 The date and time for submission of on line tender was 31.12.2016 to 30.01.2017 up to 18:00 hrs. and the date of submission of technical bid, tender fees, EMD and other documents in hard copy was from 02.02.2017 to 06.02.2017 up to 17:00 hrs. A corrigendum was issued wherein the dates for response to prebid queries was fixed on 28.01.2017 and the date and time of submission of online tender was 10.02.2017 up to 18:00 hrs., date of submission of technical bid, etc. in hard copy was 14.02.2017 up to 17:00 hrs. and date of opening of technical bid was 16.02.2017. The requisite details were also specified in the tender document, but are not needed to be referred to, except for the fact that area of Ahmedabad city was divided in six zones and each zone was divided in two groups and the bidder was required to place his bid in response to the tender notice issued in each group.
4 The petitioner of Special Civil Application No.1994 of 2017 claims to be a professional organization in the field of handling managing and handling municipal solid waste with enough expertize and experience of handling such work with different Municipal Corporations in various parts of India.
Page 3 of 58HC-NIC Page 3 of 58 Created On Sat Aug 12 23:45:08 IST 2017 C/SCA/1994/2017 CAV JUDGMENT 5 The petitioners of Special Civil Application No.1367 of 2017, which are three in number, are Central Trade Unions and Cooperative Societies respectively and are self help organization with strong membership of waster pickers and recyclers operating locally in Ahmedabad.
Contentions of petitioner in SCA No.1994 of 2017 6 Mr. R.R.Marshall, learned Senior Advocate appearing for the petitioner contended that the tender floated and the terms specified therein are not specific and therefore, would not give a clear picture to the bidders as to for what the bidder is suppose to bid. Our attention is drawn to the description of the work which reds as, "Door to door /gate refuse garbage collection and transportation upto refuse transfer station /dumping site /treatment plant using own close body vehicles with tipping arrangement including labours in accordance with Solid Waste Management Rules, 2016 for the period of five years". According to the petitioner, though certain requirements for the bidders are specified like requirement of vehicles, nature of vehicles, financial capabilities, etc., however, there is no specification as to from which place the garbage collection is to take place and at Page 4 of 58 HC-NIC Page 4 of 58 Created On Sat Aug 12 23:45:08 IST 2017 C/SCA/1994/2017 CAV JUDGMENT which place such garbage has to be deposited. In absence of such clear demarcation, it is impossible for the bidder to assess that how much distance each vehicle of the bidder will have to travel and therefore, lack of clarify on this has not enabled the petitioner to accurately make assessment of fuel consumption to fill up their bid. It is submitted that the title of the contract is also misleading as to there does not appear to be any specific condition or mention as to what would be the responsibility of the contractor i.e. to say whether the contractor is to collect garbage from door to door /gate of the society or from a particular point and deposit it to a particular point. This clarity is essential as it will be a deciding factor for the bidder to engage manpower like waste pickers /garbage collectors for the purpose of door to door collection and that being so, it would involve other issues, for which clearcut policy is necessary to be reflected in the tender document itself.
6.1 It is contended that the requirement of experience prescribed which is mentioned in Clause1.1.A is a condition which appears to be tailor made to suit the existing contractor only. The requirement of experience certificate of 5 years from 2011 to 2016, when considered viza Page 5 of 58 HC-NIC Page 5 of 58 Created On Sat Aug 12 23:45:08 IST 2017 C/SCA/1994/2017 CAV JUDGMENT viz the period from which the respondent Corporation itself started this system of door to door garbage collection by inviting tender then it is clear that this condition is tailor made to favour existing contractor, who was working under the previous contract for a period between 2010 to 2015.
6.2 One more point to which attention is drawn by learned Advocate for the petitioner is that the tender conditions are favouring existing contractor which is specified in technical criteria of owing a vehicle with the registration when RTO in the year 2015 and above. It is submitted that the respondent Corporation, couple of years back, had made it compulsory for the then contractor to provide new vehicles which would have registration of the year 2015. Therefore, when the bidders like the petitioners are ready and willing to even furnish brand new vehicles, giving cut off date for registration year to be of 2015 is with an intention to accommodate the existing contractor.
6.3 It is also submitted that clause for financial capacity, more particularly prescribing the annual turnover is disadvantageous to the new bidders which provides annual turnover of bidder of last 5 years from 2011 to 2016 to be equal to Page 6 of 58 HC-NIC Page 6 of 58 Created On Sat Aug 12 23:45:08 IST 2017 C/SCA/1994/2017 CAV JUDGMENT or more than 30% of the estimated cost for door to door /gate garbage collection work /municipal waste transportation collection work in any Municipal Corporation /Nagarpalika, which comes to Rs.4.38 crores. Such condition obviously would favour existing contractor, knowing that no other Municipal Corporation in the recent past has floated any tender of this magnitude.
Contentions of petitioner in SCA No.1367 of 2017 7 Mr. Mihir Joshi, learned Senior Advocate appearing for the petitioners relied on Sections 63, 290 to 295 of the Gujarat Municipal Corporation Act, 1949 ["the Act, 1949"] whereby adequate provisions are to be made by the Municipal Corporation for solid waste management and the measures to be taken by the Commissioner of Municipal Corporation with regard to sanitation, scavenging, cleansing, etc. In addition to the above, learned Senior Advocate has relied on Solid Waste Management Rules, 2016 ["the Rules, 2016"] for the purpose of regulating, collection, segregation, storage, transportation, processing and ultimate disposal of the solid waste, to which we may advert to later on. It is submitted that various clauses of Rule 3 contain definitions and Rule 11 provide for duties of the Secretary, Incharge, Page 7 of 58 HC-NIC Page 7 of 58 Created On Sat Aug 12 23:45:08 IST 2017 C/SCA/1994/2017 CAV JUDGMENT Department of Urban Development of States and Union Territories to prepare a State Policy with regard to solid waste management. Rule 15 of the Rules, 2016 provide for "Duties of Local Authorities and Village Panchayats of Census Towns and Urban Agglomerations". It is further submitted that though the State of Gujarat is a party, no affidavit is filed and no such policy / plan is prepared under Rules, 2016.
7.1 Mr. Mihir Joshi, learned Senior Advocate, further submitted that tender was floated for the purpose of managing solid waste generated in Ahmedabad city, but the said was necessarily to be in consonance with the Rules, 2016. The spirit of the Rules, 2016 is to provide for integration of the informal and disorganized sector of waste pickers in this activity so as to recognize their contribution and to ensure financial benefits to this sector. The tender in question issued and the terms mentioned therein appear to be a made for participation by corporate giants with high financial capacity, who would ultimately get work done from this disorganized waste pickers and recyclers by passing pittance to this sector while pocketing major profit.
7.2 The requirements specified for Page 8 of 58 HC-NIC Page 8 of 58 Created On Sat Aug 12 23:45:08 IST 2017 C/SCA/1994/2017 CAV JUDGMENT qualifying as a bidder, which include deposit of Earnest Money Deposit of Rs.25 lakhs along with technical experience of 5 years in similar work by using owned closed body vehicles, having annual turnover of Rs.4.38 crores, requiring the bidder to own 50% of such vehicles and requiring the bidder to submit bank solvency certificate of Rs.2.92 crores, would ensure that the participation of waste pickers and recyclers is limited only to the extent of rendering physical work of undertaking collection of garbage, segregation of garbage, physically lifting the same and dumping of garbage, but would certainly preclude them from receiving direct financial benefits.
7.3 The aforementioned condition would also encourage monopolizing the work of receiving tenders of private profit making companies and denying equal opportunity to the self help group cooperatives which are formed by grass root workers in this field. The tendency of the successful bidder to generate profit out of this work contract would mean reducing the emoluments to be received by waste pickers /recyclers to the minimal cannot be ruled out.
7.4 By putting such unachievable conditions in the tender conditions would be expecting the Page 9 of 58 HC-NIC Page 9 of 58 Created On Sat Aug 12 23:45:08 IST 2017 C/SCA/1994/2017 CAV JUDGMENT petitioners to achieve financial status of a strong financial corporate which would be impossible for the petitioners to achieve and ultimately depriving self help group cooperatives from even participating in the tender and the work which will be done by this waste pickers and recyclers themselves.
7.5 Shri Mihir Joshi, learned Senior Advocate appearing for the petitioner in SCA No.1367 of 2017 had relied on Article 43B of PartIV of the Constitution of India which provides promotion of cooperative societies and obligates State to make endeavour to promote voluntary formation, autonomous functioning, democratic control and professional management of cooperative societies. That the petitioner Nos.2 and 3 are registered cooperative societies under the Gujarat Cooperative Societies Act, 1972 and therefore, ought to have been given an opportunity to participate in effective management and control of collection and disposal of solid waste and not only participation at the level of simple collecting waste either from waste generator or contractor or even at the stage of segregation of solid and wet waste by the Corporation from Transfer Defuse Centers. No doubt, Article 43B contained in PartIV of the Constitution of India under head of "Directive Page 10 of 58 HC-NIC Page 10 of 58 Created On Sat Aug 12 23:45:08 IST 2017 C/SCA/1994/2017 CAV JUDGMENT Principles of State Policy", for which no direction can be given by issuing any writ or Court exercising powers under Article 226 of the Constitution of India, but duty is cast upon the State Government to see that registered cooperative societies are to be promoted for the purposes for which they are established. In the above context, reference is made to Rules, 2016, which cast statutory duty upon Municipal Corporation to follow and implement and the subject tender lacks any such provision for garbage collection and transportation in consonance with and in accordance with the Rules, 2016 and therefore, the tender notice impugned in this petition on this ground alone requires to be quashed and set aside.
7.6 It is submitted that the State of Gujarat is joined as respondent No.1 and as such, no direct relief is claimed against R1, but at the same time, when contentions are raised about nonimplementation of the Rules, 2016 (came into force vide notification dated 08.04.2016) and policy with regard to implementation of the above Rules is not framed by the State, the respondent Municipal Corporation cannot be permitted to take a plea that in absence of such policy, it is difficult for the Corporation to implement the Rules in toto. That piecemeal reference to Page 11 of 58 HC-NIC Page 11 of 58 Created On Sat Aug 12 23:45:08 IST 2017 C/SCA/1994/2017 CAV JUDGMENT certain provisions of the above Rules now reflected in the affidavit in reply filed by the respondent Corporation would not be sufficient for the purpose of Rules and a scenario emerges at the end that participation of waste pickers or waste collectors will be at the level of collection from waste generators to the gate of society in case if such waste collectors or waste pickers are employed or hired either by the society or by the contractors. Even at the stage of segregation of dry and solid waste at the Transfuse Station, again, employment of waste pickers will be at the discretion of Municipal Corporation. At the cost of repetition, it is submitted that onerous conditions imposed in the tender qua depositing security amount, furnishing of Earnest Money Deposit, owing a flit of vehicles having registration year of 2015 and average annual turnover, make it impossible for any registered cooperative society consisting of members from the segment of waste pickers /waster collectors, though such societies are otherwise capable and competent to undertake work contract for collection of solid waste.
7.7 An extensive reference is made to various clauses of the Rules, which provide for participation of waste pickers /waste collectors at various levels of collection of solid waste.
Page 12 of 58HC-NIC Page 12 of 58 Created On Sat Aug 12 23:45:08 IST 2017 C/SCA/1994/2017 CAV JUDGMENT It is submitted that alternative issue is not about collection of solid waste, but it includes solid waste management and conservancy, keeping in mind paramount consideration of health and hygiene of citizens and environmental safeguards.
7.8 Therefore, when respondent Corporation by floating the subject tender has given a gobye to statutory requirement, viz. bypassing the Rules, 2016 and accordingly, the petition deserves to be allowed by granting relief prayer therein.
Contentions of Mr. Kamal Trivedi, learned Senior Advocate for respondent - AMC in both the Petitions :
8 Shri Kamal Trivedi, learned Senior Advocate appearing for the respondent Municipal Corporation at the outset submitted that in the matter of awarding contract, executive action, if challenged by invoking powers under Article 226 of the Constitution of India, scope of a writ Court to interfere with such an act is circumscribed by various decisions and unless such an act of awarding contract and decision making process is per se arbitrary, unreasonable, nontransparent and contrary to public interest, Page 13 of 58 HC-NIC Page 13 of 58 Created On Sat Aug 12 23:45:08 IST 2017 C/SCA/1994/2017 CAV JUDGMENT the Court would be loath in interfering with. Considering the volume of collection of solid waste in the metro city of Ahmedabad, a decision was taken by the Corporation for door to door /gate refuse garbage collection and transpiration up to Refuse Transfer Station /Dumping Site /Treatment Plant using own close body vehicles with tipping arrangement including labours and the same is in consonance with the Solid Waste Management Rules. For ensuring financial safety and to see that work assigned to the eligible bidder remains trouble free and causes no harassment to any one, viz. tax payers, certain conditions are incorporated which include Earnest Money Deposit of Rs.25 lacs by the bidder in the manner specified and noncompliance thereof may invite disqualification. Further, for smooth operation of collection of solid waste, all vehicles of required capacity of payload are to be owned by the bidder and even relaxation is given to the extent that at the time of processing tender, 50% of the vehicles shall be owned by the bidder and rest is to be complied with after awarding the contract. It is also necessary to have work experience for the nature of job for which tender is invited and other aspects, viz. average annual turnover of the bidder of last 5 years, which shall be equal to more than 30% of the estimated cost, is also Page 14 of 58 HC-NIC Page 14 of 58 Created On Sat Aug 12 23:45:08 IST 2017 C/SCA/1994/2017 CAV JUDGMENT based on rational formula and further, Bank solvency certificate, which only amounts to 20% of the value of estimated cost of the tender.
8.1 Learned Senior Advocate for the respondent Corporation relied upon pyramidal structure which includes place of waste generator from where the solid waste is to be collected and passing through various stages and finally reaching to processing center for waste after segregation of wet and dry waste either to energy plant or authorized waste recyclers. As far as possible, keeping in mind primary objective of the Rules, 2016, participation of solid waste pickers /waste collectors is provided for and their help will be taken exclusively after solid waste collected by the contractor is transferred to Refuse Transfer Station and dry waste will be segregated with the help of waste pickers /waste collectors. As a pilot project, the Corporation, upon Standing Committee passing resolution on 01.10.2015, a decision is taken to provide better work conditions so as to bring them in a main stream. The above pilot project covered 15000 houses which were designated, whereby agencies were collecting waste in segregation mode and now it is decided that such process will be implemented in another 5 wards, covering 50000 units. That regular remuneration will be paid to Page 15 of 58 HC-NIC Page 15 of 58 Created On Sat Aug 12 23:45:08 IST 2017 C/SCA/1994/2017 CAV JUDGMENT waste pickers /waste collectors for the work discharged. It is submitted that Ahmedabad city is divided into 6 administrative zones and again each zone is divided into 8 wards. Thus, there are in total 48 wards. For effective implementation and proper monitoring, each zone is divided into 2 groups for the purpose of inviting tenders. Accordingly, 12 tenders have been issued covering 12 groups.
8.2 According to Shri Kamal Trivedi, learned Senior Advocate, the whole procedure of collection and disposal of solid waste is such that waste pickers /waste collectors will not be capable of procuring vehicles with the facility of storing dry and wet waste separately in a segregation mode, reaching specified place with the vehicles to collect such waste, to transfer the said waste to Refuse Transfer Station through such vehicles and in the sense, the waste pickers will not be in position to exclusively deal with system of solid waste collection and disposal. However, as far as possible, based on Rules, 2016, the respondent Corporation has made all possible efforts to see that participation of waste pickers /waste collectors remains substantive, justifying capacity to deal with 1500 metric tons door to door waste generated daily in the city of Ahmedabad. Along with Page 16 of 58 HC-NIC Page 16 of 58 Created On Sat Aug 12 23:45:08 IST 2017 C/SCA/1994/2017 CAV JUDGMENT expansion of the city of Ahmedabad, it has become essential to collect solid waste in an organized manner and timely disposal. Therefore, condition of EMD of Rs.25 lakhs, the value of the tender for each group is approximately Rs.14.60 crores, which is based on the guidelines contained in Government resolution dated 03.06.2016 issued by Industries and Mines Department, which prescribes 3% EMD of the tender value and in the facts of this case, EMD is kept below 2% and therefore, it cannot be said that the condition is harsh or incapable of being complied with. Likewise, requirement of 100% vehicles by the bidder of various categories, i.e. close body vehicles for carrying solid waste from different areas and localities from the city of Ahmedabad and transfer of solid waste from point of waste generator to Transfer Defuse Centers and to prevent damage to environment, is must. Besides, criteria pertaining to experience of rendering such services is also modified making it 3 years experience out of 5 years instead of last 5 years. Even so far as Bank solvency of Rs.2.92 crores is concerned, it is also in accordance with the practice prevailing in various Departments of the Government and it is submitted that the Corporation has earmarked and identified weigh bridges at different zones so that bidders can have an idea about site for disposing such Page 17 of 58 HC-NIC Page 17 of 58 Created On Sat Aug 12 23:45:08 IST 2017 C/SCA/1994/2017 CAV JUDGMENT solid waste. Our attention is drawn to modified clause of tender notice so produced along with the affidavit in reply filed by respondent No.2 dated 13.02.2017, which takes care of the substantial grievance of the petitioners.
8.3 A statement about comparison of various terms of earlier Tender Inquiry of 200910 and present Tender Inquiry of 201617 is also placed on record to show that a detailed procedure is to be adopted and the tender has to pass through several layers of examination by various committees, viz. Tender Evaluation Committee, Tender Scrutiny Committee, Health and Solid Waste Management Committee and finally it is to be approved by Standing Committee. Therefore, any arbitrariness in connection with processing the tender and also awarding of tender can be ruled out.
8.4 Learned Senior Advocate also extensively referred to various clauses of the Rules, 2016 and submitted that implementation of the Rules is at a nascent stage and for the current year, it is not possible for the Corporation to implement the same effectively in absence of non availability of policy in this regard by the State or the Local Authority. However, all possible efforts are made for active Page 18 of 58 HC-NIC Page 18 of 58 Created On Sat Aug 12 23:45:08 IST 2017 C/SCA/1994/2017 CAV JUDGMENT participation of waste pickers /waste collectors in the management of solid waste system. By relying on relevant paras of the affidavit, it is submitted that waste pickers /waste collectors will exclusively be participating at the time of segregation of dry and waste solid waste.
8.5 While summing up the arguments, it is submitted that none of the tender conditions run counter to the Rules and no specific change is made to such conditions.
8.6 Following decisions are pressed into service by Mr. Kamal Trivedi, learned Senior Advocate appearing for the respondent Corporation: I. In the case of Association of Registration of Plates Vs. Union of India & Ors., reported in (2005) 1 SCC, 679, in which scope of judicial review qua pre conditions or qualification for tender is explained and considering nature of contract conditions with regard to level of experience, temporal and geographical and turnover in manufacture of registration of plates in immediately preceding year, period of contract and restriction of award of contract to single manufacturer for a region /State, when validity of such conditions came to be challenged, it was upheld by considering the fact about mandatory Page 19 of 58 HC-NIC Page 19 of 58 Created On Sat Aug 12 23:45:08 IST 2017 C/SCA/1994/2017 CAV JUDGMENT requirement of registration of number plates under the Motor Vehicles Act and a party having exclusively experience in technical aspect of manufacturing such number plates.
II. In the case of Vipulbhai M.Chaudhary Vs. Gujarat Cooperative Milk Marketing Federation Limited & Ors., reported in (2015) 8 SCC, 1, in support of his submission that apart from providing for right to form cooperative society to be a fundamental right under Article 19 of the Constitution of India and insertion of Article 43B under the directive principles of State policy, on promotion of cooperative societies, the Court, exercising powers under Article 226 of the Constitution of India, will have to look into the restrictions imposed of not directing the authority within the meaning of Article 12 of the Constitution of India to act for promotion of cooperative societies.
III. In the case of Michigan Rubber (India) Limited Vs. State of Karnataka & Ors., reported in (2012) 8 SCC, 216, in support of his submission that a Court, before interfering with tender or contractual matters in exercise of powers of judicial review, most pose to itself question about procedure adopted or decision made by the authority is malafide or intended to favour some one or the procedure adopted or decision made is so arbitrary, irrational that leads to conclusion that no responsible authority acting reasonably, would have taken such decision and in accordance with the relevant law, whether it could have been Page 20 of 58 HC-NIC Page 20 of 58 Created On Sat Aug 12 23:45:08 IST 2017 C/SCA/1994/2017 CAV JUDGMENT reached and that whether the public interest is affected. Thus, the Court has to play a very limited role in the matter of contract unless it is found that the tendering authority has acted maliciously or misused statutory powers.
IV. Decision of Division Bench of this Court in the matter of Aahna Air Services Pvt. Ltd. & Anr. Vs. State of Gujarat & Anr. in SCA No.5338 of 2016 dated 29.04.2016, in which a contract was given to a bidder specially qualified to undertake task of providing assistance to Board where requirement was of 3500 daily, which ruled out other competitors and the Court found that when future of close to 20 lakhs students of the State was at stake and even conditions of the tender notice appears to be bit harsh, in absence of any other illegality in the form of arbitrariness, unreasonableness or malafide Act, the Court would not interfere with such decision.
In Rejoinder, Mr. Mihir Joshi, learned Senior Advocate submitted as under:
9 Mr.Mihir Joshi, learned Senior Advocate appearing for one of the petitioners in his rejoinder reiterated that there is no roadmap or any policy is framed by the authority for implementation of the Ruled, 2016 and if conditions of the tender are seen, it cast no obligation on the Corporation for collection of solid waste from door to door and the issue is about duty cast upon the Municipal Corporation Page 21 of 58 HC-NIC Page 21 of 58 Created On Sat Aug 12 23:45:08 IST 2017 C/SCA/1994/2017 CAV JUDGMENT under the Gujarat Provincial Municipal Corporations Act to collect solid waste and in fact, by the tender notice and the affidavits filed in the writ petitions, waste generator is now obligated to handover solid waste either to waste pickers / waste collectors or to the contractor. That designated place for collection of solid waste from the gate of residential complex, viz. housing society or apartment, for which no effective system is implemented and as submitted earlier, management of solid waste has to be cohesive and complete. The approach of the Corporation is ad hoc and tentative and in true spirit, not in consonance with the Rules, 2016.
9.1 According to learned Senior Advocate, need of the hour is to see that informal sector is to be integrated in improvement of waste management and an article written by independent Advisor and Consultant on the subject is made available to show that the system will be cost effective if waste pickers /waste collectors are employed in collection and disposal of municipal waste and that will not only solve the problem of effective disposal of solid waste, but also will provide right to livelihood, which will be beneficial in long term to the society and the nation as a whole.Page 22 of 58
HC-NIC Page 22 of 58 Created On Sat Aug 12 23:45:08 IST 2017 C/SCA/1994/2017 CAV JUDGMENT 9.2 Mr.Mihir Joshi, learned Senior Advocate for the petitioners relied upon decision of the Apex Court in the case of Madhya Pradesh Ration Vikreta Sangh Society & Ors. Vs. State of Madhya Pradesh & Anr., reported in (1981)4 SCC, 535, about wider concept of equality before the law and the equal protection of laws in the context of allegations of arbitrariness in selection of cooperative societies of all description and not necessarily consumer societies.
9.3 Mr.Mihir Joshi, learned Senior Advocate appearing for the petitioner - Society, relied on decision dated 16.03.2017 rendered by the High Court of Uttarakhand at Nainital in Writ Petition [PIL] No.80 of 2012, wherein one of the main grievances of the writ petitioner was with regard to municipal waste generated in Kashipur City being dumped in Dhola River and further respondent-Municipality had violated various provisions of environmental and municipal laws. In the above decision, a Division Bench of the High Court of Uttarakhand upon consideration of factual scenario and various affidavits filed by the District Magistrate of Hill Districts and on behalf of local authorities, considered Solid Waste Management Rules, 2016 notified on 08.02.2016 and Environment [Protection] Act, 1986, and in para 89 various mandatory directions Page 23 of 58 HC-NIC Page 23 of 58 Created On Sat Aug 12 23:45:08 IST 2017 C/SCA/1994/2017 CAV JUDGMENT were issued to respondent municipality and State authorities for proper management of solid waste. According to learned Senior Advocate, Rules, 2016 are mandatory and, therefore, in absence of non compliance thereof by respondent corporation in the present case similar directions be given to Ahmedabad Municipal Corporation and State of Gujarat and unless such provisions are incorporated in Notice Inviting Tenders, no procedure be allowed to be undertaken for disposal of solid waste. Alternatively, it is submitted that the petitioner, a registered society of waste pickers / collectors hailing from lower strata of the society and, therefore, financial parameters of Earnest Money Deposit / security deposit / bank guarantee and other financial aspects, including a fleet of transporting vehicles registered in the name of bidder at the time of furnishing tender, etc. may be relaxed. It is further submitted that by not following Rules, 2016, the respondent - Corporation has abandoned its statutory duties and the State Government by not framing a Scheme under the Rules has taken a step backward in its policy of welfare state and instead of bringing gap between haves and have nots, now inequality is perpetuated by the said inaction of not implementing Rules, 2016.
Page 24 of 58HC-NIC Page 24 of 58 Created On Sat Aug 12 23:45:08 IST 2017 C/SCA/1994/2017 CAV JUDGMENT 9.4 Thus, according to learned Senior Advocate, none of the decisions relied on by the learned Senior Advocate appearing for the respondent - Corporation has any bearing on the facts of the case and when the action of the authority, a State within the meaning of Article 12 of the Constitution of India appears to be arbitrary, unreasonable and discriminatory and contrary to land of law, a case is made out for this Court to exercise jurisdiction under Article 226 of the Constitution of India in favour of the petitioner and strike down the action of inviting tenders for collection and disposal of solid waste and also to set right inaction of the respondent - Corporation of not implementing statutory Rules, 2016 framed under Environment Act, 1986.
10 Heard learned counsels for the parties, perused the record of the case and considered the relevant provisions of Gujarat Municipal Corporations Act, 1949, Solid Waste Management Rules, 2016.
10.1 For the sake of convenience, relevant provisions of the Rules governing the field, are reproduced hereinbelow:
"4. Duties of waste generators. (1) Every Page 25 of 58 HC-NIC Page 25 of 58 Created On Sat Aug 12 23:45:08 IST 2017 C/SCA/1994/2017 CAV JUDGMENT waste generator shall, (a) segregate and store the waste generated by them in three separate streams namely biodegradable, non biodegradable and domestic hazardous wastes in suitable bins and handover segregated wastes to authorised waste pickers or waste collectors as per the direction or notification by the local authorities from time to time; (b) wrap securely the used sanitary waste like diapers, sanitary pads etc., in the pouches provided by the manufacturers or brand owners of these products or in a suitable wrapping material as instructed by the local authorities and shall place the same in the bin meant for dry waste or non biodegradable waste; (c) store separately construction and demolition waste, as and when generated, in his own premises and shall dispose off as per the Construction and Demolition Waste Management Rules, 2016; and (d) store horticulture waste and garden waste generated from his premises separately in his own premises and dispose of as per the directions of the local body from time to time. (2) No waste generator shall throw, burn or bury the solid waste generated by him, on streets, open public spaces outside his premises or in the drain or water bodies. (3) All waste generators shall pay such user fee for solid waste management, as specified in the byelaws of the local bodies. (4) No person shall organise an event or gathering of more than one hundred persons at any unlicensed place without intimating the local body, at least three working days in advance and such person or the organiser of such event shall ensure segregation of waste at source and handing over of segregated waste to waste collector or agency as specified by the local body. (5) Every Page 26 of 58 HC-NIC Page 26 of 58 Created On Sat Aug 12 23:45:08 IST 2017 C/SCA/1994/2017 CAV JUDGMENT street vendor shall keep suitable containers for storage of waste generated during the course of his activity such as food waste, disposable plates, cups, cans, wrappers, coconut shells, leftover food, vegetables, fruits, etc., and shall deposit such waste at waste storage depot or container or vehicle as notified by the local body. (6) All resident welfare and market associations shall, within one year from the date of notification of these rules and in partnership with the local 22 body ensure segregation of waste at source by the generators as prescribed in these rules, facilitate collection of segregated waste in separate streams, handover recyclable material to either the authorised waste pickers or the authorised recyclers. The biodegradable waste shall be processed, treated and disposed off through composting or bio methanation within the premises as far as possible. The residual waste shall be given to the waste collectors or agency as directed by the local body. (7) All gated communities and institutions with more than 5,000 sqm area shall, within one year from the date of notification of these rules and in partnership with the local body, ensure segregation of waste at source by the generators as prescribed in these rules, facilitate collection of segregated waste in separate streams, handover recyclable material to either the authorised waste pickers or the authorizsd recyclers. The biodegradable waste shall be processed, treated and disposed off through composting or biomethanation within the premises as far as possible. The residual waste shall be given to the waste collectors or agency as directed by the local body. (8) All hotels and restaurants shall, within one year from the date of Page 27 of 58 HC-NIC Page 27 of 58 Created On Sat Aug 12 23:45:08 IST 2017 C/SCA/1994/2017 CAV JUDGMENT notification of these rules and in partnership with the local body ensure segregation of waste at source as prescribed in these rules, facilitate collection of segregated waste in separate streams, handover recyclable material to either the authorised waste pickers or the authorised recyclers. The bio degradable waste shall be processed, treated and disposed off through composting or bio methanation within the premises as far as possible. The residual waste shall be given to the waste collectors or agency as directed by the local body.
5. Duties of Ministry of Environment, Forest and Climate Change. (1) The Ministry of Environment, Forest and Climate Change shall be responsible for over all monitoring the implementation of these rules in the country. It shall constitute a Central Monitoring Committee under the Chairmanship of Secretary, Ministry of Environment, Forest and Climate Change comprising officer not below the rank of Joint Secretary or Advisor from the following namely, 1) 23 Ministry of Urban Development 2) Ministry of Rural Development 3) Ministry of Chemicals and Fertilizers 4) Ministry of Agriculture 5) Central Pollution Control Board 6) Three State Pollution Control Boards or Pollution Control Committees by rotation 7) Urban Development Departments of three State Governments by rotation 8) Rural Development Departments from two State Governments by rotation 9) Three Urban Local bodies by rotation 10) Two census towns by rotation 11) FICCI, CII
12) Two subject experts
2. This Central Monitoring Committee Page 28 of 58 HC-NIC Page 28 of 58 Created On Sat Aug 12 23:45:08 IST 2017 C/SCA/1994/2017 CAV JUDGMENT shall meet at least once in a year to monitor and review the implementation of these rules. The Ministry of Environment, Forest and Climate Change may coopt other experts, if needed. The Committee shall be renewed every three years.
6. Duties of Ministry of Urban Development. (1) The Ministry of Urban Development shall coordinate with State Governments and Union territory Administrations to, (a) take periodic review of the measures taken by the states and local bodies for improving solid waste management practices and execution of solid waste management projects funded by the Ministry and external agencies at least once in a year and give advice on taking corrective measures; (b) formulate national policy and strategy on solid waste management including policy on waste to energy in consultation with stakeholders within six months from the date of notification of these rules;
(c) facilitate States and Union Territories in formulation of state policy and strategy on solid management based on national solid waste management policy and national urban sanitation policy; (d) promote research and development in solid waste management sector and disseminate information to States and local bodies;
(e) undertake training and capacity building of local bodies and other stakeholders; and (f) provide technical guidelines and project finance to states, Union territories and local bodies on solid waste management to facilitate meeting timelines and standards.
7. Duties of Department of Fertilisers, Page 29 of 58 HC-NIC Page 29 of 58 Created On Sat Aug 12 23:45:08 IST 2017 C/SCA/1994/2017 CAV JUDGMENT Ministry of Chemicals and Fertilisers xxx
8. Duties of Ministry of Agriculture, Government of India xxx
9. Duties of the Ministry of Power xxx
10. Duties of Ministry of New and Renewable Energy Sources xxx
11. Duties of the Secretaryincharge, Urban Development in the States and Union territories (1) The Secretary, Urban Development Department in the State or Union territory through the Commissioner or Director of Municipal Administration or Director of local bodies shall, (a) prepare a state policy and solid waste management strategy for the state or the union territory in consultation with stakeholders including representative of waste pickers, self help group and 25 similar groups working in the field of waste management consistent with these rules, national policy on solid waste management and national urban sanitation policy of the ministry of urban development, in a period not later than one year from the date of notification of these rules; (b) while preparing State policy and strategy on solid waste management, lay emphasis on waste reduction, reuse, recycling, recovery and optimum utilisation of various components of solid waste to ensure minimisation of waste going to the landfill and minimise impact of solid waste on human health and environment; (c) state policies and strategies should acknowledge the primary Page 30 of 58 HC-NIC Page 30 of 58 Created On Sat Aug 12 23:45:08 IST 2017 C/SCA/1994/2017 CAV JUDGMENT role played by the informal sector of waste pickers, waste collectors and recycling industry in reducing waste and provide broad guidelines regarding integration of waste picker or informal waste collectors in the waste management system. (d) ensure implementation of provisions of these rules by all local authorities; (e) direct the town planning department of the State to ensure that master plan of every city in the State or Union territory provisions for setting up of solid waste processing and disposal facilities except for the cities who are members of common waste processing facility or regional sanitary landfill for a group of cities; and (f) ensure identification and allocation of suitable land to the local bodies within one year for setting up of processing and disposal facilities for solid wastes and incorporate them in the master plans (land use plan) of the State or as the case may be, cities through metropolitan and district planning committees or town and country planning department; (h) direct the town planning department of the State and local bodies to ensure that a separate space for segregation, storage, decentralised processing of solid waste is demarcated in the development plan for group housing or commercial, institutional or any other nonresidential complex exceeding 200 dwelling or having a plot area exceeding 5,000 square meters; (i) direct the developers of Special Economic Zone, Industrial Estate, Industrial Park to earmark at least five percent of the total area of the plot or minimum five plots or 26 sheds for recovery and recycling facility. (j) facilitate establishment of common regional sanitary land fill for a group of cities and towns Page 31 of 58 HC-NIC Page 31 of 58 Created On Sat Aug 12 23:45:08 IST 2017 C/SCA/1994/2017 CAV JUDGMENT falling within a distance of 50 km (or more) from the regional facility on a cost sharing basis and ensure professional management of such sanitary landfills; (k) arrange for capacity building of local bodies in managing solid waste, segregation and transportation or processing of such waste at source; (l) notify buffer zone for the solid waste processing and disposal facilities of more than five tons per day in consultation with the State Pollution Control Board; and (m) start a scheme on registration of waste pickers and waste dealers.
12. Duties of District Magistrate or District Collector or Deputy Commissioner. xxx
13. Duties of the Secretaryincharge of Village Panchayats or Rural Development Department in the State and Union territory xxx
14. Duties of Central Pollution Control Board xxx
15. Duties and responsibilities of local authorities and village Panchayats of census towns and urban agglomerations Relevant clauses (g), (h), (l), (q), (t) and (u) read as under:
(g) direct waste generators not to litter i.e throw or dispose of any waste such as paper, water bottles, liquor bottles, soft drink canes, tetra packs, fruit peel, wrappers, etc., or burn or bury waste on streets, open Page 32 of 58 HC-NIC Page 32 of 58 Created On Sat Aug 12 23:45:08 IST 2017 C/SCA/1994/2017 CAV JUDGMENT public spaces, drains, waste bodies and to segregate the waste at source as prescribed under these rules and hand over the segregated waste to authorised the waste pickers or waste collectors authorised by the local body;
(h) setup material recovery facilities or secondary storage facilities with sufficient space for sorting of recyclable materials to enable informal or authorised waste pickers and waste collectors to separate recyclables from the waste and provide easy access to waste pickers and recyclers for collection of segregated recyclable waste such as paper, plastic, metal, glass, textile from the source of generation or from material recovery facilities; Bins for storage of bio degradable wastes shall be painted green, those for storage of recyclable wastes shall be printed white and those for storage of other wastes shall be printed black;"
(l) provide training on solid waste management to wastepickers and waste collectors;
(q) transport segregated biodegradable waste to the processing facilities like compost plant, bio methanation plant or any such facility. Preference shall be given for on site processing of such waste;
(t) involve communities in waste management and promotion of home composting, biogas generation, decentralised processing of waste at community level subject to control of odour and maintenance of hygienic conditions around the facility;Page 33 of 58
HC-NIC Page 33 of 58 Created On Sat Aug 12 23:45:08 IST 2017 C/SCA/1994/2017 CAV JUDGMENT (u) phase out the use of chemical fertilizer in two years and use compost in all parks, gardens maintained by the local body and wherever possible in other places under its jurisdiction. Incentives may be provided to recycling initiatives by informal waste recycling sector.
16. Duties of State Pollution Control Board or Pollution Control Committee.
19. Criteria for Duties regarding setting up solid waste processing and treatment facility. xxx"
The above Rules, 2016 were notified on 08.02.2016. That Rule 2 provides that these Rules have been made applicable to every urban authorities viz. local body, urban agglomerations, census towns, notified areas, notified industrial townships and other areas under the control of Indian Railways, Airports, Air Bases, Ports and harbours, defence establishments, special economic zones, State and Central government organisations, places of pilgrims, religious and historical importance as may be notified by respective State government from time to time and to every domestic, institutional, commercial and any other non residential solid waste generator situated in the areas except industrial waste, hazardous waste, hazardous chemicals, bio medical wastes, ewaste, Page 34 of 58 HC-NIC Page 34 of 58 Created On Sat Aug 12 23:45:08 IST 2017 C/SCA/1994/2017 CAV JUDGMENT lead acid batteries and radioactive waste, that are covered under separate rules framed under the Environment (Protection) Act, 1986.
10.2 However, it is also a fact that no policy or plan or any strategy is prepared as envisaged under Rule 11 of the Rules and consequence thereof, Ahmedabad Municipal Corporation has also not prepared any clear road map for implementing Rules, 2016. Even in absence of such policy, plan, strategy or a road map possible steps have been taken to avail services of waste pickers / collectors to which detailed reference is made in the affidavit in reply filed initially on 01.02.2017 by respondent No.3 and thereafter further affidavit dated 06.03.2017 by respondent No.2.
10.3 That a careful perusal of record of the case viz. notice inviting tender along with its conditions / clauses / instructions / notes / clarifications contained therein, it is about door to door of the gate refusal garbage collection and transportation up to refused transfer station / dumping site / treatment plant using own closed body vehicles with tipping arrangement, including labour in accordance with Solid Waste Management Rules, 2016 for the period Page 35 of 58 HC-NIC Page 35 of 58 Created On Sat Aug 12 23:45:08 IST 2017 C/SCA/1994/2017 CAV JUDGMENT of 5 years in various zones for Ahmedabad city. That role of the successful bidder for the above contract will be collection of garbage / waste from gate of the society / apartment / residential or commercial unit in closed vehicles and the duty is cast upon waste generator to segregate dry / wet waste and the same to be dumped at various sites earmarked by the respondent - Corporation outside such residential units. Thus, no role is to be played by the respondent - Corporation at the end of waste generator and no obligation whatsoever in nature for providing employment or job to waste pickers / collectors at their end. It will be exclusively the duty cast upon waste generator to take waste from the residential units to outside the area of unit, a place earmarked by the respondent - Corporation. Again, no obligation cast upon the respondent - Corporation to employ or provide a job to waste pickers / collectors for collecting and dumping the waste from such earmarked locations in the closed vehicles owned and operated by the contractor. As stated in the affidavit and submissions made by learned Senior Advocate for the respondent - Corporation, active and substantive role of waste pickers and collectors will be at the place when waste is transferred to Refused Transfer Station and dry waste will be further segregated with the help of Page 36 of 58 HC-NIC Page 36 of 58 Created On Sat Aug 12 23:45:08 IST 2017 C/SCA/1994/2017 CAV JUDGMENT waste pickers / collectors for further transportation and transfer to authorized waste recyclers. So far as wet waste is concerned, it will be transferred through highly mechanized system to a heavy body vehicle with carrying capacity of 20 MT provided by the respondent - Corporation from Refuse Transfer Station to processing or energy plant. That integration of waste pickers / collectors in collection and disposal of solid waste system is to ensure their participation in such a system in a phased manner so that it may not render the whole system of collection and transportation of garbage ineffective. Even their capacity to procure vehicles prescribed with the facility of storing dry and wet waste separately i.e. in segregation, reaching the specified places with the vehicles, transferring such waste to Refuse Transfer Station through such vehicles and subsequent transportation and transfer of waste to authorized waste recyclers will be primary consideration and no relaxation can be granted as prayed for. As far as possible and practicable participation of waste pickers / collectors is undertaken by respondent - Corporation on the basis of the pilot project and in future in a phased manner 5 more wards are to be covered and enough work will be provided at the stage of segregation of waste at Refused Transfer Station Page 37 of 58 HC-NIC Page 37 of 58 Created On Sat Aug 12 23:45:08 IST 2017 C/SCA/1994/2017 CAV JUDGMENT and Municipal Corporation and contractors can be impressed upon so as to provide job to such waste pickers / collectors. Further, the city of Ahmedabad is divided into 6 administrative zones and each zone is divided into 8 wards, in all 48 wards. Each zone consist of 8 wards again divided into 2 groups viz. 4 wards in each group for the purpose of inviting tenders and effective implementation and proper monitoring. In all, 12 tenders have been issued covering 12 groups and each group contain 4 wards in view of growing population of Ahmedabad Municipal Corporation area and to deal with 1500 MT of waste generated, various conditions are incorporated, which are also modified during the pendency of this petition to which reference will be made later on. That EMD of Rs.25 lakhs is value of the tender for each group, which is approximately Rs.14.60 crores i.e. in consonance with Government Resolution dated 03.06.2016 issued by the Department of Industries and Mines, State of Gujarat which provides that the employer to prescribe 3% EMD of the tender value which may come to Rs.42 lakhs, but instead it is only kept at 2% for inviting more competition. That requirement of 100% vehicles and 50% vehicles owned by the bidders and registration thereof for the year 2015 is again to see that uninterrupted collection and transportation of waste by the Page 38 of 58 HC-NIC Page 38 of 58 Created On Sat Aug 12 23:45:08 IST 2017 C/SCA/1994/2017 CAV JUDGMENT contractor remain throughout the period of contract and to rule out possibility of any breakdown, malfunctioning or technical failure. That various categories of closed vehicles will be able to reach narrow streets or ways of the areas and collection and transportation of waste do not affect environment and overall hygiene of the residents. That bank solvency which not older than one year amounting to 20% value of the estimate, work experience, annual turnover are in consonance with Office Memorandum dated 17.12.2002 issued by the Central Vigilance Commissioner, Government of India and Circular dated 19.07.2013 issued by the Department of Industries and Mines, State of Gujarat. Looking to the magnitude of the work bank solvency of Rs.2.92 crores is reasonable.
10.4 The Corrigendum3 and AMC's response for PreBid Queries read as under:
"CORRIGENDUM3 "TENDER FOR DOOR TO DOOR / GATE REFUSE GARBAGE COLLECTION AND TRANSPORTATION UPTO REFUSE TRANFER STATION / DUMPING SITE / TREATMENT PLANT USING OWN CLOSE BODY VEHICLES, WITH TIPPING ARRANGEMENT INCLUDING LABOURERS IN ACCORDANCE WITH SOLID WASTE MANAGEMENT RULE - 2016 FOR THE PERIOD OF FIVE YEARS.Page 39 of 58
HC-NIC Page 39 of 58 Created On Sat Aug 12 23:45:08 IST 2017 C/SCA/1994/2017 CAV JUDGMENT ETENDER NOTICE NO.1 TO 12/20162017 FOR ALL GROUPS OF ALL ZONES PREBID QUARRIES SUBMISSION LAST DATE, AMC'S RESPONSE FOR PREBID QUARRIES DATE, BID SUBMISSION DATE AMC would endeavour to adhere to the following schedule:
Event Description : Date AMC's response for prebid : 08/02/2017 quarries date Date and time of : 22/02/2017 up to 18:00 Submission of Online Hour Tender Date of Submission of : 27/02/2917 up to 17:00 Technical Bid, Tender Hour Fees, EMD and other documents in hard copy Date of opening of : 01/03/2017, 11:30 a.m. Technical Bid onwards *Note : Subject to the outcome of SCA No.1367 of 2017 & SCA No.1994 of 2017 before Hon'ble Gujarat High Court.
AMC's response for PreBid Queries Vol Existing Clause Now Read as Volume I POSTQUALIFICATION Note : Bidder must adhere CRITERIA AND format of Work Completion EVALUATION Certificate as per Annexure PROCEDURE VII QUALIFYING CRITERIA 1 TECHNICAL CRITERIA:
Note :Bidder must Page 40 of 58 HC-NIC Page 40 of 58 Created On Sat Aug 12 23:45:08 IST 2017 C/SCA/1994/2017 CAV JUDGMENT adhere format of Work Completion Certificate as per AnnexureXIII Volume I POSTQUALIFICATION Average annual financial CRITERIA AND turnover during the last EVALUATIOJN three (3) years, ending PROCEDURE 31.03.2016 should be at least 30% of the estimated Financial Capacity cost of door to door / gate "Annual Turnover": garbage collection and transportation work done in any municipal corporation / Nagarpalika will be considered for evaluation. Income from "contractual receipts" only will be taken into consideration. Rest as per tender clause.
Volume I QUALIFYING They will be submitted in
CRITERIA the form of Demand draft /
Tender Fee Pay order. Rest as per
EMD tender clause.
Volume I QUALIFIYING It should be up to 3 MT
CRITERIA payload capacity (with /
without GPS system). Rest as
1 TECHNICAL per tender clause.
CRITERIA:
Volume I POSTQUALIFICATION Minimum Experience of having CRITERIA AND successfully completed EVALUATION similar works i.e. door to RPOCEDURE door / gate garbage collection and
2. NOTE TO THE transportation in any three BIDDER (3) years out of last seven (7) years i.e. till 31.12.2016. Rest as per tender clause.
Volume Technical Bid e. The tender shall be kept II SCHEDULE(A) valid for a period of 180 IMPORTANT days. (From the opening date INSTRUCTIONS TO of technical bid) THE CONTRACTOR / TENDERERS:
1. General Volume Technical Bid 8. It shall be 5% of the II SCHEDULE (A) work order value based on IMPORTANT the approved rate by AMC.
INSTRUCTIONS TO Rest as per tender clause. THE CONTRACTORS / Page 41 of 58 HC-NIC Page 41 of 58 Created On Sat Aug 12 23:45:08 IST 2017 C/SCA/1994/2017 CAV JUDGMENT TENDERERS :
1. General Volume Technical Bid Any change in Govt.
II SCHEDULE (A) Statutory levies, taxes, IMPORTANT duties, etc applicable to INSTRUCTIONS TO such services will be THE CONTRACTORS / considered & applicable. TENDERERS : However, tenderer has to IMPORTANT submit necessary valid INSTRUCTIONS TO documents for verification THE CONTRACTORS / to the Solid Waste TENDERERS : Management Department.
1. Taxes and Duties Volume Technical Bid AMC may change the wards of II SCHEDULE (A) the group internally as per IMPORTANT administrative requirements, INSTRUCTIONS TO which will be mentioned in THE CONTRACTORS / work order subsequently. TENDERERS :
28. Number of Vehicles to be allotted zone -
Group wise Volume Technical Bid 10. The vehicle/s which has II SCHEDULE (A) collected garbage shall have IMPORTANT to be weighted at AMC INSTRUCTIONS TO weighbridge (with in the THE CONTRACTORS / zone or nearby the zone) TENDERERS : before disposing garbage to
20. Work related Transfer station / waste Conditions / treatment plant / landfill Important notes site. The weight taken for each trip shall be recorded and the contractor shall collect the weighing data and produce whenever the bill is submitted for payment.
Volume Technical Bid 1. Contractor shall commence II SCHEDULE (A) the work stage wise within 3 IMPORTANT (Three) months from the date INSTRUCTIONS TO of work order issued and THE CONTRACTORS / shall commence 100% work TENDERERS : within 4 (Four) months. If fails to do so, the penalty
30. Work related at the rate of Rs.1000/ per Conditions / vehicle per day shall be Important notes levied at the discretion of Municipal Commissioner of AMC based on reason for Page 42 of 58 HC-NIC Page 42 of 58 Created On Sat Aug 12 23:45:08 IST 2017 C/SCA/1994/2017 CAV JUDGMENT delay submitted by the contractor. Having payload capacity of up to 3 MT (approx) close body vehicles should be deployed for door to door / gate garbage collection and transportation work activity. Rest as per tender clause.
Volume Technical Bid Please read column title as II SCHEDULE (A) new west zone instead of IMPORTANT west zone and visavis. INSTRUCTIONS TO THE CONTRACTORS / TENDERERS :
GENERAL CONDITIONS OF CONTRACT:
62. Statement of Door to Door waste collection from zones from the month January -
2016 to November -
2016 attached with
AnnexureIII
Volume Technical Bid Statement No.2 reads as
II SCHEDULE (A) detailed.
IMPORTANT
INSTRUCTIONS FOR
FEELING THE
SCHEDULE:
7. Tenderer shall
have to propose
number of trips
based on numbers
of route given in
statement no.2.
Volume Page Present Clause Page Modified Clause
III No. No.
3 1. The contractor shall 3 1. The contractor shall
quote his rate for any quote his rate as shown
or all of the various in Schedule B
options shown as shown
in Schedule B
3 2. Base year (1st year) 3 2. Base year (1st year)
for increment shall be for increments shall be
Page 43 of 58
HC-NIC Page 43 of 58 Created On Sat Aug 12 23:45:08 IST 2017
C/SCA/1994/2017 CAV JUDGMENT
applicable on applicable on
commissioning of Door commissioning of Door to
to Door garbage Door garbage collection
collection of transfer services.
station service
4 Note : 2. Rate quoted 4 Note : 2. Rate quoted
includes tipping charge includes all charges in
in Rs. Per ton. Rs. Per ton
4 Note : 3. Payment shall 4 Note :
be made on actual 3. Payment shall be made quantity of MSW on actual quantity of MSW transported to transfer transported and station. Any variation registered at AMC in the qty. shall be weighbridge.
paid on rates quoted by contractor 10.5 The Director, Solid Waste Management filed additional affidavit on behalf of respondent No.2. Paras 4 to 10 of the said additional affidavit reads as under:
"4. Before proceeding further, I may also put on record that the aforesaid understanding on the part of the Respondent Corporation in formulating the tender document in question, and more particularly the tender work in question, was to the effect that the successful bidder under the tender inquiry would collect the waste in segregation mode from the Designated Locations in closebody vehicles and transfer the same to the Refuse Transfer Stations. Though, the first expression used in the title of the tender document is 'DoortoDoor', what is sought to be conveyed under the said expression was 'from Designated Locations to Refuse Transfer Stations', which is discernible from the following provisions of the tender document.
(i) Subclause III of clause 2 entitled 'NOTE TO THE BIDDER' (PG. 75) reads as Page 44 of 58 HC-NIC Page 44 of 58 Created On Sat Aug 12 23:45:08 IST 2017 C/SCA/1994/2017 CAV JUDGMENT under:
"III. 'DoortoDoor / Gate
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 daytoday basis using own labours and closebody vehicles with tipping arrangement and transporting collected waste to nearest Transfer Station, storage site, dumping site, etc."
(ii) Clause 30.2 (pg. 104) under the title 'Work related conditions/Important Notes' reads as under:
"30.2 'DOORTODOOR/GATE TO RTS' in which waste generated at residential and nonresidential zone is gathered in a bin and that waste is collected by an assigned agency. Waste shall be collected by driving the vehicles inside premises if possible. If not, then the waste should be collected from gates or from a place as assigned. Deputy Health Officer shall help the agency to carry out this work by following proper guidelines and norms.
Residential and nonresidential units shall provide bin on their own cost for their respective units from which the assigned agency shall collect waste on daily basis."
5. Pertinently, Rule 3(18) of the Rules (Pg.28) defines the term 'doortodoor Page 45 of 58 HC-NIC Page 45 of 58 Created On Sat Aug 12 23:45:08 IST 2017 C/SCA/1994/2017 CAV JUDGMENT collection', reading as under:
"3(18) 'doortodoor collection' means collection of solid waste from the door step of households, shops, commercial establishments, offices, institutional or any other nonresidential premises and includes collection of such waste from entry gate or a designated location on the ground floor in a housing society, multi storeyed building or apartments, large residential, commercial or institutional complexes or premises."
The aforesaid definition of 'doortoodoor' in the Rules categorically provides for collection of solid waste from the Designated Locations. This is further substantiated by providing for Duties of Waste Generators in Rule 4 of the Rules by interalia providing that Waste Generators should segregate and store the waste generated by them separately in suitable bins and handover the same to the authorised waste pickers / waste collectors.
6. It was under the aforesaid circumstances that in my earlier affidavitinreply dated 1.2.2017, I have tried to set out the whole system on the basis of a flow chart (pg. 141) with reference to the tender work in question, which does not show the stage of collection of solid waste anterior to societies/units. In other words, the said chart does not indicate within the scope of tender work in question, the activity of doortodoor collection of solid waste by bringing the same to the Designated Locations with reference to the societies and units. In fact, my said affidavit reflects the understanding on the part of the Respondent Corporation about the tender work for which the tender inquiry in question has been initiated and that the said affidavit was not by way of any improvisation in respect of the scope of tender in question. To rule out any confusion, the following statement was sought to be made on behalf of Page 46 of 58 HC-NIC Page 46 of 58 Created On Sat Aug 12 23:45:08 IST 2017 C/SCA/1994/2017 CAV JUDGMENT the Respondent Corporation on 2.3.2017 during the course of hearing of the captioned writ petition:
"DoortoDoor' garbage collection and transportation works' as defined in sub clause II of Clause 2 relating to 'NOTE TO THE BIDDER' of Tender Document (pg. 75), will be clarified to mean collection of waste in segregation mode from the assigned places (23,000 approx.) in the whole city, with the responsibility of wastegenerators to bring the said waste in segregation mode from door to door till the said assigned places with the help of wade pickers/waste collectors."
In furtherance of the above, I state that the Respondent Corporation undertakes to come out with issuance of a clarification to the above effect.
7. I further say that as already indicated in my earlier reply affidavit, there are 7 Refuse Transfer Stations. There have been already identified and located on the zone wise basis with weighing bridges, and compactors, etc., which are at:
[i] Vastral & Rakhial East Zone
[ii] Naroda North Zone
[iii] Vadaj West Zone
[iv] Sola New West Zone
[v] Vatva South Zone
[vi] Khadia Central Zone
whereas, one more Refuse Transfer Station at Vasna which is under construction. I categorically state that successful bidders under the tender inquiry in question would be required to lift up sold waste in segregation mode from the assigned places i.e. Designated Locations to bring the same in close body vehicles to the aforesaid Refuse Transfer Stations.
Page 47 of 58HC-NIC Page 47 of 58 Created On Sat Aug 12 23:45:08 IST 2017 C/SCA/1994/2017 CAV JUDGMENT
8. Pertinently, at the Refuse Transfer Station, waste brought in segregation mode, i.e. wet waste and dry waste would be dealt with differently and separately inasmuch as wet waste would be unloaded into stationery compactors already installed at Refuse Transfer Station through hoper. While, dry waste will be transferred at earmarked places within the Refuse Transfer Station, wherein about 1,700 waste pickers / waste collectors would be engaged with reference to all the Refuse Transfer Stations, wherein they would be segregating the dry waste into different categories based upon its recyclable value, like (i) metal; (ii) plastic; (iii) card board; (iv) paper, etc. The said dry waste with the help of waste pickers / waste collectors would be allowed to be taken away either by very waste pickers / waste collectors or by various selfhelp groups / cooperative societies of the local areas duly registered with the Respondent Corporation for being delivered / sold to the authorized waste recyclers. For ready reference, a copy of the photograph showing the above referred facilities of weighbridge, compactor and hoper at one of the Refused Transfer Stations in the city of Ahmedabad is annexed hereto and marked as AnnexureI. As against the above, wet waste brought at the Refuse Transfer Station as indicated hereinabove, will be transferred by the Respondent Corporation in its heavy body vehicles for being taken to various processing plants located in or around Pirana area. Presently, the respondent Corporation has already finalized necessary arrangement with the following companies for further processing wet waste material:
[i] Excel Industries Limited;
[ii] Bharuch Enviro Engineers Ltd.; [iii] Creative EcoRecycle Port Pvt. Ltd.
In addition to the above, following companies Page 48 of 58 HC-NIC Page 48 of 58 Created On Sat Aug 12 23:45:08 IST 2017 C/SCA/1994/2017 CAV JUDGMENT are about to start their respective processing plants which will also be lined up by the Respondent Corporation for the aforesaid purpose:
(i) Abellon Clean Energy Limited;
(ii) JITF Urban Infrastructure Limited.
In furtherance of the above, I categorically state that none of the waste referred to above and to be collected during the course of the tender work in question, shall be dumped at any place and that the Respondent Corporation would see that the said wet waste is transferred to processing plants, whereas dry waste reaches the authorized recyclers etc. as mentioned above.
9. I further state that for enabling the Waste Generators to have their solid waste brought till the Designated Locations and for regulating the movement of the same thereafter, the Respondent Corporation shall take the following steps:
(a) Identifying and earmarking Designated Locations in the entire city. By this time, the Respondent Corporation has identified about 22,802 such places where the waste in segregation mode will be placed by the waste pickers / waste collectors in two different bins. A copy of the summary chart along with specimen list of Designated Locations / Points of Interest, identified in case of Dariapur Ward of Central Zone, prepared in this behalf is annexed herewith and collectively marked as Annexure-II [Colly.], which indicates the aforesaid information.
(b) As such, the said bins are to be provided by owners of the units, but in case of slums, chawls and low income group areas, such separate bins would be provided by the respondent Corporation;
(c) The Respondent Corporation will widely circulate the information relating to Page 49 of 58 HC-NIC Page 49 of 58 Created On Sat Aug 12 23:45:08 IST 2017 C/SCA/1994/2017 CAV JUDGMENT identification and earmarking Designated Locations through electronic as well as print media so as to inform all the residents of the city to get the needful in that behalf;
(d) The Respondent Corporation is also in the process of preparing wardwise list of existing waste pickers / waste collectors in the respective areas so as to provide necessary information in that behalf to all the residents in the above stated manner so that they can avail of the services of the said waste pickers / waste collectors for the purpose of collection of solid waste from their units and for placing the same in segregation mode in two different bins at the Designated Locations. For this purpose, before finalizing the present tender, respondent Corporation will be issuing public advertisement inviting wardwise applications from the NGOs, Selfhelp Groups, Associations, Cooperative Societies and also local waste pickers / collectors for enabling to prepare wardwise list of existing waste pickers / waste collectors.
(e) After preparation of wardwise list of existing waste pickers / waste collectors, the respondent Corporation shall ensure that they are provided requisite training on solid waste management;
(f) Under the present tender inquiry, it has been provided that each of the vehicles to be provided by the contractor will be equipped with Global Positioning System (GPS) instrument, whereby when the said vehicles reach the Designated Locations, with the help of satellite and longitude and latitude of the Designated Locations, it will be reported to the Central Control Room of the Respondent Corporation about the contractor's vehicles reaching the said Designated Locations for the purpose of collection of solid waste in segregation mode. Whenever such visit of the contractor's vehicle is not reported in the Page 50 of 58 HC-NIC Page 50 of 58 Created On Sat Aug 12 23:45:08 IST 2017 C/SCA/1994/2017 CAV JUDGMENT Central Control Room of the respondent Corporation, the control panel will show the said location with different colour to mark the contractor's failure to reach the Designated Locations. The whole system is evolved with a view to effectively implementing the collection and disposal system and to impose penalty in the event of there being failure in compliance thereof.
10. At this stage, I would like to put on record that the proposed system of collection of solid waste in segregation mode, integration of waste pickers / waste collectors in the said activity as well as disposal of the said solid waste completely without dumping the same elsewhere, is being evolved for the first time in view of the Rules and that no such special features of the said system are present in current contracts which are expiring in the month of July 2017. I request this Hon'ble Court to view the whole matter from this point of view so as to consider the sincere efforts being put in by the Respondent Corporation to propose to integrate the waste pickers / waste collectors at two stages, viz. (i) at the stage of transfer of solid waste in segregation mode from each of the units in the city to the Designated Locations with the help of waste pickers / waste collectors; and thereafter
(ii) at the Refuse Transfer Stations for the purpose of effecting further segregation of the dry waste as indicated hereinabove.
Since it is just the beginning of the aforesaid system for being implemented for the first time, the Respondent Corporation is rather anxious to strike the equilibrium in such a manner that on one hand, waste pickers / waste collectors are integrated in the whole system to the maximum possible and on the other hand, the whole work relating to collection and disposal of solid waste in segregation mode is not disrupted because of any trial and error method. At the same time, Page 51 of 58 HC-NIC Page 51 of 58 Created On Sat Aug 12 23:45:08 IST 2017 C/SCA/1994/2017 CAV JUDGMENT the Respondent Corporation is committed to see that other avenues are considered so as to effect further integration of the said waste pickers / waste collectors at a future date".
[emphasis supplied] 10.6 The said tender is to be treated essentially as a tender for door to door garbage collection and transportation up to refused transfer station / dumping site / treatment plant using end close body vehicles with tipping arrangements including labourers in accordance with Solid Waste Management Rules, 2016 for the period of 5 years in respect of zones for Ahmedabad city.
10.7 In view of the above, we are inclined to accept the submissions made by learned Senior Advocate for the respondent - AMC to the extent that notice inviting tender impugned in these petitions after issuance of Corrigendum modified certain clauses which bring exercise of inviting tenders for collection and transportation of solid waste within parameters of reasonableness and nonarbitrariness. That looking to the magnitude and volume of the entire work of collection and transportation of solid waste from door to door to Refuse Transfer Stations for next 5 years of period of contract cannot be termed as illegal on the ground of nonimplementation of Rules, 2016 in toto. As stated earlier and Page 52 of 58 HC-NIC Page 52 of 58 Created On Sat Aug 12 23:45:08 IST 2017 C/SCA/1994/2017 CAV JUDGMENT submissions made by learned Senior Advocate for the respo9ndent - AMC on the strength of the affidavits filed that 1700 waste pickers / collectors will be engaged with reference to all Refuse Transfer Stations for segregating the dry waste into different categories. That by reading subclause (iii) of Clause 2 under the head `NOTE TO THE BIDDER', it is clear that door to door / gate garbage collection and transportation means collecting solid waste / segregated solid waste from residential areas on day today basis using own labourers and close body vehicles with tipping arrangements and transporting collected waste to nearest Refuse Transfer Stations, storage site, dumping site, etc. and another clause 30.2 under the head `Work Related Conditions / Important Notes' provide for collection of waste from the end of the waste generator by driving the vehicles inside premises if possible and in case of difficulty the waste should be collected from the gates or from a place so defined or assigned. It is the bounden duty of Ahmedabad Municipal Corporation to incorporate a clause in the tender notice whereby the contractor is to collect such waste from the premises of the waste generator. It is amply clear from reading of the above clause that assigned agency shall have to collect waste on daily basis from residential and nonresidential Page 53 of 58 HC-NIC Page 53 of 58 Created On Sat Aug 12 23:45:08 IST 2017 C/SCA/1994/2017 CAV JUDGMENT units. Even Rule 3(18) of the Rules, 2018 mandates the term door to door collection of solid waste from door step of households, shops, commercial establishments, offices, institutions or any other nonresidential premises and includes collection of such waste from entry gate or designated location on the ground floor in a housing society, multistore3yed building or apartments, large residential, commercial or institutional complexes or premises. Therefore, no exclusive duty is cast upon waste generator to dump the waste at the earmarked site outside the premise. This is the stage where the respondent
- AMC is to provide service of waste pickers / collectors to be engaged by the contractor or AMC for effective control and transportation of garbage / waste. The waste generator will keep solid waste / garbage in segregation mode and hand over such segregated wastes to waste pickers or waste collectors authorized by municipal corporation and to be engaged by contractors and shall have to be collected from the doorstep of waste generator as far as possible and accessible by small vehicles or alternatively to be collected and thereafter to be transported from specified / identified sites by AMC outside of residential units. However, for commercial establishments such garbage / solid waste will have to be collected by contractors from Page 54 of 58 HC-NIC Page 54 of 58 Created On Sat Aug 12 23:45:08 IST 2017 C/SCA/1994/2017 CAV JUDGMENT specified / identified sites by AMC. That engagement of 1700 waste pickers / waste collectors at refused transfer stations for segregating dry waste into different categories shall have to be adhered to and number of such waste pickers / waste collectors will have to be increased in a phased manner, as required.
10.8 Thus, the respondent - AMC is directed to strictly incorporate such conditions in the clauses of the subject tender as per the corrigendum3 and directions contained in this judgment qua engaging waste pickers / collectors at the end of waste generator for collecting and transporting solid waste / garbage by preparing a list of waste pickers / waste collectors inviting wardwise applications from NGOs, cooperative societies, selfhelp groups, associations and local waste pickers / collectors for every ward.
10.9 With the above directions and modifications made in corrigendum, the respondent
- AMC shall strictly follow certain steps for enabling the waste generators to effectively participate in collection and transportation of solid waste as stated in para 9 of the additional affidavit dated 06.03.2017.
10.10 We are not unmindful of Article 43B of Page 55 of 58 HC-NIC Page 55 of 58 Created On Sat Aug 12 23:45:08 IST 2017 C/SCA/1994/2017 CAV JUDGMENT Part IV of the Constitution of India which obligate the State to make endeavour to promote voluntary formation, autonomous functioning, democratic control and professional management of cooperative societies, but in view of efforts made by AMC to engage waste pickers / collectors in the collection and transportation of solid waste / garbage to maximum possible level including to invite wardwise applications from NGOs, cooperative societies, selfhelp groups, associations and local waste pickers / collectors and to prepare wardwise list. Accordingly, we find that no mandamus as such can be issued for implementation of directive principles of State policy in exercise of jurisdiction under Article 226 of the Constitution of India.
10.11 In view of the affidavits dated 01.02.2017 and 06.03.2017 filed by respondent - AMC along with Corrigendum3, we find that none of the condition is onerous or incapable of complying with as contended by Mr. R.R.Marshall, learned Senior Advocate for petitioners of Special Civil Application No.1994 of 2017 inasmuch as the respondent - AMC has indicated 7 Refuse Transfer Stations at different zones and even earmarked / designated locations along with weighing bridges and compactors. Besides, requirement of EMD, security deposit / bank Page 56 of 58 HC-NIC Page 56 of 58 Created On Sat Aug 12 23:45:08 IST 2017 C/SCA/1994/2017 CAV JUDGMENT guarantees, fleet of vehicles with Registration year of 2015 we have already given our findings in earlier paragraphs and helpline of respondent
- AMC to which reference is made in the tender to answer any query or clarification about terms and conditions of the tender, we find no merit in any of the contentions.
10.12 We are in complete agreement with the law laid down by the Apex Court and this Court in the cases of Association of Registration of Plates [supra], Vipulbhai M.Chaudhary [supra], Michigan Rubber (India) Limited [supra] and Aahna Air Services Pvt. Ltd. & Anr. [supra], relied on by Mr. Kamal Trivedi, learned Senior Advocate appearing for the respondent - AMC and the facts of the present petitions are squarely covered by the above decisions.
10.13 That admittedly, the State of Gujarat has not framed any policy, strategy or plan under Rule 11 of the Rules, 2016 and has remained mute spectator throughout the proceedings though Rules, 2016 have been notified on 08.02.2016 in which 89 various mandatory directions are issued against the State authorities, we deem it just and proper to direct the authorities viz. Department of Urban Development, State of Page 57 of 58 HC-NIC Page 57 of 58 Created On Sat Aug 12 23:45:08 IST 2017 C/SCA/1994/2017 CAV JUDGMENT Gujarat, to prepare policy and strategy on solid waste management under Rule 11 of the Rules, 2016 within six months from the date of receipt of writ of this judgment.
With the aforesaid, both the petitions stand disposed of. Interim relief granted in Special Civil Application No.1367 of 2017 stands vacated forthwith.
(ANANT S.DAVE, J.) (A.Y. KOGJE, J.) SHITOLE/PVV Page 58 of 58 HC-NIC Page 58 of 58 Created On Sat Aug 12 23:45:08 IST 2017