Gujarat High Court
Samvit Buildcare Pvt. Ltd. vs Ministry Of Civil Aviation on 22 March, 2018
Bench: M.R. Shah, A.Y. Kogje
C/SCA/4262/2018 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 4262 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 4264 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE M.R. SHAH sd/
and
HONOURABLE MR.JUSTICE A.Y. KOGJE sd/
=========================================
====
1 Whether Reporters of Local Papers may be allowed to see NO
the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy of the NO
judgment ?
4 Whether this case involves a substantial question of law as NO
to the interpretation of the Constitution of India or any
order made thereunder ?
=============================================
SAMVIT BUILDCARE PVT. LTD.
Versus
MINISTRY OF CIVIL AVIATION
=============================================
Appearance:
MR. P.R. NANAVATI, ADVOCATE FOR HARSH V GAJJAR(7828) for the
PETITIONER(s) No. 1
for the RESPONDENT(s) No. 1,2,3
=============================================
CORAM: HONOURABLE MR.JUSTICE M.R. SHAH
and
HONOURABLE MR.JUSTICE A.Y. KOGJE
Date : 22/03/2018
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE M.R. SHAH) 1.0. Draft amendment is allowed.
2.0. As common question of law and facts arise in both these petitions but with respect to different tenders for Surat and Page 1 of 6 C/SCA/4262/2018 JUDGMENT Vadodara Airports, both these petitions are heard, decided and disposed for together by this common judgment and order.
3.0. By way these petitions under Article 226 of the Constitution of India, the common petitioner - bidder once having participated in the tender process and thereafter being declared disqualified at the commercial bid stage has prayed for appropriate writ, direction and order to quash and set aside the tender conditions contained in respective tenders which prescribed for payment of tender fees and submission of EMD for participating in the tender process.
4.0. That the respondents Airport Authorities have invited tenders being E Tender No.2017_AAI_5355_2 and E Tender No.2017_AAI_53045_1 for the work of "Environmental Support Services (Up keeping) for Terminal Building and Ancillary Building" at Vadodara Airport and Surat Airport. That as per the terms and conditions of the E Tender, the bidders were required to deposit the prescribed Tender Fees and EMD. As per the terms and conditions of the Tender Document / Tender notice bid submitted by the bidders without payment of tender fees and EMD were liable to be rejected at the Commercial Bid Stage itself. That the petitioner submitted the bids, pursuant to the aforesaid E Tender. However, admittedly, neither deposit the tender fees nor EMD and therefore, the petitioner has been disqualified at commercial bid stage itself having not fulfilling the terms and conditions of the tender document / tender notice by not depositing the tender fees and EMD as required. At this stage, the petitioner has preferred present Special Civil Applications now challenging the terms and Page 2 of 6 C/SCA/4262/2018 JUDGMENT conditions of tender notice requiring all the bidders to deposit tender fees and EMD.
5.0. Shri Nanavati, learned advocate for the petitioner has vehemently submitted that the impugned condition in the tender document / notice to deposit EMD by all bidders including empaneled agencies is absolutely illegal, arbitrary and in fragrant violation of condition no.5 of the General Rules and the Conditions as contained in the 2015 empanelment tender.
5.1. It is further submitted that even otherwise for the contract in question, for which, the tenders were invited, the same is required to be reserved for Micro, Small and Minimum Enterprise considering Section 11 of the MSME Act, 2006. It is submitted that therefore, when the impugned tender is contract for supply of service, therefore, the petitioner is entitled to exemption of payment of tender fees and EMD. In support of his above submission, Shri Nanavati, learned advocate for the petitioner has heavily relied upon the online RTI request form and the reply thereon dated 27.01.2018 (Annexure I to the petition).
5.2. Making above submission and relying upon the decision of the Division Bench of this Court in the case of Bharat Ishwarbhai Patel vs. Municipal Commissioner rendered in SCA No. 20388 of 2017 and the decision of the Hon'ble Supreme Court in the case of Motilal Padampat Sugar Mills Co Ltd vs. State of Uttar Pradesh reported in (1979) 2 SCC 409 (relied upon by the learned advocate for the petitioners on promissory estopple), it is requested to Page 3 of 6 C/SCA/4262/2018 JUDGMENT admit / allow the present petition.
6.0. Heard Shri Nanavati, learned advocate for the petitioner at length. At the outset, it is required to be noted that the petitioners are challenging the terms and conditions / eligibility criteria mentioned in the tender document / tender notice, more particularly, with respect to the deposit of EMD and the tender fee and not exempting the contractors who are empaneled and / or who are Micro and / or Small Enterprise. However, it is required to be noted that in the tender notice / tender document itself, it is specifically provided that all the concerned including the empaneled agencies are required to deposit the tender fee and EMD. It is an admitted position that in the notice inviting tender in question it is not mentioned that it is an MESS Limited Tender. The tenders are invited from empaneled agencies for the work of "Environmental Support Services (Up Keeping) for Terminal Building and Ancillary Building at Surat Airport, Surat. In the tender notice itself, it is provided and mentioned that the empaneled agencies shall make deposit of EMD. It is also specifically mentioned in the tender notice that on non compliance of any of the terms and conditions, the bid is liable to be rejected at the technical stage. Admittedly, the petitioner has not deposited tender fee and the EMD. Despite the specific condition to deposit EMD and tender fee, the petitioner participated in the tender process without making any deposit of EMD. That thereafter, the petitioner is not held eligible for opening of the financial bid (Envelop II) and the Envelop I submitted by the petitioner has been outrightly rejected on non deposit of tender fee and the EMD. Only Page 4 of 6 C/SCA/4262/2018 JUDGMENT thereafter, the petitioner has challenged the condition in the tender notice. Once having participated in the tender process and thereafter having declared ineligible due to non compliance of certain terms and conditions of the tender notice, thereafter it would not be upon for the petitioners to challenge the condition in the tender notice. If the petitioners were aggrieved, they ought to have challenged the tender notice earlier and before his bid is rejected on technical stage on non fulfillment of relevant terms and conditions of the tender document.
6.1. Even otherwise, as observed and held by this Court in the recent decision in the case of Samvit Buildcare Pvt Ltd vs. Ministry of Civil Aviation rendered in SCA No.1094 of 2018 and 1262 of 2018 the contract in question, for which, tenders are invited can be said to be works contract and therefore, MSME Act shall not be applicable. As observed herein above, in the tender notice it is not mentioned that the contract in question is reserved for Micro, Small and Minimum Enterprise. Therefore, the decision of this Court in the case of Bharat Ishwarbhai Patel shall not be applicable to the facts of the case on hand.
6.2. Even otherwise, even on merits also, the petitioners have no case. Merely because, the petitioners are empaneled agencies they shall not be entitled to exemption from deposit of EMD. Even as per the documents which are relied upon by the petitioners (pages 213, 214 and 217), only in a case of MSME, the tender empaneled agency will be allowed to participate without deposit of any tender fee and EMD. As observed herein above, tender notice in question Page 5 of 6 C/SCA/4262/2018 JUDGMENT is not stated to be MSME Tender.
6.3. In any case, once having participated in the tender process and thereafter when on non compliance of the tender notice, the petitioners have disqualifying at technical stage thereafter, as observed herein above, it will not be open for the petitioners to challenge the condition of the tender notice / tender document.
6.4. Now, so far as reliance placed upon the decision of the Hon'ble Supreme Court in the case of Motilal (supra) is concerned, at the outset, it is required to be noted that as such there is no question of promissory estopple as alleged. Nothing is on record that there was any representation by the respondent authority that agencies who are empaneled agencies shall not be required to pay tender fee / EMD and / or that the tender is MESS limited tender. On the contrary, the terms and conditions of the tender notice are very clear, of which, now the petitioners are aggrieved after having participated in the tender process. Under the circumstances, the aforesaid decisions shall not be applicable to the facts of the case on hand.
7.0. In view of the above and for the reasons stated above, both these petitions fail and same deserve to be dismissed and are accordingly dismissed.
sd/ (M.R. SHAH, J) sd/ (A.Y. KOGJE, J) KAUSHIK J. RATHOD Page 6 of 6