Bombay High Court
Ghai Construction Joint Venture, ... vs The State Of Maharashtra, Thr. ... on 13 December, 2021
Author: Anil L. Pansare
Bench: S.B. Shukre, Anil Laxman Pansare
1/7 5.wp.4679.2021.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO. 4679 OF 2021
(Ghai Construction Joint Venture, Aurangabad V/s The State of Maharashtra & Ors.)
Office Notes, Office Court's or Judge's orders
Memoranda of Coram,
Appearances, court's
orders or directions and
Prothonotary's orders
Mr. R. N. Ghuge, Advocate a/w Mr. A. K. Gawali,
Advocate for Petitioner.
Mr. N. R. Patil, AGP for Respondent No.1.
Mr. Anand Jaiswal, Senior Advocate a/w Mr.
A. D. Mohogaonkar, Advocate for Respondent
No.2.
Mr. C. S. Kaptan, Senior Counsel a/w Mr. N. G.
Moharir, Advocate for Respondent No.3.
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CORAM : SUNIL B. SHUKRE &
ANIL L. PANSARE, JJ.
DATE : DECEMBER 13, 2021.
. Heard Mr. Ghuge, the learned Counsel for the
petitioner. He submits that due to some unreasonable conditions stated in the tender notice and also due to lack of clarity regarding eligibility criteria, the petitioner could not participate in the tender process, and therefore, the petitioner is seeking direction for quashing and setting aside the tender process initiated by the respondent No.2 - MSRDC.
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2. We would have certainly heard the petitioner in this case, had the petitioner been vigilant in challenging the whole tender process. It is not in dispute that the tender notice inviting tenders for collection of toll at five toll booths was published on 20th October, 2021 and that the last date of submission of bids was 15th November, 2021. It is also not in dispute that there was pre-bid meeting on 1 st November, 2021 and the petitioner had also participated in the pre-bid conference at that time itself. The petitioner had raised some objections, but according to the learned Counsel for the petitioner, those objections were not considered, and therefore, on 9th November, 2021 petitioner sent another letter to the respondent No.2, but again, there was no response from the respondent No.2.
3. The admitted facts recounted earlier would enable us to consider the submissions of the petitioner in their proper perspective.
4. We have found that the petition has been filed belatedly, after the closure of last date for bids. The petitioner, it is seen, did not do anything to challenge the conditions of the tender except for making some correspondence with the respondent No.2, though he had all the time to do so. It was only on 17th November, 2021 i.e. two days after the last date of submission of tender, petitioner knocked at the doors of this 3/7 5.wp.4679.2021.odt Court. By this time it was too late for the petitioner to even question the tender process. If the petitioner is, at this stage, allowed to use the machinery of law to hamper or scuttle the tender process, which has now already reached at the final stage, it would amount to approving the wrong of delay on the part of the petitioner, which may perhaps lead to causing further delay in collection of toll and thus causing of loss of revenue.
5. Mr. Jaiswal, the learned senior Counsel appearing on behalf of respondent No.2 informs the Court, on instructions, that tender process has been finalized and letter of acceptance has also been issued to one of the tenderers, i.e. respondent No.3. This would show that now contractual obligations have arisen between the parties and for the fault of the petitioner, they cannot now be allowed to be unsettled. Then, there is no justification whatsoever given by the petitioner as to why he chose to remain inactive in the matter till after the last date for bid submissions was crossed over.
6. We are thus of the view that this is not a fit case where any interference is warranted.
7. Of course, the learned Counsel for the petitioner has relied upon the law laid down by the Hon'ble Apex Court in Ramana Dayaram Shetty V/s International Airport Authority of 4/7 5.wp.4679.2021.odt India and Others, (1979) 3 Supreme Court Cases 489. The learned Counsel has invited our attention to the observations of the Hon'ble Supreme Court in paragraph No.9 thereof. The Hon'ble Apex Court has found that since the petitioner therein was treated differentially and denied equality of opportunity, there was arbitrariness in the tender process. The Hon'ble Supreme Court has observed that had it been made known to the bidder, like the petitioner herein, that non-compliance with the condition of eligibility by him would be no bar to the consideration of his tender, he would also have submitted a tender and competed for obtaining of a contract. It further said that he was precluded from submitting a tender and entering the field of consideration by reason of the condition of eligibility, and therefore, the whole tender process was vitiated by inequality of the treatment given to different bidders.
8. We must say it here that such are not the facts of the present case. This is not a case, where some of the conditions of eligibility were not applied and tenders of ineligible ones were considered. This is a case where the conditions of eligibility and other conditions of the tender notice have been applied equally to all the bidders. This is also a case where since beginning of the tender process, the petitioner has been complaining of vagueness in eligibility criteria and also some conditions regarding the fixation of the bench mark for average annual turnover. According to the petitioner, these conditions being not 5/7 5.wp.4679.2021.odt clear, the tender process could not be permitted to meet its logical end, and therefore, the Petitioner submits that because of such conditions which he terms to be unreasonable, he could not participate in the process. But, the fact is that these very conditions have not been found to be unreasonable and arbitrary by other contractors and they took part in the tender process. Ultimately two bidders qualified for price paid round or the financial round. Therefore, with due respect, we find that the case of R. D. Shetty (cited supra) would render no assistance to the petitioner.
9. The learned Counsel for the petitioner submits that the respondent No.3, to whom the tender has been given, does not possess any experience in collection of toll and this is an admitted position. According to him, possession of such experience is a necessary condition of tender notice, atleast it was so in the previous tender notice.
10. Mr. Jaiswal, the learned Senior Counsel points out that in the present tender notice no such condition is prescribed and the petitioner insisted that in the present tender notice it ought to have been included. But, he submits that for that matter the petitioner ought to have filed a petition well in time and he also submits that it is not for a bidder or contractor to dictate the terms of the tender notice and it is for the employer of the contract to decide about the same.
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11. The learned Counsel for the petitioners points out to us one condition in the Government Resolution dated 27/9/2018 which prescribes the experience criteria. We have gone through this condition, as pointed out by the learned Counsel, which appears in clause - 2.9 (b). It prescribes the criteria regarding similar experience within five years preceding the date of the tender notice. This similar experience stated in the Government Resolution, we find, is in terms of particular percentage of certain amounts stated therein. It lays down that a contractor must have similar experience of the work, which is valued at 30% of the total value of the work, which is Rs.1.00 Crore to Rs.10.00 Crores or must have completed work of having value of 60% of the total value of the work completed which is more than Rs.10.00 Crores. Such quantification of the experience in case of toll collection does not seem possible, especially when there is no fixed amount of annual toll collection mentioned in the tender notice. Apart from that, there is also a doubt about the applicability of the Government Resolution dated 27/9/2018 issued by the Public Works Department to a Government Company like MSRDC. We may note here that it is nobody's case that this Government Resolution has been adopted by the MSRDC. Even otherwise, all these points of arguments were available to the Petitioner, which he ought to have raised at appropriate time, and that was before the finalization of the bids, which the petitioner has not done, and therefore, as stated by us earlier, at such a belated 7/7 5.wp.4679.2021.odt stage, it would not be proper for this court to interfere in the tender process.
12. On the last date of hearing, an argument was made regarding this tender process having been reduced into a single tender requiring re-tendering of the work. Now, Mr. Jaiswal, the learned Senior Counsel, on instructions, submits that this tender process was not reduced into a single tender and that there were two tenderers, who were left in the fray and as one of them retreated, it was allotted to the respondent no.3, the second highest bidder. Considering these facts, we find no force in the argument that this was a tender which was reduced into a single tender, not permissible in law.
13. In the result, we find that this petition suffering from inordinate delay, latches and also lack substance, deserves to be dismissed and it is dismissed summarily. No costs.
(ANIL L. PANSARE, J.) (SUNIL B. SHUKRE, J.)
Yadav VG
Digitally Signed ByVIJAYA
GOURISHANKAR YADAV
Signing Date:15.12.2021
14:30