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12. The respondents No. 1 and 2 both have filed counter affidavits and contested the writ petition. The case of respondent No. 1 in the counter affidavit is that petitioner do not qualify conditions 3.3.1, 3.3.2, 3.3.3 it being not fulfilling the requirement of having developed or constructed minimum 300 acres in real estate in the last three years, i.e., 2002-03, 2003-04 and 2004-05. It did not had average turnover of minimum Rs. 500 crores during the above last three years nor its lead member (Yunus Zia) had minimum average turnover of Rs. 200 crores during last three years in the real estate. It did not have minimum net worth of Rs. 250 crores nor its lead member had minimum net worth of Rs. 150 crores. The Tender Evaluation Committee after evaluating all the tenders submitted its report on 22.5.2006 giving detail reasons for not finding the petitioner qualified. The report of the Tender Evaluation Committee has been brought on the record as Annexure CA-1 to the counter affidavit. Both respondents No. 2 and 3 were invited for opening of the financial bid on 23rd May, 2006. The NOIDA, according to the conditions, had reserved right to reject or accept any tender and it had no obligation to inform the applicants the reason for rejection. The respondent No. 2 also supported the action of respondent No. 1 in awarding the contract to respondent No. 2. Rejoinder affidavits have also been filed by the petitioner to the counter affidavits filed by respondents No. 1 and 2. An additional affidavit has also been filed by the petitioner bringing certain documents and materials on record.

13. Sri C.S. Vaidyanathan, learned Senior Advocate, appearing for the petitioner, contended that the decision of respondent No. 1 to the effect that petitioner is not qualified is incorrect and has been taken only with a view to eliminate the petitioner from competition to facilitate the award of contract in favour of respondent No. 2. He submits that petitioner fulfilled all the conditions required in the terms and conditions. The action of respondent No. i in awarding the contract to respondent No. 2 is against the public interest the petitioner bid being astronomically higher to the bid given by respondent No. 2. The minimum requirement of developed area was only 300 acres in the real estate whereas the area developed by the petitioner was 750 acres. In so far as the average turnover of consortium is concerned, the average turnover was Rs. 689.25 crores whereas the average turnover of the lead member, Mr. Yunus Zia, was Rs. 254.05 crores. The net worth of consortium comes to Rs. 650.80 crores and the net worth of Mr. Yunus Zia, the lead member, was more than Rs. 456.99 crores. The certificates submitted by the Chartered Accountant have not been accepted without there being any valid reason. The tender process had not been carried out in a fair, transparent and reasonable manner but is actuated by malafides and corruption. The respondent No. 1 did not open the technical bids on the date specified but the same was opened in absolute secrecy contrary to the terms of tender. Had the petitioner called for clarification as provided in Clause 7.9.3, the petitioner could have very well explained all the doubts and misrepresentations of respondent No. 1. Clause 7.9.3 vested in the respondent No. 1 power coupled with a duty and failure to discharge the said duty has vitiated the entire evaluation process. The terms and conditions have to be construed from a stand point of a prudent businessman with commercial point of view. At the stage of consideration of technical bid the Tender Evaluation Committee has no role to play. The Tender Evaluation Committee was to come into picture only at Stage-II, i.e., for evaluation of the financial bid. The decision making process has been completely discriminatory and arbitrary and has been actuated by malafides. It is a case of constantly shifting the goal post with the sole intent of benefiting certain parties while excluding the petitioner, which resulted in great loss to public interest as well as breach of petitioner's right. Learned Counsel for the petitioner has also placed reliance on judgments of the Apex Court in Star Enterprises and Ors. v. CIDCO Maharashtra, Food Corporation of India v. Kamdhenu Cattle Feed Industries, Union of India v. Hidustan Development Corporation, 1994(6) S.C.C. 651 Tata Cellular v. Union of India Horizons Limited v. Union of India and Master Marine Services (P) Ltd. v. Metcalfe and Hodginkson and Anr.

38. The next submission of Sri Vaidyanathan is that at the stage of consideration of technical bid the Tender Evaluation Committee has no role to play. The Tender Evaluation Committee was to come into picture only at Stage-II, i.e., for evaluation of the financial bid. The relevant clauses relied by counsel for the petitioner is Clause 7.9.1 and 7.9.2. Although it is true that under Clause 7.9.2 the financial tender is to be opened by the Tender Evaluation Committee appointed by the Chief Executive Officer, NOIDA, from this the submission advance is that in Stage-I, i.e., at the stage of opening of technical bid, the Tender Evaluation Committee does not come into picture. In the present case the technical bid also has been evaluated by Tender Evaluation, Committee as is clear from the report dated 22nd May, 2006. One more relevant clause in this context to be noted is Clause 7.8.1. Clause 7.8.1 provides "the tender shall be opened by the Committee constituted by the Chief Executive Officer, NOIDA". Clause 7.8.1, thus, empowers the Chief Executive Officer, NOIDA to constitute a committee for opening the tender. Clause 7.8.1 does not qualify tenders as only financial tender. Clause 7.8.1 has to be read along with Clauses 7.9.1 and 7.9.2. From harmonious reading of these clauses, it is clear that although financial bids have been specifically provided to be opened by the Tender Evaluation Committee in Clause 7.9.2 but there is no prohibition in constituting a Tender Evaluation committee for evaluation of even technical bids. Clause 7.8.1 is a general enabling power given to the Chief Executive Officer to constitute a committee to open the tenders, which shall also encompass in it opening of technical tenders. Thus opening of technical bids by the Tender Evaluation Committee cannot be said to be in breach of any clause nor on this ground any fault can be found with the decision.

40. It is relevant to note that in the counter affidavit filed by respondent No. 1 it has not been specifically stated as to what actually transpire at 3.00 P.M. on 1st May, 2006. It has not even been stated that any further date for opening the tender was informed. The Tender Evaluation Committee appointed by NOIDA for evaluation of the tender was constituted and completed only on 15" May, 2006 when a letter was written to the Managing Director of the U.P. Industrial Consultants for sending a technical expert, who was sent and the Tender Evaluation Committee evaluated the technical bids on 22.5.2006. It is not even claimed by the respondents that on 22nd May, 2006 the petitioner or other tenderers were informed. The case of respondent No. 1 is that after technical bids of respondents No. 2 and 3 were found eligible thjey were informed of opening of the financial bid on 23rd May, 2005 at 5 P.M. by the letter send on 22nd May, 2006.