Solanki Construction,Authorised ... vs Chief Officer on 9 February, 2021

[Cites 9, Cited by 0]

Gujarat High Court

Solanki Construction,Authorised ... vs Chief Officer on 9 February, 2021

Author: R.M.Chhaya

Bench: R.M.Chhaya, R.P.Dholaria

       C/SCA/22748/2019                                         ORDER



         IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

      R/SPECIAL CIVIL APPLICATION NO.                22748 of 2019

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    SOLANKI CONSTRUCTION,AUTHORISED SIGNATORY/PARTNER,
              MAHESHBHAI BHALJIBHAI SOLANKI
                          Versus
                      CHIEF OFFICER
==========================================================
Appearance:
MR HARSH RAVAL with MR DIPEN K DAVE(3296) for the
Petitioner(s) No. 1
MR ASHISH H SHAH(2142) for the Respondent(s) No. 3
MR PREMAL R JOSHI(1327) for the Respondent(s) No. 6
MR PS CHAMPANERI(214) for the Respondent(s) No. 1
NOTICE SERVED BY DS(5) for the Respondent(s) No. 2,4,5
==========================================================

 CORAM: HONOURABLE MR. JUSTICE R.M.CHHAYA
        and
        HONOURABLE MR. JUSTICE R.P.DHOLARIA

                             Date : 09/02/2021

                        ORAL ORDER

(PER : HONOURABLE MR. JUSTICE R.M.CHHAYA)

1. Heard Mr. Harsh Raval, learned advocate for Mr. Dipen K. Dave for the petitioner, Mr. P.S. Champaneri, learned advocate for respondent no.1, Mr. Ashish H. Shah, learned advocate for respondent no.3 and Mr. Premal Joshi, learned advocate for newly added party, respondent no.6.

2. By way of this petition under Article 226 of the Constitution of India, the petitioner has prayed for the following main relief -

"Your Lordships may be please to issue writ of mandamus or any other appropriate writ, order or direction directing the respondent to qualify the petitioner and act in Page 1 of 47 Downloaded on : Thu Feb 11 02:33:19 IST 2021 C/SCA/22748/2019 ORDER accordance with law with respect to Tender for Construction of C.C. Road, Paver Block, Storm water, Drainage water, Asphalt road in Wadvan Nagarpalika area, a copy of which is produced at Annexure B Colly."

3. The following facts emerge from the record of the petition -

3.1 That the respondent no.1 herein, a local authority, floated a tender, whereby online tenders came to be invited for construction of CC Road, Paver Block, Storm Water Drainage Work, Asphalt Road in Wadhvan Nagarpalika area, District Surendranagar from "AA" Grade Special Category Audit (Road Work), Surendranagar with specific conditions for estimated contract value of Rs.

16,05,41,381.73. As per the record, the last date for submission of the online tender was 15.10.2019 at 18.00 hrs. and prebid meeting was fixed at 15.00 hrs. on 27.09.2019. The petitioner was one of the bidder and as the tender is now allotted to respondent no.3 herein, the present petition is filed by the present petitioner as unsuccessful bidder on the facts and grounds set out hereinbelow.

4. The facts arising out this petition in detail are as under -

4.1 It is the case of the petitioner that the petitioner is a Class "AA" Contractor and is registered with the Government of Gujarat for Page 2 of 47 Downloaded on : Thu Feb 11 02:33:19 IST 2021 C/SCA/22748/2019 ORDER Special Category - I for road. Pursuant to the Etender document issued by respondent no.1 Municipality, the downloading of the bid document was initiated on 24.09.2019 from 12.00 hrs. and the same was to end on 15.10.2019 at 18.00 hrs. Even according to the petitioner, the prebid meeting was arranged on 27.09.2019 from 15.00 hrs. and the last date of receipt of bids was 16.10.2019 at 18.00 hrs. The petitioner filled in the online tender and as per the petitioner, submitted all necessary documents as per the tender conditions within the prescribed time limit including the price bid. It is the say of the petitioner that the petitioner's final bid was for Rs. 13,53,68,740.40. It is the say of the petitioner that clause 2(b) in AppendixA of the prequalification bid specified that the bidder as a prime contractor was required to have successful experience of completing at least one similar work having updated completion cost not less than Rs. 16.00 crores. It is the say of the petitioner that as per clause 9.3(b) of the prequalification bid, the bidder who desired to bid the tender was required to attend himself or through his authorized representative at the prebid meeting which was scheduled on 27.09.2019 at 15.00 hrs. It is the say of the petitioner that the said meeting was kept for the purpose of detailed Page 3 of 47 Downloaded on : Thu Feb 11 02:33:19 IST 2021 C/SCA/22748/2019 ORDER clarification of the tender items and for understanding of the project and to visit and verify the actual site conditions. It is the say of the petitioner that as per clause 2(b) of the prequalification bid, successful experience would mean "must have experience as prime contractor successful experience" and referring to clause 2(b)(i) of the pre qualification bid, bidders must have experience as prime contractor successful experience of at least one similar work having updated completion cost not less than Rs. 16.00 crores.

4.2 It is contended by the petitioner that prebid meeting was held on 27.09.2019 in a very short duration and not in accordance with the PWD norms. It is the case of the petitioner that there cannot be any such provision with regard to securing presence of bidders, with regard to prequalification bid. It is alleged by the petitioner that without following due procedure or without informing or issuing any public notice, the respondent no.1 amended clause 2(b)(i) for successful work costing Rs.16 crores to Rs. 6.45 crores (40% of estimated cost) by way of corrigendum1 dated 27.09.2019 which was uploaded on 28.09.2019 and such action debarred the present petitioner and many other prospective bidders to participate in the prebid meeting as well Page 4 of 47 Downloaded on : Thu Feb 11 02:33:19 IST 2021 C/SCA/22748/2019 ORDER as in the tender process.

4.3 It is contended by the petitioner that respondent no.1 being a State agency is expected to act in fair and reasonable manner and it is alleged that such change in qualification was made by way of an amendment through Corrigendum1 to give certain bidder the contract. It is contended by the petitioner that the petitioner as well as many other prospective bidders could have attended the meeting as well as could have participated in fair manner for the contract, however, just to deprive other applicants and just to cut short the competition, the qualification was changed without intimating the petitioner and such change in qualification criteria was not published in a manner to intimate public at large. It is contended by the petitioner that the petitioner could not remain present because the qualification criteria were mandatory and were changed subsequently without affording any opportunity to the petitioner and the petitioner was disqualified despite having all requisite qualifications as per the amended qualification, just because he could not remain present in the prebid meeting. It is the case of the petitioner that such grievance was raised by various other contractors as they were not able to remain present in the prebid meeting because Page 5 of 47 Downloaded on : Thu Feb 11 02:33:19 IST 2021 C/SCA/22748/2019 ORDER of the mandatory specified qualification criteria which were subsequently changed without affording any opportunity to the present petitioner which is violative of principles of natural justice. It is also alleged that such action on the part of respondent no.1 is in violation of Wednesbury's Principle of Unreasonableness laid down in the case of Associated Provincial Picture Houses Ltd. Vs. Wednesbury Corporation reported in [1948] 1 KB 223. It is also the case of the petitioner that other contractors also raised grievance and addressed communication to respondent no.1 with regard to changed criteria. It is the case of the petitioner that thereafter price bids were opened and price bids were released on the portal. It is further the case of the petitioner that as the respondent no.3 was the lowest bidder at Rs. 15,68,20,716.60, which is approximately Rs. 2 crore higher than the price bid filled in by the petitioner, it is alleged that the petitioner was deprived and the glaring irregularity and illegality has been committed by respondent no.1 for considering the present petitioner non qualified for tender work.

4.4 It is also contended by the petitioner that price bid of the petitioner is lowest amongst all and there is huge difference of Rs. 2 Page 6 of 47 Downloaded on : Thu Feb 11 02:33:19 IST 2021 C/SCA/22748/2019 ORDER crores which itself shows that the petitioner is most eligible candidate having all required qualifications. It is also contended that if corrigendum1 was not introduced, the other respondents were also not eligible to attend the prequalification meeting and even the successful bidder has not completed any work costing more than Rs. 16.00 crores.

4.5 It is contended that no reasons are assigned as to why the petitioner was disqualified and there cannot be any ground for disqualification of the petitioner from the bidding. It is also contended that no reasons have been assigned while rejecting the application of the petitioner at preliminary/technical stage. It is also contended by the petitioner that the respondent no.1 has violated the principles of natural justice by not giving any opportunity of being heard before disqualifying and altering the terms of the tendering process and changing the qualification criteria.

4.6 It is reiterated that the offer of the petitioner is the lowest in comparison to all other bidders and the difference is not only huge but the whole process and ultimately introducing new condition in middle of the tendering process vitiates the whole tendering process. It is contended by the petitioner Page 7 of 47 Downloaded on : Thu Feb 11 02:33:19 IST 2021 C/SCA/22748/2019 ORDER that if the contract is allotted to the petitioner, no prejudice will be caused to the respondent and on the contrary, the respondent no.1 will get competitive rate and there will be fair competition amongst the bidders and the public exchequer will save public money in case if the contract is awarded to the petitioner. It is the case of the petitioner that no work order was given to any bidder and the petition is filed immediately. It is submitted that great prejudice will be caused to the petitioner in case the respondent no.1 is not restrained from entering into the agreement and issuance of work order. On the aforesaid factual matrix, the petitioner has prayed for the prayer as set out hereinabove.

5. In response to the notice issued by this Court, the respondent no.1 through its Chief Officer has filed affidavitinreply. It is contended by the respondent no.1 that the present petition is not maintainable under Article 226 of the Constitution of India. The respondent no.1 has contended that the notice inviting online tenders clearly shows that the tenders were invited for the tender work with peculiar conditions of the city area. It is the case of the respondent no.1 that attending prebid meeting was one of the conditions for eligibility of submission of tender. It is further submitted that the petitioner has not attended the prebid meeting, which is an Page 8 of 47 Downloaded on : Thu Feb 11 02:33:19 IST 2021 C/SCA/22748/2019 ORDER admitted fact and therefore, as per the said terms and conditions, the petitioner's tender has not been considered. The respondent no.1 has further contended that the Executive Committee of respondent no.1 Nagarpalika in its meeting held on 12.12.2019 by resolution no.17 has considered the same.

6. It is further contended by respondent no.1 that L1 tenderer was called for negotiation as resolved by the said resolution and accordingly, Executive Committee in its meeting held on 16.12.2019 held negotiation with L1 tenderer, viz., Respondent no.3 herein and upon negotiations, the tenderer reduced the rates as disclosed in column no.7 of the tabular form incorporated in the resolution. It is further contended by Respondent No.1 that the rate declared in column no.8 were accepted unanimously in the meeting vide resolution no.24 and as per the said resolution, it was resolved to execute the agreement and the Chief Officer was authorized to execute agreement and accordingly, on the same day, i.e., on 16.12.2019, the respondent no.3 was informed and was called upon to execute agreement within a period of seven days. It is further contended that the agreement of work in question came to be executed by and between respondent no.1 and respondent no.3 on 18.12.2019. It is therefore submitted that the petitioner has no case to Page 9 of 47 Downloaded on : Thu Feb 11 02:33:19 IST 2021 C/SCA/22748/2019 ORDER invoke the extraordinary jurisdiction of this Court under Article 226 of the Constitution and accordingly, the petition deserves to be dismissed.

7. Referring to form submitted by the petitioner, which is part of the record of this petition at page 40, it is contended by respondent no.1 that the petitioner is not a fit person to submit the tender. Denying the contentions raised in the petition, it is contended that the petition deserves to be dismissed.

8. Respondent No.3, the successful bidder, has also filed an affidavit. It is contended that the present petition is not maintainable. It is alleged by respondent no.3 that the petitioner has suppressed material facts from this Court and has not stated true and correct facts. Respondent no.3 has contended that the petitioner has conveniently not referred to clause 9.21.2(2) of the prequalification bid providing for qualification criteria. It is the case of the respondent no.3 that in the aforesaid clause, it has been clearly stated that bidder as a prime contractor must have successful experience of at least one similar work having updated completion cost of not less than Rs. 6.45 (40% of the estimated cost). It is the case of the respondent no.3 that such a clause is very much there in the tender document Page 10 of 47 Downloaded on : Thu Feb 11 02:33:19 IST 2021 C/SCA/22748/2019 ORDER from the beginning and all tenderers including the petitioner were aware of such clause. It is stated by respondent no.3 that the Appendix A to the prequalification bid documents provided for definition of similar work. It is further the case of the respondent no.3 that a typing error had crept in the definition and the same was corrected by issuance of corrigendum. It is alleged by respondent no.3 that the petitioner has suppressed such facts from the Court and has not stated true and correct facts and the petition is liable to be dismissed only on the ground of suppression of material facts.

9. It is contended by respondent no.3 that as per the settled legal position, this Court may refuse to exercise discretion as no averment is made about breach of any legal right in the petition. It is contended that the present petition is an afterthought and the same is not made in good faith. It is also contended that the petitioner has got an alternative remedy. The respondent no.3 has further stated that pursuant to the tender, the Respondent no.1 has entered into an agreement with the respondent no.3 and has issued work order. It is also stated by respondent no.3 that the respondent no.3 has issued a bank guarantee and has also mobilized resources for tender work. According to respondent no.3, the contract is concluded and therefore, this Court may not entertain the Page 11 of 47 Downloaded on : Thu Feb 11 02:33:19 IST 2021 C/SCA/22748/2019 ORDER petition. The Respondent no.3 has also outlined the schedule of the tender process. It is contended that as per clause 18 of the tender notice, the bidder is required to understand the complete nature of work to be executed and therefore, the bidder is required to compulsorily remain present in the prebid meeting and failure to remain present and participate in the pre bid meeting would render him disqualified for the tender. It is the say of the respondent no.3 that clause 21 of the notice conferred powers on the Chief Officer of the Nagarpalika to amend the tender documents and the tenderer has to remain vigilant for accessing the website for changes in the tender document.

10. It is the case of the respondent no.3 that the bid given by respondent no.3 was the lowest. It is the case of the respondent no.3 that pursuant to the letter dated 13.12.2019, the respondent no.3 being the lowest bidder was called by the municipality to remain present before the Committee for negotiation on 16.12.2019 and accordingly, the authorized representative of respondent no.3 remained present and agreed to decrease the rate uniformly across all items by 0.20%. It is the case of respondent no.3 that vide letter dated 16.12.2019, the respondent no.3 municipality accepted the negotiated tender price and called Page 12 of 47 Downloaded on : Thu Feb 11 02:33:19 IST 2021 C/SCA/22748/2019 ORDER upon respondent no.3 to execute the agreement and submit bank guarantee. It is the case of respondent no.3 that respondent no.3 accordingly has issued performance bank guarantees to the tune of Rs. 1,20,40,650/ on 17.12.2019 and an agreement has been executed between respondent no.3 and respondent no.1 nagarpalika on 18.12.2019. It is also contended that respondent no.1 nagarpalika has issued work order dated 18.12.2019. Respondent no.3 has further averred that pursuant to the agreement and work order, the respondent no.3 has mobilized resources for tender work including machineries at site, arranged for labour and have even placed orders for materials such as cement, concrete, paver blocks and sand. It is the case of the respondent no.3 that pursuant to the work order, respondent no.3 has changed its position and has mobilized resources and has issued bank guarantee to the tune of Rs. 1.2 crores and therefore, it is contended that it would be inequitable and unjust to exercise any discretion in favour of the petitioner.

11. It is further contended that as per clause 9.3 of the tender document, all bidders were required to attend the prebid meeting to be held on 27.09.2019. It is the case of respondent no.3 that attendance was necessary for detailed clarification of the tender item and to understand the project, to visit and verify the actual site condition and to accustom Page 13 of 47 Downloaded on : Thu Feb 11 02:33:19 IST 2021 C/SCA/22748/2019 ORDER with the project and further to enable respondent no.1 to verify the actual capability of the contractor by personal interview as it was a special project. It is further averred that as provided under the said condition, it was mandatory for all the bidders to remain present, failing which the bidder will be considered as disqualified and his tender will not be opened. It is the case of respondent no.3 that on 27.09.2019, 6 bidders, either in person or through their representative, were present, however, the petitioner or his representative were not present in the prebid meeting and therefore, as per clause 9.3, the petitioner stood disqualified and his tender was rightly not opened by respondent no.1 Municipality. It is further averred by respondent no.3 that in the prebid meeting held on 27.09.2019, 6 bidders who were present were shown the entire area where the tender work was to be executed which is old Wadhwan fort area which is developed in an unplanned manner.

12. The respondent no.3 has further referred to clause 9.21.2 of the Vol I of prebid qualification and submitted that the said clause provided for eligibility, qualification criteria and successful experience. It was submitted that clause (2)(b) of the said clause provided that bidder as a prime contractor must have successful experience of at least one similar Page 14 of 47 Downloaded on : Thu Feb 11 02:33:19 IST 2021 C/SCA/22748/2019 ORDER work having updated completion cost of not less than Rs. 6.45 crores (40% of estimated cost). It is reiterated by respondent no.3 that Appendix A of the said document defined similar work and while defining successful experience, there was typographical error as the same referred to the estimated cost of the tender work of Rs. 16 crores. It is submitted by respondent no.3 that one of the bidders present in the prebid meeting held on 27.09.2019 sought clarification for the same by written communication dated 27.09.2019. The respondent no.3 has further averred that the respondent no.3 was also present in the prebid meeting and had addressed a letter on 27.09.2019 to respondent no.1 Municipality but had not raised any doubt about the tender documents or the nature and scope of work. It is the case of respondent no.3 that respondent no.1 Nagarpalika issued a corrigendum on 27.09.2019 and corrected the typographical error on page 16 in the definition of similar work. It is further submitted that such corrigendum was issued on 27.09.2019 whereas the petitioner had submitted online tender bid on 15.10.2019 whereas in the interregnum period, the petitioner had not made any grievance or representation for correction of clause of successful experience in definition of similar work, which clearly provides that successful experience would mean similar work of not less than Rs. 6.5 crores (40% of estimated Page 15 of 47 Downloaded on : Thu Feb 11 02:33:19 IST 2021 C/SCA/22748/2019 ORDER cost). It is submitted that by correcting typographical error at page 16, no prejudice is caused to the petitioner. The respondent no.3 has further contended that the said clause of successful experience is provided at 40% of the estimated work based on resolution of the State Government.

13. It is reiterated by the respondent no.3 that respondent no.3 is the lowest successful bidder and is otherwise qualified and has experience of undertaking such works. It is further contended that other bidders of successful experience of one similar work of Rs.6.5 crores but below Rs. 16 crores have also given their bids. It is the case of the respondent no.3 that the petitioner does not possess requisite qualification and does not meet with the successful experience provided under clause 9.21.2. It is the case of the respondent no.3 that the petitioner does not have successful experience of one similar work of above Rs. 6.45 crores. It is also contended by respondent no.3 that price bid of the petitioner is not opened and that the petitioner has not complied with the mandatory condition of attending prebid meeting.

14. According to respondent no.3, clause 9.3 is mandatory and essential condition of tender as respondent no.1 Nagarpalika wanted all tenderers to verify the actual site and also Page 16 of 47 Downloaded on : Thu Feb 11 02:33:19 IST 2021 C/SCA/22748/2019 ORDER wanted to verify the credentials of the tenderers for special project. It is submitted that correction made in the definition of similar work was made earlier and no prejudice is caused to the petitioner by amending Appendix A definition of similar work. It is contended that the petitioner has not even bothered to inquire about the same till the submission of online tender on 15.10.2019 and has not made any representation to the respondent no.1 Nagarpalika. It is alleged that filing of this petition is an afterthought to sabotage the tender work. It is also contended that the tender conditions clearly provided that the amendments in the tender conditions shall be uploaded online and the tenderer has to be vigilant and verify the same online. The respondent no.3 has also contended that the corrigendum was immediately uploaded online. It is alleged that a representation at the behest of other contractors appears to be concocted and fabricated to sabotage the tender. It is contended that it is not true that the petitioner and other bidders were prevented from participating in the tender as they had not completed similar work of Rs. 16 crores. It is further stated that clause 9.21.2 at page 12 clearly provided from the beginning that the contractor should have successful completion of one similar work of Rs. 6.45 crores. It is denied that the corrigendum was published Page 17 of 47 Downloaded on : Thu Feb 11 02:33:19 IST 2021 C/SCA/22748/2019 ORDER without following procedure or issuing public notice. It is also denied that condition was amended through corrigendum to avoid competition. On the aforesaid grounds, it is contended by respondent no.3 that the petition deserves to be dismissed.

15. The petitioner has also filed the rejoinder to the affidavit filed by respondents no.1 and 3 and has denied the contentions raised by the respondents in their respective affidavits. In para 4 (page 313 of the paper book), the petitioner has reproduced clause 9.21.2(2), wherein clause 9.2(b) prescribes for successful experience. Subclause (i) prescribes that "At least one similar work having updated completion cost not less than Rs. 6.45 crores (40% of Estimated cost)". It is contended by the petitioner that the argument advanced by respondent no.3 that typing error had crept in the definition, is totally unreasonable and incorrect. According to the petitioner, the typing error was in clause 9.21.2(b)(i). It is the case of the petitioner that the typographical error is quintessential in nature and is required to be showcased in public domain, so that every bidder can participate in the tender process. It is the case of the petitioner that by not providing opportunity or arranging new or postponing the prebid meeting, respondent no.1 excluded the eligible contender Page 18 of 47 Downloaded on : Thu Feb 11 02:33:19 IST 2021 C/SCA/22748/2019 ORDER like petitioner from participating in the tender process. It is the case of the petitioner that the action of altering the fundamental criteria in the prebid meeting without issuing public notice or intimating to the people at large is a procedural impropriety and subsequent alteration through corrigendum without informing and keeping the participant in blind vitiates the whole tendering process. It is further the case of the petitioner that though the petitioner was the lowest bidder, only on the ground that he was not present in the prebid meeting because of the alleged ambiguous typographical error of respondent no.1, petitioner and many other people at large were precluded from filing their bids and such illegality of the respondent no.1 vitiates the whole tender process.

16. It is alleged that it is dubious as the respondent no.3 never completed any work of Rs. 16 crores and the aspect of his annual turnover is also not explained. It is also contended by the petitioner that respondent no.3 might not be able to fit in the criteria of clause 9.21.2(2)

(a)(i) and therefore, the alterations were made. Further, in the rejoinder, the petitioner has denied the contentions raised by both the respondent no.3 as well as respondent no.1.

17. At this stage, it also deserves to be noted that draft amendment was given by the petitioner Page 19 of 47 Downloaded on : Thu Feb 11 02:33:19 IST 2021 C/SCA/22748/2019 ORDER as the local area Wadhwan Municipality came to be constituted as "Surendranagar Dudhrej Wadhvan Nagarpalika" and an administrator came to be appointed. The coordinate bench of this Court was pleased to allow the draft amendment vide order dated 26.06.2020 and had passed the following order -

"1. We have heard Shri Harsh Raval, Advocate appearing for Shri Dipen Dave, learned counsel for the petitioner, Shri P.S.Champaneri, learned counsel representing respondent No.1 and Shri Ashish Shah, learned counsel representing respondent No.3.

2. There is a draft amendment praying for addition of certain paragraphs and reliefs and also to add Surendranagar - Dudhrej -

          Wadhvan      Nagarpalika      through      its
          Administrator    as   respondent   No.6,    as

according to the petitioner earlier the Wadhvan Nagarpalika has been merged and now the new Nagarpalika is constituted. The draft amendment is allowed.

3. The necessary incorporation be carried out within a week. Issue Notice to the newly added respondent No.6 returnable on 15.07.2020."

18. Pursuant to also filed an affidavitinreply. case of the respondent created municipality. exercise of powers Article 243Q of the Government comprising Municipality municipality notification dated 22.06.2020. respondent 13.07.2020, the Government Development appointed Chief Dudhrej Wadhwan respondent no.1 and process on behalf Wadhwan Nagarpalika. the same, respondent no.6 has It is the no.6 that it is newly It is submitted that in conferred by clause (2) of Constitution of India, the of Gujarat specified local area (i) existing SurendranagarDudhrej and (ii) existing Wadhwan to be smaller urban area vide Page 20 of 47 Downloaded on : Thu Feb 11 02:33:19 IST 2021 C/SCA/22748/2019 ORDER It is stated by no.6 that as per order dated of Gujarat in Urban and Urban Housing Department has Officer for Surendranagar Municipality, which is is looking after the tender of Surendranagar Dudhrej

19. In addition to this, the learned advocates for the petitioner as well as respondent no.1 have also been permitted to tender their written submissions and that is also made basis of this judgment and order.

20. Mr. Raval, learned advocate appearing for the petitioner has also extensively based his argument on the written submissions made by the petitioner (pages 329 to 347 of the paper book). Mr. Raval has relied upon the factual matrix arising out of this petition and has contended as under -

20.1 It was contended by Mr. Raval that the petitioner filed bid of Rs. 13,53,68,740.40 and the respondent no.3 filed bid of Rs. 15,68,20,716.60 (page 160), which is Rs.2,14,51,976.20 higher than the bid filed by the petitioner.

20.2 Referring to clause 9.3 of the tender Page 21 of 47 Downloaded on : Thu Feb 11 02:33:19 IST 2021 C/SCA/22748/2019 ORDER document, which provided for prebid meeting, Mr. Raval contended that it was mandatory for all to attend the prebid meeting for the purpose of detailed clarification of tender item and to understand the project, to visit and verify the actual site condition and accustom with the project and not for any purpose or specified agenda for changing or altering or rectifying the conditions of the tender. Referring to clause 4(b)(i), it was contended by Mr. Raval that major condition of eligibility criteria prescribed in clause 4(b)

(i) specified that the contractor must have successful experience as prime contractor in at least similar work having updated completion cost not less than Rs. 16 crores and clause 9.21.2(2)(a)(i) also specified about the annual turnover of five financial years from 201415 to 201819 updated to the current financial year shall be more than Rs.1600 Lakhs.

20.3 It was also contended by the learned counsel for the petitioner that as the petitioner had not completed similar work having completion cost of not less than Rs. 16 crores, which was the mandatory criteria, the petitioner and many other bidders did not attend the prebid meeting as they were not able to meet the criteria. Mr. Raval also contended that respondent no.3 was not fulfilling the Page 22 of 47 Downloaded on : Thu Feb 11 02:33:19 IST 2021 C/SCA/22748/2019 ORDER criteria. However, in the prebid meeting the criteria was changed by corrigendum dated 27.08.2019, whereby clause 4(b) was altered without public notice from Rs. 16 crores to Rs. 6.45 crores. Mr. Raval also contended that the petitioner was not present in the prebid meeting and thus, the bid was not considered despite his bid being the lowest.

20.4 Mr. Raval further contended that no agenda of making correction in the tender document was there and that the respondent no.1 Municipality had no authority to make amendment or correction at the time of pre bid. It is contended by Mr. Raval that pre bid meeting cannot be the place of making correction and even after making correction, the said aspect was not brought to the attention of the people and no second prebid meeting was arranged with the new specified criteria and thus, the people at large were restricted by the procedural impropriety and unfairness of the respondent Municipality.

20.5 Mr. Raval also contended that whether or not a typographical error, the action of the respondent no.1 Municipality in altering the fundamental criteria in the prebid meeting without issuing public notice or intimating to the people at large is a procedural impropriety, which ultimately affected the Page 23 of 47 Downloaded on : Thu Feb 11 02:33:19 IST 2021 C/SCA/22748/2019 ORDER equal footing of the participants and is improper in case of public tenders.

20.6 Referring to clause 9.1 and clause 9.3 of the tender document, it was contended that no bidder was eligible and the clauses and criteria were illegally changed in the prebid meeting. Mr. Raval also reiterated that clause 9.21.2(2)(i) specified for Rs.16 crores and not Rs. 6.45 crores and due to such specific and clear clause, the petitioner did not attend the prebid meeting as he was not eligible as per the clause and further respondent no.3 does not fulfill the said criteria as well.

20.7 On the aforesaid grounds and again referring to clause 9.2, it was contended by Mr. Raval that such alteration in the fundamental criteria was made without issuance of public notice, which amounts to procedural impropriety. Mr. Raval also contended that no opportunity was given to the petitioner while changing the eligibility criteria and even the prebid meeting was not postponed or new pre bid meeting was not held, which has excluded the eligible contenders such as the petitioner from participating in the tender process. It is contended by Mr. Raval that such intentional or unintentional act/omission excluded the eligible bidders such as the Page 24 of 47 Downloaded on : Thu Feb 11 02:33:19 IST 2021 C/SCA/22748/2019 ORDER petitioner from entering into the prebid meeting dated 247.09.2019.

20.8 It is again reiterated that such action is procedural impropriety and subsequent alteration through corrigendum without informing and keeping the participant in blind vitiates the whole tendering process. It is reiterated by Mr. Raval that only because the petitioner did not attend the prebid meeting, even though the bid of the petitioner was lowest, he has been wrongly disqualified. It has been reiterated by Mr. Raval that the ambiguous typographical error of respondent no.1, has barred the petitioner and many other bidder from filling their bids and such illegality committed by respondent no.1 vitiates the whole tender process. At this stage, it may be noted that even in the written arguments, there is repetition of these contentions.

20.9 It was also contended that the present writ petition is maintainable as the whole tender process is vitiated due to procedural impropriety and violation of rules of natural justice and Wednesbury's principle. It was contended by Mr. Raval that grant of tender in favour of respondent no.3 itself is illegal and in violation of settled principle for grant of tender process. It was contended by Page 25 of 47 Downloaded on : Thu Feb 11 02:33:19 IST 2021 C/SCA/22748/2019 ORDER Mr. Raval that there is no privity of contract between respondent no.1 and the petitioner and the respondent no.3 and the petitioner and hence, the petitioner does not have any effective alternative remedy available other than approaching this Hon'ble Court.

20.10 It is contended by Mr. Raval that the contract work is not executed. It is also contended that the subsequent alteration of major condition on the part of respondent no.1 leaves room for arbitrariness and the same is also violative of Article 14 of the Constitution of India. It is also contended by Mr. Raval that respondent no.3, the successful bidder, is ineligible and is not the lowest bidder. It is reiterated that there is difference of more than Rs. 2 crores and the same is nothing but waste of public money and with the aid of procedural impropriety, a fraud is committed on the public tax money. It is reiterated that fundamental and major eligibility criteria was changed by the corrigendum in the prebid meeting and no due procedure was followed by respondent no.3. It is contended that the corrigendum was in fact intentionally introduced behind the closed gates to avoid fair competition and thus, the respondent no.1 Municipality will have to pay more than Rs. 2 crores to respondent no.3 than the bid given Page 26 of 47 Downloaded on : Thu Feb 11 02:33:19 IST 2021 C/SCA/22748/2019 ORDER by the petitioner. Reiterating the earlier contention, Mr. Raval contended that in the present case, the public body is expected to work with transparency, fairness, procedural regularities and reasonable manner. It is contended that respondent no.3 in fact has acted in unjust, illegal and unfair manner and in order to avoid competition, the respondents no.1 and 3 created this procedural impropriety and thus, did not give fair chance to the people at large to participate in the process, which is violative of Article 14 of the Constitution of India.

20.11 It is also contended that respondent no.1 Chief Officer has no locus and Wadhvan Nagarpalika has no legal existence and therefore, the arguments raised by respondent no.1 deserves to be ignored. It is also reiterated by Mr. Raval that why the petitioner was disqualified is not disclosed and the same is violative of principles of natural justice.

20.12 On the aforesaid grounds, it was contended that the petition is required to be allowed and the tender process as well as the work order dated 18.12.2019 and the agreement dated 18.12.2019 are required to be quashed and set aside.

20.13 Mr. Raval, learned advocate appearing for Page 27 of 47 Downloaded on : Thu Feb 11 02:33:19 IST 2021 C/SCA/22748/2019 ORDER the petitioner has relied upon the following judgements-

1. Vidarbha Irrigation Development Corporation Vs. Anoj Kiumar Garwala reported in (2019) SCC Online SC 89

2. Ramana Dayaram Shetty Vs. International Airport Authority of India, reported in (1979) 3 SCC 489

3. Poddar Steep Corpn. Vs. Ganesh Engineering Works reported in (1991) 3 SCC 273

4. Reliance Energy Ltd. Vs. Maharashtra State Road Development Corpn. Ltd. reported in (2007) 8 SCC 1

5. Unibros Vs. All India Radio, reported in 1995 SCC Online Del 127

6. Deep Industries Ltd. Vs. ONGC, Special Civil Application No. 10634 of 2010

21. Mr. P.S. Champaneri, learned advocate appearing for respondent no.1 has relied upon the affidavit filed by respondent no.1 as well as the written submissions. Mr. Champaneri contended that attendance at the prebid meeting was mandatory and nonattendance at the prebid meeting would render himself to be disqualified and it is provided that such tender will be considered as disqualified and will not be opened. Mr. Champaneri contended that it is an admitted fact that the petitioner or his representative did not remain present at the prebid meeting held on 27.09.2019 at its Page 28 of 47 Downloaded on : Thu Feb 11 02:33:19 IST 2021 C/SCA/22748/2019 ORDER scheduled time whereas all remaining tenderers remained present and participated in the meeting. It was contended by Mr. Champaneri that under such circumstances, the bid of the petitioner was not qualified to be opened. Mr. Champaneri contended that such fact was within the knowledge of the petitioner from the date of the downloading of the tender and submission of the tender. Mr. Champaneri further conducted that such communication is also produced by the petitioner. Mr. Champaneri further contended that subject matter being of contractual nature, and contractual rights and obligations, the petitioner is bound by the aforesaid terms and conditions of the notice inviting tenders as well as prequalification of the bid as per AnnexureD.

22. Mr. Champaneri contended that the allegations that respondent no.1 has acted arbitrarily or with ill intention are all false and calls for no interference by this Court in exercise of its extraordinary powers under Article 226 of the Constitution of India. Mr. Champaneri relying upon the judgment of the Division Bench of this Court in the case of Zeel Corporation Vs. Food corporation of India in Special Civil Application No. 4689 of 2018, contended that as the petitioner is disqualified at technical stage, it cannot be said that such decision of respondent no.1 is in any manner Page 29 of 47 Downloaded on : Thu Feb 11 02:33:19 IST 2021 C/SCA/22748/2019 ORDER arbitrary or perverse. Mr. Champaneri has specifically invited the attention of this Court to the affidavitinreply filed by respondent no.1 and has contended that the petition is in realm of contractual rights and therefore, the same deserves to be dismissed. Mr. Champaneri contended that no rights of the petitioner are abridged or curtailed by the corrigendum issued by respondent no.1 municipality and only a typographical error came to be amended. Mr. Champaneri contended that the petition is misconceived and the same deserves to be dismissed at the threshold.

23. Mr. Ashish Shah, learned advocate appearing for the respondent no.3 has relied upon the affidavitinreply filed by respondent no.3 and has contended that the petitioner has suppressed material fact and has misdirected this Hon'ble Court. Referring to clause 9.21.2(2) of the tender document, it was submitted by Mr. Shah that the criteria for successful experience is clearly prescribed to be Rs. 6.45 crores(40% of the estimated cost) and in the definition clause, typographical error came to be corrected, which was within the knowledge of everyone as it was uploaded on the website on 28.09.2019 and admittedly, the petition is filed by the petitioner thereafter. Mr. Shah contended that not having attended the prebid meeting as per the mandatory condition of the Page 30 of 47 Downloaded on : Thu Feb 11 02:33:19 IST 2021 C/SCA/22748/2019 ORDER tender, the petitioner is not allowed to file the present petition. It was contended by Mr. Shah that he entirely relies upon the affidavit inreply filed by respondent no.3 as part of his oral submissions as well. Mr. Shah submitted that the petition deserves to be dismissed.

24. Mr. Premal Joshi, learned advocate appearing for respondent no.6 contended that respondent no.1 Chief Officer is incharge of tender process and it is not true that the tender process lapses because of the same. Referring to notification dated 13.07.2020 at Annexure R4 to the affidavitinreply filed by respondent no.6 (page 336(second) of the paper book), it was contended by Mr. Joshi that respondent no.1 has been appointed as Chief Officer of respondent no.6 municipality which has come into existence vide notification dated 26.06.2020 issued under section 5(2) of Gujarat Municipalities Act, 1963. Mr. Joshi has adopted the other arguments made by Mr. Champaneri for respondent no.1 and has submitted that the present petition may be dismissed.

25. No other or further submissions have been made by the learned advocate appearing for the respective parties.

26. Before reverting to the submissions made by the learned advocates for the parties, it would be appropriate to refer to the relevant Page 31 of 47 Downloaded on : Thu Feb 11 02:33:19 IST 2021 C/SCA/22748/2019 ORDER conditions of the tender. The tender document indicates that the nature of work was for construction of C.C. Road, Paver block, Storm Water Drainage work, Asphalt Road in Wadhwan Nagarpalika Area, Dist. Surendranagar. The tender document was to be downloaded and submitted from 24.09.2019 till 15.10.2019 at 18.00 hrs. and the opening of tenders was on 16.10.2019.

Clause 9.3 of the prequalification bid provides as under -

"9.3 (a) Prequalification Bidders should have to complete all the details and Questionnaire in all respect to be submitted online not later than 18.00 Hrs. on Website on Date 15/10/2019

(b)All bidders who wish to bid the tender, must attend himself or his authorize representative the prebid meeting to be held on 27/069/2019 @ 15:00 Hours. For detailed clarification of the tender item and to understand the project, to visit & verify the actual site condition and accustom with the project. The client wish to verify the actual capability of the contractor by personal interview and by asking the questionnaire regarding the contractors total soundness and fairness for such a special project. Hence, it is mandatory for all bidders or his authorize representative to remain present of the firm and place of prebid meeting for showing their willingness & capability for execution of the project. Failing not remaining present at prebid meeting will be considered as disqualified & his tender will not be opened. In prebid meeting authorized person of company has to submit authority letter for attending Prebid Page 32 of 47 Downloaded on : Thu Feb 11 02:33:19 IST 2021 C/SCA/22748/2019 ORDER meeting on company letter pad."

Clause 9.21.2(2) provides as under -

"Qualification criteria:

(a) Annual Turn Over: i. Annual turnover of any one of the last five financial years i.e. from 201415 to 201819 updated to the current financial year shall be more than 1600 Lacs.

ii. For arriving at updated value, turnover of any financial year shall be multiplier by the enhancement factor corresponding to that year. These enhancement factors hsall be as given in para 4 herein below

(b) Successful experience: Bidder must have as prime contractor successful experience as follows:

i. At least one similar work having updated completion cost not less than Rs.6.45 crores (40% of Estimated cost) ii. Such work must have been completed within last five financial years, i.e. from 01042014 till the due date of submission of bid for the proposed work.

iii. A work would qualify as similar work only if it meets with definitions given in AppendixA single work order.

iv. For updated completion cost of the work to the current financial year, procedure narrated in 2(a)ii shall apply.

(c) Bid Capacity: i. The bidder must have Available Page 33 of 47 Downloaded on : Thu Feb 11 02:33:19 IST 2021 C/SCA/22748/2019 ORDER Bid Capacity (ABC) more than the amount put to tender.

ABC = 2*A*NB Where.

Ais the maximum updated total amount of works executed in any one year of the last five financial years i.e. from 2014 15 to 201819.

N is the number of years prescribed for completion of the proposed work. (Eleven Month shall be consider as 1(one) year.) Bis the amount of the existing commitments and ongoing works to be discharged during time interval of N years from the bid due date.

For the purpose of updating amount of works executed in any year, procedure narrated in para 2(a)ii shall mutatis mutandis apply.

Existing commitments shall include all such works for which letters of acceptance of the tenders have been received by bidder till the date on which bidder has submitted his bid for the proposed work."

The definition of successful experience provided in AppendixA under clause 4(b) reads as under -

"(b) Successful experience: Bidder must have as prime contractor successful experience as follows: i. At least one similar work having updated completion cost not less than Rs.4.50 crores. (originally it was Rs.16.00 crores) ii. Such work must have been completed within last five Page 34 of 47 Downloaded on : Thu Feb 11 02:33:19 IST 2021 C/SCA/22748/2019 ORDER financial years, i.e., from 01 042014 till the due date of submission of bid for the proposed work.

iii. A work would qualify as similar work only if it meets with definitions given in AppendixA. iv. For updating completion cost of the work to the current financial year, procedure narrated in 2(a) ii shall mutatis mutandis apply."

27. It is an admitted position that the petitioner did not attend the prebid meeting held on 27.09.2019. Even according to the petitioner, as per the record, the petitioner submitted his online tender bid on 15.10.2019. The same therefore indicates that the petitioner gave his bid after prebid meeting and corrigendum issued by the respondent no.1 Municipality, i.e., after 27.09.2019. The condition no. 9.3 clearly prescribes that the attendance at the prebid meeting was mandatory and nonattendance would incur disqualification. Clause 9.3(b) clearly prescribes that not remaining present at prebid meeting will be considered as disqualification and such tender will not be opened. Thus, in facts of this case, the petitioner has not fulfilled the mandatory condition no.9.3(b).

28. It is worthwhile to note that though it cannot be strictosenso said that there is Page 35 of 47 Downloaded on : Thu Feb 11 02:33:19 IST 2021 C/SCA/22748/2019 ORDER suppression of material facts as alleged by respondent no.3, it is a matter of fact that in the whole memo of the petition, when the contention raised are to the effect that there was change in the material and important condition of the tender, it was the duty of the petitioner to state it in a complete manner. It would be worthwhile to note that in para 5 of the petition, the petitioner has contended that the petitioner is qualified for the work specified in the tender yet there was a clause in the VolumeonePrequalification Bid which was dealing with the experience of the bidders and after referring to clause 9.3(b), has also referred to clause 2(b)(i) and has quoted clause 2(b). However, it is not stated that what is quoted by way of clause 2(b)(i) of the pre qualification bid is part of AppendixA, which defines successful experience as mentioned in clause 4(b). However, it is found that in annexure, as the whole tender document is annexed, it deserves to be noted that the said clause 9.21.2(2) prescribes for qualification criteria, which of course has been stated for the first time in the rejoinder by the petitioner. Clause 9.21.2(2)(a) prescribes for Annual Turn Over and clause 9.21.2(2)(b) prescribes for successful experience. It may be seen that condition, which prescribes for successful experience clearly prescribes that the bidder has a prime contractor has successful Page 36 of 47 Downloaded on : Thu Feb 11 02:33:19 IST 2021 C/SCA/22748/2019 ORDER experience of one similar work having updated completion cost not less than Rs. 6.45 crores (40% of the Estimated Cost), which is based on the criteria followed by the State Government. The petitioner was well aware about the same. The petitioner was also aware that AppendixA defines successful experience wherein though in the main condition, the amount mentioned is Rs. 6.45 crores (being 40% of Estimated cost), in definition, it is mentioned Rs. 16.00 crores. Such clarification is not found in the memo of the petition. Therefore, stricto senso, though there is no suppression, in petition under Article 226 of the Constitution of India, the petitioner is expected to state clear, true and correct facts. A clever drafting, which can be termed as misdirecting the court, is not permissible.

29. There was an obvious typographical error while defining the word "successful experience", which was corrected by way of corrigendum on 27.09.2019, which was published on 28.09.2019, admittedly before the petitioner gave his bid on 15.10.2019. As a matter of fact, the present petition is filed under Article 226 of the Constitution on 19.12.2019 before this Court. In such factual background therefore, it is a matter of fact that the main condition of successful experience prescribed in Condition No. 9.2.21(2)(b) clearly prescribes that Page 37 of 47 Downloaded on : Thu Feb 11 02:33:19 IST 2021 C/SCA/22748/2019 ORDER successful experience would mean similar work having updated completion cost not less than Rs. 6.45 crores (40% of Estimated cost). Such prescription clearly tallies with the estimated project cost and there is no change or alteration in the said major condition which prescribes for successful experience, as can be seen from the tender document on record. The aforesaid clearly establishes the fact that AppendixA only defines work "successful experience" whereas in the main condition, the amount is not changed. Appendix A prescribes for definition of similar work. Thus, the very basis of the petition is based on incorrect fact which is not properly set out in the petition.

30. It clearly transpires from the Government Resolution dated 15.06.2011 that the State of Gujarat has prescribed for prequalification criteria for construction of roads, bridges and buildings. As per the said Resolution, successful experience prescribes as under -

"(b) Successful experience Bidder must have as prime contractor or as nominated (approved by employer) subcontractor successful experience as follows:

i. At least one similar work having updated completion cost not less than Rs. ______ crores (40% of the amount put to tender of the proposed work). ii. Such work must have been completed within last five financial years, i.e., from 313____ till the due date of bid for the proposed work.

Page 38 of 47 Downloaded on : Thu Feb 11 02:33:19 IST 2021 C/SCA/22748/2019 ORDER

iii. A work would qualify as similar work only if it meets with definitions given in AppendixA. iv. For updating completing cost of the work to the current financial year, procedure narrated in 2(a) shall mutatis mutandis apply.

v. For Joint venture, qualifying threshold amount of updated completion cost would be a. Lead member : Rs______ crores (75% of amount mentioned in b(i) i.e. 30% of Amount put to tender) b. Each of remaining members:

Rs._____crores (51% of amount mentioned in b(i) i.e. 20.4% of amount put to tender."

31. Cumulatively therefore, even considering the fact that the tender in question is distinct and separate contract, the prescription of successful experience as can be seen in the tender condition no.9.21.2(2)(b)(i) is 40% of the estimated project cost, which comes to Rs. 6.45 crores, as rightly provided therein and such prescription is based on norms prescribed by State Government for similar public works.

The record shows that there is no change made in the main condition.

32. The record also indicates that at the time of prebid meeting, six bidders remained present. AppendixA is though part of the tender document, is for definition of word "similar work". Therefore, it cannot be said that any material condition is changed.

Page 39 of 47 Downloaded on : Thu Feb 11 02:33:19 IST 2021 C/SCA/22748/2019 ORDER

Appendix cannot be read in isolation and the main condition which prescribes for successful experience to be having similar work of Rs. 6.45 crores (40% of estimated cost) is not altered or changed by the respondent authorities and the petitioner, as a bidder, was aware about the same. Moreover, the record also indicates that six bidders who attended the prebidding meeting on 27.09.2019, pointed out to respondent no.1 about the said ambiguity in Appendix, which has been corrected by corrigendum. In opinion of this Court, the same cannot be said to be any material change, but obviously it was a typographical error. The typographical error which has been rectified was uploaded on the website of respondent no.1 municipality and admittedly, the petitioner has given his bid after the corrigendum was issued. The prescription of 40% of the amount of the estimated cost, as stated earlier, is based upon the Resolution dated 15.06.2011 passed by the Government of Gujarat. The record also indicates that during the prebid meeting, one of the bidder Anish Infracom pointed out the discrepancy, which has resulted into the correction of the same.

33. In opinion of this Court, what was material was the main condition and not the Appendix and therefore, the basis to decide what constitute successful experience is to be based on the Page 40 of 47 Downloaded on : Thu Feb 11 02:33:19 IST 2021 C/SCA/22748/2019 ORDER condition no.9.21.2(2)(b)(i) and not what is provided in the Appendix. In facts of this case therefore, the contention raised by the petitioner that there was material change deserves to be negatived. As stated above, the said fact is not properly clarified in the petition, but an attempt is made by the petitioner to pose that clause 4(b)(i) which is part of appendix, is one of the main clauses of the tender document and has not disclosed in the petition that it defines word "successful experience". Therefore, under such circumstances, it cannot be said that the decision of the respondent No.1 Nagarpalika in not opening the bid of the petitioner is in any way illegal. Having committed breach of clause 9.3 by not attending the prebid meeting, the petitioner cannot be permitted to contend that such decision is arbitrary or without disclosing any reason. The petitioner being well aware about the condition no. 9.3 as he himself mentioned and quoted in the petition, cannot be permitted to take shelter that such decision is taken without following basic principles of natural justice.

34. Similarly, as observed hereinabove, the error in AppendixA, which is corrected by corrigendum does not amount to any alteration of qualification criteria as in clause 9.21.2(2)

(b), successful experience clearly prescribes Page 41 of 47 Downloaded on : Thu Feb 11 02:33:19 IST 2021 C/SCA/22748/2019 ORDER that a bidder must have as a prime contractor successful experience of at least one similar work having updated completion cost not less than Rs. 6.45 crores (40% of the estimated cost). Even at the cost of repetition, it deserves to be observed that such criteria provided is based upon the Government Resolution dated 15.06.2011 issued for similar public work. Having failed to comply with the mandatory condition of clause 9.3, the contention raised on behalf of the petitioner that there is procedural impropriety and no agenda or no authority existed for amendment of the correction at the prebid meeting deserves to be negatived.

35. No alleviation in fundamental criteria is made and in facts of this case, no procedural impropriety is committed by the respondent - Municipality. The contention raised by the petitioner that the petitioner did not attend the prebid meeting as he did not qualify earlier is also not believable. In the original condition, successful experience prescribes for 40% of the project work which comes to Rs.4.50 crores and the petitioner was aware of the same. The very fact that he filed in the tender indicates the same. Having realized that the petitioner stands disqualified as per condition 9.3 for nonattendance of prebid meeting, the petition is filed after bid of respondent no.3 Page 42 of 47 Downloaded on : Thu Feb 11 02:33:19 IST 2021 C/SCA/22748/2019 ORDER is accepted, a contract is executed and even work order is issued. The objection raised in the petition is taken only after the award of contract in favour of respondent no.3.

36. In facts of this case therefore, the principles of Contra Proferentem Rule would not be attracted. It cannot be said that there is any fundamental breach committed by respondent no.1 and that it cannot be said that there is procedural impropriety. The respondent no.1 has updated the corrigendum much before the last date of submission and as observed hereinabove, clause 9.21.2(2)(b) which clearly prescribes that successful experience means bidder must as a prime contractor have at least one similar work having updated completion cost not less than Rs. 6.45 crores (40% of Estimated Cost), which was known to all concerned, therefore, it cannot be said that there was any material change in the condition.

37. The contention put forward by the petitioner that other bidders were precluded and that communication dated 10.10.2019 is also made to respondent no.1, is without any basis and except the petitioner, no one has come forward. The present petition is also filed almost on 19.12.2019 after the tender offer of the respondent no.3 came to be accepted and a contract has been entered into by respondent Page 43 of 47 Downloaded on : Thu Feb 11 02:33:19 IST 2021 C/SCA/22748/2019 ORDER no.1 and the present petition is filed much after the same. It is a matter of record that work is very important public work, which has to be completed as early as possible. Not having participated in the prebid meeting, the petitioner cannot now be permitted to raise the contention that his bid was lowest and less by more than Rs. 2 Crores. On the contrary, the petitioner was aware about the fact that attendance at prebid meeting was mandatory which was held on 27.09.2019 and as per the record of the petition, the petitioner submitted online tender bid on 15.09.2020. It is also a matter of record that when the petitioner submitted his bid, the petitioner was well aware about the fact that the prebid meeting was held on 27.09.2019 and that he had not attended such meeting. It is also a matter of fact that when the bid was submitted by the petitioner, the corrigendum existed and that he did not make any grievance about the corrigendum. That the petitioner not having fulfilled the basic condition of attending the prebid meeting, cannot now be permitted to say that his bid is the lowest and there is a loss to the exchequer. The tender process is to be completed as per the schedule prescribed and this Court under Article 226 of the Constitution, cannot rewrite the contract. On the aforesaid facts therefore, the contention as regards impropriety also deserves to be negatived.

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38. In facts of this case therefore, it cannot be said that the whole tender process if vitiated due to procedural impropriety and that there is any violation of principles of natural justice or Wednesbury's principle of unreasonableness.

39. The contention of the petitioner that the contract is not executed and no work is carried out, considering the present Covid Pandemic, if the work has not commenced, that would not take the case of the petitioner any further.

40. In view of the affidavit filed by respondent no.6 and the resolution dated 13.07.2020, passed by State of Gujarat, the contention that the respondent no.1 Chief Officer has no locus also deserves to be negatived. In facts of this case, it cannot be said that the action of the respondent authority does not satisfy the test of reasonableness and therefore, it cannot be said that the decision taken by the respondent authority is in any manner unconstitutional.

41. Referring to the judgment of the Apex Court in the case of Vidarbha Irrigation Development Corporation (supra), in facts of this case, it cannot be said that there is any malafide or perversity in the case on hand by the respondent authority. As this Court has examined the Page 45 of 47 Downloaded on : Thu Feb 11 02:33:19 IST 2021 C/SCA/22748/2019 ORDER matter, the contention raised by the respondents that the petition is not maintainable is not required to be dealt with. In facts of this case, the ratio laid down by the Apex Court in the case of Ramana Dayaram Shetty (supra) would not be applicable. The judgments relied upon by the learned advocate for the petitioner would not be applicable to the facts of this case as this Court finds that there is no material change in the condition and as observed hereinabove, the main condition no.9.21.2(2)(b) which prescribes for successful experience has not been altered, but only the definition is corrected, and therefore, the same would not render the tender process improper. All the contentions raised by the petitioner therefore fail. In view of the above, the petition is not entertained and is hereby dismissed. Notice discharged. However, there shall be no order as to cost.

sd/ (R.M.CHHAYA, J) sd/ (R.P.DHOLARIA, J) FURTHER ORDER After the order is pronounced, Mr. Harsh Rawal, learned advocate for the petitioner prays for stay of the execution of tender, as the work is not started. It may be noted that during the Page 46 of 47 Downloaded on : Thu Feb 11 02:33:19 IST 2021 C/SCA/22748/2019 ORDER pendency of the petition, no interim relief was granted in favour of the petitioner and in facts of this case, no stay against such public work can be granted. Hence, the request made by Mr. Rawal, learned advocate appearing for the petitioner is rejected.

sd/ (R.M.CHHAYA, J) sd/ (R.P.DHOLARIA, J) BIJOY B. PILLAI Page 47 of 47 Downloaded on : Thu Feb 11 02:33:19 IST 2021

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