M/S. Mahendra Realtors And ... vs The Municipal Commissioner And ...
2016 Latest Caselaw 6978 Bom

                                                                                     931.wp 1924.16.doc

    Urmila Ingale




                                                                                                
                              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                  ORDINARY ORIGINAL CIVIL JURISDICTION




                                                                        
                                      WRIT PETITION NO. 1924 OF 2016

                     M/s.Mahendra Realtors and Infrastructure 
                     Pvt.Ltd.                                                     .. Petitioner




                                                                       
                           Vs.
                     The Municipal Commissioner and anr.                        .. Respondents

                     Mr.Ramesh Ramamurthy,  for the Petitioner.




                                                           
                     Mr. A.Y. Sakhare, Senior Advocate a/w Ms.Pallavi Thakar,   for 
                     BMC.                    
                                                              CORAM : NARESH H. PATIL AND
                                            
                                                                             M.S.KARNIK, JJ.
                                                     RESERVED ON :  24th NOVEMBER, 2016
                                               PRONOUNCED ON :  07th DECEMBER, 2016
                 


                     JUDGMENT (PER M.S.KARNIK, J.)   :

. Rule, returnable forthwith. Heard finally by consent

of the parties.

2. The petitioner's challenge in this Petition is to the

action on the part of the respondents - Mumbai Municipal

Corporation treating the petitioner's bid in respect of tender No.

7100058905 as non-responsive on the ground that till the last

date of submission of the bid i.e. 27/11/2015, the name of the

931.wp 1924.16.doc

petitioner was not removed from blacklisting done by

Maharashtra State Police Housing and Welfare Corporation

Limited (for short 'Police Housing Corporation'). The petitioner

is also challenging the consequential order dated 29/01/2016

informing the petitioner regarding the reason for treating the

petitioner's bid as non-responsive.

3.

The petitioner had applied under tender notice

which was published on 19/08/2015 being tender No.

7100052390. The packet 'A' was opened on 26/08/2015,

packet 'B' was opened on 31/08/2015 and packet 'C' was

opened on 09/09/2015 and work order was issued on

17/02/2016. Learned Counsel for the petitioner, however,

stated that he is not pressing the present Petition insofar as

challenge to tender No. 7100052390 is concerned.

4. This Petition is therefore confined only to the

challenge as regards tender No. 7100058905. The same was

issued by the respondents - Corporation for the work of

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proposed interior and allied work at New R Central Municipal

Ward Office at FP No. 44 TPS - I at Chandavarkar Road,

Boriwali (West). The tender was for the amount of

Rs.3,46,43,022/- and the Earnest Money Deposit (for short

'EMD') Rs.3,46,430/-. The date of issue of tender (NIT) was

20/11/2015 and the last date of submission of bid was

27/11/2015. The packets 'A', 'B' & 'C' were opened on

27/11/2015, 02/12/2015 and 09/12/2015 respectively. The

petitioner's bid, however, was treated as non-responsive as till

the last date of submission of the bid i.e. 27/11/2015, the name

of the petitioner was not removed from blacklisting done by

Police Housing Corporation.

5. According to the petitioner, the order dated

12/06/2015 passed by the Police Housing Corporation

blacklisting the petitioner was challenged by them by filing Writ

Petition (L) No. 3055 of 2015 in this Court. On 24/11/2015,

this Court was pleased to dispose of the Petition by passing

following order as under :

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"1. This petition is directed against the order passed by the

respondent No.2 dated 12th June, 2015 (Exhibit KK to this Writ Petition). The second respondent is the Managing Director, Maharashtra State Police Housing & Welfare

Corporation Limited, which is a Government of India enterprise that undertakes housing schemes for policemen. The construction of quarters for the Maharashtra police is undertaken by this Corporation and at various places. At once such place, a contract was awarded by the Corporation to the

petitioner.

2. The petitioner is aggrieved and dissatisfied with an order passed, blacklisting the petitioner and directing that for a

period of minimum five years till June, 2020, the Corporation will not award any contract or assign any works to the

contractors, a list of which is appended to this order as Annexure-1.

3. This matter was called out in the morning session and we

requested Mr. Saluja, learned AGP, to take instructions from the second respondent.

4. On instructions, Mr. Saluja informs the Court that the

second respondent will withdraw the order, copy of which is at page 79 of the paper-book dated 12th / 22nd June, 2015, qua the petitioner.

5. In the light of this statement made on instructions by Mr. Saluja, the petitioner need not have any apprehension of the order being implemented and detrimental to the interest of

the petitioner in any other contract or future works of the said Corporation.

6. In view of the statement made by Mr. Saluja, nothing survives in the Writ Petition and it is, accordingly, disposed

of."

6. The petitioner by letter dated 28/11/2015 addressed

to the respondents requested that the price bid submitted by the

petitioner may be opened. It appears that the copy of the order

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dated 24/11/2015 passed by this Court was submitted by the

petitioner to the Corporation some time on 28/11/2015.

Thereafter by an Advocate's notice dated 01/12/2015, it was

again pointed out that by virtue of the order passed by the High

Court, the blacklisting of the petitioner is no longer in force and

therefore, there is no reason why petitioner's bid should be

treated as non-responsive. It was requested that the petitioner

may be allowed to participate in the tender process. By

communication dated 21/12/2015, the petitioner informed the

respondents - Corporation that a letter has been received from

the Police Housing Corporation dated 16/12/2015 stating

therein that petitioner's name has been deleted from the

blacklisting list. The petitioner continued to correspond with

the respondents by way of communication dated 04/01/2016,

09/01/2016, 12/01/2016 & 28/01/2016 requesting that the

petitioner's bid may be opened.

7. The respondents by a letter dated 29/01/2016

informed the petitioner that as the petitioner had failed to

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submit the documents till 27/11/2015 to prove that the

petitioner's blacklisting has been revoked by concerned

authority i.e. Police Housing Corporation, the bid of the

petitioner was made non-responsive and 100% EMD/ASD of

petitioner is being forfeited. This communication is also under

challenge in this Petition which was filed on 22/03/2016.

Prior to filing of this Petition and consequent to the issue of

communication dated 29/01/2016, the petitioner had also

sought redressal from the respondents by addressing letters

dated 23/02/2016 & 25/02/2016.

8. The respondent No.2 has filed two affidavits in reply

opposing the Petition. Respondent No.2 relied upon the

chronology of dates and events to indicate that there has been

gross delay on the part of the petitioner in filing the Petition and

packet 'A' cannot be reopened at this stage as same would cause

loss to the respondent - Corporation. The relevant dates which

as tabulated by the respondents are reproduced as under :

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Sr.No. Date Paritculars

1 20/11/15 Tender Published.

2 27/11/15 Packet "A" opened at 4:00 pm and petitioner

treated as non-responsive.

3 28/11/15 Petitioner letter to respondent intimating H.C.

order dated 24.11.2015 received on 30.11.2015 by respondent.

                                                           
              4       02/12/15     Packet "B" opened (petitioner not considered)
              5       09/12/15     Packet "C" opened.
              6       29/01/16     Decision of 27/11/2015 of respondent informed
                                   to the petitioner.




                                                 
              7     23/02/16 to Petitioner's letter to the respondent.
                    25/02/2016ig
              8       30/01/16     Tender Committee
              9       06/02/16     D.L. put up.
                            
             10       28/03/16     Delay in filing of the W.P.Packet A,B, C opened

on 27/11/2015 and petitioner was informed. 11 20/05/16 Reported to M.C. for approval.

             12       30/06/16     M.C.approval received.
      

             13       02/09/16     Fresh D.L.to M.S.for approval of Standing
                                   Committee.
   



             14       07/09/16     First time order passed, when tender process is
                                   at last stage.

9. In the affidavit filed by respondent on 02/05/2016,

it is submitted that out of five numbers of bids submitted, one

bid was of the petitioner. Since the said bidder was blacklisted

in the above mentioned case and the petitioner has not

submitted any document proving blacklisting being revoked, the

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petitioner's bid has been made non-responsive at the time of

opening of packet 'A on 27/11/2015. As per tender notice

clause their packets were not opened. According to the

respondent, the petitioner vide their letter dated 28/11/2015

has informed them regarding the Court order dated 24/11/2015

along with copy of the Court order.

10.

Before considering the submissions advanced on

behalf of the learned Counsel for the respective parties, a

profitable reference can be made to the decision of the Apex

Court in the case of Maa Binda Express Carrier and anr. Vs.

North-East Frontier Railway and ors., (2014) 3 Supreme

Court Cases 760. The Apex Court in paragraphs 8, 9, 10 & 11

has held thus :

"8. The scope of judicial review in matters relating to award of contracts by the State and its instrumentalities is settled by a long line of decisions of this Court. While these decisions clearly recognize that power exercised by the

Government and its instrumentalities in regard to allotment of contract is subject to judicial review at the instance of an aggrieved party, submission of a tender in response to a notice inviting such tenders is no more than making an offer which the State or its agencies are under no obligation to accept. The bidders participating in the tender process cannot, therefore, insist that their tenders should be accepted simply because a given tender is the highest or lowest depending upon whether the contract is for sale of

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public property or for execution of works on behalf of the

Government. All that participating bidders are entitled to is a fair, equal and non-discriminatory treatment in the matter of evaluation of their tenders. It is also fairly well

settled that award of a contract is essentially a commercial transaction which must be determined on the basis of consideration that are relevant to such commercial decision. This implies that terms subject to which tenders are invited are not open to the judicial scrutiny unless it is

found that the same have been tailor-made to benefit any particular tenderer or class of tenderers. So also the authority inviting tenders can enter into negotiations or grant relaxation for bona fide and cogent reasons provided

such relaxation is permissible under the terms governing the tender process.

9. Suffice it to say that in the matter of award of contracts the Government and its agencies have to act reasonably and fairly at all points of time. To that extent the tenderer has

an enforceable right in the court which is competent to examine whether the aggrieved party has been treated unfairly or discriminated against to the detriment of public interest. (See: Meerut Development Authority v. Association of Management Studies and Anr. etc. (2009) 6 SCC 171 and

Air India Ltd. v. Cochin International Airport Ltd. (2000) 1 SCR 505).

10. The scope of judicial review in contractual matters was further examined by this Court in Tata Cellular v. Union of India (1994) 6 SCC 651, Raunaq International Ltd. and in Jagdish Mandal v. State of Orissa and Ors. (2007) 14 SCC

517 besides several other decisions to which we need not refer.

11. In Michigan Rubber (India) Ltd. v. State of Karnataka and Ors. (2012) 8 SCC 216 the legal position on the subject was summed up after a comprehensive review and

principles of law applicable to the process for judicial review identified in the following words:

"23. From the above decisions, the following principles emerge:

(a) the basic requirement of Article 14 is fairness in action by the State, and non-arbitrariness in essence and substance is the heartbeat of fair play. These actions are amenable to the judicial review only to the

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extent that the State must act validly for a discernible

reason and not whimsically for any ulterior purpose. If the State acts within the bounds of reasonableness, it would be legitimate to take into consideration the

national priorities;

(b) fixation of a value of the tender is entirely within the purview of the executive and courts hardly have any role to play in this process except for striking down

such action of the executive as is proved to be arbitrary or unreasonable. If the Government acts in conformity with certain healthy standards and norms such as awarding of contracts by inviting tenders, in those

circumstances, the interference by courts is very limited;

(c) In the matter of formulating conditions of a tender document and awarding a contract, greater latitude is required to be conceded to the State authorities unless

the action of tendering authority is found to be malicious and a misuse of its statutory powers, interference by courts is not warranted;

(d) Certain preconditions or qualifications for tenders have to be laid down to ensure that the contractor has the capacity and the resources to successfully execute

the work; and

(e) If the State or its instrumentalities act reasonably, fairly and in public interest in awarding contract, here

again, interference by court is very restrictive since no person can claim fundamental right to carry on business with the Government.

20. Therefore, a court before interfering in tender or

contractual matters, in exercise of power of judicial review, should pose to itself the following questions:

(i) Whether the process adopted or decision made by the authority is mala fide or intended to favour someone; or whether the process adopted or decision made is so arbitrary and irrational that the court can say: "the decision is such that no responsible authority acting reasonably and in accordance with relevant law

931.wp 1924.16.doc

could have reached"; and (ii) Whether the public

interest is affected. If the answers to the above questions are in negative, then there should be no interference under Article 226." (emphasis supplied)"

11. As pointed out in the earlier part of this order the decision to cancel the tender process was in no way discriminatory or mala fide. On the contrary, if a contract had been awarded despite the deficiencies in the tender

process serious questions touching the legality and propriety affecting the validity of the tender process would have arisen. In as much as the competent authority decided to cancel the tender process, it did not violate any

fundamental right of the appellant nor could the action of the respondent be termed unreasonable so as to warrant

any interference from this Court. The Division Bench of the High Court was, in that view, perfectly justified in setting aside the order passed by the Single Judge and dismissing the writ petition.

11. A useful reference can also be made to the decision

of the Apex Court in the case of Sanjay Kumar Vs. Bharat

Petroleum Corporation Limited and ors. (2014) 3 Supreme

Court Cases 493 thereby striking a note of caution with regard

to the exercise of the extraordinary jurisdiction vested in the

High Court under Article 226 of the Constitution of India in

contractual/tender matters and has observed in paragraphs 15,

16 & 17 thus :

15. We cannot help observing that in the present case exercise of the extraordinary jurisdiction vested in the High Court by Article 226 of the Constitution has been with a somewhat free hand oblivious of the note of caution struck by this Court with regard to such exercise, particularly, in

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contractual matters. The present, therefore, may be an

appropriate occasion to recall some of the observations of this Court in the above context.

16. In Raunaq International Ltd. Vs. I.V.R. Construction Ltd. (paragraphs 9, 10 and 11) this Court had held as follows :-

"9. The award of a contract, whether it is by a private party or by a public body or the State, is essentially a

commercial transaction. In arriving at a commercial decision, considerations which are of paramount importance are commercial considerations. These would be:

(1) the price at which the other side is willing to do the work;

(2) whether the goods or services offered are of the requisite specifications;

(3) whether the person tendering has the ability to deliver the goods or services as per specifications. When large works contracts involving engagement of substantial manpower or requiring specific skills are to

be offered, the financial ability of the tenderer to fulfil the requirements of the job is also important;

(4) the ability of the tenderer to deliver goods or services or to do the work of the requisite standard and quality;

(5) past experience of the tenderer and whether he has successfully completed similar work earlier;

(6) time which will be taken to deliver the goods or

services; and often

(7) the ability of the tenderer to take follow-up action, rectify defects or to give post-contract services.

Even when the State or a public body enters into a commercial transaction, considerations which would prevail in its decision to award the contract to a given party would be the same. However, because the State or a public body or

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an agency of the State enters into such a contract, there

could be, in a given case, an element of public law or public interest involved even in such a commercial transaction.

10. What are these elements of public interest? (1) Public money would be expended for the purposes of the contract. (2) The goods or services which are being commissioned could be for a public purpose, such as, construction of roads, public buildings, power plants or other public utilities. (3)

The public would be directly interested in the timely fulfilment of the contract so that the services become available to the public expeditiously. (4) The public would also be interested in the quality of the work undertaken or

goods supplied by the tenderer. Poor quality of work or goods can lead to tremendous public hardship and

substantial financial outlay either in correcting mistakes or in rectifying defects or even at times in redoing the entire work -- thus involving larger outlays of public money and delaying the availability of services, facilities or goods, e.g.,

a delay in commissioning a power project, as in the present case, could lead to power shortages, retardation of industrial development, hardship to the general public and substantial cost escalation.

11. When a writ petition is filed in the High Court challenging the award of a contract by a public authority or

the State, the court must be satisfied that there is some element of public interest involved in entertaining such a petition. If, for example, the dispute is purely between two tenderers, the court must be very careful to see if there is

any element of public interest involved in the litigation. A mere difference in the prices offered by the two tenderers may or may not be decisive in deciding whether any public interest is involved in intervening in such a commercial transaction. It is important to bear in mind that by court

intervention, the proposed project may be considerably delayed thus escalating the cost far more than any saving which the court would ultimately effect in public money by deciding the dispute in favour of one tenderer or the other tenderer. Therefore, unless the court is satisfied that there is a substantial amount of public interest, or the transaction is entered into mala fide, the court should not intervene under Article 226 in disputes between two rival tenderers."

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17. In Air India Ltd. Vs. Cochin International Airport Ltd. ,

there was a further reiteration of the said principle in the following terms:-

"7. The law relating to award of a contract by the State, its

corporations and bodies acting as instrumentalities and agencies of the Government has been settled by the decision of this Court in Ramana Dayaram Shetty v. International Airport Authority of India, Fertilizer Corpn. Kamgar Union

(Regd.) v. Union of India, CCE v. Dunlop India Ltd., Tata Cellular v. Union of India, Ramniklal N. Bhutta v. State of Maharashtra and Raunaq International Ltd. v. I.V.R. Construction Ltd. The award of a contract, whether it is by a private party or by a public body or the State, is essentially a

commercial transaction. In arriving at a commercial decision considerations which are paramount are commercial

considerations. The State can choose its own method to arrive at a decision. It can fix its own terms of invitation to tender and that is not open to judicial scrutiny. It can enter

into negotiations before finally deciding to accept one of the offers made to it. Price need not always be the sole criterion for awarding a contract. It is free to grant any relaxation, for bona fide reasons, if the tender conditions permit such a relaxation. It may not accept the offer even though it

happens to be the highest or the lowest. But the State, its corporations, instrumentalities and agencies are bound to

adhere to the norms, standards and procedures laid down by them and cannot depart from them arbitrarily. Though that decision is not amenable to judicial review, the court can examine the decision-making process and interfere if it

is found vitiated by mala fides, unreasonableness and arbitrariness. The State, its corporations, instrumentalities and agencies have the public duty to be fair to all concerned. Even when some defect is found in the decision- making process the court must exercise its discretionary power under Article 226 with great caution and should

exercise it only in furtherance of public interest and not merely on the making out of a legal point. The court should always keep the larger public interest in mind in order to decide whether its intervention is called for or not. Only when it comes to a conclusion that overwhelming public interest requires interference, the court should intervene."

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12. Learned Counsel for the petitioner submits that the

date of the notice inviting tender in the present case was

20/11/2015 and the last date for submission of bid was

27/11/2015. Packets 'A', 'B', & 'C' were opened on 27/11/2015,

02/12/2015 and 09/12/2015 respectively. The petitioner put

in their bid under the said tender and paid EMD (earnest money

deposit). According to the learned Counsel for the petitioner,

the action on the part of the respondent treating the bids

submitted by the petitioner as non-responsive on the ground

that till last date of submission of bids i.e. 27/11/2015, the

name of the petitioner was not removed from the blacklisting

done by the Police Housing Corporation, is illegal and arbitrary

mainly because on 24/11/2015, which was 3 days prior to the

last date of submission of bids, this Court had already passed

order regarding withdrawal of the name of the petitioner from

the blacklisting.

13. Learned Counsel for the petitioner would thus

contend that once there is order of this Court on the issue of

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removal of the name of the petitioner company from the

blacklisting, after that date it cannot be said that there is any

blacklisting of the petitioner in existence in law. According to

the learned Counsel for the petitioner though the order was

passed by the High Court on 24/11/2015, which fact was

intimated to the respondent, however, the copy of the order was

furnished to the respondent only on 28/11/2015 after it was

made available. Learned Counsel for the petitioner would

submit that the respondents have committed a grave error in not

taking note of order of this Court on the issue of blacklisting and

thus, have erroneously treated the bids submitted by the

petitioner as non-responsive. In any case, the copy of the order

of the High Court was made available to the respondent much

prior to 02/12/2015 when packet 'B' was opened and

09/12/2015 which was date for opening of packet 'C' of the said

tender and for finalising the bid and therefore also, the decision

of the respondents in treating the petitioner's bid as non-

responsive is arbitrary and unjustified. Learned Counsel for the

petitioner would further submit that the action of the

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respondents is completely illegal as the same has been passed

without issuance of any show cause notice and without hearing

the petitioner and is in total violation of principles of natural

justice.

14. Countering these submissions, Mr.A.Y.Sakhare,

learned Senior Counsel appearing on behalf of the respondents

has argued that there has been gross delay on the part of the

petitioner in filing this Petition. He invited our attention to the

relevant dates which has been tabulated in paragraph 8 of this

order to contend that the packet 'A' of the petitioner cannot be

re-opened at this stage as the same will cause prejudice and loss

to the respondents - Corporation. According to the learned

Counsel, the tender has currently reached its final stage and if at

this stage, packet 'A' is allowed to be re-opened, the same would

cause further delay of six months in issuing the work order.

15. The learned Senior Counsel contended that reading

of paragraph 4 of the order of this Court dated 24/11/2015

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clearly indicates that the effect of blacklisting of the petitioner is

wiped off only after order of blacklisting is withdrawn; in this

case as the Police Housing Corporation has withdrawn the

blacklisting order of the petitioner only on 16/12/2015 much

after packet 'C' was opened, no fault can be found with the

decision of the respondents - Corporation treating the bid of the

petitioner as non-responsive.

16. According to the learned Senior Counsel as on the

date when packet 'A' was opened i.e. on 27/11/2015, the

petitioner had not submitted any document proving blacklisting

is revoked and therefore, in the absence of there being any

material, the petitioner's bid was made non-responsive.

17. The learned Senior Counsel invited our attention to

the law laid down by the Apex Court in matters concerning

tenders and contracts which are extensively dealt with in the

case of Tata Cellular Vs. Union of India, (1994) 6 Supreme

Court Cases 651. He therefore contends that the modern trend

points to judicial restraint in administrative action.

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18. The learned Senior Counsel also relied upon the

decision of the Apex Court in the case of Air India Vs. Cochin

International Airport, 2000(2) Supreme Court Cases, 617 to

contend that even when some defect is found in the decision

making process, the Court must exercise its discretionary power

under Article 226 with great caution and should exercise it in

furtherance of public interest and not merely on the making out

of a legal point. The learned Senior Counsel would submit that

the scope of judicial review in matters of tenders and contracts

is considerably narrowed down. Thus, according to him, the

Apex Court has in the case of Jagdish Mandal Vs. State of

Orissa, 2006 14 SCALE 224 laid down the tests which should

be applied by a Court before interfering in tender or contractual

matters.

19. Learned Senior Counsel further submits that apart

from the delay in filing the Petition, the petitioner had not

disclosed the order of blacklisting to the respondents while

making the bids and on this ground also the petitioner is not

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entitled to claim any relief under Article 226 of the Constitution

of India.

20. Having considered the submissions advanced by the

learned Counsel for respective parties, we are of the view that

the action on the part of the respondents- Corporation treating

the petitioner's bid as non-responsive is unjustified and

unwarranted. This Court in the Petition filed by the petitioner

against the order dated 12/06/2015 of blacklisting, the

petitioner, in paragraph 4 recorded the statement of the learned

Counsel for respondents that the respondents will withdraw the

order of blacklisting dated 12th / 22nd June, 2015 qua the

petitioner. Furthermore, this Court, in the light of the statement

made on instructions of the learned Counsel for the Police

Housing Corporation in paragraph 5 has recorded that the

petitioner need not have any apprehension of the order being

implemented and detrimental to the interest of the petitioner in

any other contract or future works of the said Corporation. In

our opinion, the order passed by this Court is very categoric.

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Not only this Court had recorded the statement that the order of

blacklisting will be withdrawn but further clarified that the

petitioner need not have any apprehension of the order being

implemented and detrimental to the interest of the petitioner in

any of the contract or future works of the said Corporation. The

contention of the learned Counsel for the respondents -

Corporation that the said order of the High Court is applicable

only as regards tenders and contracts of the Police Housing

Corporation cannot be accepted as the same mitigates against

the letter and spirit of the order. Further, the submission of the

learned Counsel for the petitioner that the order of withdrawal

would take effect only from the date it is actually withdrawn by

the Police Housing Corporation i.e. 16/12/2015 is also devoid of

any merit. Having recorded the statement in paragraph 4 of the

order that blacklisting will be withdrawn, it is implicit that order

of blacklisting ceases to be in operation and/or having any force

at least from the date when the statement was recorded on

24/11/2015. The contention of the learned Senior Counsel

that the statement in paragraph 4 coupled with the clarification

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in clause 5 of the order dated 24/11/2015 is applicable qua

Police Housing Corporation only is very hyper-technical and can

only be stated to be rejected.

21. Admittedly, when packet 'A' was opened on

27/11/2015, the blacklisting as regards the petitioner was no

longer in force. Admittedly, on 28/11/2015, the petitioner

intimated the High Court's order dated 24/11/2015, the copy of

which was supplied to the respondents - Corporation after it

was received by the petitioner. In any case, before packet 'B'

was opened on 02/12/2015, the respondents - Corporation was

well aware about the order passed by this Court and had also

received the copy of the order.

22. The petitioner was informed by the communication

dated 29/01/2016 about the decision of 27/11/2015 as regards

treating the petitioner's bid non-responsive. Pursuant to the

grievance made by the petitioner about order dated

29/01/2016, the Petition came to be filed on 28/03/2016. The

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respondents, however, had not issued any work order even till

then and therefore, according to us, there is no delay on the part

of the petitioner in approaching this Court. The interim order

was passed by this Court only on 07/09/2016 restraining the

respondents from proceeding further with the tendering process,

till which date also the tender process was not finalized.

23.

After the arguments were advanced by the respective

parties, we indicated to the learned Senior Counsel for the

respondents as to whether the bid of the petitioner can be re-

opened. The learned Senior Counsel for the respondents -

Corporation submitted that in view of the passage of time and

consequent issue of cost escalation etc. , it may not be possible

for the Corporation to open the bid of the petitioner at this

stage, as the same would cause loss to the respondents -

Corporation. In any case the Corporation is always free to

continue with the existing tender process or otherwise

depending on the fact situation and subsequent developments in

accordance with law.

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24. According to us, in these facts, when pursuant to the

order passed by this Court on 24/11/2015, the order of

blacklisting was no longer in force, it is absolutely arbitrary and

unjust on the part of the respondents - Corporation to have

treated the petitioner's bid as non-responsive only on the ground

that copy of the order passed by this Court was not made

available to the respondents when packet 'A' was opened on

27/11/2015. The limited right that petitioner can claim in the

matters of tenders is a fair, equal and non-discriminatory

treatment in the matter of evaluation of his tender. As indicated

earlier, before opening of packet 'B' on 02/12/2015, the

respondents - Corporation was well aware of the order passed

by this Court, therefore, in our view action on the part of the

respondents - Corporation treating the petitioner's bid as non-

responsive on 27/11/2015 on the ground that the petitioner

was blacklisted is completely arbitrary and unfair to the

petitioner.

25. Consequently, we allow this Petition. Hence,

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following order.

i) The respondents - Corporation is directed to consider the

bid of the petitioner insofar as tender No. 7100058905 as responsive with the EMD treated as live and open the bid of the petitioner in accordance with the terms and

conditions of the tender.

     ii)     No order as to costs.



     26.
                             
                      Rule is made absolute in the above terms.
                            
     (M.S.KARNIK, J.)                                  (NARESH H. PATIL, J.)