Bombay High Court
Beml Ltd.Bengaluru, Karnataka ... vs M/S Nagpur Metro Rail Corporation ... on 25 October, 2016
Bench: B.R. Gavai
1 wp6116.16.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
WRIT PETITION NO.6116 OF 2016
BEML Limited a Central Public
Sector Undertaking, Having its
Corporate Office at BEMLSOUDHA,
No.23/1, 4th Main Road, SR Nagar,
Bengaluru-560 027, Karnataka
State, through Mr.B S P Rao, the
Regional Manager of Petitioner
Company at Nagpur. .......... PETITIONER
// VERSUS //
1. M/s. Nagpur Metro Rail Corporation
Limited (NMRCL), Having Registered
Office at Metro House, 28/1, Anand
Nagar, C K Naidu Road, Civil
Lines, Nagpur 440001, through
its General Manager (Procurement).
::: Uploaded on - 27/10/2016 ::: Downloaded on - 28/10/2016 00:45:30 :::
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2. CRRC Corporation Limited (China
Railway Rolling Stock Corporation)
through Mr.Liu Jianhua, Deputy
Project Manager, C 541, 2nd
Floor, Defence Colony,
New Delhi. .......... RESPONDENTS
______________________________________________________________
Mr.K.N.Shukul, Advocate for the petitioner.
Mr.S.K.Mishra, Senior Counsel with Mr.Kastubh
Deogade, Advocate for respondent no.1.
Mr.Sunil Manohar, Senior Counsel with Mr.Akshay
Naik, for respondent no.2.
_______________________________________________________________
CORAM : B.R. GAVAI
AND
V.M. DESHPANDE, JJ.
DATE : 25.10.2016.
ORAL JUDGMENT (Per B.R.Gavai, J) :
1. Rule. Rule is returnable forthwith. Heard finally by consent.
2. This petition challenges the decision of respondent no.1, dated
29th September, 2006 vide which the petitioner has been held to be
disqualified by respondent no.1 in the tender for the work of design,
manufacture, supply, testing, commissioning of Passenger Rolling Stock
3 wp6116.16.odt
(Electrical Multiple Units) and Training of Personnel (hereinafter
referred to as the "the said work" for short).
3. Respondent no.1/Nagpur Metro Rail Corporation Ltd. had
issued tender notice on 25.1.2016 thereby inviting tenders for the said
work.
4. In response to the said tender notice, three bidders had
submitted their bids (i.e. petitioners herein). In the technical bid, the
petitioner was found to be disqualified and as such, only Consortium of
Titagarh Firema Adler S.P.A. and present respondent no.2 remained in
the fray. In the financial bid opened on 29th September, 2016,
respondent no.2 herein was found to have given a bid of Rs. 851
Crores; whereas Consortium of Titagarh Firema Adler S.P.A. had given
a bid of Rs.852 Crores. Being aggrieved by the decision of respondent
no.1/Nagpur Metro Rail Corporation Ltd. to award contract to
respondent no.2 herein/CRRC Corporation Limited (China Railway
Rolling Stock Corporation). Consortium of Titagarh Firema Adler S.P.A.
had approached this Court by way of Writ Petition No.5818 of 2016.
This Court, vide Judgment and Order dt.5.10.2016, declined to
interfere with the decision taken by Tender Evaluation Committee and
4 wp6116.16.odt
approved by the Director Level Tender Committee. Subsequent to
dismissal of the said Writ Petition, respondent no.1 awarded contract
to respondent no.2 and also issued work order on 5.10.2016.
5. Now the petitioner has approached this Court contending
that the decision of respondent no.1 disqualifying it vide
communication dated 29th September, 2016 is erroneous in law.
6.
We have heard Mr.K.N.Shukul, leaned Counsel for the
petitioner, Mr.S.K.Mishra, learned Senior Counsel for respondent no.1
and Mr.Sunil Manohar, learned Senior Counsel for respondent no.2.
7. Mr.K.N.Shukul, learned Counsel for the petitioner has made
two fold submissions. The first submission of the learned Counsel is
that the requirement under clause 13 of 'Filter of Applicants - Checklist'
regarding supply of equipments to minimum one country outside the
country of origin/manufacture or in India is applicable only insofar as
minimum five different contracts in the metros is concerned. He
submits that the said condition does not require 500 cars to be supplied
to one country outside the country of origin. Alternatively, the learned
Counsel, on the basis of petitioner's reply to the query made by
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respondent no.1, submits that, as a matter of fact, the petitioner has
supplied more than 500 cars. He submits that the total number of cars
supplied by the petitioner is 512. To meet the communication of
respondent no.1 that, out of the said cars, 363 cars are TRAMS, the
learned Counsel submits that, in the understanding of respondent no.1
itself, the TRAM cars and LRTs (Light Rail Transit) are one and the
same thing.
8.
The learned Counsel for the petitioner submits that the
decision of respondent no.1 in not taking into consideration the
experience of TRAM car on par with LRT experience is not sustainable
in law and is totally arbitrary. The learned Counsel relies on various
documents including the document at page no.67 to contend that the
LRT and the TRAM are one and the same thing.
9. For considering the rival submissions, it will be appropriate
to refer to clause (13) of Filter of Applicants - Checklist wherein various
points have been culled out to find out as to whether a bidder is
technically qualified or not.
6 wp6116.16.odt
10. Clause 13 of Filter of Applicants - Checklist reads thus :
" Propulsion System :
Does any member of the Consortium/Joint Venture individually
or its Parent Company or its group companies have cumulative
experience of minimum ten (10) years in the Design and
Manufacturing of Propulsion Equipments (Traction Converter-
Inverter, Auxillary Converter-Inverter and Traction Motor) for
metro rolling stick AND do the propulsion equipment supplied
have been in satisfactory revenue operation for atleast five (5)
years in minimum aggregate 500 cars comprising of both
powered and non-powered cars, supplied against minimum five
(5) different contracts in the metros (i.e. MRT, LRT, Suburban
Railways or High Speed Railways) of minimum one country
outside the country of origin/manufacture or in India. "
11. A plain and simple interpretation of clause 13 would
reveal that a person must have a cumulative experience of
minimum 10 years in the Design and Manufacturing of Propulsion
Equipments (Traction Converter-Inverter, Auxillary Converter-
Inverter and Traction Motor) for metro rolling stock. The said
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clause would further reveal that the said person must satisfy that
the propulsion equipment supplied have been in satisfactory
revenue operation for at least five years in minimum. It further
provides that aggregate 500 cars comprising of both powered and
non-powered cars must be supplied against minimum five different
contracts in the metros (i.e. MRT, LRT, Suburban Railways or High
Speed Railways) of minimum one country outside the country of
origin/manufacture or in India.
12. If we read clause 13 harmoniously, it will be clear that
the bidder must have an experience of supplying minimum
aggregate 500 cars comprising of both powered and non-powered
cars and they should be in satisfactory revenue operation for at
least five years. Not only that, the simple and plain interpretation
would reveal that those 500 cars must be supplied against
minimum five different contracts in the metros ( i.e. MRT, LRT,
Suburban Railways or High Speed Railways) of minimum one
country outside the country of origin/manufacture or in India.
13. In any case, that is the interpretation placed on the said
clause by the employer. If we accept the contention of the
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petitioner, then we will be doing the same thing which the Division
Bench of this Court had done while deciding Writ Petition
No.4273 of 2016, M/s. GYT-TPL Joint Venture, by its authorised
Signatory Shaibai Roy vs. Nagpur Metro Rail Corporation Ltd.,
Nagpur. The said decision was challenged before the Hon'ble Apex
Court. The Hon'ble Apex Court, while allowing the two appeals
(Civil Appeal No.9078-9079 of 2016 and Civil Appeal No.9080-
9081 of 2016) filed by respondent no.1 herein and one of the
bidders, has observed thus :
"15.We may add that the owner or the employer of a
project, having authored the tender documents, is the
best person to understand and appreciate its
requirements and interpret its document. The
Constitutional Courts must defer to this understanding
and appreciation of the tender documents, unless there
is mala fide or perversity in the understanding or
appreciation or in the application of the terms of the
tender conditions. It is possible that the owner or
employer of a project may give an interpretation to the
tender documents that is not acceptable to the
Constitutional Courts but that by itself is not a reason
for interfering with the interpretation given."
9 wp6116.16.odt
"16. In the present appeals, although there does not
appear to be any ambiguity or doubt about the
interpretation given by NMRCL to the tender
conditions, we are of the view that even if there was
such an ambiguity or doubt, the High Court ought to
have refrained from giving its own interpretation unless
it had come to a clear conclusion that the
interpretation given by NMRCL was perverse or mala
fide or intended to favour one of the bidders. This was
certainly not the case either before the High Court or
before this Court. " (emphasis supplied).
14. It could thus be seen that Their Lordships have in
unequivocal terms held that this Court should refrain from giving
its own interpretation unless it is found that the interpretation
given by the employer is perverse, mala fide or intended to favour
one of the bidders.
15. It will also be appropriate to refer to the earlier
Judgment of the Apex Court in the case of Central Coalfields
Limited .vs. SLL - SML (Joint Venture Consortium) reported in
2016 (8) Scale 99, wherein Their Lordships have held thus :-
10 wp6116.16.odt
"47. The result of this discussion is that the issue of the
acceptance or rejection of a bid or a bidder should be
looked at not only from the point of view of the
unsuccessful party but also from the point of view of
the employer. As held in Ramana Dayaram Shetty, the
terms of the NIT cannot be ignored as being redundant
or superfluous. They must be given a meaning and the
necessary significance. As pointed out in Tata Cellular
there must be judicial restraint in interfering with
administrative action. Ordinarily, the soundness of the
decision taken by the employer ought not to be
questioned but the decision making process can
certainly be subject to judicial review. The soundness
of the decision may be questioned if it is irrational or
mala fide or intended to favour someone or a decision
"that no responsible authority acting reasonably and in
accordance with relevant law could have reached" as
held in Jagdish Mandal followed in Michigan Rubber."
"48. Therefore, whether a term of the NIT is essential
or not is a decision taken by the employer which should
be respected. Even if the term is essential, the employer
has the inherent authority to deviate from it provided
the deviation is made applicable to all bidders and
potential bidders as held in Ramana Dayaram Shetty.
However, if the term is held by the employer to be
ancillary or subsidiary, even that decision should be
11 wp6116.16.odt
respected. The lawfulness of that decision can be
questioned on very limited grounds, as mentioned in
the various decisions discussed above, but the
soundness of the decision cannot be questioned,
otherwise this Court would be taking over the function
of the tender issuing authority, which it cannot. "
16. It could thus be seen that if we accept the arguments of the
learned Counsel for the petitioner to interpret the clause in his own
manner and contrary to the interpretation placed by the employer, we
will be committing the same mistake which has been corrected by the
Hon'ble Apex Court in the aforesaid two Judgments.
17. In any case, we find that, even otherwise, the interpretation
as placed by the employer on clause no.13 cannot be in any way said
to be incorrect, leave aside perverse. If we accept the contention of the
petitioner, then the words used in clause no.13 "MRT, LRT, Suburban
Railways or High Speed Railways" will have to be totally ignored. If
the employer wanted to include experience of the TRAMS also, then
nothing precluded the employer to make such addition after the
words therein.
12 wp6116.16.odt
18. Apart from that, it will be appropriate to refer to definition
of "Metro Railway" as is found in clause (i) of Section 2 of the Metro
Railways (Operation and Maintenance) Act, 2002, which is as under :
"metro railway" means rail-guided mass rapid transit
system having dedicated right-of-way, with steel wheel
or rubber-tyred wheel coaches, but excluding
tramways, for carriage of passengers, and includes -
(A) all land within the boundary marks indicating the
limits of the land appurtenant to a metro railway.
(B) all rail tracks, sidings, yards or branches worked
over for the purposes of, or in connection with, a metro
railway.
(C ) all stations, offices, ventilation shafts and ducts,
warehouses, workshops, manufactories, fixed plants
and machineries, sheds, depots and other works
constructed for the purpose of, or in connection with, a
metro railway.".
19. The definition would clearly reveal that the tramways have
been specifically excluded from the definition of Metro Railway.
13 wp6116.16.odt
20. In that view of the matter, we are of the considered view
that the interpretation as placed by the employer cannot be said to be
perverse.
21. Another ground on which interference would be warranted
is mala fides. However, no person against whom mala fides are
alleged nor any specific averment in that regard are to be found in the
petition. In that view of the matter, the challenge on the said ground
is also not sustainable in law.
22. Insofar as the contention of the petitioner that respondent
no.1 itself considering the TRAM to be similar to LRT and reliance on
certain documents is concerned, perusal of the record would reveal
that the document on which petitioner relies are not of respondent
no.1, but of the other Authorities. One of such document is DPR
prepared by the Delhi Metro Rail Corporation Ltd. As such, in our
view, the contention in that regard is without substance.
23. It is further to be noted that the petitioner was found to be
disqualified on 29th September, 2016. The petitioner was very well
aware that the decision of respondent no.1 to award contract to
14 wp6116.16.odt
respondent no.2 was under challenge before this Court and the said
challenge was decided on 5.10.2016. The petitioner was also aware
that the work order was issued on 5.10.2016. Thereafter, the petition
was filed on 15.10.2016. The petition was under objection till
17.10.2016. The matter was circulated on 18.10.2016 and on that
day, notice was issued by this Court for today.
24. We find that the conduct of the petitioner is also additional
ground to be taken into consideration for not entertaining the
petition.
25. We find that any interference at this stage would delay the
project which is very important for easing out the traffic problem in
the City of Nagpur. In this respect, it will be further relevant to refer
to the observations of the Apex Court in the case of Central Coalfields
Limited (supra), which are thus :
" In this context, and in the present times, it is
important to note that the World Bank has ranked
India extremely low in matters relating to enforcement
of contracts and ease of doing business. Out of 189
countries worldwide, India is ranked 178 in the matter
15 wp6116.16.odt
of enforcement or contracts and 130 in the matter of
ease of doing business. One of the possible reasons for
this extremely low ranking given to our country is the
failure of all parties concerned in strictly adhering to the
terms of documents such as the NIT and the GTC.
Insofar as the present case is concerned, the NIT was
floated on 5th August, 2015 and one year later, we are
still struggling with the issue of acceptance of a bank
guarantee for a contract of about Rs.2000 crores
certainly not a small sum. "
26. In that view of the matter, no case is made out for
interference. Hence, the Writ Petition is dismissed.
No order as to costs.
JUDGE JUDGE
[jaiswal]
16 wp6116.16.odt
tender conditions. It is possible that the owner or
employer of a project may give an interpretation to the
tender documents that is not acceptable to the
Constitutional Courts but that by itself is not a reason
for interfering with the interpretation given."
"16. In the present appeals, although there does not
appear to be any ambiguity or doubt about the
interpretation given by NMRCL to the tender
conditions, we are of the view that even if there was
such an ambiguity or doubt, the High Court ought to
have refrained from giving its own interpretation unless
it had come to a clear conclusion that the
interpretation given by NMRCL was perverse or mala
fide or intended to favour one of the bidders. This was
certainly not the case either before the High Court or
before this Court. "
It could thus be seen that Their Lordships have in
unequivocal terms held that this Court should refrain from
giving its own interpretation unless it is found that the
interpretation given by the employer is perverse, mala fide or
intended to favour one of the bidders.
It will also be appropriate to refer to the earlier Judgment
of the Apex Court in the case of Central Coalfields
Limited .vs. SLL - SML (Joint Venture Consortium)
17 wp6116.16.odt
reported in 2016 (8) Scale 99, wherein Their Lordships have
held thus :-
"47. The result of this discussion is that the issue of the
acceptance or rejection of a bid or a bidder should be
looked at not only from the point of view of the
unsuccessful party but also from the point of view of
the employer. As held in Ramana Dayaram Shetty, the
terms of the NIT cannot be ignored as being redundant
or superfluous. They must be given a meaning and the
necessary significance. As pointed out in Tata Cellular
there must be judicial restraint in interfering with
administrative action. Ordinarily, the soundness of the
decision taken by the employer ought not to be
questioned but the decision making process can
certainly be subject to judicial review. The soundness
of the decision may be questioned if it is irrational or
mala fide or intended to favour someone or a decision
"that no responsible authority acting reasonably and in
accordance with relevant law could have reached" as
held in Jagdish Mandal followed in Michigan Rubber."
"48. Therefore, whether a term of the NIT is essential
or not is a decision taken by the employer which should
be respected. Even if the term is essential, the employer
has the inherent authority to deviate from it provided
the deviation is made applicable to all bidders and
18 wp6116.16.odt
potential bidders as held in Ramana Dayaram Shetty.
However, if the term is held by the employer to be
ancillary or subsidiary, even that decision should be
respected. The lawfulness of that decision can be
questioned on very limited grounds, as mentioned in
the various decisions discussed above, but the
soundness of the decision cannot be questioned,
otherwise this Court would be taking over the function
of the tender issuing authority, which it cannot. "
It could thus be seen that if we accept the arguments of the
learned Counsel for the petitioner to interpret the clause in
his own manner and contrary to the interpretation placed by
the employer, we will be committing the same mistake which
has been corrected by the Hon'ble Apex Court in the
aforesaid two Judgments.
In any case, we find that, even otherwise, the interpretation
as placed by the employer on clause no.13 cannot be in any
way said to be incorrect, leave aside perverse. If we accept
the contention of the petitioner, then the words used in
clause no.13 "MRT, LRT, Suburban Railways or High Speed
Railways" will have to be totally ignored. If the employer
wanted to include experience of the TRAMS also, then
nothing precluded the employer to make such addition after
the words therein.
Apart from that, it will be appropriate to refer to definition
of "Metro Railway" as is found in clause (i) of Section 2 of the
19 wp6116.16.odt
Metro Railways (Operation and Maintenance) Act, 2002,
which is as under :
"metro railway" means rail-guided mass rapid transit
system having dedicated right-of-way, with steel wheel
or rubber-tyred wheel coaches, but excluding
tramways, for carriage of passengers, and includes -
(A) all land within the boundary marks indicating the
limits of the land appurtenant to a metro railway.
(B) all rail tracks, sidings, yards or branches worked
over for the purposes of, or in connection with, a metro
railway.
(C ) all stations, offices, ventilation shafts and ducts,
warehouses, workshops, manufactories, fixed plants
and machineries, sheds, depots and other works
constructed for the purpose of, or in connection with, a
metro railway.".
The definition would clearly reveal that the tramways have
been specifically excluded from the definition of Metro
Railway.
In that view of the matter, we are of the considered view
that the interpretation as placed by the employer cannot be
said to be perverse.
Another ground on which interference would be warranted
is mala fides. However, no person against whom mala fides
20 wp6116.16.odt
are alleged or are specifically made are to be found in the
petition. In that view of the matter, the challenge on the said
ground is also not sustainable in law.
It is further to be noted that the petitioner was found to be
disqualified on 29th September, 2016. The petitioner was
very well aware that the decision of respondent no.1 to
award contract to respondent no.2 was under challenge
before this Court and the said challenge was decided on
5.10.2016. The petitioner was also aware that the work
order was issued on 5.10.2016. Thereafter, the petition was
filed on 15.10.2016. The petition was under objection till
17.10.2016. The matter was circulated on 18.10.2016 and
on that day, notice was issued by this Court for today.
We find that any interference at this stage would delay the
project which is very important for easing out the traffic
problem in the City of Nagpur. In this respect, it will be
further relevant to refer to the observations of the Apex
Court in the case of Central Coalfields Limited (supra), which
are thus :
" In this context, and in the present times, it is
important to note that the World Bank has ranked
India extremely low in matters relating to enforcement
of contracts and ease of doing business. Out of 189
countries worldwide, India is ranked 178 in the matter
of enforcement or contracts and 130 in the matter of
ease of doing business. One of the possible reasons for
this extremely low ranking given to our country is the
21 wp6116.16.odt
failure of all parties concerned in strictly adhering to the
terms of documents such as the NIT and the GTC.
Insofar as the present case is concerned, the NIT was
floated on 5th August, 2015 and one year later, we are
still struggling with the issue of acceptance of a bank
guarantee for a contract of about Rs.2000 crores
certainly not a small sum. "
In that view of the matter, no case is made out for
interference. Hence, the Writ Petition is dismissed.
No order as to costs.
JUDGE JUDGE
[jaiswal]
____________________________________________________________
Mr.Mahesh Rai, Adv. for the Appellant.
Mr.V.A.Thakare, A.P.P. for the Respondent/State.
____________________________________________________________
22 wp6116.16.odt
CORAM : B.R. GAVAI
AND
V. M. DESHPANDE, JJ.
DATED :
ORAL JUDGMENT (Per B.R. GAVAI, J) :
1. Being aggrieved by the Judgment and Order of conviction
passed by the learned 2nd Ad-hoc Additional Sessions Judge,
Wardha on 17.5..... in Sessions Trial No...../2008 whereby the
learned Court below convicted the appellant for the offence
punishable under Section 302 of the Indian Penal Code and 201 of
the Indian Penal Code. On first count, the appellant was directed to
suffer imprisonment for life and to pay a fine of Rs.1,000/-, in
default of payment of fine, he was to suffer simple imprisonment for
three months. On account of offence punishable under Section 201
of the Indian Penal Code, the learned Judge directed that the
appellant should suffer rigorous imprisonment for two years and to
23 wp6116.16.odt
pay a fine of Rs.500/- in default of payment of fine it was directed
that he shall suffer simple imprisonment for one month.
2. The prosecution as is unfolded during the course of trial is as
under :
JUDGE JUDGE
[jaiswal]
24 wp6116.16.odt
CERTIFICATE
I certify that this Judgment uploaded is a true and correct copy
of original signed Judgment.
Uploaded by : Jaiswal, P.S. Uploaded on :
