Bombay High Court
Titagarh Wagons Ltd. And Anr vs Mumbai Metropolitan Regional ... on 27 August, 2021
Bench: K.K. Tated, P. K. Chavan
Digitally
signed by 1 PH8-WP 1741-21.odt
UMESH
UMESH RAMESH
RAMESH SHINDE
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Date:
SHINDE 2021.09.01
ORDINARY ORIGINAL CIVIL JURISDICTION
10:46:06
+0530
WRIT PETITION NO.1741 OF 2021
Titagarh Wagons Ltd. ] ... Petitioner
Versus
Mumbai Metropolitan Regional ]
Development Authority & Ors. ] ... Respondents
Mr. Virag Tulzapurkar, Senior Advocate a/w Ms. Bindi Dave, Mr. Kashish
Mainkar & Ms. Jyoti Pardeshi i/b Wadia Ghandy & Co. for Petitioner.
Dr. Milind Sathe, Senior Advocate a/w Mr. Saket Mone, Mr. Subit
Chakrabarti & Mr. Devansh Shah i/b Vidhii Partners for Respondent No.1
- MMRDA.
Mr. L. T. Satelkar, AGP for State - Respondent No.2.
Mr. Ravindra Kadam, Senior Advocate a/w Mr. Prateek Seksaria &
Aishwarya Singh i/b Shahezad A. Kazi for Respondent No.3.
CORAM :- K. K. TATED &
PRITHVIRAJ K. CHAVAN, JJ.
DATE :- 27 AUGUST, 2021
P. C. :-
1. Heard learned Counsel for parties.
2. By this petition under Article 226 of Constitution of India, the
Petitioner seeks to set aside (a) Respondent No.1's amendment to the
tender (Exh.A to the petition), (b) the financial bid cs (revised) which is
the revised record of opening of price bid (Exh.A-1 to the petition) and
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(c) the contract/tender, if any awarded in favour of the Respondent Nos.3
and 4.
3. The main contention of the learned Senior Advocate
appearing for the petitioner is that after opening of financial bid on
01/06/2021, the Respondent No.1 amended terms and conditions of the
tender. In support of his contention, he has relied on Exh.A-page 70 of
the petition. He further submits that because of amendment in the terms
and conditions, initially when the Petitioner was shown as L1, that was
changed and the Respondent Nos.2 and 3 were shown as L1. In support
of his contention, he has relied on record of opening of price bid (as
required in terms of ITB 27.12) (Exh.A-1, page 71). He submits that the
action taken by the Respondent No.1 after opening the financial bid on
01/06/2021 i.e. amending the terms and conditions of tender affects their
rights. Hence in the interest of justice, the Respondent No.1 be restrained
from awarding the said tender till the hearing and final disposal of the
petition.
4. On the other hand, learned Senior Advocate appearing for
the Respondent No.1 submits that there is no question of considering the
head of L1 or L2 in respect of the said tender on the basis of bid preview
dated 01/06/2021 placed on record by the Petitioner. He submits that
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thereafter the Respondents considered all the bids. They found that the
Respondent Nos.3 and 4 were bided lower than the Petitioner. He further
submits that they verified documents / bids on the basis of terms and
conditions of the tender. In support of his contention, he relied on
Clauses 27, 35, 42 and 44 of the terms and conditions of the said tender.
On the basis of these submissions, the earned Senior Advocate for
Respondent No.1 submits that there is no question of granting any ad-
interim relief at present. He also relied on the Judgment of the Apex
Court in the case of Raunaq International Ltd. Vs. I.V.R. Construction Ltd.
and Others, reported in (1999) 1 Supreme Court Cases 492 . He relied on
paragraphs 16, 18, 19 and 20 which read thus :
"16. It is also necessary to remember that price may not
always be the sole criterion for awarding a contract. Often
When an evaluation committee of experts is appointed to
evaluate offers, the expert committee's special knowledge
plays a decisive role in deciding which is the best offer. Price
offered is only one of the criteria. The past record of the
tenderers, the quality of the goods or services which are
offered, assessing such quality on the basis of the past
performance of the tenderer, its market reputation and so on,
all play an important role in deciding to whom the contract
should be awarded. At times, a higher price for a much better
quality of work, can be legitimately paid in order to secure
proper performance of the contract and good quality of work-
which is as much in public interest as a low price. The court
should not substitute its own decision for the decision of an
expert evaluation committee.
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18. The same considerations must weigh with the court
when interim orders are passed in such petitions. The party at
whose instance interim orders are obtained has to be made
accountable for the consequences of the interim order. The
interim order could delay the project, jettison finely worked
financial arrangements and escalate costs. Hence the
petitioner asking for interim orders, in appropriate cases
should be asked to provide security for any increase in cost as
a result of such delay, or any damages suffered by the opposite
party in consequence of an interim order. Otherwise public
detriment may outweigh public benefit in granting such
interim orders. Stay order or injunction order, if issued, must
be moulded to provide for restitution.
19. A somewhat different approach may be required in the
cases of award of a contract by the Government for the
purchase of times for its use. Judicial review would be
permissible only on the established grounds for such review
including mala fides, arbitrariness or unreasonableness of the
Wednesbury variety. Balance of convenience would play a
major role in moulding interim relief.
20. There is a third variety of transactions entered into by
the Government which come up for consideration before the
courts. This is where the Government grants licences or
permissions for a fee or consideration to private parties,
enabling them to commercially exploit such a licence or
permission. The principles of judicial review are no different
in such a case. However, grant of stay or injunction in such
cases may or may not result in prejudice to the public
revenue, depending on the facts of the case. At times granting
of a licence or permission may cause public harm e.g. in the
case of damage to the ecology. Interim orders will have to be
mauled in such cases on a consideration of all relevant factors,
providing for restitution where required in public interest. "
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5. On the basis of these submissions, the learned Senior
Advocate for Respondent Nos.1 submits that there is no question of
granting any ad-interim relief at this stage.
6. Learned Counsel appearing for the Respondent Nos.2 and 3
also opposed for granting any ad-interim relief.
7. We have heard both the sides at length. It is to be noted that
in the present proceedings namely the Petitioner relied on the bid which
shows that the Petitioner is L1 but after considering the financial tender,
the committee of the Respondent No.1 taken into consideration the price
deviation and in that they found that the Petitioner is not the L1 on the
basis of documents Exh.A-1-page 71. Considering this fact that at present
on the basis of the document at Exh.A-1-page 71, we do not find any
reasons to grant any ad-interim relief. Hence, the following order is
passed :
ORDER
(i) Admit.
(ii) No ad-interim and/or interim relief.
(iii) Hearing of petition is expedited.
(iv) Learned Counsel for Respondents waive service.
(PRITHVIRAJ K. CHAVAN, J.) (K. K. TATED, J.)
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