Waterfront Constructions Pvt. ... vs Shri. Swami Samarth Engineers Ltd
2021 Latest Caselaw 3237 Bom

                                                                      50-IAST-1369-21.doc

             Sharayu Khot.
                         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                CIVIL APPELLATE JURISDICTION

                             INTERIM APPLICATION (ST) NO. 1369 OF 2021
                                                    IN
                              WRIT PETITION (ST) NO. 92861 OF 2020


                  Waterfront Constructions Pvt.Ltd.                 ...Applicant

                         In the matter between

                  Swami Samarth Engineers Ltd.                      ...Petitioner

                         Versus

                  The State of Maharashtra & Ors.                   ...Respondents

                                                 ----------
                  Mr. Rompal Kohli a/w Ms. Chandni Bhatt, i/by M/s. C.K. Legal,
                  for the Applicant.
                  Mrs. P.J. Gavhane, AGP, for the Respondent-State.
                  Mr. Surel S. Shah, i/by Mr. Ajit J. Kenjale, for the Respondent
                  No. 5 (Orig.Petitioner)
                                                 ----------

                                                 CORAM :          K.K. TATED &
                                                                  R.I. CHAGLA, JJ.

Sharayu
                                               DATE           :   18 February 2021
P. Khot


                  ORDER :

Digitally signed by Sharayu P.

Khot Date:

2021.02.24 14:40:42 +0530

1. Heard the learned Counsel for the parties.

2. By this Interim Application, the Applicant is

50-IAST-1369-21.doc

seeking direction against the Petitioner to join them as party

Respondent in Writ Petition (ST) No. 92861 of 2020 on the

ground that the Applicant is also one of the bidders in the

tender which is challenged in the present Petition.

3. Learned Counsel for the Applicant submits that

even the Apex Court in the matter Afcons Infrastructure

Limited Vs. Nagpur Metro Rail Corporation Limited & Anr .1

held that the bidders are also entitled to join themselves as a

parties to the pending Petition where the said tender is under

challenge. Paragraph 18 of the judgment reads thus:-

"18. Before we conclude, it is necessary to point out that the High Court was of opinion that the eligible bidders were not entitled to be either impleaded in the petition filed in the High Court by the ineligible bidder GYT-

TPL JV or were not entitled to be heard. With respect, this is not the appropriate view to take in matters such as the present. There are several reasons for this, one of them being that there could be occasions (as in the present appeals) where an eligible bidder could bring to the notice of the owner or employer of the project that the ineligible bidder was ineligible for

1 (2016)16 SCC 818

50-IAST-1369-21.doc

additional reasons or reasons that were not within the contemplation of the owner or employer of the project. It was brought to our notice by Afcons Infrastructure in these appeals that GYT-TPL JV did not have any experience in the construction of a viaduct by the segmental construction method and that the translations of documents in Mandarin language filed in the High Court were not true English translations. Submissions made by learned counsel for Afcons Infrastructure in this regard are important and would have had a bearing on the decision in the writ petition filed in the High Court but since Afcons Infrastructure was not a party in the High Court, it could not agitate these issues in the writ petition but did so in the review petition which was not entertained. It is to avoid such a situation that it would be more appropriate for the constitutional Courts to insist on all eligible bidders being made parties to the proceedings filed by an unsuccessful or ineligible bidder."

4. On the basis of this submission, learned Counsel for

the Applicant Mr. Kohli submits that the Petitioner may be

directed to add the Applicant as Respondent in the present

Writ Petition.

50-IAST-1369-21.doc

5. The learned Counsel appearing on behalf of the

Petitioner submits that they have no objection to join the

Applicant as party Respondent to the present Writ Petition.

Hence, we pass the following order:-

(i) The Petitioner is directed to join the Applicant as

Respondent No. 5 to the Writ Petition (ST) No.

92861 of 2020 during the course of the day.

(ii) The Petitioner is directed to serve a copy of the

Petition to the newly added Respondent or Advocate

on record immediately.

(iii) Liberty granted to the newly added Respondent, if

so desired, to file Affidavit in Reply on or before

23rd February 2021 with copy to other side.

(iv) Affidavit in Rejoinder, if any to be filed on or before

26th February 2021 with copy to other side.

(v) Interim Application is disposed of accordingly.

50-IAST-1369-21.doc

(vi) No order as to costs.

(vii) Writ Petition to appear on board 26th February

2021 under caption "For Direction and Interim

Relief".

(viii) Interim relief passed in Writ Petition to continue till

next date.

[R.I. CHAGLA J.]                               [K.K. TATED, J.]