Mukesh Tikamji Purohit vs The Municipal Corporation Of ...
2021 Latest Caselaw 3492 Bom

                              1                    wpl-1734.2021



     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
         ORDINARY ORIGINAL CIVIL JURISDICTION
            WRIT PETITION (L) NO.1734 OF 2021


Mukesh Tikamji Purohit.                 ..    Petitioner
     Versus
The Municipal Corporation of
Greater Mumbai and Others.              ..    Respondents
     --
Mr.Chirag Kamdar along with Mr.          Pranay Joshi and Ms.
Vedanshi Shah i/by Bipin Joshi for      the Petitioner.

Mr. Bhavek Manek along with Ms. Vandana Mahadik for
the Respondents.
     --

                        CORAM :- DIPANKAR DATTA, CJ &
                                 G. S. KULKARNI, J.

DATED :- FEBRUARY 24, 2021

P.C.:

1. The Municipal Corporation of Greater Mumbai

(hereafter "the Corporation", for short) issued e-Tender

Notice dated December 22, 2020 inviting bids for execution

of the work of "major structural repairs of Municipal

property known as 60 tenements at 8th lane, Falkland

road, P.B. marg, Mumbai in D Ward", estimated cost of

which was assessed at Rs.2,28,52,025/-.

2. Intending to participate in the e-Tender, the Petitioner

(the proprietor of Purohit & Company) offered his bid 2 wpl-1734.2021

online. The bid, in terms of the e-Tender notice, ought to

have comprised of packets A, B and C. While packets A

and B were scheduled to be opened on January 1, 2021,

packet C was scheduled to be opened on January 11,

2021. On January 6, 2021, the petitioner received a mail

from the Corporation reading as follows:

"With reference to your compliance of packet-A, you are hereby requested to submit any documentary evidence for registration in class III and above category in MCGM in form of acknowledgement of application submitted to E.E. (M. & R.) before 11.01.2021 upto 3pm, failing which your bid may stand void and cancelled.

Please treat this as most urgent.

(bold in original)

3. The petitioner furnished the requisite documents, yet,

the Corporation proceeded to open packet C of all the other

bidders except the petitioner. As a consequence of

overlooking of his claim, the petitioner found himself

ousted from the zone of competition and thus invoked the

jurisdiction of this Court by presenting this writ petition

dated January 18, 2021 essentially seeking a direction on

the Corporation to regard him as an eligible bidder; to open

his packet C and to award the work to him on merits.

3 wpl-1734.2021

4. Appearing in support of the writ petition, Mr.Kamdar,

learned advocate contended that the Corporation acted

illegally and in an arbitrary manner in disqualifying the

petitioner on the ground that he is not a registered

contractor of the Corporation. According to him,

registration as a contractor with the Corporation is not laid

down as a pre-condition for participating in the process.

Referring to Exhibit-A of the writ petition, he further

asserted that Purohit & Company is registered as a Class

IV contractor by the Public Works Department,

Government of Maharashtra, and in terms of the eligibility

criteria delineated in the e-Tender notice, the petitioner

could apply for registration as a Corporation registered

contractor within three months' time period from the

award of the contract, failing which his bid security would

be forfeited. In such circumstances, the decision of the

Corporation to exclude the petitioner from the zone of

competition in clear deviation of the laid down norms is

illegal and arbitrary. Our attention was also drawn to a

decision dated April 8, 2019 of a coordinate bench of this

Court in Writ Petition (L) No.3757 of 2018 (Hanwant Singh 4 wpl-1734.2021

J. Ranavat Vs. The Municipal Corporation of Greater

Mumbai and Others) wherein, while interpreting a similar

clause as the one present in the e-Tender notice under

consideration, it was held that a contractor after being

awarded the contract was required to apply for registration

within three months thereof and such contractor could not

have been disqualified merely because on the date of

offering bid, he/it is not registered with the Corporation as

a contractor. Mr. Kamdar thus prayed that the petitioner

be granted relief as claimed in the writ petition,

particularly in view of the fact that the Corporation is yet to

award the contract in favour of the selected bidder.

5. Opposing the writ petition, Mr. Manek, learned

advocate for the Corporation contended that its action of

not considering the petitioner as eligible does not suffer

from any infirmity and that the writ petition being devoid of

substance, ought to be rejected in limine. Our attention

was drawn to the e-Tender notice and particularly to the

eligibility criteria. According to him, it provides three

categories of contractors who could be considered eligible

to participate and since the petitioner did not satisfy either 5 wpl-1734.2021

of the three, his bid was rightly not considered. He has also

dwelled on a factual aspect, which we propose to notice at

a later part of this judgment.

6. Having heard learned advocates for the parties at

some length and on perusal of the materials on record, the

only question we are tasked to decide is whether the

petitioner was eligible to participate in the e-Tender

process initiated by the Corporation by its notice dated

December 22, 2020.

7. For answering such question, it would be necessary

to read the eligibility criteria. Bare perusal of the eligibility

criteria, available at page 43 of the writ petition, reveals

three categories of contractors who could participate in the

e-Tender process, viz. (i) "contractors of repute,

multidisciplinary engineering organizations i.e. eminent

firm, Proprietary/Partnership Firms/Private Limited

Companies/Public Limited Companies/Companies

registered under the Indian Companies Act, 2013"; (ii)

"contractors registered with the Municipal Corporation of

Greater Mumbai in Class III and above as per new

registration"; and (iii) "the contractors/firms equivalent 6 wpl-1734.2021

and superior classes registered in Central or State

Government/Semi Government Organization/ Central or

State Public Sector Undertakings, will be allowed subject to

condition that, the contractors who are not registered with

the Corporation will have to apply for registering their firm

within three months' time period from the award of

contract".

8. Mr. Kamdar has not contended that the petitioner fits

in the first category. The petitioner also does not fit in the

second category because, admittedly, he is registered as a

Class IV contractor with the Corporation. The contention

advanced before us is that the petitioner could enter the

zone of competition because he fits in the third category.

Though the petitioner is registered as a Class IV contractor

with the Public Works Department, Government of

Maharashtra, he has the eligibility to participate in the e-

Tender process having regard to the decision of the

coordinate bench of this Court in Hanwant Singh J.

Ranavat (supra) and that, only if he fails to apply for

registration with the Corporation within three months' time

period from the award of contract, his bid security would 7 wpl-1734.2021

be liable to forfeiture.

9. This being the nature of arguments advanced before

us, we need to look at the eligibility criteria once again and

decide whether in terms thereof, the petitioner could be

regarded as eligible.

10. As has been noted above, the second category of

contractors who are eligible is those contractors who are

registered with the Corporation in Class III and above as

per the new registration. The third category, which follows

the second category, uses the expression "equivalent and

superior classes" registered with the entities mentioned

thereafter". The expression "equivalent and superior

classes" has to take colour from the preceding category of

eligible contractors, i.e., contractors registered with the

Corporation in Class III and above. Thus read and

interpreted, what it seeks to convey is that if a contractor

is not registered with the Corporation but is registered in

equivalent or superior classes, i.e., Class III and above,

with the Central or State Government/Semi Government

Organization/Central or State Public Sector Undertakings,

such a contractor would also be eligible to participate in 8 wpl-1734.2021

the e-Tender process, notwithstanding that he/it is not

registered with the Corporation, but on condition that he/it

will have to apply for registration with the Corporation

within three months' time period from the award of the

contract, if at all; in default whereof, the contractor would

suffer forfeiture of his/its bid security. In order to be

covered by the third category, what was required of the

petitioner was registration with the Central or State

Government/Semi Government Organization/Central or

State Public Sector Undertakings in Class III and above,

which he is not since his registration with the Public

Works Department is only as a Class IV contractor. We

have been shown by Mr. Manek that 6 (six) days prior to

the issuance of the e-Tender notice dated December 22,

2020, on December 16, 2020 to be precise, the petitioner

himself had applied before the Corporation for registration

as a Class IV contractor. The contractors registered with

the Corporation in Class IV may participate in tenders

invited for execution of works up to Rs.1.5 crore. If, indeed,

the petitioner had the capacity to carry out works in excess

of Rs.1.5 crore, there is no plausible reason as to why he 9 wpl-1734.2021

did not seek registration with the Corporation as a Class III

contractor and instead, opted to be registered as a Class IV

contractor. A presumption ought to be drawn that the

petitioner obtained registration as per his capacity to

execute works. The estimated cost of the work put to

tender under consideration being in excess of Rs.2.28

crore, the possibility of the petitioner not having the

capacity to execute the work put to e-Tender cannot be

ruled out. The contention of Mr. Manek has substance.

Even otherwise, the petitioner did not satisfy the laid down

eligibility criteria and, therefore, we do not see any reason

to hold that the Corporation was unfair in its treatment to

the petitioner.

11. What remains is the decision in the case of Hanwant

Singh J. Ranavat (supra). We have read the said decision

in between the lines. There, e-Tender notice dated

September 26, 2018 was under consideration which

included a similar clause providing the eligibility criteria.

We are afraid, we have not been shown any discussion in

such decision on the expression "equivalent and superior

classes" qua the category of Government registered 10 wpl-1734.2021

contractors eligible to participate in the e-Tender process.

Law is well settled that a decision is an authority for what

it decides and not what can logically be deduced therefrom.

The coordinate bench of this Court having interpreted the

relevant clause without considering the effect, import and

scope of the expression "equivalent and superior classes",

we do not feel inclined to be guided thereby and hold such

decision to be confined to the facts of that case.

12. In view of the foregoing discussion, we find no merit

in the writ petition. Accordingly, the same stands

dismissed. Interim order, if any, stands vacated. There

shall be no order as to costs.

                       G.S. KULKARNI, J                             CHIEF JUSTICE


Pravin D.
Pandit
Digitally signed by
Pravin D. Pandit
Date: 2021.02.25
21:20:50 +0530