Bombay High Court
Fawwaz Tours And Travels Thr Its ... vs Aurangabad Smart City ... on 24 February, 2021
Bench: S.V. Gangapurwala, Shrikant Dattatray Kulkarni
(1) wp-9134-2020
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.9134 OF 2020
FAWWAZ Tours & Travels,
Having its office at House No.2-11-45,
Panchkuwa, Killeyark, Aurangabad,
Through its Proprietor,
Mr. Gulam Fayyaz S/o gulam Mohd. Siddiqui,
Age: 44 years, Occ: Business,
R/o House No.1/11/45, Panchkuwa,
Kileyark, aurangabad 431001. ..PETITIONER
VERSUS
1. Aurangabad Smart City Development Corporation
Ltd.,
ASCDCL Office, War Room,
Near Ambedkar Research Centre,
Aam Khaas Maidan, Aurangabad 431 001,
through its Chief Executive Officer,
Who happens to be Municipal Commissioner Ex-
officio, Aurangabad Municipal Corporation,
Aurangabad.
2. The Secretary,
Smart City Development Corporation,
Mantralaya, Mumbai 400 032.
3. The Deputy Chief Executive Officer,
Aurangabad Smart city Development Corporation
Ltd., ASCDCL Office, War Room,
Near Ambedkar Research Centre,
Aam Khaas Maidan, Aurangabad 431 001
..RESPONDENTS
...
Mr. Ajay S. Deshpande, Advocate for the Petitioner.
Mr. Ameet R. Vaiday, AGP for Respondent Nos.1 to 3.
...
CORAM : S. V. GANGAPURWALA &
SHRIKANT D. KULKARNI, JJ.
Closed for Orders on : 18.01.2021.
Order Pronounced on : 24.02.2021.
FINAL ORDER (Per S. V. Gangapurwala, J.) :-
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1. The petitioner impugns the communication
of the respondent dated 21.12.2020. Under the said
communication, the tender process initiated is
canceled for Administrative reasons.
2. Mr. Deshpande, learned counsel for the
petitioner contends that respondent no.1 invited
the tenders for hiring vehicles for use of
officials of Aurangabad Smart City Development
Corporation Limited. The petitioner and one
Prashant Travel Services were found eligible in the
technical bid. The petitioner is the lowest bidder
after opening the financial bids. The petitioner
was communicated that due to Administrative reason,
the tender is canceled. In the interregnum, after
the opening of the financial bids and before
cancellation of the tender process, the petitioner
received a call and was summoned in the office of
respondents. It was tried to be demonstrated that
the tender of Prashant Travel Services is lower
than that of the petitioner. However, the same was
improper, the petitioner was the lowest tenderer.
Thereafter, one person Mr. Prateek introduced
petitioner with Mr. Pushkal Shivam who was said to
be the Deputy CEO of respondent no.1. He suggested
to bifurcate the tender and to allot the same 50:50
between petitioner and Prashant Travel Services.
The petitioner declined.
3. The learned counsel submits that no
Administrative reasons are assigned for cancelling
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the tender. The act of respondent no.1 in
cancelling the tender process is arbitrary. It
cannot choose any person it likes. The learned
counsel relies on the judgment of the Division
Bench of this Court in the case of Royal Power
Turnkey Implements Pvt. Ltd. Pimpri Vs. Maharashtra
Industrial Development Corporation, Mumbai & Ors.
reported in 2014 (5) Mh.L.J. 399. The learned
counsel submits that no reasons are assigned while
cancelling the tender process. The respondents
cannot substitute the reasons by way of an
affidavit. In the affidavit filed the reason
mentioned is that only two bidders were found
technically eligible. The reliance on Sub-clause
of Clause No.4.4.3.1 of the Government of
Maharashtra procurement policy under Government
Resolution dated 01.12.2016 is misplaced. The
Government Resolution relied by the respondents is
not applicable, as the same is not extended to
respondent nos.1 and 3. The respondent nos.1 and 3
are not included in the list of 98 establishment
mentioned in the State Government Resolution. The
scope and extend of the Rules promulgated alongwith
the Government Resolution dated 01.12.2016 has been
circumscribed by Rule 2.5 of the said Rule Book.
It extends only to the purchase of the commodities
and its application has been debarred to services,
civil work or transportation etc. As many as 24
Items are mentioned in the BoQ in Exhibit 'B', some
of the vehicles mentioned therein have not been
manufactured for using the same as Taxi and Taxi
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permits are not issued to those vehicles. Verna
and Creta as well as SUVs mentioned under Item
No.10, 11 and 13 are not issued Taxi permit.
Similarly, vehicles like Alto, Kwid etc. which are
below 800 CC power do not get Taxi permit, still
these vehicles were included in the tender process.
The petitioner is deliberately eliminated to favour
blue eyed persons like Prashant Travel Services.
The learned counsel submits that if there could be
negotiations while issuing work order to Prashant
Travel Services it is difficult to comprehend as to
what dissuaded the respondents from inviting the
petitioner for negotiation. This strengthens the
belief of the petitioner that, respondent
authorities were very much interested and bent upon
to allot the tender to the Prashant Travel
Services. The delay in tender process would
benefit Prashant Travel Services, as it is
supplying vehicles to respondent for last 8 months
and would continue to do so if the fresh tenders
are allotted. The cancellation of the tender by
sub-planting reasons of Government Resolution
01.12.2016 is absolutely colorable exercise of
powers.
4. The learned counsel further submits that
Clause 2 of the Terms and Conditions of the tender
states that vehicles to be provided should be as
far as possible post 2018 manufactured. The
production of Alto and Innova has been stopped by
the manufacturer atleast from 2016 and onwards.
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Basically, prescription of as many as 24 Items
itself is unjust, as some of the vehicles mentioned
do not get Taxi permit and production of the some
of the vehicles has been completely stopped by the
manufacturer in the year 2016.
5. Mr. Vaidya, learned counsel for the
respondents submits that the cancellation of the
tender process is on account of the fact that:
"A. While 6 bids were received in response
to the tender, only two bidders were found to
be technically eligible. Thus, as per the
standing Government instructions regarding
purchase of items for Government which is
embodied in the Manual relating to Government
purchase of the year 20016, Government of
Maharashtra procurement policy issued vide GR
dated 01/12/2016 (clause 4.4.3.1, the
financial offers of the bidders were opened)
B. As per Sub-clause No.B of said Clause
No.4.4.3.1 it is mandatory on the part of the
procuring authority that where the price
quoted is not between the price band of -10
to 20% to plus 10% of the estimated price,
the tender process must be recalled. For the
sake of ready reference, I crave and leave
and liberty of the Hon'ble Court to reproduce
Class B of the Rule No.4.4.3.1 of the revised
Manual of Office Procedure for Purchase of
Stores and other items issued by the
Government of Maharashtra
"c nksu fufonk rkaf=d n`"V;k ik= BjY;kl [kjsnhph okLrfod
fdaer o vxksnj Bjysyh vankftr fdaer ;ke/;s (-) 20
Vd~ds rs (+) ngk Vd~ds rQkor vlY;kl rh ekU; dj.;kl
[kjsnhnkj foHkkxkl eqHkk jkghy- ;k fdaer Js.kh e/;s (price
band) fdaer u vkY;kl Qsj fufonk dk<koh"
As per the GR, the financial offers should be
in the price band of -20% to +10% with regard
to the estimated rate. In case the offer
exceeds, the said price band, the tender may
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be recalled. The L1 rates for some category
of vehicles such as Swift Desire which are
regularly used by the Respondent No.1 and
involve significant outgo were found to be
exceeding the price band with reference to
the rates already being incurred by
Respondent No.1 for provisional usage of the
same vehicle. The rates therefore were not
found to be competitive.
C. Further, the L1 offer for some category
of vehicles is quoted to be zero. Thus, the
rates are also irregular. On account of
prices not being competitive and the
irregularity in quoted L1 prices where zero
is submitted as the offer, the tender was
cancelled on 21/12/2020."
6. The Prashant Travel Services was the
lowest bidder. The automated process of E-
tendering portal works on the basis of the
cumulative value of all the Items provided in
tender. While petitioner appears to be lowest
bidder for some type of vehicles. In fact
cumulative value of the bids by the petitioner and
the Prashant Travel Services shows that the
Prashant Travel Services is lowest bidder. The
cumulative offer of the petitioner's bid is
Rs.3,54,980.20/- and that of Prashant Travel
Services is Rs.3,44,484/-.
7. We have considered the submissions
canvassed by the learned counsel for the respective
parties.
8. The petitioner and one Prashant Travel
Services were only two eligible bidders in the
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fray, though six bids were received. Other bidders
were technically disqualified. The purpose of
tender process is to get the most competitive rates
by competition. If less number of tenderers are
qualified, the very purpose of competition and
floating the tender stands frustrated. In a case
of Royal Power Turnkey Implements Pvt. Ltd. Pimpri
Vs. Maharashtra Industrial Development Corporation,
Mumbai & Ors. (supra) relied by the petitioner,
three tenderer were qualified. The petitioner
before the Court in that case was admittedly the
lowest bidder. The Superintending Engineer and
Executive Engineer of MIDC recommended the higher
authority that the tender work be given to the
petitioner and abruptly the fresh tender notice was
published by MIDC. In the said case, in the fresh
tender the Terms and Conditions of the earlier
tender notice were modified to favour the
contractors who were unsuccessful. The petitioner
therein was not informed about the result of the
tender process initiated earlier. In light of
that, the Court came to the conclusion that the
action of the respondents therein was arbitrary.
9. In the present case, there are only two
qualified bidders. The respondents have disputed
the petitioner to be the lowest bidder. In some of
the Items the petitioner was the lowest bidder,
whereas in other Items the another bidder was
lowest and according to the respondents
cumulatively Prashant Travel Services was lowest
(8) wp-9134-2020
bidder than the petitioner. The Manual published
on 01.12.2016 is relied by the respondents. Even
if it is assumed that, the said Government
Resolution is not totally applicable, it would
transpire that the petitioner was not the lowest
bidder in all the Items. In some of the Items
Prashant Travel Services was lowest, so also it was
found that cumulatively Prashant Travel Services
was the lowest bidder. In 3 Items Prashant Travel
Services mentioned zero charges meaning thereby he
would not be charging for those Items.
10. In the Rejoinder affidavit the petitioner
contends that the Clause 2 of the Terms and
Conditions appearing in the tender viz vehicles to
be supplied should be post 2018 manufactured and
that manufacturer of Alto and Innova is stopped
from 2016 onwards and that the prescription of as
many as 24 Items itself is unjust. In that case,
the petitioner is contending that the tender issued
is erroneous and if erroneous tender process is
cancelled, then the petitioner cannot have a reason
to make a grievance. The petitioner on one hand
cannot suggest that the Terms and Conditions of the
tender are not proper and on the other hand claim
his right to get the tender on the basis of the
same Terms and Conditions. The same would run
counter to each other.
11. In tender matters some leverage is given
to the principal. The respondent is entitled to
(9) wp-9134-2020
get most competitive bids and reasons are given as
to how both the tenders could not have been
accepted.
12. We do not find on the facts on record that
the petitioner has made out case of arbitrariness
on the part of the respondents, more particularly,
when the petitioner is not shown to be the lowest
bidder.
13. In light of that no relief can be granted
to the petitioner. Writ Petition as such is
disposed of. No costs.
(SHRIKANT D. KULKARNI) (S. V. GANGAPURWALA)
JUDGE JUDGE
Devendra/April-2020
