Sreebalajee Consultants vs Mira Bhayander Municipal ...
2023 Latest Caselaw 360 Bom

                      k                                  1/5                 80 wp 10072.22 as.doc




                                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                          CIVIL APPELLATE JURISDICTION

                                           WRIT PETITION NO.10072 OF 2022

                      Sreebalajee Consultants                                  ....Petitioner
                            V/S
                      Mira Bhayander Municipal Corporation & Ors.              ....Respondents
                                                         ...

                      Mr. K.P.Anil Kumar a/w Ms. Roshni Viani, Ms. Priyanka Kumar, Mr. Chinmay
                      Apte for the Petitioner.
                      Mr. Mayuresh Lagu for Respondent Nos.1 and 2-Corporation.
                                                         ...
                                                      CORAM: S.V. GANGAPURWALA, ACJ &
                                                             SANDEEP V. MARNE, J.

DATE : 10 JANUARY 2023.

P.C.:

1 Pursuant to the tender notice the Petitioner had submitted its bid for

construction, maintenance, repair of bus stop, shops in Mira Bhayander

Municipal Corporation area on build-use-and-transfer basis and grant of

rights to the broadcast advertisements on the bus stops. The Petitioner

was held eligible in the technical and financial bid. The Petitioner was found

to be the highest bidder. It is the case of the Petitioner that Petitioner was

called for negotiation and the Petitioner had increased is offer by

Rs.15,00,000/-. The Petitioner agreed also. However, on or about 6 August

2022 the tender was cancelled.

2 The learned Counsel for the Petitioner submits that the entire tender SUDARSHAN RAJALINGAM KATKAM process pursuant to which the Petitioner had filled the tender was Digitally signed by

SUDARSHAN RAJALINGAM KATKAM Date: 2023.01.12 11:02:14 +0530 k 2/5 80 wp 10072.22 as.doc

completed. The Petitioner was found to be the highest bidder and qualified

with each and every terms and conditions of the tender. The Petitioner was

called for negotiation for increasing his offer by Rs.15,00,000/- and it agreed

for the same. Pursuant to the request of the Respondent-Corporation the

Petitioner also constructed the model bus stand and had spent an amount

of Rs.12,00,000/-. It was arbitrary on the part of the Respondent-

Corporation to cancel the tender at such an advanced stage. The entire

process of the tender having concluded, only work order remained to be

issued. According to the learned Counsel, the reason for cancellation of the

tender is erroneous, unreasonable and irrational. The learned Counsel

further submits that thereafter second and third tenders were issued but the

Respondent-Corporation did not get any bidder. The fourth tender was also

issued surreptitiously by increasing the eligibility criteria of turn over of Rs.1

crore per year to turn over of Rs.3 crores. The same was to favour the

contractor in which the Respondent-Corporation was interested. For the

fourth tender a cartel was created and the same entity in two names had bid

in the tender process. According to the learned Counsel, if the decision

making process is arbitrary then this Court can interfere and exercise its

powers of judicial review under Article 226 of the Constitution. The learned

Counsel relies upon the judgment of the Apex Court in case of Food

Corporation of India vs. M/s. Kamdhenu Cattle Feed, reported in AIR

k 3/5 80 wp 10072.22 as.doc

1993 SC 1601. The learned Counsel further submits that it is a legitimate

expectation of tenderer that being highest bidder, would be entitled for the

work order. The learned Counsel further relies upon the judgment of the

Apex Court in the case of B.S.N. Joshi & Sons Ltd. vs. Nair Coal

Services Ltd. & Ors. reported in (2006) 11 SCC 548 to submit that

marginalization by bidding contractor is impermissible. The act of the

Respondent-Corporation is not bonafide and is stated to be malafide.

3 The learned Advocate for the Respondent-Corporation submits that

no work order was issued in favour of the Petitioner. It was found by the

Committee that the price received was too less and therefore a decision

was taken to float fresh tender. The fresh tenders were floated for the

second and third time but no eligible bids were received. However, in the

fourth tender the highest bidder was 30% more than the Petitioner, the

Respondents are benefitted by the better retendering. The Petitioner has

not challenged the decision to proceed with retendering.

4     We have considered the submissions.

5     The jurisdiction of this Court to entertain a Writ Petition in respect of

contractual matters and/or tender is in a narrow campass. This Court would

only concerned with the decision making process and not the decision. This

Court would not sit as an Appellate Authority over the decision taken by the

k 4/5 80 wp 10072.22 as.doc

Respondent-Corporation but is only concerned with a due adherence of the

decision making process.

6 It appears that when the first tender was issued, the Petitioner was

the highest bidder. According to the Petitioner the bid was also raised by

Rs.15,00,000/- and that the model bus stop was also constructed. However,

the same does not find approval from the Respondent-Corporation.

7 The Petitioner was never issued with the work order. No concluded

contract came into existence between the parties. As concluded contract did

not come into existence, the Petitioner did not get the vested right nor any

contractual obligation arose.

8 Be that as it may, the decision was taken by the Committee of the

Respondent-Corporation to cancel the tender process and to go for fresh

bidding as it was observed in the order wherein decision was taken for fresh

tender that though the Petitioner claims to have agreed to enhance the

amount by Rs.15,00,000/- no such communication was given in writing. It

was also observed that considering the growth of the city and that in future

metro would also start running, more income would be derived from the

advertisements and various reasons were given for fresh tender. Thereafter,

second and third tenders were issued but there were no bidders and in the

fourth tender process, two bids were received. The highest bidder was 30%

k 5/5 80 wp 10072.22 as.doc

more than the Petitioner's bid. The Respondent-Corporation would be

benefited by an amount of Rs.2.5 crores in total. The public exchequer

would be benefited. There is no concrete proof of cartelisation as alleged.

9 The Petitioner has also not challenged the decision of the

Respondent-Corporation to go for fresh tender process.

10 Considering all the aforesaid conspectus of the matter, we are not

inclined to exercise our writ jurisdiction under Article 226 of the Constitution.

11 The Writ Petition as such is dismissed. No costs.

12 At this stage, the learned Advocate for the Petitioner submits that the

Respondents be directed to refund the costs incurred in constructing the

model bus stop i.e. Rs.12,00,000/-. The said amount is disputed by the

Respondent-Corporation. The Petitioner may file a civil suit or take

appropriate steps as may permissible in that regard. In that event the

contentions of respective parties are kept open.

     (SANDEEP V. MARNE, J.)                     (ACTING CHIEF JUSTICE)