Bombay High Court
Vaibhav Enterprises vs The Muncipal Corporaton Of ... on 9 November, 2023
Bench: Shri Arif Doctor
2023:BHC-OS:13701-DB
15083.23.WP
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L) NO.15083 OF 2023
Vaibhav Enterprises,
A registered partnership firm having
registered office at 503, Maharaja
Cooperative Housing Society Limited,
S.V.Road, Opp. Telephone Exchange,
Malad (West), Mumbai - 400064 ..... Petitioner
Versus
1 The Municipal Corporation of Greater
Mumbai,
A body corporate having their offices at
Mahapalika Bhavan, Mahapalika Marg,
Fort, Mumbai - 400001
2 Superintendent of Garden,
Having his office at second floor,
Humbold Penguin Building, Veermata
Jeejabhai Bhosle Udyan, Byculla (East),
Mumbai - 400027
3 Deputy Superintendent of Gardens,
Having his office at second floor,
Humbold Penguin Building, Veermata
Jeejabhai Bhosle Udyan, Byculla (East),
Mumbai - 400027 ..... Respondents
Mr. Ranjeev Carvalho a/w. Ms. Sakshi Agarwal i/b. Bipin Joshi for
the Petitioner
Ms. Dhruti Kapadia a/w. Ms. R. M. Hajare i/b. Sunil Sonawane for
the Respondent - MCGM
Mr. Sachin Attarde, Dy. Superintendent (Garden), Zone-I present
CORAM: DEVENDRA KUMAR UPADHYAYA, CJ. &
ARIF S. DOCTOR, J.
DATE : NOVEMBER 9, 2023
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15083.23.WP
JUDGMENT (PER : CHIEF JUSTICE)
1. Heard.
2. By means of this writ petition, the Petitioner which is a
partnership firm, challenges the eligibility criteria in Section 2,
clause 1.1. under the caption: "Technical Capacity" in respect of
e-tender No.Dy.SG/22/MC/II dated 15th May 2023 issued inviting
bids for maintenance of various Gardens, Play Grounds,
Recreation Grounds, Open Spaces, Traffic Islands, Central
Medians etc. in Zone II of Respondent No.1 Municipal Corporation
of Greater Mumbai (for short "MCGM"). Further prayer made in
the writ petition is that Respondents be directed to modify the
impugned tender condition and period of 3 years be substituted
by 7 years period of experience of having executed work of similar
nature during last 7 years.
3. It has been argued by the learned Counsel for the Petitioner
that by inserting the impugned condition in the eligibility criteria
of the tender in question, whereby only 3 years' experience is
required instead of 7 years, is arbitrary and not lawful for the
reason that it is a deviation from the prescription of experience in
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similar nature of work as mentioned in clause 1.1.1 of the
Standard Bid Document. It has also been submitted by the
learned Counsel for the Petitioner that putting such a condition
will be disadvantageous to the Corporation.
4. Learned Counsel representing the Petitioner has further
argued that objection to the aforesaid effect was taken by the
Petitioner at the time of pre-bid meeting, however by means of an
e-mail dated 2nd June 2023 the Petitioner has been informed that
its request could not be considered, without mentioning any
reason therefor. Further submission is that the prescriptions in
the Standard Bid Document are to be followed by the Corporation
and any deviation therefrom is erroneous and hence cannot be
permitted to be sustained.
5. Learned Counsel representing the Petitioner has further
argued that in the tender issued in the year 2020 as also in the
year 2021, the eligibility criteria of having experience of similar
nature of work was formulated as 7 years. Our attention has
been drawn to clause 1.1 of the eligibility criteria in the tender
issued in the year 2020, wherein it was prescribed that the
tenderer should have satisfactorily executed the work of similar
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nature during last 7 years. Attention of the Court has also been
drawn to clause 1.3 of the eligibility criteria mentioned in the
tender conditions in the tender issued in the year 2021 where it
was stated that for assessing the "Technical Capacity", the
tenderer should have satisfactorily executed the work of similar
nature during last 7 years. The submission is that, however, in
the tender in question issued on 15th May 2023, the criteria in
respect of experience as mentioned in clause 1.1 is that the
tenderer in its own name, should have satisfactorily executed the
work of similar nature during last 3 years.
6. Learned Counsel representing the Petitioner has referred to
the Standard Bid Document, in clause 1.1 whereof the
requirement is 7 years' experience of having executed the work
of similar nature. Thus, it is stated by the learned Counsel for the
Petitioner that in the year 2020 and 2021, the eligibility regarding
experience as given in the Standard Bid Document was followed,
however it is only in the tender notice dated 15 th May 2023 that
the criteria has been changed from 7 years to 3 years' experience
without any basis or rationale. In view of this, the submission is
that the impugned criteria being unreasonable, ought to be
quashed while allowing the writ petition.
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7. The prayers made in the writ petition have been vehemently
opposed by Ms. Dhruti Kapadia, learned Counsel representing the
Respondents. She has submitted that it is well settled principle of
law that the tender floating authority should be given larger room
of play in determining the tender conditions for the reason that
tender floating authority is the best judge of the nature of work
required to be executed by the successful bidder and, accordingly,
it is the best judge also to determine the eligibility criteria. It has
further been argued that in fact, the tender conditions cannot be
permitted to be altered at the asking of any tenderer or bidder.
The submission, thus, is that prayer for substituting the criteria of
tender conditions to the liking of the Petitioner cannot be granted
and any interference by this Court in this will be impermissible in
exercise of its jurisdiction under Article 226 of the Constitution of
India.
8. Having heard learned Counsel for the respective parties and
perused the records available before us of this writ petition, what
we find is that it is apparent that the prayer of the Petitioner is to
the effect that instead of 7 years' experience, the eligibility of
having 3 years' experience should be prescribed. Floating tender
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inviting bids from the eligible bidders for execution of some work
is an offer and hence it exclusively lies in the realm of a contract.
As is well settled, no tenderer can have any say in determination
or prescription of tender conditions and any challenge to tender
conditions prescribed by the tender floating authority must fail
unless it is found to be manifestly unreasonable, arbitrary, mala
fide or tailor made.
9. Hon'ble Supreme Court in the case of Agmatel India Pvt.
Ltd. Vs. Resoursys Telecom and Others1 has clearly held that
in the matter of contracts where the State or its instrumentality is
a party, the process of interpretation of terms and conditions of
the tender has to be essentially left to the author of the tender
document and an occasion for interference by Court would arise
only if such prescription of the terms of tender fails to satisfy the
test of reasonableness, rationality, bias or procedural impropriety.
10. The Hon'ble Supreme Court, in the case of Agmatel India
Pvt. Ltd. (supra) relied on the decision of the Apex Court in the
case of Silppi Constructions Contractors Vs. Union of India2
(2022) 5 SCC 362
(2020) 16 SCC 489
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and held that it must be realized that the authority floating the
tender is the best judge of its requirements and, therefore, Court's
interference should be minimal.
11. Having regard to the limitation of this Court in exercise of its
jurisdiction under Article 226 of the Constitution of India in
interfering with the tender conditions, what we find is that, as to
whether for fulfilling the eligibility, the criteria should be of 3
years' experience or 7 years', has to be the prerogative of
Respondent No.1 for the reason that the Respondent -
Corporation being the best judge of the work which the successful
tenderer will be required to execute, should be given the
maximum play in determining the tender conditions. It is not for
the prospective tenderer or bidder to insist on a particular criteria
in relation to experience of having executed the work of similar
nature. As to who will be suitable to execute the work pursuant
to the tender floated by Respondent No.1, is a decision which
should be left to the tender floating authority and the tenderer or
bidder, in our considered opinion, cannot have any say in the
matter unless the tender condition is absolutely arbitrary or
unreasonable or is infested with any malice or has been set out to
favour any individual tenderer.
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12. Learned Counsel for the Petitioner has utterly failed to
establish as to how having 3 years' experience for executing the
work can be said to be a condition which is arbitrary or irrational.
Allegation of any malice or mala fide could not be established by
the petitioner in this matter. Accordingly, in view of absence of
any mala fide or the impugned tender condition being arbitrary or
unreasonable, we are of the considered opinion that the impugned
tender condition does not suffer from any irregularity or illegality
so as to call for any interference by the Court in this petition.
13. Resultantly, the writ petition fails, which is hereby
dismissed.
14. At this juncture, learned Counsel for the Petitioner prays
that a direction may be issued that in peculiar facts and
circumstances of the case, the earnest money deposit may be
ordered to be refunded to the Petitioner.
15. We are afraid we cannot issue any such direction for the
reason that such prayer needs to be considered in terms of the
conditions of the tender. However, we permit the Petitioner to
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make an appropriate application seeking refund of the earnest
money deposit and in case any such application is made, the same
shall be considered and decided by the appropriate authority of
the Respondent - Corporation, strictly in accordance with law,
expeditiously.
16. There will be no order as to costs.
(ARIF S. DOCTOR, J.) (CHIEF JUSTICE)
Digitally
signed by
BASAVRAJ
BASAVRAJ GURAPPA
GURAPPA PATIL
PATIL Date:
2023.11.10
15:31:26
+0530
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