Bombay High Court
Roshan Space Brandcom Pvt. Ltd vs Municipal Corporation Of Greater ... on 17 October, 2023
Bench: G.S. Patel, Kamal Khata
2023:BHC-OS:12159-DB P2-OSWPL-29064-2023.DOC
Shephali
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L) NO. 29064 OF 2023
Roshan Space Brandcom Pvt Ltd ...Petitioner
Versus
Municipal Corporation of Greater Mumbai & Ors ...Respondents
Mr Saurish Shetye, with Samsher Garud & Juhi Vali, i/b Jayakar &
Partners, for the Petitioner.
Ms Rupali Adhate, for the Respondent-MCGM.
CORAM G.S. Patel &
Kamal Khata, JJ.
DATED: 17th October 2023
SHEPHALI PC:-
SANJAY
MORMARE
Digitally signed
1. Not on board. Mentioned. Taken on board.
by SHEPHALI
SANJAY
MORMARE
Date: 2023.10.18
10:37:48 +0530
2. We are not inclined to entertain this Petition at all. The
Municipal Corporation of Greater Mumbai ("MCGM") floated an
open public tender for city beautification through the installation of
various digital display boards on a design, built, finance, operate,
maintenance and transfer basis. The last date for the tender,
extended after a joint meeting with the bidders, was by 5:00 pm
yesterday, 16th October 2023.
3. Yesterday, 16th October 2023, another petitioner came to us
complaining that the MCGM's website was malfunctioning and
that there were errors on it that did not permit either downloading
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P2-OSWPL-29064-2023.DOC
or uploading of bid documents. We found that that Petitioner was,
and we do not know if this was deliberate, attempting to access some
other URL than that mentioned in the tender document.
4. This morning a fresh Petition is mentioned at the instance of
a yet another tenderer, the present Petitioner, in regard to the same
tender now saying that there was a similar malfunction on the
website and that according to the Petitioner, the entire tender was
taken off the public website at 4.00 pm instead of keeping it open
until 5.00 pm.
5. To begin with, we do not know why any tenderer must wait
till the very last minute to attempt to upload documents. The terms
of the tender are abundantly clear. None of these tenders are opened
or even accessed until the last date and time for submission is
complete. The Petitioner's upload attempt could have been done at
any time earlier. We are now told in answer to this that there were
similar errors in the website even previously. This is the mere say-so
of the Petitioner.
6. Mr Sakhare yesterday had pointed out that at least eight
bidders had taken documents and to the knowledge of the MCGM
there was at least one bid that had been entered. At the time when
we heard the previous matter yesterday, full information had not
been obtained by the MCGM about the remaining tenders.
7. We have every reason to believe that this is nothing but to
delay the tender and possibly for other purposes.
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8. The prayers in the Petition are remarkable. Prayer clause (a)
seeks a cancellation of the entire e-tender. Prayer clause (b) then seeks
an unfair advantage over all other tenderers by saying that the
Petitioner's bid should be accepted in physical form and that the
MCGM should not insist on an online submission of tender
documents. Such prayers have been deprecated by the Supreme
Court in various judgments. The online tendering process is meant
to ensure transparency and accountability and to ensure further that
there is no meddling with the tenders as they go in. The entire
attempt is, therefore, to side-line what is undoubtedly necessary in
the public interest. Prayer clause (c) then seeks in the alternative a
direction to the MCGM to repair the alleged technical glitch. That
prayer is posited on the assumption that there is in fact a glitch.
That is not established. Indeed, yesterday we noticed that there was
no such glitch.
9. But it is prayer clause (d) at page 22 which let's the proverbial
cat out of the bag: it seeks a mandamus against the Corporation
from proceeding further or processing any tenders submitted by the
other bidders. That prayer alone gives the game away.
10. The Petition is entirely without merit. It is thoroughly
mischievous and is a gross abuse of the process of this court. It has
clearly been filed with an ulterior motive to obtain a court order that
gives the Petitioner an unfair advantage over other bidders.
11. The Petition is rejected. But in view of what is being
attempted, when -- at the very last minute; indeed, after the tender
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closed -- and the utterly specious grounds in the Petition, this
dismissal must receive an order of costs. There will be an order of
costs against the Petitioner and payable to the MCGM in the
amount of Rs. 1 lakh. Costs are to be paid within a period of one
week from today. Thereafter, the costs will carry interest at 6% per
annum until payment and may also be recovered by the MCGM in
accordance with law against the Petitioner.
12. At this stage, after we have passed this order and have done so
after the Petitioner made an application citing extreme urgency and
demanding production, an application is now made for a simpliciter
adjournment of the matter. This confirms our view that the Petition
is a gross abuse of the process of this Court. Courts are not
playgrounds or gambling dens where parties can take chances. A
strong and unambiguous message must go out that parties will not
take courts for granted nor assume that this is zero-sum game: take a
chance without fear of consequences. There will most emphatically
be consequences when anyone makes such attempts.
13. The order of costs is immediately doubled. Now the
Petitioner will pay to the MCGM a cost of Rs. Two lakhs within a
period of one week from today. Thereafter, the costs will carry
interest at 6% per annum until payment and may also be recovered
by the MCGM in accordance with law against the Petitioner.
(Kamal Khata, J) (G. S. Patel, J)
17th October 2023
