Bombay High Court
Pride Ventures Pvt Ltd Chh. ... vs The State Of Maharashtra Through Its ... on 5 August, 2024
Author: Mangesh S. Patil
Bench: Mangesh S. Patil
2024:BHC-AUG:16926-DB
WP 2098 24.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 2098 OF 2024
Pride Ventures (I) Pvt. Ltd.,
Chh. Sambhajinagar,
Through its Authorized Signatory,
Mohammad Hares Siddiqui,
Age 44 years, Occ. Business,
R/o. House No. 8-8-585,
Rashidpura, HUDCO road,
Aurangabad. ... Petitioner
VERSUS
1) The State of Maharashtra,
Through its Public Works Department,
Mantralaya, Mumbai-32.
2) The Chief Engineer,
Public Works Region,
Chh.Sambhajinagar.
3) The Superintending Engineer,
Public Works Circle,
Chh. Sambhajinagar.
4) The Executive Engineer,
Public Works Division,
Chh. Sambhajinagar. ... Respondents
...
Advocate for Petitioner : Mr. D.P. Palodkar
A.G.P. for Respondent nos. 1 to 3 : Mr. P.S. Patil
Advocate for Respondent No. 4 : Mr. Gunaratna Sadawarte, Special Counsel
CORAM : MANGESH S. PATIL &
SHAILESH P. BRAHME, JJ.
RESERVED ON : 31.07.2024
PRONOUNCED ON : 05.08.2024
JUDGMENT :
( MANGESH S. PATIL, J.)
Heard. Rule. Rule is made returnable forthwith. The learned A.G.P.
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and learned advocate Mr. Sadawarte waive service for the respondents. At
the joint request of the parties, the matter is heard finally at the stage of
admission.
2. Respondent no. 4, who is the Executive Engineer of Public Works
Department, Chhatrapati Sambhajinagar, published 'E' tender notice on
08.09.2023 for the construction of 'Collector Office building at Vishwas
Nagar (Labour Colony) Aurangabad'.
3. By publishing Errata/Corrigendum on 09.09.2023 a condition was
added directing the bidders to upload 'green building certificate' issued by
Indian Green Building Council (IGBC). The petitioner submitted his bid on
06.10.2023 and even uploaded a certificate issued by IGBC (page 688). On
10.10.2023 technical bids were opened. By a communication dated
30.10.2023 (Exh. 'C') respondent No.4 called upon the petitioner to
rectify/comply with the deficiencies inter alia containing item no. 9, which
read as under:
"9. The IGBC (Green Building) certificate is precertificate
dated September 2021 but the actual date of work completion
is 31/03/2023. Hence certified certificate of green building is
required"
4. The petitioner replied to the queries by a communication dated
01.01.2023 (Exh. 'D'), as follows:
"With reference to the above-mentioned tender and the
requirement for the clause of completion of IGBC Building
certificate, it is to be noted that our consultant "Building
Environment India Pvt. Ltd." has submitted the six monthly
compliance to the IGBC department timely and also applied
for final certification as per IGBC norms.
An interim certification from the IGBC department has
been issued for the project which we are submitting along
with this letter. Hence request you to please accept this letter
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and qualify our bid"
5. By a separate communication of the even date, even reply was given
to five of the other queries raised in the communication (Exh. 'C').
6. On 08.01.2024 (Exh.'E') stating that since pursuant to the government
resolution dated 27.09.2018 the work estimate was of more than 100 Crore,
the evaluation committee in its meeting dated 04.01.2024 had recorded the
minutes, evaluating the bids and mentioning inter alia that five bidders
including the petitioner's Joint Venture were not qualified and only one
bidder Shubham EPC Pvt. Ltd., was qualified. It further stated that pursuant
to the self-same government resolution since there was only one qualified
bidder, it was decided to go for a second call. It was further resolved to
publish this decision on the website for a period of five days.
7. Aggrieved by a similar disqualification, one of the other bidders
namely Hi Tech Wonder, J.V. Aurangabad, preferred Writ Petition No.
552/2024 on 12.01.2024. By the order dated 12.01.2024, this Court stayed
further tender process.
8. The petitioner questioned its disqualification by filing this petition on
16.02.2024.
9. The petitioner was disqualified with the reason that it was
noncompliant with the terms and conditions regarding 'green building
certificate'.
10. It is the stand of the petitioner that by a communication dated
24.01.2024 (Exh. 'F') the petitioner submitted IGBC green rating certificate
for project "Pride Century" to which Aurangabad Municipal Corporation had
given occupancy certificate on 19.07.2021.
11. The petitioner in Writ Petition No.552/2024, with the leave of the
Court withdrew its writ petition on 10.07.2024.
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12. Alleging that taking advantage of this, the second call was published
on 12.07.2024 (Exh. 'I'), the petitioner with the leave of the Court has now
amended the petition and has put up a challenge even to the second call.
13. The learned advocate Mr. Palodkar based his arguments essentially on
the ground that the additional condition in respect of certification by IGBC,
modified and corrected from time to time by issuing corrigendum itself was
vague. He would point out that initially no such condition was there in the
tender notice published on 08.09.2023. It was incorporated by issuing
corrigendum on 09.09.2023. By adding clause 4.5 (A)(d), it was added that
the requirement would be regarding satisfactorily completed (from start to
finish) as a prime contractor of at least one green building project of value
not less than 30 crores from any government department.
14. He would submit that in order to clear the confusion the issue was
raised by the petitioner and even some other bidders in a pre-bid meeting to
remove the requirement of "from start to finish" or to consider works
completed during last five years. It was accepted in the pre bid conference
held on 27.09.2023. Accordingly, common set of deviations were published
whereby this clause regarding green building certification was modified to
read "satisfactorily completed/executed as a prime contractor of at least
one green building project of value not less than 25 crores and the same
shall be certified by authorized bodies e.g. GRIHA/LEED/IGBC. Financial
turnover and cost of completed/executed works of previous years shall be
given weightage of 10% per year based on a Rupee value to bring them to
2023-24 price level.
15. Mr. Palodkar would, therefore, submit that there was no clarity and
deletion of words "from start to finish" and replacing them by word
"executed" was confusing. The petitioner, pursuant to the query raised in
that respect had even forwarded the certificate with reply dated 01.01.2024.
It could have been treated as compliant with the condition. However,
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designedly, taking advantage of the clause from the government resolution
dated 27.09.2023, in order to enable issuance of a second call, the petitioner
was disqualified thereby rendering the tender process incomplete as only
one of the bidders was held to be qualified. Accordingly, the second call has
been issued and the last date for submission is 01.08.2024, and the technical
bids are to be opened on 04.08.2024. The decision to disqualify the
petitioner is not sustainable in the light of the wording of the condition.
Substitution of letters from "start to finish" by the word "execution" is
susceptible to mean that a pre- certification of a green building by the IGBC
was sufficient compliance. Mr. Palodkar would then take us through the
guidelines of the IGBC, which contemplate pre-certification of a green
building project, which is valid for three years, and which contemplates
periodical submission of the reports after every three months. This was
clearly indicative of the fact that the petitioner was in fact undertaking a
green building project duly certified by IGBC. The condition could not have
been treated as requiring completion of a green building.
16. As far as objection being raised in affidavit in reply of respondent
no.4, regarding maintainability of the petition, Mr. Palodkar, would submit
that filing of bid through joint venture was initially not allowed by the
tender notice. By the Errata/Corrigendum dated 09.09.2023 bids by joint
ventures were permitted and Common Set of Deviations (CSD) also
permitted that. Clause no. 2 of CSD required joint venture to nominate a
representative having authority to conduct the business for and on behalf of
any or all the members of the joint ventures. The general power of attorney
was executed in favour of the petitioner (Exh. R1). The petitioner is
otherwise not avers to carrying out necessary correction in the title clause of
the petition and the objection is not sustainable.
17. As regards the objection regarding availability of alternate and
efficacious remedy as per the government resolution dated 17.09.2019, Mr.
Palodkar would submit that as per that government resolution the remedy
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was available regarding the complaints made by the contractors after
opening of the technical bids and any objections raised to the technical bids
etc. Since, admittedly, the respondent no. 4 has now issued a second call,
no such remedy is now available much less can be effective and efficacious
one.
18. Lastly, Mr. Palodkar would submit that as per the government
resolution dated 17.09.2019 the terms and conditions of the tender and CSD
should have been approved by the competent authority at the government
level. The corrigendum dated 09.09.2023 was issued by respondent no. 4
only and not by the competent authority prescribed under that government
resolution. Even the CSD was approved by the Chief Engineer and not by
the competent authority. Consequently, the condition regarding certification
of green building added subsequently under the signature of respondent
no. 4-Executive Engineer and respondent no. 2-Chief Engineer cannot be
regarded as essential condition.
19. Per contra, the learned advocate Mr. Sadawarte would make
submissions in tune with the affidavit in reply. He would submit that the
petition has been filed by Pride Ventures India Pvt. Limited, which had not
participated in the tender process. It was filled by P.V.I.P.L. and L.C.C. J.V.,
Aurangabad ( A consortium of Pride Ventures (India) Private Limited and
Laxmi Construction Company Joint Venture, Aurangabad). He would
submit that Pride Ventures (India) Limited, alone could not have filed the
petition.
20. Mr. Sadawarte would further submit that even the power of attorney
filed by the petitioner does not expressly specify conferment of power in
respect of any specific act like filing of the present petition. He would
submit that the title clause describes individual as authorized signatory
through whom Pirde Ventures (India) Private Limited has filed the petition.
He would refer to the full bench decision of Allahabad High Court in the
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matter of Syed Wasif Husain Razvi Vs. Hasan Raza Khan & 6 Ors; 2016 SCC
OnLine All 175.
21. Mr. Sadawarte would then submit that government resoution dated
17.09.2019 expressly provides for alternate and efficacious remedy which
the petitioner ought to have resorted to. In the absence of which the writ
petition is not maintainable. He would cite the decision in the matter of
PHR Invent Educational Society Vs. UCO Bank and others; 2024 SCC OnLine
SC 528.
22. On merits, Mr. Sadawarte would submit that there is express
stipulation in the tender document whereby, the respondents have expressly
reserved the right to revise the invitation to offer and right to resort to
deviations, amendments and extension. Even it contains a specific
stipulation reserving a right to reject all or any of the tenders without
assigning any reason. He would, therefore, submit that no fault can be
found in issuing Common Set of Deviations, which were duly notified.
23. Mr. Sadawarte would further submit that the petitioner is merely
challenging the disqualification but had never objected to the CSD's issue.
He would, therefore, submit that the challenge by the petitioner is to the
outcome or result of the tender process rather than the terms and
conditions.
24. Mr. Sadawarte would then submit that initial requirement of
"satisfactory completion from start to finish" replaced by the modified clause
requiring "satisfactory completion/execution". Both would include and
contemplate a completed project. In spite of specific queries raised by
respondent no. 4, the petitioner had failed to furnish the requisite certificate
of a green building. The interim certificate issued by IGBC would only
demonstrate that he was undertaking construction of a green building but
had no certification about completion of any green building issued by the
IGBC. He was, therefore, rightly disqualified.
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25. The learned advocate Mr. Sadawarte would also submit that a
compliance was sought to be made by the petitioner after the technical bids
were scrutinized and he was disqualified, and even after the decision was
taken to go for a second call. Admittedly, the petitioner had not submitted
any certificate regarding execution of a green building project before the
cut-off date and cannot be heard.
26. Mr. Sadawarte would advert our attention to the resolution passed by
the committee constituted under the government resolution dated
27.09.2018. He would submit that a committee of experts had found the
petitioner not eligible for the specific reason. With a limited power of
undertaking a judicial review resorting to Article 226 of the Constitution of
India in tender matters, in the absence of any mala fides being attributable
to the respondents, no fault can be found in the committee of experts
disqualifying the petitioner by resorting to the interpretation of the term and
condition regarding certification of IGBC. He would cite following
decisions:
(1) N.G. Projects Limited Vs. Vinod Kumar Jain and others;
(2022) 6 SCC 127.
(2) Jagdish Mandal Vs. State of Orissa and others; (2007) 14 SCC
517.
(3) Tata Motors Limited Vs. Brihan Mumbai Electric Supply and
Transport Undertaking (BEST); 2023 SCC Online SC 671,
27. We have considered the rival submissions and perused the papers.
28. As far as the preliminary objections are concerned, admittedly, the
petitioner was one of the members of the consortium of the joint venture
which had submitted the bid. Therefore, it cannot be said that the petitioner
has no locus. Besides, as has been mentioned in the rejoinder, the petitioner
is also not avers to make necessary correction in the title of the writ petition
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so as to include the name of the other member of the consortium. We,
therefore, are of the view that it cannot be said that the petitioner is not an
aggrieved person.
29. As far as the authority of the individual through whom the petition as
well as the rejoinder has been filed, the petitioner has filed a general power
of attorney expressly titled as ' For signing of bid (Exh. R1)'. A bare look at
this power would demonstrate that it is a general power of attorney
enabling the holder to do, in the name of Laxmi Construction Company and
as authorized signatory of Pride Ventures, to submit bids and deal with the
Public Works Division, Aurangabad, in the matter of the tender process.
Ex facie it does not authorize him to initiate any litigation for and on behalf
of Laxmi Construction Company, which is the partner in the joint venture.
However, in our considered view, when it has been expressly mentioned in
the rejoinder that the petitioner is not avers to carrying out necessary
correction in the title, in our considered view, one need not go into the
aspect of authority of the person, who has filed the petition for and on
behalf of one of the partners of the joint venture, which submitted the bid.
30. As far as the other objection regarding availability of the alternate and
efficacious remedy as contemplated in the government resolution dated
17.09.2019, it contemplates a recourse to be adopted for a bidder in the
matter of objection being raised by the bidders during the tender process.
We are of the view that this government resolution only provides for some
remedy for redressal of the grievances and provides for a complaint
redressal mechanism. It would not be a quasi judicial authority and cannot
be regarded as a statutory remedy to challenge the disqualification of a
bidder. This mechanism may, possibly, avoid some litigation but cannot
partake the place of judicial or quasi judicial authority so as to adjudicate a
grievance being made by a bidder. We, therefore, do not see the mechanism
provided under government resolution dated 17.09.2019 as an alternate and
efficacious remedy.
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31. As far as the merits of the matter are concerned, it is a matter of
record that in pre-bid meetings, not only the petitioner's joint venture but
even few other bidders had also participated, wherein, after considering
their requests, common set of deviations were published. Though the
relevant clause was contemplating "completion of a building from start to
finish" and the words "from start to finish" were replaced by "executed",
even after our query as to if such change would connote any deviation in
substance, Mr. Palodkar would seek to interpret such a change to mean that
execution would mean a certification by the IGBC to undertake a green
building project. He would advert our attention to the norms from the
website of the IGBC. He would submit that it contemplates registration of
the project with IGBC, preparation for documentation and calculations to
satisfy mandatory requirements and credit submittal requirements. He
would submit that the norms contemplate a pre-certification of a project
which requires registration of such project. Such pre-certified projects have
to submit six monthly reports. The petitioner had obtained such pre-
certification in September 2021, of its My World VXL Residencies,
Aurangabad, which was submitted along with the bid. He would submit
that having obtained the pre-certificate it was a sufficient indication of
execution of a green building project and should have been treated as due
compliance of the condition.
32. We have considered this submission of Mr. Palodkar in the light of the
printout from the website of the IGBC (Exh. R4). At the outset, it is
necessary to note that this pre-certification would essentially mean that a
project is registered with IGBC, proposing to carryout construction of a
green building. As has been mentioned in these broacher/printout (Exh.
R2), such pre-certification is contemplated to give the owner/developer a
unique advantage to market the project to potential buyers. By no stretch of
imagination can such pre-certification, in our considered view, would be
indicative of completion of a green building project. Hypothetically, it may
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so happen that though it is a pre-certified project, the project itself could not
be completed for variety of reasons. Would it mean that even such a pre-
certified project would lend credence to the experience of constructing a
green building, if such pre-certified project does not reach completion so as
to obtain a certificate from IGBC. In our considered view, in such a case, the
essential requirement which was inserted, of having experience by the
proposed bidders of carrying out construction of a green building would not
be fulfilled. To our mind, "execution" literally would mean not mere
'capacity to execute' but 'completion of the work'.
33. We are, therefore, unable to persuade ourselves with this submission
of Mr. Palodkar.
34. Besides, since it is a matter of interpretation of a term and condition
expressly in respect of IGBC certification, as laid down in the matter of
Jagdish Mandal (supra), in exercise of the powers under Article 226 of the
Constitution of India, this Court cannot undertake a judicial review of the
wisdom of the employer. When the expert's committee constituted under
the government resolution dated 27.09.2018 has disqualified the petitioner
precisely for being non compliant with the condition requiring IGBC
certificate, we neither can allow the petitioner to interpret the clause in its
own way nor can we undertake a judicial review and interpret the clause
according to our own notions. The employer is the best judge and has taken
a decision that the petitioner is non compliant and we cannot sit in appeal.
35. Again, there is one more aspect, which needs a specific emphasis.
Though the petitioner has now been seeking to question even the authority
of the respondents to issue CSD, it is clearly an after thought. He had never
raised any objection to the stipulation of IGBC certification before
submitting his bid or even thereafter till he was disqualified, except raising
queries seeking clarification on that count. Rather it had even tried to
comply with it by submitting pre-certification of IGBC. Even submissions of
Mr. Palodkar are also on the same lines.
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36. In this regard, it is quite interesting to note that contrary to
such a stand the petitioner's joint venture, in fact, had raised a specific
objection to a bid of another bidder vide letter dated 01.01.2024 (page
No.682) stating that its offer was non-compliant with the very same clause
of IGBC certification. This is nothing but blowing hot and cold at the same
time, which cannot be permitted.
37. Once having participated in the tender process with an open
eye, understanding the stipulation and precise requirement of green
building completion/execution certification, it would be too late in the day
for the petitioner to make a grievance about his disqualification.
38. There is no substance in the writ petition and it is liable to be
dismissed.
39. The Writ Petition is dismissed.
40. Rule is discharged.
( SHAILESH P. BRAHME, J.) (MANGESH S. PATIL, J.)
mkd/-
