Bombay High Court

Forsta Medtech Pvt. Ltd vs State Of Maharashtra Through Principal ... on 20 August, 2024

Author: Amit Borkar

Bench: Amit Borkar

  2024:BHC-OS:12663-DB

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                             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                               ORDINARY ORIGINAL CIVIL JURISDICTION

                                          WRIT PETITION NO.2666 OF 2024


         Digitally    Forsta Meditech Pvt. Ltd.                             ..... Petitioner
         signed by
         BASAVRAJ
BASAVRAJ GURAPPA
GURAPPA PATIL         Versus
PATIL    Date:
         2024.08.20
         12:30:12
         +0530        State of Maharashtra & Ors.                           ..... Respondents


                      Mr. Akash Prasad through Video Conference a/w. Mr. Rishi
                      Murarka for the petitioner
                      Smt. P. H. Kantharia, Government Pleader a/w. Smt. Jyoti
                      Chavan, Additional Government Pleader, Mr. Amar Mishra, AGP
                      for respondent Nos.1 to 3 - State
                      Mr. Kaustubh Patil for respondent No.4, through Video Conference


                                      CORAM: DEVENDRA KUMAR UPADHYAYA, CJ. &
                                             AMIT BORKAR, J.

                                      RESERVED ON   : AUGUST 5, 2024
                                      PRONOUNCED ON : AUGUST 20, 2024



                      JUDGMENT (PER : CHIEF JUSTICE)

1. Heard learned counsel representing the respective parties.

2. Proceedings of this petition instituted under Article 226 of

the Constitution of India, assail the validity of tenders, dated 28 th

December 2023 and 14th February 2024, issued by the National

Health Mission - respondent No.3 for Civil Hospital, Washim and

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Civil Surgeon Office, Sangli, respectively, in respect of the work

relating to Ultra Violet Radiation & Microwave Dual Disinfection

System and Ultra Violet Radiation & Microwave Dual Disinfection

System with Shredder.

3. Challenge to the impugned tenders in this petition has been

made primarily on the ground that technical specifications as

provided in the impugned tenders for Bio-Medical Waste

Disinfectant System is contrary to the provisions contained in Bio-

Medical Waste Management Rules, 2016 (hereinafter referred to

as the Rules 2016) framed by the Ministry of Environment,

Government of India vide Notification, dated 28th March 2016

under Section 6, 8 and 25 of the Environment (Protection) Act,

1986 and also against the guidelines issued by the Central

Pollution Control Board (hereinafter referred to as the CPCB) for

Management of Healthcare Waste as per Rules, 2016.

4. The impugned technical specifications as contained in the

tender, dated 28th December 2023, is as follows:

"TECHNICAL SPECIFICATIONS

Biomedical Waste Disinfection System microwave based along with advance UVR technology-

Machines shall mainly comprise the following main components.

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            i)      Support unit with wheels and arrangement to hold cavity,

magnetron, variactransformers and pump and motor etc.

ii) Cavity (Main treatment unit)

iii) Magnetron and accessories

iv) Measuring, monitoring and control software and Hardware.

v) UVR process cycle."

5. Similarly, the tender condition which is under challenge in

respect of tender, dated 14th February 2024 is extracted

hereinbelow:

"Detail Specifications

BIOMEDICAL WASTE DISINFECTION SYSTEM MICROWAVW BASED ALONG WITH ADVANCE UVR TECHNOLOGY

Machines shall mainly comprise the following main components.

i) Support unit with wheels and arrangement to held cavity, mag- netron, variac transformers and pump and motor etc.

ii) Cavity ( Main treatment unit)

iii) Magnetron and accessories

iv) Measuring, monitoring and control software and Hard ware.

v) UVR process cycle."

6. Learned Counsel for the petitioner, while impeaching the

impugned tender condition, has primarily urged that use of ultra

violet radiation technology is neither proved nor is documented

for the purpose of treatment of bio-medical waste and further that

such technology is superfluous to the need of the respondent

authorities. It has also been argued on behalf of the petitioner

that use of ultra violet radiation technology for treatment of bio-

medical waste which is to be deployed in terms of the subject

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tenders is ineffective and inadequate and that insistence of

inclusion of ultra violet radiation technology by the respondent has

resulted in exclusion of many market players/suppliers of the

product and hence it is not tenable.

7. The emphasis of the learned counsel for the petitioner to

challenge the impugned tender conditions is that the ultra violet

radiation technology for treatment of bio-medical waste has not

been prescribed for in the 2016 Rules framed by the Government

of India further clarified by the guidelines issued by the CPCB in

respect of 2016 Rules.

8. Our attention has been drawn in this regard to certain

entries in Schedule-1 appended to the 2016 Rules according to

which for disposal of microbiology, biotechnology and other

clinical laboratory waste, autoclave safe plastic bags or containers

are to be used and further that such disposal should be done with

a technology where such waste is pre-treated to sterilize with non-

chlorinated chemicals on-site as per National AIDS Control

Organization or World Health Organization Guidelines and

thereafter such waste is to be incinerated. The relevant extract

of Schedule-1 appended to 2016 Rules on which emphasis has

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been laid by the learned counsel for the petitioner is extracted

herebelow:

(h) Microbiology, Autoclave safe Pre-treat to Biotechnology and other plastic bags or sterilize with clinical laboratory waste : containers non-chlorinated Blood bags, Laboratory chemicals on-

              cultures, stocks or                                 site    as    per
              specimens of                                        National AIDS
              microorganisms, live or                             Control
              attenuated vaccines, human                          Organisation or
              and animal cell cultures used                       World      Health
              in research, industrial                             Organisation
              laboratories, production of                         guidelines
              biological, residual toxins,                        thereafter    for
              dishes and devices used for                         Incineration.
              cultures.

9. Reliance has also been placed by the learned counsel for the

petitioner on the guidelines issued by the CPCB as per 2016 Rules

in respect of disposal of waste relating to microbiology,

biotechnology and other clinical laboratory waste. According to

learned Counsel for the petitioner the said guidelines clearly

provide that for disposal of such waste, pre-treatment by

disinfection is to be done before the waste is handed over to

CBWTF Operator and further that pre-treatment can be done by

autoclave/microwave/hydroclave. The guidelines also provide

that pretreatment of such waste can also be done by using non-

chlorinated chemical disinfectants like aldehydes, lime based

powders or solutions, ozone gas, ammonium salts and phenolic

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compounds. Said guidelines in respect of microbiology,

biotechnology and other clinical laboratory waste, are as under:

"Type of Waste : Yellow (h) Microbiology, Biotechnology and Other Clinical Laboratory Waste :

Segregation :

Microbiology, Biotechnology and other clinical laboratory waste, waste blood bags (containing date expired or contaminated blood), Laboratory cultures, stocks or specimen of micro-

organisms, live or attenuated vaccines, human cell cultures used in research, industrial laboratories, production of biological, residual toxins, dishes and devices used for cultures. This includes plastic culture plates and other highly infectious wastes.

Type of bag and container :

Collect the waste in yellow coloured non chlorinated plastic bag and store in yellow coloured container

Treatment and Disposal :

For HCF having linkage with CBWTF Pre-treatment by disinfection before handing over the waste to CBWTF operator. Pretreatment can be done by autoclave / microwave / Hydroclave.

Pre-treatment can also be done by using non-chlorinated chemical disinfectants like aldehydes, lime based powders or solutions, ozone gas, ammonium salts and phenolic compounds.

The Pre-treated waste bags should be handed over to CBWTF operator on daily basis.

For HCF having own treatment and Disposal facility

Pre-treated waste should be disposed off by a HCF by installing twin chambered compact incinerator with 2 seconds retention time in secondary combustion chamber and adequate air pollution control devices to comply with revised emission norms prescribed under BMW Management Rules, 2016"

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10. According to learned counsel for the petitioner since

technical specifications as prescribed in the impugned tenders do

not conform to the norms as set out in the 2016 Rules and the

guidelines promulgated by CPCB, use of the technology as per the

prescription in the impugned tenders is unlawful and the same

cannot be permitted.

11. Opposing the writ petition, learned State Counsel Mrs. P. H.

Knatharia has raised a preliminary objection as regards the

maintainability of the writ petition by stating that since the

petitioner did not participate in the tender process and had not

even raised any objection before the authorities concerned, before

the last date of submission of bids, hence, at this juncture, when

the entire tender process has been completed, such a challenge

cannot be entertained. In this view, the submission by Mrs.

Kantharia is that entertaining this petition at this juncture will not

be in public interest and further that the petitioner, in fact does

not have any locus to challenge the tenders.

12. Having heard learned counsel for the parties and having

perused the records available before us, we are of the considered

opinion that the writ petition cannot be entertained at this

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juncture at the behest of the petitioner for the reasons which

follow.

13. In respect of tender, dated 28th December 2023, the last

date of submission of tender was 8th January 2024 on which date

the tender was scheduled to be opened. Various tenderers

participated in the said tender pursuant to the tender notice dated

28th December 2023 and as informed by the learned State Counsel

the tender was opened as scheduled and even work order has

been issued on 25th January 2024. It has also been stated that

even the contract has also been executed and the work under the

subject tender has started after installation of necessary

equipments etc. and accordingly, since the petitioner did not

participate in the tender, this petition at its behest, cannot be

entertained.

14. Similarly, the tender notice in respect of other tender was

issued on 14th February 2024 and the last date of submission of

tender was 28th February 2024 which was the date of opening of

the tender as well. In respect of this tender as well after opening

the tender the work order has been issued on 13th March 2024

and after installation of equipments the work has also started.

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15. The instant writ petition was lodged on 25 th April 2024 which

was numbered, after removal of office objections by the

petitioner, on 7th May 2024. The petitioner, admittedly, has not

participated in either of these two tenders. The petition has also

been filed only after issuance of the work order and after the work

in respect of subject tender has already started.

16. It is also noteworthy that in respect of subject tenders,

before the last date of submission of bids, no objection was ever

raised by the petitioner before the tendering authority neither

they participated in pre-bid meeting raising such objections as are

being raised in the present writ petition. The petitioner ought to

have raised his objection prior to the last date of submission of

bids, may be in pre-bid meeting and having not done so, in our

opinion, the petitioner loses its locus to challenge the tender at

this juncture.

17. Hon'ble Supreme Court in National Highways Authority

of India Vs. Gwalior-Jhansi Expressway Limited 1 has clearly

held that a party who fails to participate in the tender process,

cannot be permitted to challenge the validity of the tender

(2018) 8 SCC 243

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documents and further that such a party cannot be heard to

contend that it had acquired any right whatsoever. The Hon'ble

Supreme Court has further stated that only the entities which

participate in the tender process pursuant to the tender notice,

can be allowed to make grievance about the non-fulfillment or

breach of any of the terms and conditions of the tender

documents. Said observations have been made by Hon'ble

Supreme Court in paragraph 20 of the report, relevant portion of

which is extracted hereinbelow:

"20. .........................Having failed to participate in the tender process and, more so, despite the express terms in the tender documents, validity whereof has not been challenged, the respondent cannot be heard to contend that it had acquired any right whatsoever. Only the entities who participate in the tender process pursuant to a tender notice can be allowed to make grievances about the non-fulfilment or breach of any of the terms and conditions of the tender documents concerned. The respondent who chose to stay away from the tender process, cannot be heard to whittle down, in any manner, the rights of the eligible bidders who had participated in the tender process on the basis of the written and express terms and conditions. At the culmination of the tender process, if the respondent had not participated, in law, the offer submitted by the eligible bidders is required to be considered on the basis of the stated terms and conditions. Thus, if the claim of the respondent was to be strictly adjudged on the basis of the terms and conditions specified in the subject tender document, the respondent has no case whatsoever."

18. It is also settled principle of law that so far as formulating

conditions of tender is concerned, greater latitude should be given

to the tendering authority unless action of the tendering authority

is malicious or it amounts to misuse of powers, interference by

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the Court will not be appropriate. Hon'ble Supreme Court in the

case of Uflex Limited Vs. Government of Tamil Nadu & Ors.2

relying upon its earlier judgment in the case of Michigan Rubber

(India) Ltd. Vs. State of Karnataka3 has enunciated the

aforesaid principle.

19. Since, admittedly, the petitioner, before last date of