Bombay High Court
M/S. Girish Enterprises Pvt Ltd vs Navi Mumbai Municipal Corporation ... on 2 January, 2024
2024:BHC-AS:71-DB
12-WP-9206-2023
Pdp
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 9206 OF 2023
M/s. Girish Enterprises Pvt. Ltd. .. Petitioner
Versus
Navi Mumbai Municipal Corporation
& Ors. .. Respondents
Mrs. Vaishali Choudhari for petitioner.
Mr. Sharan Jagtiani, Senior Advocate a/w Mr. Tejesh Dande,
Ms. Surabhi Agrawal and Mr. Bharat Gadhvi for respondent
no.1/NMMC.
Mr. Manoj Patil for respondent no.2.
Mr. Abhay Jadhav, Law Officer, NMMC and Mr. Swapnil Desai,
Junior Engineer (Mechanical), NMMC, are present.
CORAM: DEVENDRA KUMAR UPADHYAYA, CJ. &
ARIF S. DOCTOR, J.
DATE: 2nd JANUARY, 2024
P.C.:
1. Heard Mrs. Choudhari, learned counsel representing the
petitioner, Mr. Jagtiani, learned senior counsel assisted by Ms.
Surabhi Agrawal, representing the respondent no.1-
Corporation and Mr. Patil, learned counsel representing the
respondent no.2. We have also perused the record available
before us on this petition.
2. By instituting the proceeding of this petition under
Article 226 of the Constitution of India, the petitioner has
challenged the decision of the respondent no.1-Corporation
rejecting its technical bid which was submitted pursuant to
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the tender notice dated 15th May, 2023 that was published for
re-tendering the work of comprehensive contract for operation
and maintenance of 37.5 MLD Sewage Treatment Plant based
on SBR (C-Tech) Technology for a period of five years at
Sector-20, Sanpada, Navi Mumbai. The petitioner has also
sought a prayer for declaration that technical bid submitted by
the petitioner as responsive and further that an appropriate
direction in the nature of mandamus be issued directing the
respondent no.1 to open the financial bid submitted by the
petitioner and to award the contract to it.
3. The facts, in brief, which are necessary for resolving the
issue involved in this petition are that in the month of
February, 2022 a tender notice for the aforesaid work was
published, pursuant to which the petitioner is said to have
applied and according to the learned counsel for the
petitioner, the petitioner succeeded being the lowest tenderer,
however, no work order was issued in its favour. According to
the learned counsel for the petitioner, instead of issuing the
work order to the petitioner, the administration of the
Corporation took a decision to re-tender the work and
accordingly issued notice of re-tender on 15th May, 2023, in
which petitioner also participated. However, the petitioner is
said to have received an e-mail communication dated 14th
July, 2023 informing it that the petitioner has technically been
rejected for the tender in question. The petitioner immediately
thereafter made a representation on 17th July, 2023 to the
Municipal Commissioner stating therein that the petitioner
fulfilled all the technical qualifications of the tender and that
there was no reason to reject its bid. By representing, the
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petitioner requested the Municipal Commissioner to look into
the matter and accept its bid, as according to the petitioner, it
was technically and financially qualified.
4. Arguing further, the learned counsel for the petitioner
submits that since nothing was done on the representation
made by the petitioner on 17th July, 2023, the present writ
petition was filed on 20th July, 2023, which came up for
hearing/admission etc. before the Court on 27th July, 2023. It
has further been stated that on 27 th July, 2023, during the
course of argument, the Court was apprised of an
order/communication dated 26th July, 2023 whereby it was
informed to the petitioner that the petitioner did not
technically qualify because it did not have the requisite
experience of having executed similar work as per the tender
conditions.
5. The Court, on 27th July, 2023 while taking note of the
said communication dated 26th July, 2023, also noticed the
submission advanced on behalf of the petitioner based on the
experience certificate submitted by the petitioner along with
the tender documents i.e., certificate dated 19th/20th April,
2023 issued by the City and Industrial Development
Corporation of Maharashtra Limited (CIDCO), which is
available before us on this writ petition at page 171.
6. It has been argued by the learned counsel for the
petitioner that the certificate dated 19 th/20th April, 2023
issued by CIDCO, which was submitted by the petitioner along
with tender documents, clearly established that the petitioner
did have the requisite experience as required by the tender
conditions and, thus, rejection of technical bid by the
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respondent-Corporation was absolutely arbitrary and the
same cannot be permitted to be sustained.
7. Drawing our attention to the tender condition No.10(ii),
it has first been argued by the learned counsel for the
petitioner that the requisite experience to be possessed by the
tenderer, as per the tender condition, was in three
alternatives and that the petitioner fulfilled the requisite
experience in terms of the third alternative of experience of
having executed three similar works. It has been argued that
the work certificate issued by CIDCO dated 19th/20th April,
2023 reveals that in respect of operation and maintenance of
Sewage Treatment Plant of a capacity of 85 MLD, the
petitioner was awarded the work on 1st January, 2020 and
since the date of commencement of the said work as disclosed
by the said certificate is 1st January, 2020, hence, the
petitioner fulfilled the requisite experience of having worked
for three years on the date of submission of the tender as the
certificate was issued on 19th/20th April, 2023 and if the period
from 1st January, 2020 is counted till issuance of the said
certificate, it comes out to three years. It has further been
stated by the learned counsel for the petitioner that apart
from the work as certified by the certificate dated 19th/20th
April, 2023 issued by CIDCO, the petitioner also has an
experience of similar work, which is revealed by another
certificate dated 2nd November, 2020 issued by CIDCO,
according to which the petitioner had carried out operation
and maintenance of 85 MLD capacity Sewage Treatment Plant
from 14th June, 2019 till 31st December, 2019 (i.e. for a period
of six months). In addition to these two works, reliance has
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also been placed by the learned counsel for the petitioner on
another work done in respect of which certificate has been
issued by CIDCO on 7th October, 2019. The said certificate
shows the date of commencement to be 26th October, 2015
and the date of completion of main work to be 25 th January,
2017, however, as per the said certificate duration of this
work is less than three years i.e., one year and three months.
8. According to the learned counsel for the petitioner if the
work experience certificates dated 19th/20th April, 2023, 2nd
November, 2020 and 7th October, 2019 are taken together, the
petitioner fulfills the requisite experience as per the
alternative Clause-3 of tender condition No. 10 (ii). Further
argument is that so far as the work, as mentioned in the
certificate dated 19th/20th April, 2023 is concerned, it was a
continuing work and it would have been completed on 30th
June, 2023 and, thus, insistence of the respondent-
Corporation that only those works will be counted for
reckoning the experience which are completed, does not bear
any rationale.
9. Alternatively, it has also been argued by the learned
counsel for the petitioner that the petitioner fulfills the
condition of experience in terms of alternative Clause-1 of
tender condition No.10 (ii). According to her, the petitioner
has completed three years of a similar work having operated
and maintained 85 MLD capacity Sewage Treatment Plant as
is evidenced by the certificate issued by CIDCO dated
19th/20th April, 2023. She has, thus, stated that even if the
certificate dated 19th/20th April, 2023 did not disclose that the
work was completed, it did disclose that the petitioner had
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carried out work for a period of three years from the date of
commencement i.e., w.e.f. 1st January, 2020 till the issuance
of certificate i.e., 19th/20th April, 2023, hence, in terms of
alternative experience Clause-1 it has to be held that the
petitioner fulfilled the requisite condition of experience and
thus, rejection of the technical bid on such count by the
respondent-Corporation is absolutely unreasonable, arbitrary
and hence, the decision to reject the technical bid of the
petitioner deserves to be quashed/set aside.
10. Per contra, opposing the writ petition vehemently, Mr.
Jagtiani, learned senior counsel representing the respondent-
Corporation has argued that even if the information contained
in the work certificates, relied upon by the petitioner which
are available at pages 171, 172 and 173 of the writ petition,
are taken to be correct on their face value, the petitioner
neither fulfills the alternative experience Clause-3 nor does it
fulfill the alternative experience Clause-1. It has also been
argued by Mr. Jagtiani that from a bare perusal of the
experience clause contained in the tender conditions, there is
no room of doubt that the experience required to be fulfilled
by the tenderer was in two folds, (i) experience of successful
completion of work and (ii) experience of three years
continuous work. His submission, thus, is that even if a
tenderer has experience of three years continuous work but if
such a tenderer lacks the requirement of completion of such a
work, it shall not qualify.
11. Taking the Court through the certificate dated 19th/20th
April, 2023, Mr. Jagtiani has stated that the said certificate is
in respect of "work in progress" and that the certificate does
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not anywhere specifies any information regarding "completed
work". He has also argued that so far as alternative
experience Clause-3 is concerned, a tenderer has to fulfill the
requirement of having experience of three separate (distinct)
similar works, that too, completed work for minimum
continuous three years, however, the experience certificates
relied upon by the petitioner, which are available at pages
171, 172 and 173 reveal that first such certificate dated 2 nd
November, 2020 issued by the CIDCO gives information that
the duration of the work was six months in relation to
operation and maintenance of 85 MLD capacity Sewage
Treatment Plant, whereas the second certificate dated 7th
October, 2019 evidences the duration of the work to be one
year and three months only, that too, in respect of 2 MLD
capacity high tech Sewage Treatment Plant. Accordingly, the
submission is that from these certificates the petitioner can
never be said to have fulfilled the alternative experience
Clause-3 of the tender condition No.10(ii).
12. Mr. Jagtiani has also argued that the petitioner cannot be
permitted to change its stand. He has also submitted that as
per tender documents submitted by the petitioner while
participating in the tender process, it is abundantly clear that
for experience, the petitioner had relied upon alternative
experience Clause-3 and not the alternative experience
Clause-1. His submission further is that, however, even if the
petitioner is permitted to rely upon alternative experience
Clause-1, in terms of the information available in the
certificate dated 19th/20th April, 2023, the petitioner cannot be
said to have fulfilled the requisite experience of "completed
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work". It has, thus, been argued that requirement of
"completed work" being one of the conditions of experience,
the petitioner does not fulfill the requisite experience even as
per the requirement of alternative experience Clause-1.
13. Replying to the submission made by the learned counsel
for the petitioner that when the writ petition was instituted,
the petitioner was never informed about the reasons of
rejection of its technical bid, Mr. Jagtiani submitted that the
decision-making process in administrative/quasi
administrative matters is necessarily different from the
decision-making process in tender matters, even if the
tendering authority is a State within the meaning of Article 12
of the Constitution of India. He has heavily placed reliance on
a Division Bench decision of this Court in the case of
Universal Cables Ltd. & Anr. vs. State of Maharashtra &
Ors., reported in 2023 SCC OnLine Bom 588 and submitted
that the Division Bench in this judgment has reviewed the law
relating to nature of decision making process in the tender
matters and has concluded that the tendering authority in
such matters needs to be given enough elbow room and that
if the tendering authority is able to justify the decision on the
basis of submissions made in the affidavit-in-reply in a
challenge before Court, no interference would be permissible
on that count.
14. Mr. Patil, learned counsel representing the respondent
no.2 in whose favour the work order has been issued, has
drawn our attention to the information furnished by the
petitioner along with the tender i.e., Annexure-4, which is
available at page 170 of the writ petition, according to which
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the petitioner had relied upon three alleged similar nature of
works in support of establishing that petitioner fulfilled the
requisite experience. He has also drawn our attention to
Annexure-5, which is available at page 174 of the writ
petition, enclosed with the tender documents by the
petitioner, which mentions List of Work in Hand as on date of
submission of the tender and, thus, the submission is that
since in the document annexed as Annexure-4 with the tender
documents one of the works was shown to be "Work in
Progress" by the petitioner itself and, hence, it cannot be said
that petitioner had the experience of having "completed
work". According to the learned counsel for the respondent
no.2, the petitioner on the basis of the documents relied upon
by it, cannot succeed, as apparently, it did not fulfill the
eligibility condition of having requisite experience.
15. Learned senior counsel for the respondent-Corporation
and learned counsel for the respondent no.2 have, thus,
urged that the writ petition be dismissed at its threshold.
16. We have given our thoughtful consideration to the
respective submissions made by the learned counsel
appearing for the competing interests. Resolution of the issue
involved in this petition revolves around the experience clause
given in the tender condition as one of the eligibility
conditions which is contained in Clause 10(ii). Clause 10(ii) of
the tender conditions is extracted hereinbelow: -
"10. Eligibility
*****
II)Experience:-Experience of having successfully
completion work of Comprehensive
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Operation and Maintenance of
Sewage Treatment Plant based on
SBR (C-Tech Technology) in India.
Following conditions applied for
Experience: -
1. One similar completed work
of Comprehensive Operation and
Maintenance of SCADA operated
Sewage Treatment Plant based on
SBR (C-Tech Technology) for
minimum continuous 3 year
including all daily operations of STP,
preventive & breakdown
maintenance of all electrical,
mechanical, instrumentation
components with all spares, all
consumables, chemicals required for
STP and maintenance of all civil
structures with Govt., Semi-Govt.,
Govt. Undertaking, Local self Govt.
Capacity not less than 80% of the
total average work capacity of 37.5
MLD i.e. 30 MLD.
OR
2. Two similar completed work
of Comprehensive Operation and
Maintenance of SCADA operated
Sewage Treatment Plant based on
SBR (C-Tech Technology) for
minimum continuous 3 year
including all daily operations of STP,
preventive & breakdown
maintenance of all electrical,
mechanical, instrumentation
components with all spares, all
consumables, chemicals required for
STP and maintenance of all civil
structures with Govt., Semi-Govt.,
Govt. Undertaking, Local self Govt.
Capacity not less than 50% of the
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total average work capacity of 37.5
MLD i.e. 18.75 MLD.
OR
3. Three similar completed work
of Comprehensive Operation and
Maintenance of SCADA operated
Sewage Treatment Plant based on
SBR (C-Tech Technology) for
minimum continuous 3 year
including all daily operations of STP,
preventive & breakdown
maintenance of all electrical,
mechanical, instrumentation
components with all spares, all
consumables, chemicals required for
STP and maintenance of all civil
structures with Govt., Semi-Govt.,
Govt. Undertaking, Local self Govt.
Capacity not less than 40% of the
total average work capacity of 37.5
MLD i.e. 15 MLD."
17. From a bare perusal of the afore-quoted experience
clause of the tender conditions, it is apparent that to fulfill the
requisite experience, the tenderers were to have either of the
three types of experience in relation to maintenance and
operation of Sewage Treatment Plant. The first alternative
condition is that tenderer ought to have completed similar
work of maintenance and operation of Sewage Treatment
Plant based on SBR (C-Tech Technology) for minimum
continuous 3 years with the capacity of the Sewage Treatment
Plant being not less than 80% of the total average work
capacity of 37.5 MLD, which is the requirement of the work for
which tender was floated. The other two alternative
experience conditions are distinct and such distinction is
based on the capacity of the Sewage Treatment Plant.
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According to the second alternative experience condition, if
the tenderer has experience of having operated and
maintained a Sewage Treatment Plant having 50% of the total
average work capacity of 37.5 MLD, tenderer should have
experience of two similar completed works. Similarly, if the
tenderer has the experience of having operated and
maintained Sewage Treatment Plant of a capacity of not less
than 40% of the total average capacity of 37.5 MLD, the
tenderer should have experience of three similar completed
works. Thus, the condition of having a particular number of
similar completed work was required to be fulfilled by the
tenderer.
18. The case, as set up by the petitioner in the writ petition
is that it fulfilled the alternative experience condition No.3 as
is apparent from the perusal of some of the documents which
are available on record on this writ petition and which were
submitted by the petitioner along with the tender documents.
If we examine the experience certificates relied upon by the
petitioner which are available at pages 171, 172 and 173 of
the writ petition, what we find is that the said certificates do
not evidence that the petitioner fulfilled the requisite
experience as per the requirement of the tender conditions.
The certificate dated 19th/20th April, 2023 is in relation to 85
MLD capacity Sewage Treatment Plant and according to the
said certificate itself the said work is in progress. In other
words, the said certificate does not anywhere mention that
the work has been completed. The date of commencement as
per the said certificate is 1st January, 2020 and the letter of
acceptance-cum-work order, as mentioned in the said
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certificate is 7th April, 2020. The said certificate though does
not disclose as to when the work actually commenced,
however, if we treat the date of letter of acceptance i.e., 7 th
April, 2020, as the date on which the actual work
commenced, the period of three years was not completed on
the date till when the extension of the said work was
approved i.e., till 31st March, 2023, which is shown in the
certificate dated 19th/20th April, 2023 itself. It is also to be
noticed that the experience clause in the tender condition
clearly stipulates "completed work" and hence, any work
which is in progress cannot be treated to be a "completed
work" and if a tenderer has experience of executing a "work in
progress", it cannot be said to have the experience of having
executed a "completed work". We are in complete agreement
with the submissions made by Mr. Jagtiani when he submits
that it is the tender floating authority which is the best judge
of interpretation of the different tender conditions as it
understands the nature of work the best which needs to be
executed by the successful tenderer.
19. The Division Bench of this Court in the case of
Universal Cables Ltd. (Supra) noticing the judgments of
the Hon'ble Supreme Court in the case of Afcons
Infrastructure Ltd. vs. Nagpur Metro Rail Corporation
Ltd., reported in (2016) 6 SCC 818, in the case of Silppi
Constructions Contractors vs. Union of India & Anr.,
reported in (2020) 16 SCC 489 and in the case of Michigan
Rubber (India) Ltd. vs. State of Karnataka, reported in
(2012) 8 SCC 216. The Universal Cables Ltd. (Supra),
concludes that:
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"the owner or employer of a project, having
authored the tender documents, is the best
person to understand and appreciate its
requirements and interpret its documents. It is
possible that owner or employer of a project may
give an interpretation to the tender documents
that is not acceptable to the constitutional
Courts but that by itself is not a reason for
interfering with the interpretation given".
The aforesaid extract by the Division Bench in Universal
Cables Ltd. (Supra) has been quoted from the judgment in
Silppi Constructions Contractors (Supra).
20. In view of the aforesaid legal proposition, we have no
hesitation to hold that the interpretation sought to be given
by the respondent-Corporation to the experience clause to the
effect that the requisite experience to be fulfilled by a
tenderer to qualify technically was in relation to "completed
works", is correct. We also are of the opinion that having a
condition of experience of "completed work" has a rationale as
well and the rationale is that it can be one of the yardsticks to
assess and evaluate the track record of the tenderer.
21. If the experience clause, as extracted above, is
interpreted in the light of what has been held by the Division
Bench of this Court in the case of Universal Cables Ltd.
(Supra), we may observe, at the cost of repetition, that it
will include only "completed work" and not the "on-going
work", even if the tenderer has the experience of three years
and such "on-going work" will not constitute the requisite
experience.
22. So far as the certificate dated 2nd November, 2020
available at page 172 of the writ petition is concerned, it is to
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be noticed that though this experience is in respect of 85 MLD
capacity Sewage Treatment Plant, however, the duration is
only six months i.e., from 14th June, 2019 to 31st December,
2019. This certificate, thus, clearly does not evidence that this
work was for a period of continuous three years and hence,
such work cannot be taken into account for the purposes of
reckoning the experience in terms of the experience clause in
the tender conditions. Similarly, the certificate dated 7 th
October, 2019 is in respect of a period of less than three
years, to be specific, for a period of one year and three
months only. This certificate also shows that it is not in
relation to 85 MLD capacity Sewage Treatment Plant neither
does it disclose that it was in respect of operation and
maintenance of the Sewage Treatment Plant, rather what it
discloses is that the work related to "Designing Providing,
Constructing, Erecting and Commissioning of 2 MLD capacity
high tech Sewage Treatment Plant". Though it states that the
work relating to treatment of the domestic raw sewage will
also have to be performed, however, since this work is in
relation to a Sewage Treatment Plant of only 2 MLD capacity
which is much less than 40% of the total average capacity of
37.5 MLD, hence, such experience, as evidenced by the
certificate dated 7th October, 2019, also cannot be taken into
consideration for counting the experience of the petitioner to
consider it to have technically qualified. Thus, the petitioner
neither fulfills the alternative experience Clause-1 nor does it
fulfill the alternative experience Clause-3 of the tender
condition No. 10(ii).
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23. For the reasons aforesaid, we are, thus, of the opinion
that there was no irregularity, much less any illegality
committed by the respondent-Corporation while rejecting the
technical bid of the petitioner.
24. Much has been attempted to be argued by the learned
counsel for the petitioner that if the petitioner had qualified
technically in the tender process which was undertaken
pursuant to the earlier tender notice published in February,
2022, there is no reason why the petitioner could be dis-
qualified in the re-tender process. It has also been attempted
to be argued that though the petitioner in the earlier
tendering process was declared as the lowest tenderer,
however, work order was not issued and the decision to re-
tender the work was taken which deprived the petitioner of its
rights accrued to it on the basis of it having been declared the
lowest price quoting tenderer in the earlier tender process. We
are afraid we are unable to find ourselves in agreement with
such submission made on behalf of the petitioner. There is not
even a whisper in the writ petition regarding alleged illegal
cancellation of the earlier tender process initiated by
publishing the tender notice in February, 2022. There is no
prayer in the writ petition that petitioner, being the lowest
tenderer pursuant to the tender process initiated in February,
2022, be allotted the work. In fact, participation of the
petitioner in the re-tender process without challenging the
alleged illegal cancellation of the earlier tender process, in our
opinion, debars the petitioner from raising any such issue.
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25. For all the aforesaid reasons, we are not inclined to
entertain the petition, which is hereby dismissed.
26. There will be no order as to costs.
(ARIF S. DOCTOR, J.) (CHIEF JUSTICE)
Digitally
signed by
PRAVIN
PRAVIN DASHARATH
DASHARATH PANDIT
PANDIT Date:
2024.01.03
14:35:07
+0530
