Bombay High Court
Bvg India Limited vs Jalgaon City Municipal Corporation ... on 18 August, 2025
Author: Manish Pitale
Bench: Manish Pitale
2025:BHC-AUG:22374-DB
WP.3079.2025.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 3079 OF 2025
M/s Watergrace Products
Through its proprietor
Shri. Chetan Prithviraj Bora
Near Kannamwar Bridge,
Mumbai-Agra Road, Dwarka,
Nashik - 01. ...Petitioner
Versus
1 Municipal Corporation of
City of Jalgaon
Through its Commissioner,
Municipal Corporation of City of Jalgaon
Sardar Vallabhbhai Patel Tower,
Administrative Building, M.G. Road,
Nehru Chowk, Jalgaon, Maharashtra
2. The Deputy Commissioner (Public Health)
Public Health Department
Municipal Corporation of City of Jalgaon
Sardar Vallabhbhai Patel Tower,
Administrative Building, M.G. Road,
Nehru Chowk, Jalgaon, Maharashtra
3. BVG India Ltd.,
Having its registered office at
BVG House, Premier Plaza,
Pune-Mumbai Road,
Chinchwad, Pune - 411 019.
and having its corporate office at
Midas Towers, 4th Floor,
Rajiv Gandhi Infotech Park, Phase-1
Hinjewadi, Pune - 411 057.
4. Global Waste Management Cell Pvt. Ltd.
20/21, 1st Floor, 10 Atul Niwas,
Khetwadi Lane, Mumbai,
Maharashtra - 400 004.
Shrikant Malani Page 1 of 29
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5. The State of Maharashtra,
Through its Principal Secretary,
Urban Development Department,
Mantralaya, Mumbai - 400 001. ...Respondents
WITH
WRIT PETITION NO. 2183 OF 2025
BVG India Limited
Having its registered office at
BVG House, Premier Plaza,
Pune-Mumbai Road,
Chinchwad, Pune - 411 019.
and having its corporate office at
Midas Towers, 4th Floor,
Rajiv Gandhi Infotech Park, Phase-1
Hinjewadi, Pune - 411 057. ...Petitioner
Versus
1 Municipal Corporation of
City of Jalgaon
Through its Commissioner,
Municipal Corporation of City of Jalgaon
Sardar Vallabhbhai Patel Tower,
Administrative Building, M.G. Road,
Nehru Chowk, Jalgaon, Maharashtra
2. M/s Watergrace Products
2R22+6VJ, Kathda,
Nashik, Maharashtra - 422 001.
3. Global Waste Management Cell Pvt. Ltd.
20/21, 1st Floor, 10 Atul Niwas,
Khetwadi Lane, Mumbai,
Maharashtra - 400 004.
4. The State of Maharashtra,
Through its Principal Secretary,
Urban Development Department,
Mantralaya, Mumbai - 400 001. ...Respondents
Shrikant Malani Page 2 of 29
WP.3079.2025.doc
***
Dr. Abhinav Chandrachud a/w Mr. R. S. Kohli, Mr. V. R. Chavan, Mr.
Yogendra M. Kohli i/b M/s C. K. Legal, Advocates and Consultants &
Ms. Supriya Gandhi-Bora (Through V.C.), for the Petitioner in
WP/3079/2025.
Mr. Karan Bhosale a/w Ms. Neha Bhosale, Ms. Laveena Tejwani, Mr.
Abdul Kudalkar, Mr. Harsh Savant i/b NDB Law/ Majit Shaikh
(Through V.C.), for Petitioner in WP/2183/
Mr. Rajendrraa Deshmukkh, Senior Counsel a/w Mr. Shriram Vinod
eshmukh i/b Mr. Nirmal Dayama, for Respondent Nos.1 and 2 in
both petitions.
Mr. R. K. Ingole, AGP for Respondent - State.
***
CORAM : MANISH PITALE AND
Y. G. KHOBRAGADE, JJ.
RESERVED ON : 11th AUGUST 2025
PRONOUNCED ON : 18th AUGUST 2025
JUDGMENT:
(PER MANISH PITALE, J.)
1. In these petitions, one of the petitioners is the successful
bidder and the other is the unsuccessful and disgruntled bidder, who
claims that the respondent No.1 - Jalgaon Municipal Corporation,
deliberately changed the rules of the game after it had been initiated,
only with a view to favour the successful bidder. Both the petitioners
have relied upon judgments of the Supreme Court and this Court to
support their respective positions, which necessarily pertain to the
extent of jurisdiction that can be exercised by this Court, under Article
226 of the Constitution of India, in the context of tender and
commercial matters.
2. The chronology of events needs to be appreciated in brief
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to consider the rival contentions.
3. On 13th December 2024, the respondent No.1 -
Corporation issued tender notice for the work of collection and
transportation of Municipal waste through Ghanta Gadi with
segregation of wet and dry waste by collecting from house to house.
This involved supply of 500 workers also. The tender notice, inter alia,
specified formula for deciding the lowest bidder (L-1) amongst
bidders.
4. On 24th December 2024, a pre-bid meeting was held by the
respondent No.1 - Corporation with the bidders, which included
petitioner in Writ Petition No.3079 of 2025 - Watergrace Products,
petitioner in Writ Petition No.2183 of 2025 - BVG India Limited and a
third bidder - Global Waste Management Cell Private Limited. In the
pre-bid meeting, amongst other things, the respondent No.1 -
Corporation specified that the aforesaid formula for deciding L-1 was
to be construed in the context of supplying 500 workers for the said
work.
5. On 29th January 2025, the technical evaluation report was
published by the respondent No.1 - Corporation in which all the
aforesaid three bidders were declared as qualified and thereupon, the
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bids were opened on the same day with the details quoted by the
bidders being published, wherein petitioner - BVG India Limited was
shown as L-1.
6. According to the petitioner - BVG India Limited, despite
the aforesaid state of affairs, respondent No.1 - Corporation was not
taking further logical steps in the matter, due to which it had to reach
out to the respondent - Corporation for issuing letter of acceptance of
the bid and for granting work order. It is the case of the petitioner -
BVG India Limited that respondent - Corporation informed it that the
status of BVG India Limited as L-1 was being reconsidered and in that
backdrop, the letter of acceptance was not being issued. On 31 st
January 2025, petitioner - BVG India Limited sent a representation to
the respondent - Corporation giving its version of calculations, trying
to impress upon the respondent - Corporation that BVG India Limited
was indeed the lowest bidder and that accepting the said lowest bid for
a period of five years of the proposed contract would result in lesser
cost being incurred by the Corporation.
7. According to the petitioner - BVG India Limited, since the
respondent - Corporation was not responding, it was constrained to
file aforesaid Writ Petition No.2183 of 2025, praying for a direction to
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the said respondent - Corporation to award the work to BVG India
Limited by issuing letter of acceptance in the light of the fact that the
bid offered by BVG India Limited was the lowest bid. On 13 th February
2025, this Court issued notice in the aforesaid Writ Petition No.2183 of
2025. The documents indicate that on 13th February 2025 itself the e-
tender committee of the respondent - Corporation held a meeting and
decided that the most beneficial bidder for the Corporation be declared
as the successful bidder and that petitioner - BVG India Limited be
called for rate negotiations. On 14th February 2025, petitioner -
Watergrace Products sent a letter to respondent - Corporation making
allegations against petitioner - BVG India Limited about false and
incorrect disclosures in the technical bid. On 25 th February 2025,
respondent - Corporation issued a letter to petitioner - BVG India
Limited to remain present before the Municipal Commissioner, as its
bid was found to be the lowest bid, so that further negotiations could
be undertaken.
8. On 26th February 2025, petitioner - Watergrace Products
issued a legal notice to the respondent - Corporation to recall the
aforesaid letter dated 25th February 2025.
9. On 04th March 2025, negotiations between petitioner -
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BVG India Limited and the respondent - Corporation resulted in
reduced bid rates with regard to service charge as well as tipping fees
and in this backdrop, on 10th March 2025, petitioner - BVG India
Limited communicated the revised aggregate rates for a period of five
years concerning the said contract. On 20th March 2025, the standing
committee of the respondent - Corporation sanctioned the revised
negotiated rates proposed by petitioner - BVG India Limited.
10. In the meanwhile, on 27th February 2025, the petitioner -
Watergrace Products filed Writ Petition No.3079 of 2025, challenging
the said letter / communication dated 25th February 2025, issued by
the respondent - Corporation to petitioner - BVG India Limited. On
04th March 2025, this Court issued notice in the said writ petition and
it was directed that work order that may be issued shall be subject to
final outcome of said writ petition. Thereafter, pleadings were
completed in both the writ petitions and during May, June and July
2025, the respondent - Corporation called upon petitioner - BVG India
Limited to deposit security amount, stamp duty charges and eventually
on 21st July 2025, executed an agreement. On 24 th July 2025,
respondent -Corporation issued work order in favour of petitioner -
BVG India Limited, subject to outcome of both the writ petitions. It is
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in this backdrop, that these writ petitions were taken up for hearing
and disposal at the admission stage itself.
11. Dr. Abhinav Chandrachud, learned counsel appearing for
the petitioner - Watergrace Products in Writ Petition No.3079 of 2025,
submitted that two specific issues are raised on behalf of the said
petitioner to challenge the actions of the respondent - Corporation.
Firstly, the formula for deciding L-1 as per tender notice was absolutely
clear and on proper application of the said formula, it was evident that
petitioner - Watergrace Products was the L-1 bidder. Specific attention
of this Court was invited to pleadings in the writ petition, at paragraph
Nos.5(h)(i), (ii) and (iii), to demonstrate application of the said
formula to the offers made by the three bidders and as to the manner
in which petitioner - Watergrace Products was the L-1 bidder. It was
submitted that the respondent - Corporation arbitrarily and with a
view to benefit petitioner - BVG India Limited changed the formula
itself, due to which BVG India Limited became L-1 bidder and
therefore, it has illegally benefited. It was submitted that this amounts
to changing rules of game after it had begun and hence, on this ground
itself, the writ petition filed by Watergrace Products deserves to be
allowed and the one filed by BVG India Limited deserves to be
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dismissed.
12. Secondly, it was submitted that petitioner BVG India
Limited had made false and misleading statements in its bid. In this
regard, attention of this Court was invited to annexure 3 to the tender
notice, which required the bidders to give specific information. Clause
6 thereof, required a statement to be made by the bidder that it was
not placed in the list of blacklisted entities by a Municipal Corporation
or any Government institution. It was further submitted that although
petitioner - BVG India Limited made such a statement in its bid, the
record would show it had been blacklisted by a public body at Raipur
for a specific period. On this basis, it was submitted that petitioner
BVG India Limited ought to have been disqualified from participating
in the tender process and yet, the respondent - Corporation not only
entertained its bid but also awarded the contract in an illegal manner.
13. It was submitted that the respondent - Corporation cannot
be permitted to rely upon a clause in the tender notice reserving rights
in the Corporation to negotiate with the bidders to extract the most
beneficial bid, for the reason that the such negotiations would have to
be based on a proper application of the formula for deciding L-1
specified in the tender notice. It was further submitted that although
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the tender document consisted of a clause for dispute resolution
referring to the provisions of the Arbitration and Conciliation Act,
1996, since petitioner - Watergrace Products is raising a challenge
based on arbitrariness and discrimination, invoking its rights under
Article 14 of the Constitution of India, notwithstanding the said clause,
the said petition filed by petitioner - Watergrace Products deserves to
be entertained and allowed.
14. It was further submitted that the respondents cannot claim
that the petition filed by Watergrace Products should not be
entertained because the consequential actions of accepting the bid of
petitioner - BVG India Limited and issuance of work order have not
been challenged by making amendments, for the reason that order
dated 04th March 2025, passed by this Court itself directed that the
work order, if issued, would be subject to the final outcome of the writ
petition filed by Watergrace Products. It was submitted that in the
light of the arbitrary and illegal actions of the respondent -
Corporation, Writ Petition No.3079 of 2025, filed by Watergrace
Products deserves to be allowed and the petition filed BVG India
Limited deserves to be dismissed, with further direction to conduct a
fresh tender process for allotment of the said contract / work. In
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support of the submission, that rules of the game could not have been
changed after it had begun, reliance was placed on judgment of the
Supreme Court in the case of Monarch Infrastructure (P) Ltd. Vs.
Commissioner, Ulhasnagar Municipal Corporation and Others.1 In
support of the proposition that gold posts cannot be rearranged during
the bidding process to affect right of some or to deny a privilege to
some, reliance was placed on judgment of the Supreme Court in the
case of Central Coalfields Limited and Another Vs. SLL-SML (Joint
Venture Consortium) and others2.
15. Mr. Karan Bhosale, learned counsel appearing for petitioner
- BVG India Limited in Writ Petition No.2183 of 2025, submitted that
the contentions raised on behalf of petitioner - Watergrace Products
are misplaced and that the contract / work in the present case has
been correctly awarded to petitioner - BVG India Limited. It was
submitted that petitioner - Watergrace Products cannot succeed in its
writ petition, for the reason that it has failed to amend the writ
petition to challenge the work order issued in favour of petitioner -
BVG India Limited. Hence, no effective relief can be granted to
petitioner - Watergrace Products.
1 (2000) 5 SCC 287
2 (2016) 8 SCC 622
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16. On the aspect of application of the formula contained in
the tender notice for deciding L-1, it was submitted that the pre-bid
meeting and the consequential interpretation placed on the said
formula was being deliberately ignored by petitioner - Watergrace
Products. In this context, reference was made to the pre-bid meeting
held on 24th December 2024, wherein the representatives of all the
prospective bidders were present and it was specifically decided that
the said formula for deciding L-1 would be on the basis of 500 workers
to be provided and this manner of applying the formula was agreed
upon by all the prospective bidders, including petitioner - Watergrace
Products. Having participated in the bidding process, being fully
aware of the said pre-bid meeting and its consequences, petitioner -
Watergrace Products cannot be permitted to challenge the application
of the formula in the facts of the present case. It was further
submitted that the clause in the tender notice just below the clause
pertaining to the formula for deciding L-1 specifically laid down that
the respondent - Corporation would be at liberty to negotiate and to
accept the bid that would be eventually most beneficial to the
Corporation. It was submitted that since the bid of petitioner - BVG
India Limited was indeed the lowest, it was not only beneficial for the
Corporation, but in the public interest that the bid of petitioner - BVG
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India Limited was accepted.
17. The learned counsel appearing for petitioner - BVG India
Limited also referred to the Central Vigilance Commission (CVC)
Guidelines to contend that pre-bid meeting / conference was an
accepted norm and the agreed approach was to be adopted while
accepting bids in such circumstances.
18. In respect of the allegations regarding suppression of
information pertaining to blacklisting of petitioner - BVG India
Limited, it was submitted that when the said petitioner offered its bid,
it was certainly not blacklisted. Even the alleged blacklisting of the
said petitioner, which was for limited period, was stayed and in that
context reference was made to the relevant order passed by the
Competent Court. It was further submitted that in any case, the
information sought in the tender notice, if interpreted in the manner in
which petitioner - Watergrace Products was insisting, would result a
situation where an entity blacklisted for a limited period of time would
be debarred from participating in any tender process initiated by the
respondent - Municipal Corporation. The said interpretation would do
violence to the tender process itself.
19. The learned counsel for petitioner - BVG India Limited
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referred to and relied upon judgments of the Supreme Court in the
cases of Air India Limited vs. Cochin International Airport Limited 3,
Jagdish Mandal Vs. State of Orrisa and others4, Tata Motors Limited
Vs. Brihanmumbai Electric Supply and Transport undertaking (BEST)
and others5, and N. G. Products Vs. Vinod Kumar Jain & others 6,
judgment of Division Bench of this Court in the case of Reutech Mining
Vs. Union of India7 and judgment of the Division Bench of Delhi High
Court in the case of Sumitomo Chemical India Private Limited Vs.
Union of India and Others8.
20. It was submitted that if the position of law laid down in the
said judgments is appreciated and followed, the petition filed by
Watergrace Products deserves to be dismissed. It is further submitted
that since the respondent - Corporation had, in fact, accepted the
lowest bid of petitioner - BVG India Limited, appropriate orders can be
passed in the writ petition filed by the said petitioner.
21. Mr. Rajendrraa Deshmukkh, learned senior counsel
appearing for respondent - Corporation in both petitions submitted
that since the lowest bid of petitioner - BVG India Limited had been
3 (2000) 2 SCC 617
4 (2007) 14 SCC 517
5 (2023) 19 SCC 1
6 (2022) 6 SCC 127
7 2023 SCC OnLine Bom 36
8 2010 SCC OnLine Del 2479
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accepted and work order was also issued, the writ petition filed by the
said petitioner can be disposed of. As regards the petition filed by
petitioner - Watergrace Products, it was submitted that the same was
based on a misinterpretation of the position of law concerning the
scope for this Court in writ jurisdiction to interfere with the decisions
taken by the respondent - Corporation. It was submitted that in the
first place the tender notice itself provided for dispute resolution
through arbitration, which the petitioner - Watergrace Products had
failed to invoke. Approaching this Court in writ jurisdiction directly
ought not to be permitted in the face of such dispute resolution clause.
22. Apart from this, attention of this Court was invited to the
discussions that took place in the pre-bid meeting, in the present case
of the representatives of petitioner - Watergrace Products, as also all
the other prospective bidders. It was submitted that all the prospective
bidders, including petitioner - Watergrace Products had agreed to the
manner in which the formula for deciding L-1 was to be applied in
terms of the tender notice. Much emphasis was placed to the clause
just below the clause providing for the formula, which reserved the
right for the respondent - Corporation to accept the bid that was
eventually found to be most beneficial. It was submitted that the
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clauses of the tender notice being applied in the backdrop of the
decisions taken in the pre-bid meeting, clearly indicate that no case
was made out by the petitioner - Watergrace Products for interference
in the present matter. The learned senior counsel for the respondent -
Corporation specifically relied upon the meeting of the E-tender
Committee of the respondent - Corporation, wherein the bids of the
three bidders i.e. two petitioners herein and Global Management Cell
Private Limited were considered. It was emphasized that the bid of
petitioner - BVG India Limited would result in cost of Rs.7.23 Crores
for the respondent - Corporation, while the bid of petitioner -
Watergrace Products would lead to cost of Rs.43.41 Crores and the bid
of the Global Management Cell Private Limited would lead to cost of
Rs.146.38 Crores for the respondent - Corporation. On this basis, it
was submitted that petitioner - BVG India Limited was obviously L-1
and the most beneficial for the respondent - Corporation in the
context of the said public work of waste disposal. It was submitted
that the work order had been already issued and since the petitioner -
Watergrace Products had failed to demonstrate any violation of
mandatory requirements, the petition filed by the said petitioner
deserved to be dismissed.
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23. This Court has considered the rival submissions in the light
of the position of law pertaining to the limited scope available in writ
jurisdiction for this Court to interfere with the ultimate decision taken
by the respondent - Corporation in the context of the aforesaid tender
notice and awarding of contract / work concerning waste disposal in
the City of Jalgaon. We accept the contention raised on behalf of
petitioner - Watergrace Products that since the challenge in this case is
based on alleged arbitrariness on the part of the respondent -
Corporation, violating Article 14 of the Constitution of India,
notwithstanding the dispute resolution clause in the tender notice, this
Court can consider the challenge within the scope available under
Article 226 of the Constitution. It is settled law that the Writ Court
while exercising power of judicial review would consider the process
undertaken by the Public Authority like the respondent - Municipal
Corporation, but judicial review of the merits of the decision would not
be undertaken. Before proceeding to deal with the specific contentions
raised in the facts of the present case on behalf of the rival parties, it
would be appropriate to refer to the position of law in this regard.
24. In the case of Jagdish Mandal Vs. State of Orrisa and others
(supra), the Supreme Court clarified the position of law in the
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following terms :
"22. Judicial review of administrative action is intended
to prevent arbitrariness, irrationality,
unreasonableness, bias and mala fides. Its purpose is
to check whether choice or decision is made
"lawfully" and not to check whether choice or
decision is "sound". When the power of judicial
review is invoked in matters relating to tenders or
award of contracts, certain special features should be
borne in mind. A contract is a commercial
transaction. Evaluating tenders and awarding
contracts are essentially commercial functions.
Principles of equity and natural justice stay at a
distance. If the decision relating to award of
contract is bona fide and is in public interest, courts
will not, in exercise of power of judicial review,
interfere even if a procedural aberration or error in
assessment or prejudice to a tenderer, is made out.
The power of judicial review will not be permitted to
be invoked to protect private interest at the cost of
public interest, or to decide contractual disputes.
The tenderer or contractor with a grievance can
always seek damages in a civil court. Attempts by
unsuccessful tenderers with imaginary grievances,
wounded pride and business rivalry, to make
mountains out of molehills of some technical/
procedural violation or some prejudice to self, and
persuade courts to interfere by exercising power of
judicial review, should be resisted. Such
interferences, either interim or final, may hold up
public works for years, or delay relief and succour to
thousands and millions and may increase the project
cost manifold. Therefore, a court before interfering
in tender or contractual matters in exercise of power
of judicial review, should pose to itself the following
questions :
(i) Whether the process adopted or decision
made by the authority is mala fide or
intended to favour someone.
OR
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Whether the process adopted or decision
made is so arbitrary and irrational that the
court can say : "the decision is such that no
responsible authority acting reasonably and
in accordance with relevant law could have
reached."
ii) Whether public interest is affected.
If the answers are in the negative, there should be
no interference under Article 226. Cases involving
blacklisting or imposition of penal consequences on
a tenderer/contractor or distribution of state
largesse (allotment of sites/shops, grant of licences,
dealerships and franchises) stand on a different
footing as they may require a higher degree of
fairness in action."
25. In the case of Air India Limited vs. Cochin International
Airport Limited (supra), the Supreme Court referred to the settled
position of law recognized in the earlier judgment in the case of
Ramana Dayaram Shetty Vs. The International Airport Authority of
India & Others9, to hold that a public body or State essentially enters
into a commercial transaction, while awarding such contracts and that
such a public body or State can choose its own method to arrive at a
particular decision. It can enter into negotiations before finally
accepting one of the offers and it can even be free to grant any
relaxation for bona fide reasons if permitted by the tender conditions
and that an offer may not be accepted even if it happens to be the
highest or the lowest. The said position of law leaves enough play in
9 1973 (3) SCC 489
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the joints for a public body or State, while taking decisions in the
context of awarding contracts for public works. There can be hardly
any doubt that public good and benefit to the public at large has to be
one of the main considerations for such a public body or State while
taking such decisions.
26. In the case of N. G. Products Vs. Vinod Kumar Jain (supra),
the Supreme Court placed emphasis on the position of law that the
Writ Court should refrain itself from imposing its decision over the
decision of such public body or State on the question as to whether a
particular bid is to be accepted or not. It was recognized that Courts
lack the expertise to interfere in decisions which may involve technical
issues and that the public body or State would be better placed to take
such decisions.
27. In the case of Tata Motors Limited Vs. Brihanmumbai
Electric Supply and Transport undertaking (BEST) and others (supra),
the limits of interference by the Writ Court were reiterated in the
following terms :
"55. Ordinarily, a writ court should refrain itself from
imposing its decision over the decision of the
employer as to whether or not to accept the bid of a
tenderer unless something very gross or palpable is
pointed out. The court ordinarily should not interfere
in matters relating to tender or contract. To set at
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naught the entire tender process at the stage when
the contract is well underway, would not be in public
interest. Initiating a fresh tender process at this
stage may consume lot of time and also loss to the
public exchequer to the tune of crores of rupees. The
financial burden/implications on the public
exchequer that the State may have to meet with if
the Court directs issue of a fresh tender notice,
should be one of the guiding factors that the Court
should keep in mind. This is evident from a three-
Judge Bench decision of this Court in Association of
Registration Plates v. Union of India and Others,
reported in (2005) 1 SCC 679."
28. The said position of law was followed by the Division
Benches of this Court and the Delhi High Court in the cases of Reutech
Mining Vs. Union of India (supra) and Sumitomo Chemical India
Private Limited Vs. Union of India and Others (supra). In fact, in the
said Division Bench judgment of the Delhi High Court a detailed
overview of various judgments of the Supreme Court was undertaken
and the above-mentioned position of law was reiterated.
29. The said position of law makes it very clear that ordinarily
the Writ Court would not interfere with the decision of a public body
like the respondent - Municipal Corporation on the aspect of a bid
being accepted or not, unless the facts make out a gross case against
such a public body. It is to be recognized that scrapping of a process
and initiating a fresh tender process consumes considerable period of
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time and necessarily results in loss to the public exchequer. This is also
a significant aspect to be kept in mind.
30. In the light of the said position of law, we have considered
the documents and material placed on record and the rival
submissions placed before us. The attack on behalf of petitioner -
Watergrace Products is two fold. Firstly, the alleged tinkering with and
misapplication of the formula for deciding L-1 and secondly, alleged
suppression of blacklisting of petitioner - BVG India Limited, although
such information was required to be divulged as per the tender notice.
31. As regards the first aspect, we find that the formula as per
the tender notice for deciding L-1 was as follows :
"L1 = Service Charge per labour per day
_____________________________ + Tipping Fee"
304 ton per day
32. Petitioner - Watergrace Products has placed much
emphasis on the calculation of L-1 as per the above said formula,
which has been depicted in paragraph No.5 (h) (ii) and (iii). There is
no serious dispute about the arithmetical calculations depicted by
petitioner - Watergrace Products in the aforesaid paragraph of its writ
petition. But, we find that the respondent - Corporation through its E-
Tender Committee held a pre-bid meeting on 24th December 2024,
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which was attended by four bidders, including the two petitioners
herein. In the said meeting, it was specifically emphasized that the
above-mentioned formula for deciding L-1 would be applied in the
context of 500 workers to be provided by the bidders. It is on the basis
of aforesaid decision arrived at, in the pre-bid meeting that respondent
- Corporation decided as to which of the bidders would be L-1. Again
there is no serious dispute about the arithmetical calculations done by
the respondent - Corporation by specifically introducing the aspect of
500 workers in the formula. The question is, as to whether this can be
said to be tinkering with the formula as specified in the tender notice
for deciding L-1 and whether it can be said that the rules of the game
were changed after the game had begun.
33. We find that while undertaking the said process of
awarding contracts for public works, the concept of pre-bid meeting /
conference is by now well recognized. In fact, tender notices provide
for such pre-bid meetings, so that all the bidders are fully aware about
the manner in which the public body or State would be proceeding in
the matter. The CVC Guidelines also provide for such pre-bid
conferences. It was sought to be argued on behalf of petitioner -
Watergrace Products that since the tender notice as modified by the
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decisions in the pre-bid meeting was not put up on the portal of the
respondent - Corporation, the entire proceeding is vitiated. But, we
are not inclined to accept the said stand sought to be taken on behalf
of petitioner - Watergrace Products, for the reason that there was no
denial about the fact that representative of the said petitioner was
indeed present in the pre-bid meeting and that all concerned parties
were aware about the manner in which the respondent - Corporation
would be applying the formula for arriving at L-1. For the same
reason, we are unable to accept the contention raised on behalf of
Watergrace Products that it suffered prejudice as the amended terms
and conditions recorded in the minutes of the pre-bid meeting did not
specifically refer to the clause pertaining to the formula for deciding L-
1. In fact, the details recorded just above the amended terms and
conditions specifically referred to the manner in which the formula
would be applied.
34. We also find that there is substance in the contention raised
on behalf of the respondent - Corporation that the clause just below
the aforesaid clause providing for formula to decide L-1 specifically left
enough room for the respondent - Corporation to negotiate and to
take a decision in the matter, which was most beneficial for the
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respondent - Corporation. When we talk of a decision being beneficial
to the respondent - Corporation, it being a public body, such benefit
obviously pertains to benefit to the public at large, for the reason that,
lesser the cost for engaging private entities for public works, lesser is
the burden on the public exchequer. To that extent, the respondent -
Corporation is justified in contending that there has to be enough play
in the joints for it to take a proper decision, so as to reduce the cost
and provide maximum benefit to the public. Such cost-benefit analysis
within the terms of the tender notice can certainly be permitted to the
respondent - Corporation.
35. We find that the contents of the minutes of the pre-bid
meeting sufficiently indicate that all the prospective bidders, including
the petitioner - Watergrace Products were fully aware about the
manner in which the aforesaid formula for deciding L-1 was to be
applied and therefore, this cannot be said to be a case where the rules
of the game were changed after the game was set into motion. In the
facts of the present case, we find that the position of law laid down by
the Supreme Court in the cases of Monarch Infrastructure (P) Ltd. Vs.
Commissioner, Ulhasnagar Municipal Corporation and Others (supra),
and Central Coalfields Limited and Another Vs. SLL-SML (Joint
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Venture Consortium) and others (supra) cannot inure to the benefit of
petitioner - Watergrace Products. This can neither be said to be a case
where the rules of game were changed after the game had begun or
that the goal posts were rearranged to affect the right of petitioner -
Watergrace Products or to grant any privilege to the other bidders,
including petitioner - BVG India Limited.
36. A perusal of the details of the E-Tender Committee meeting
dated 13th February 2025, as regards details of the costs to be incurred
by the respondent - Municipal Corporation for both parts of the tender
i.e. providing 500 labours and the machinery for waste disposal, show
that accepting the bid of petitioner - BVG India Limited resulted in
lower costs being incurred by the respondent - Corporation than the
costs to be incurred if the bid of petitioner - Watergrace Products was
to be accepted. The figures have not been seriously disputed by any of
the parties and perusal of the same shows that acceptance of the bid of
petitioner - BVG India Limited would result in cost of Rs.7.23 Crores
being incurred by the respondent - Corporation, while accepting the
bid of petitioner - Watergrace Products would result in cost of
Rs.43.41 Crores being incurred. The difference between the two is not
marginal but substantial, thereby indicating that the respondent -
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Corporation did take a rational decision as per the terms of the tender
notice, which can be said to be most beneficial for the respondent -
Corporation and consequentially beneficial for the public exchequer.
This cannot be said to be a gross or a palpably, arbitrary and wrong
decision taken by the respondent - Municipal Corporation and hence,
this Court while exercising writ jurisdiction cannot interfere with the
ultimate the decision taken by the respondent - Corporation.
37. We find that the contention raised on behalf of the
petitioner - Watergrace Products that the entire process ought to be
scrapped and fresh tender process should be initiated, cannot be
accepted as it will lead to unnecessary loss to the public exchequer,
apart from the fact that petitioner - Watergrace Products has not been
able to make out a case for this Court to exercise Writ jurisdiction in
the narrow window available in such matters concerning tender
process and commercial contracts to be entered into by public bodies
like the respondent - Municipal Corporation.
38. As regards the second ground raised on behalf of petitioner
- Watergrace Products about deliberate suppression of facts by the
petitioner - BVG India Limited in the context of blacklisting, we find
that the requirement in annexure 3 of the tender notice at clause 6
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does require a statement that the bidder has not been placed on any
blacklist by a Public Body, Municipal Corporation or Government
Institution. But, the purport of such a clause can also be interpreted to
mean that at the time when the bid is being submitted, the bidder is
not placed in any blacklist. It is a possible interpretation and there is
sufficient material placed on record by petitioner - BVG India Limited
to show that the order of blacklisting being relied upon by petitioner -
Watergrace Products was for a limited period and that in any case it
had been stayed by the Competent Court. In such circumstances, it
cannot be said that there was a misleading statement made on behalf
of petitioner - BVG India Limited while submitting the bid in the
present case. Therefore, we do not find any substance in the said
contention raised on behalf of petitioner - Watergrace Products.
39. On an overall analysis of the facts and circumstances of the
present case, we find that petitioner - Watergrace Products has failed
to make out its case to declare that the impugned letter /
communication dated 25th February 2025, issued by the respondent -
Municipal Corporation is arbitrary, illegal and mala fide or that it
deserves to be quashed and set aside. Therefore, there is no ground
made out by petitioner - Watergrace Products to interfere with
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consequential actions taken by the respondent - Corporation,
including the work order issued in favour of petitioner - BVG India
Limited. Hence, the Writ Petition No.3079 of 2025 is dismissed.
40. As regards Writ Petition No.2183 of 2025, we find that
since the respondent - Municipal Corporation proceeded further by
treating petitioner - BVG India Limited as the lowest bidder and in
fact, issued the work order in its favour, nothing further survives in the
said petition and hence, it is disposed of as such.
41. In the light of the above, the interim direction that work
order issued in the present case would be subject to the final outcome
of the writ petitions would comes to an end. Consequently, BVG India
Limited shall continue to perform its part of the contract as per work
order issued in its favour by the respondent - Municipal Corporation
without any further hindrance.
42. The writ petitions are disposed of in above terms. Pending
applications, if any, also stand disposed of.
(Y. G. KHOBRAGADE, J.) (MANISH PITALE, J.)
