Delhi High Court
M/S Mahindra And Mahindra Limited vs North Delhi Municipal ... on 1 October, 2019
$~26
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment : 1st October, 2019
+ W.P.(C) 8589/2019
M/S MAHINDRA AND MAHINDRA LIMITED ..... Petitioner
Through Mr. J.P. Sengh, Sr. Advocate with Mr.
Anand Shankar Jha, Mr. Puneet Dhir
& Ms. Manisha Mehta, Advocates.
versus
NORTH DELHI MUNICIPAL CORPORATION AND ANR.
..... Respondents
Through Mr. Sanjiv Sen, Sr. Advocate with
Ms. Mini Pushkarna, Standing
Counsel for R-1 & R-2.
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
HON'BLE MR. JUSTICE ANUP JAIRAM BHAMBHANI
G.S. SISTANI, J. (ORAL)
CM APPL. 39504/2019 (delay in filing rejoinder)
1. This is an application filed by the applicant/petitioner under Section 5
of Limitation Act, 1963 seeking condonation of delay of 7 days in filing
the rejoinder.
2. The prayer made in the application is not opposed. Delay of 7 days in
filing the rejoinder is condoned.
3. The application stands disposed of.
W.P.(C) 8589/2019 & CM APPL. 40723/2019 (stay)
4. This is a petition under Article 226 of the Constitution of India filed by
the petitioner.
5. The necessary facts required to be noticed for disposal of this petition
are that a tender bearing no.GEM/2018/B/121660 dated 17.11.2018
was floated on Government e-Marketplace (GeM) portal by respondent
No.1/North DMC for procurement of 104 Water Trucks/Cabin Trucks
with Water Tanks (hereinafter referred to as the 'water tankers'). The
technical specifications of the water tankers containing general
parameters, certification, performance parameters, constructional
parameters, EMD and other details such as buyer specific additional
terms and conditions were fully set-out in the bid document dated
17.11.2018. Thereafter a corrigendum was issued by respondent no.1 on
21.11.2018 by which certain other terms and conditions were added in
the bid document. The respondent issued another corrigendum on
29.11.2018.
6. On 05.12.2018, all manufacturers were invited physically for technical
bid opening and the bid was opened on 05.12.2018 at 12:00 noon in the
presence of the bidders.
7. Thereupon, respondent No.1/North DMC issued a Letter of Intent (LOI)
on 12.04.2019 in favour of the petitioner for procurement of 104 Truck
mounted water tankers with pump of minimum 3KL capacity/CNG fuel
driven, for North DMC through GeM under UDF for a total contractual
amount of Rs.11,18,26,990/-. The petitioner was further required to
submit its consent for the work and to enter into a contract agreement
with the respondent department on a non-judicial stamp paper of
Rs.100/- and sign departmental conditions etc. at the earliest.
Admittedly, the petitioner company gave a formal acceptance letter on
08.05.2019.
8. To the petitioner's surprise however, the petitioner received a
communication on 24.06.2019 informing the petitioner that the tender
had been cancelled/withdrawn on 12.06.2019 on the GeM portal. A
detailed representation was sent by the petitioner on 24.07.2019; and
having received no answer, the present writ petition was filed. The
stand of the petitioner before us is that the action of the respondents is
mala fide, illegal and arbitrary and without any cogent reasons.
9. Learned counsel for the respondent has entered appearance and has
produced the record. Counsel for the respondent has also filed a counter
affidavit. As per the counter affidavit, the tender was withdrawn for
cogent reasons. Reliance is placed on para 9 of the counter affidavit,
which reads as under :
"9. That at the time of finalizing the bid specifications,
while detailing the technical specifications under the head
type of steering, inadvertently it was mentioned Power as
well as Manual steering, due to inadvertent overlooking by
the Technical Committee, which had wrongly
recommended manual as well as power, since subsequently,
the Competent Authority including the Commissioner was
of the view that only power steering vehicles ought to be
procured for maximum, safe and efficient utilization of the
vehicles for public purpose."
10. When this matter was listed in court on the last date of hearing, learned
Senior Counsel appearing for the petitioner, on instructions, had
submitted that the petitioner is willing to supply water tankers with
power steering on the same terms and conditions and without any
additional cost. Having regard to the public importance viz. the urgent
requirement of 104 water tankers, which were being procured for
sprinkling of water on roads and dusty areas to avoid pollution in the
coming winter months, we had requested Ms. Mini Pushkarna, learned
counsel for North DMC, to seek instructions in the matter. In response
respondent No.1 has filed an affidavit of Executive Engineer. Paras 4
and 5 of this affidavit read as under :
"4. That if the petitioner supplies the truck mounted
water tankers as per the specifications given in the tender
dated 17.11.2018 with Power Steering at the same rate as
quoted by the petitioner and subject to the Terms and
Conditions of the tender dated 17.11.2018, the answering
respondent is ready to follow the directions given by the
court.
5. That North DMC already cancelled the bid/RA on GeM
portal vide Bid No.GEM/2018/B/121660 dated 17.11.2018
and RA No.GEM/2018/R/2183 dated 14.12.18 for the said
work. Therefore it is requested that if court give directions
to North DMC to issue the purchase order to M/S Mahindra
& Mahindra for purchase of 104 Nos Truck mounted water
tankers on GeM, then the directions to the authorities of
GeM should also be given to restore the cancelled Bid/RA
so that the purchaseorder can be issued by North DMC on
GeM portal."
11. Having regard to the submission made and the stand taken by
respondent no.1, we allow this writ petition with the following
directions :
(i) Having regard to the peculiar facts of this case and the public
purpose to be served by the tender; and the evident fact that a
vital technical specification was by inadvertence put in an
ambiguous manner as stated in para 9 of the affidavit, it is
directed that the petitioner (L-1) would supply 104 truck
mounted water tankers on GeM fitted with "power steering",
apart from complying with all other tender specifications as per
the tender document at no extra cost, as agreed;
(ii) The GeM shall restore the petitioner's cancelled bid and the
purchase order will be issued by the North DMC on GeM portal
to the petitioner forthwith.
12. With these directions, the writ petition stands disposed of.
13. We make it clear that in case the petitioner backs-out from the offer so
made and agreed, the petitioner shall be burdened with costs of Rs.10
lacs to be paid to respondent No.1 for the loss of time and for issuing a
fresh tender. The supply of tankers shall be made within three months
from the date of issuance of the purchase order.
14. Dasti.
G.S. SISTANI, J
. ANUP JAIRAM BHAMBHANI, J
OCTOBER 01, 2019
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