Aditya Jain vs Indore Development Authority
2021 Latest Caselaw 5665 MP

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HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE

                 Writ Petition No.18012/2021
     Vatash Sharma v/s Indore Development Authority & Another

                 Writ Petition No.18476/2021
      Aditya Jain v/s Indore Development Authority & Another
Indore, dated 20.09.2021
       Shri A.K. Sethi, learned Senior Counsel assisted by Shri
Rahul Sethi, learned counsel for the petitioner in W.P.
No.18012/2021.
       Shri R.S. Chhabra, learned counsel assisted by Shri Aman
Arora, learned counsel for the petitioner in W.P. No.18476/2021.
       Shri Purushaindra Kaurav, learned Senior Counsel
assisted by Shri Shrey Raj Saxena, learned counsel for the Indore
Development Authority.
       Heard on the question of interim relief.
       Learned counsel for the petitioners jointly urged that
matter is urgent because as per the impugned NIT, the
respondents intend to open the bids tomorrow.

Other side has not disputed the same, and therefore, the matters were analogously heard on the question of interim relief.

Shri A.K. Sethi, learned Senior Counsel submits that by N.I.T. dated 18.12.2021, the respondents invited tender RCM 13 and relevant shops are shop Nos.1 and 2. The petitioner deposited Rs.60,00,000/- on 08.02.2021 as EMD. On 15.02.2021, financial and technical bids were opened. The petitioner was declared as the highest bidder (H-1) by communication dated 15.03.2021 (Annexure-P/7). Heavy reliance is placed by learned Senior

Counsel on two internet communications dated 26.03.2021 and 05.09.2021 wherein 'bid status' of petitioner was shown as 'accepted'.

The specific case of petitioner is that the petitioners came to know about cancellation only when they have seen the impugned NIT dated 10.08.2021. Then they could obtained the impugned resolution dated 27.07.2021 wherein a decision was taken to cancel the bids which are not 30% or above the base price.

Learned Senior Counsel submits that so called cancellation order mentioned in the return was never supplied to the petitioner nor it is filed along with the return.

The petitioner submits that in a case of this nature where bid is already 'accepted', the question of its cancellation and going for another tender does not arise. Apart from this, the basic reason for passing the impugned resolution dated 27.07.2021 is that there are likelihood of getting more price in view of four reasons mentioned in the resolution dated 27.07.2021. The petitioner contends that the said four reasons are bad in law and decision of respondents is discriminatory, arbitrary and contrary to law.

To elaborate, it is submitted that indisputably, the respondents have till now issued four NITs. As per the Viyanan Niyam, 2018 (Annexure-P/15), which are statutory in nature and framed under Section 85 of the Madhya Pradesh Nagar Tatha Gram Nivesh Adhiniyam, the said Rules permit the IDA to issue

only three NIT and beyond it.

A careful reading of Rule 6 (v to viii) of the said Rules shows that anxiety of IDA is to get higher rate over and above the base price. The rules do not permit IDA to fix an arbitrary or magical percentage like 30% as they have done for the purpose of cancelling the petitioner's bid.

It is further argued that reserve price was Rs.1,45,216/- per sq.m. whereas petitioner submitted bid for Rs.1,51,117/- which is 4.03% above the base price. If law permits a thing to be done in a particular manner, it has to be done in the same manner and other methods are forbidden. Thus, the impugned NIT runs contrary to Viyanan Niyam, 2018.

The petitioner straneously contended that in the same scheme and in the same building, the respondents have accepted the bid which is evident from various documents filed along with the petition. Reliance is placed on Resolution No.43 passed on 01.07.2021 almost three weeks before passing the impugned resolution. The four reasons on the strength of which impugned resolution was passed very much existed when this resolution dated 01.07.2021 was also passed but there was no insistence for getting price above 30% in that resolution. The completion certificated was issued way back on 04.03.2021 and it is not a subsequent event.

The reason 'l' assigned in the impugned resolution will also not improve the case of the IDA because the RE 2 project started on 14.09.2020 which is evident from order of this Court at

(page - 80) passed in a Public Interest Litigation. The respondent on the one hand stated that petitioner's bid cannot be accepted because it is below 30% of base price and on the other hand they have accepted the bids which are below 30%. Reliance is placed on page - 45 and a chart mentioned at page - 91. Apart from this, the documents at page - 68 and 69 were relied upon to show that bids mentioned therein were not above 30% of base price yet in the same area and even in the same building, the respondents have taken a differential view and picked up and chosen the petitioner for giving step mothery treatment.

It is further submitted that as per the NIT, the entire exercise was required to be completed with 90 days. The acceptance in favour of petitioner mentioned at page - 57 and 58 shows that it was decided within that 90 days' period. However, the impugned resolution was passed beyond the period of 90 days which is bad in law.

Apart from this, another major ground raised by learned Senior Counsel is that in view of previous bid, the petitioner had already deposited about rupees 60.50 lacs. If respondents decided to cancel the said bid, in all fairness, they should have forthwith returned that huge amount to the petitioner. As noticed above, the rejection order was not even served on the petitioners and they came to know about the same only when they perused the NIT and they inquired whether such decision was taken. Since that amount was not refunded to the petitioner, it deprived the petitioner to even submit his bid for a new NIT, if at all petitioner

intended to do so.

Lastly, it is submitted that the decision taken by the respondents on all the four points cannot sustain judicial scrutiny. The respondents be restrained from proceeding with the tender till the matter is finally heard.

Shri R.S. Chhabra, learned counsel in the connected matter almost borrowed the same arguments and in addition urged that in contractual matters the scope of judicial review is mainly based on Wednesbury Principles. If decision of IDA is arbitrary, capricious, discriminatory or based on extraneous reasons, interference can be made. To elaborate, it is submitted that in this case, NIT was issued on 30.03.2021. There were 20 bidders. The petition is concerned with shop Nos.5, 7 and 18. The petitioner's bid contained a price which is above the base price by 7.69% (shop No.7), 5.16% (shop No.18) and 1.01% (shop No.5). In all 20 lacs over and above the base price were offered by the petitioner. Technical bid was opened on 24.06.2021. Interestingly, on 01.07.2021, a meeting was convened to take a decision about different properties in the same area namely 'Anand Van', Phase - 2, Scheme No.140. The respondents intended to given benefit to certain bidders whose offers were below 30%, and therefore, on 01.07.2021, a decision was taken without insisting on increase of 30% and bids of various bidders of same area were accepted and petitioner's case was deferred for a different date. This methodology, as per Shri Chhabra was adopted to justify their action which amounts to 'cherry picking'.

On 27.07.2021, the petitioner's bid was not accepted on the ground that bid above 30% alone should be accepted. Thus, the common ground raised by both the counsel for the petitioners is that action is arbitrary , discriminatory, contrary to rules and based on extraneous reasons which hits Wednesbury Principles.

In support of their submissions, learned counsel for the petitioners placed reliance on several judgments delivered in the cases of Afcons Infrastructure Ltd v/s Nagpur Metro Rail Corporation Ltd reported in (2016) 16 SCC 818, TATA Cellular v/s Union of India reported in (1994) 6 SCC 651, Ram Shyam Company v/s State of Haryana reported in (1985) 3 SCC 267, Deepak Sharma v/s Jabalpur Development Authority reported in ILR (2020) MP 377 and G.D Anklesaria & Co. v/s MP State Industrial Development Corporation Ltd passed in WP No.9165/2020.

Shri Purushaindra Kaurav, learned Senior Counsel assisted by Shri Shrey Raj Saxena, learned counsel for the IDA submits that scope of judicial review in contractual matter is very limited. This Court cannot sit in appeal to take a different view than the view taken by the experts which is reduced in writing in the shape of four reasons in the impugned resolution dated 27.07.2021.

Shri Kaurav, learned Senior Counsel has taken pains to contend that the stand of Shri Sethi that his bid was accepted, and therefore, a right is created is without any basis. Reliance is placed on Clause - 6 of the NIT (page-39). It is urged that at best

petitioner has crossed the stage 2 mentioned in Clause - 6(ii) and his bid can be said to have been accepted for consideration of final decision. The petitioner never crossed Clause - 6 (iii & iv) of page - 39. Thus, no right is created.

It is further argued that there is no magical percentage decided by the IDA. It is prerogative of IDA and based on expert's advice to fix that percentage. If any other percentage would have been fixed, the arguments of petitioners would have been the same. The percentage hike depends whether accommodation is commercial or residential.

Learned Senior counsel for the respondents placed reliance on the judgment delivered in the cases of Uttar Pradesh Avas Evam Vikas Parishad v/s Om Prakash Sharma reported in (2013) 5 SCC 182, Siemens Public Communication Network Pvt. Ltd v/s Union of India reported in (2008) 16 SCC 215, Maa Binda Express Carpier v/s North East Frontier Railway reported in (2014) 3 SCC 760, Pathan Mohammed Suleman Rehmatkhan v/s State of Gujarat reported in (2014) 4 SCC 156, and M.Ravichandran v/s The Mana Ging Directors and Ors reported in 2005 MAD 280.

No other point is pressed by learned counsel for the parties.

We prima facie find substance in the arguments of learned counsel for the petitioners. In the return filed by the respondents it is not mentioned with accuracy and precision that as to how for certain properties in the same area and same scheme

they have accepted the bid without insisting on hike of 30% of base rate whereas for petitioners a different yardstick was adopted.

Considering the aforesaid and subject to hearing the parties finally, we deem it proper to stay the further proceedings based on impugned NIT dated 10.08.2021.

We order accordingly.

Parties agreed to argue the matter on 28 th September, 2021.

List the matter on the said date.

Certified copy today.

   (SUJOY PAUL)                                   (ANIL VERMA)
     JUDGE                                          JUDGE

Ravi

Digitally signed by RAVI PRAKASH
Date: 2021.09.20 18:07:12 +05'30'