Madhya Pradesh High Court
Phaloudi Constructions And ... vs Indore Smart City Development ... on 23 August, 2023
Author: Pranay Verma
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE SUSHRUT ARVIND
DHARMADHIKARI
&
HON'BLE SHRI JUSTICE PRANAY VERMA
WRIT PETITION No. 15445 of 2022
BETWEEN:-
PHALOUDI CONSTRUCTIONS AND
INFRASTRUCTURE PVT. LTD. THROUGH
DIRECTOR MANISH S/O SHRI BALKRISHNA
GUPTA, AGED ABOUT 47 YEARS, OCCUPATION:
BUSINESS ADDRESS -203 PANAMA TOWER NEAR
HOTEL CROWN PALACE KANCHAN BAGH,
INDORE (MADHYA PRADESH)
.....PETITIONER
(BY SHRI SUNIL JAIN- SENIOR ADVOCATE WITH SHRI
AYUSHMAN CHOUDHARY - ADVOCATE)
AND
1. INDORE SMART CITY DEVELOPMENT
LTD., THROUGH CHIEF EXECUTIVE
OFFICER, SMART CITY OFFICE, NEHRU
PARK CAMPUS, INDORE (MADHYA
PRADESH)
2. STATE OF MADHYA PRADESH THROUGH
THE PRINCIPAL SECRETARY, ADDRESS-
URBAN DEVELOPMENT, VALLABH
BHAWAN, BHOPAL (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI MANOJ MUNSHI - ADVOCATE FOR RESPONDENT NO.1 )
WRIT PETITION No. 19451 of 2022
BETWEEN:-
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CHOURASIA
Signing time: 23-Aug-23
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2
SARTHAK INDUSTRIES LTD. THROUGH ITS
DIRECTOR YOGENDRA MOHAN SHARMA
S/O SHRI SHANTI LAL SHARMA, AGED
ABOUT 70 YEARS, OCCUPATION: SERVICE,
ADDRESS - 214 TRADE CENTRE SOUTH
TUKOGANJ, INDORE (MADHYA PRADESH)
.....PETITIONER
(BY SHRI SUDHANSHU DIXIT - ADVOCATE)
AND
1. INDORE SMART CITY DEVELOPMENT
LTD. THROUGH CHIEF EXECUTIVE
OFFICER SMART CITY OFFICE NEHRU
PARK CAMPUS INDORE (MADHYA
PRADESH)
2. THROUGH THE PRINCIPAL
SECRETARY URBAN DEVELOPMENT
VALLABH BHAWAN DISTRICT
BHOPAL. (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI MANOJ MUNSHI - ADVOCATE FOR RESPONDENT NO.1 )
Reserved on : 24.07.2023
Pronounced on : 23.08.2023
These petitions having been heard and reserved for orders,
coming on for pronouncement this day, HON'BLE JUSTICE PRANAY
VERMA pronounced the following.
ORDER
Since common questions of facts and law are involved in both
the petitions, they have been heard together and are being decided by a
common order. Facts are being taken from Writ Petition No.15445 of
2022.
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CHOURASIA
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2. By this petition preferred under Article 226 of the Constitution
of India, the petitioner has challenged the letter/order dated 29.06.2022
issued by respondent No.1 whereby the Notice Inviting Tender dated
01.07.2020 has been cancelled and the earnest money deposited by the
petitioner company has been directed to be refunded. The petitioner has
also challenged the order dated 08.07.2022 passed by respondent No.1 by
which the Letter of Acceptance issued in favour of the petitioner has also
been cancelled.
3. As per the petitioner, respondent No.1/Indore Smart City
Development Limited issued a notice inviting tender (For short 'NIT')
dated 01.07.2020 for the work of -"Real Estate Mixed Use
Redevelopment Projects at MOG Lines- Old Government Quarters Land
Parcel for sale on freehold basis for construction of mixed used High Rise
Towers, for plot No.3" The last date for purchase of tender and its
submission online was 04.08.2020 and the technical bid was to be opened
online on 05.08.2020. The said dates were amended by respondent No.1
from time to time by issuing various corrigendum and eventually the last
date for purchase of tender form (online) and submission of tender online
was 27.10.2020 up to 5:30 pm. The date for opening technical bid
(online) was 28.07.2020. The petitioner Company submitted its
application/bid along with all necessary requisites documents and details
as required under the NIT on 12.10.2020 along with earnest money of
Rs.50,00,000/-. The financial bid of the petitioner was of
Rs.25,88,88,888/-.
4. After opening of the technical and financial bid the petitioner
Company was orally informed by Officer of respondent No.1 that its bid
has been accepted and letter of acceptance (For short 'LOA') will be
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issued in its favour very soon. Thereafter, the petitioner Company
acquired knowledge that residents of MOG lines have preferred a PIL
bearing W.P. No.14656 of 2020 before this Court against directions
issued by the State Government for vacating their respective allotted
units. In the petition, by order dated 03.03.2021 three months' time was
granted to the residents for vacating their allotted residential units. The
said period was further extended by order dated 13.08.2021 and
12.11.2021 passed in Review Petition No.425 of 2021 and Review
Petition No.659 of 2021 respectively. In the meanwhile, the
application/bid submitted by the Petitioner Company was accepted by
respondent No.1 and LOA was communicated to the petitioner on
02.07.2021. The petitioner was asked to initiate process as directed in the
LOA and was directed to submit bank guarantee of Rs.2,58,88,889/- and
to sign the contract agreement at stamp value of Rs.2,58,889/- within
thirty days.
5. Upon receiving the LOA, the petitioner vide its letter dated
03.07.2021 informed respondent No.1 that in light of clarification/circular
issued by office of Inspector General Registration and Superintendent of
Stamp M.P., the Stamp Duty for Works Contract has been fixed at
minimum Rs.500/- and maximum Rs.25,000/- subject to be calculated at
the rate of 0.25% of contract amount. The petitioner requested respondent
No.1 to issue a fresh LOA after carrying out the necessary amendment as
suggested. No communication was received from respondent No.1 hence
the petitioner issued reminder letters on 12.11.2021 and 03.05.2021 to it
requesting for issuance of revised LOA at an early date so that the
requisite agreement could be executed between the parties. The
respondent No.1 however, by the impugned order dated 29.06.2022 has
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CHOURASIA
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cancelled the NIT itself and has refunded the earnest money to the
petitioner on 01.07.2022. During pendency of the petition, by order dated
08.07.2022 the LOA issued in favour of the petitioner has also been
cancelled.
6. Learned senior counsel for the petitioner has submitted that
respondent No.1 has acted arbitrarily and illegally in recalling the NIT
and cancelling the bid of the petitioner and the LOA issued in its favour.
No reasons have been assigned for the same in the impugned orders
which are non-speaking orders and the cancellation is without application
of mind. The impugned order has been issued by respondent No.1
unilaterally and without following principles of natural justice. Before
withdrawal of LOA and cancellation of tender no opportunity of hearing
was given to the petitioner nor was any show cause notice issued to it.
After issuance of LOA the contract was completed/concluded hence there
was no question of withdrawal of the NIT and the bid submitted by the
petitioner. Upon issuing such letter respondent No.1 crossed the stage of
cancelling the NIT and bid submitted by the petitioner. Due to the action
of respondent No.1 petitioner has suffered huge financial loss as in
anticipation of starting the project it kept ready the funds required for the
project which otherwise could have been utilized in some other project.
The impugned orders hence cannot be legally sustained. Reliance has
been placed on the decisions of the Supreme Court in Vice Chairman &
Managing Director, City and Industrial Development Corporation of
Maharashtra Ltd. and Another vs. Shishir Realty Private Limited
and Others 2021 SCC Online SC 1141, Mohinder Singh Gill and
another Vs. Chief Election Commissioner New Delhi and others
(1978) 1 SCC 405, State of Punjab Vs. Bandeep Singh and others
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CHOURASIA
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(2016) 1 SCC 724 and of the Orissa High Court in M/s Krishik
Infrastructure Developers Pvt. Ltd. vs. Orissa Industrial
Infrastructure Development Corporation and others AIR 2018 Ori
139 and SRB Transport, Sambalpur vs. Union of India and Ors.,
W.P.(C) NO.2430 of 2022 decided on 14.02.2022.
7. Reply has been filed by respondent No.1 and learned counsel
for respondent No.1 has submitted that during tender process a PIL
bearing W.P. No.14656 of 2020 was filed before this Court in which an
interim order was passed on 29.09.2020 directing not to evict any person
from M.O.U. lines over which the Smart City Project has to be
developed. This was the project covered under the present NIT. The PIL
was finally disposed off by order dated 03.03.2021 granting the occupants
of the accommodation three months' time for vacating the same. The said
period was extended by six months vide order dated 13.08.2021 passed in
R.P. No.425 of 2021. Thereafter, another Review Petition No.659 of 2021
was preferred which was disposed off vide order dated 12.11.2021
granting liberty to respondent No.1 to proceed in respect of the building
which have been vacated completely. After disposal of the PIL on
03.03.2021, LOA in favour of the petitioner was issued on 08.06.2021
directing it to submit 10% quoted amount as per payment schedule of
Rs.2,58,88,889/- in the form of bank guarantee and to sign contract
agreement on stamp value of Rs.2,58,889/- within 30 days. The
agreement however, could not be executed between the parties due to
pendency of the aforesaid Review Petitions. Respondent No.1 was hence
constrained to take the decision to cancel the NIT and to issue fresh NIT
due to pendency of litigation before this Court for a period of almost one
and a half year in respect of eviction of M.O.J. Lines Government
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CHOURASIA
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quarters. Due to non-execution of the agreement and non-submission of
bank guarantee by petitioner no legal right has been created in its favour.
Reliance has been placed on the decisions of the Supreme Court in Silppi
Constructions Contractors vs. Union of India and Another (2020) 16
SCC 489, State of Jharkhand and Others vs. M/s CWE - SOMA
Consortium, (2016) 14 SCC 172, South Eastern Coalfields Ltd. and
Others vs. S. Kumar's Associates AKM (JV), (2021) 9 SCC 166 and
of the High Court of Delhi in Manmeet Singh Vs. South Delhi
Municipal Corporation WP(C) 3811/2020 and Rajesh Kumar Singh
Vs. South Delhi Municipal Corporation WP(C) 4020/2020 decided on
21.07.2020.
8. In rejoinder, the learned senior counsel for the petitioner has
submitted that the agreement could not be executed between the parties
due to fault/lapses on part of respondent No.1. Merely for non-furnishing
of bank guarantee by the petitioner it cannot be said that no right had
accrued in its favour. Petitioner was ready to submit the bank guarantee
but its repeated requests to issue a fresh LOA and to execute the
agreement fell on deaf ears. The ground of non-submission of bank
guarantee by the petitioner has been raised by respondent No.1 for the
first time in the reply hence it cannot be permitted to supplement the
reasons at this stage.
9. We have heard the learned counsel for the parties at length and have
perused the record.
10. The Supreme Court in a catena of judgments has laid down the
principles with regard to judicial review in contractual matters. They have
been summed up in a recent decision in the case of Silppi Constructions
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CHOURASIA
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Contractors (Supra) in which after referring to several decisions on this
issue it has been eventually held in paragraph No.19 and 20 as under:-
"19. This Court being the guardian of
fundamental rights is duty-bound to interfere
when there is arbitrariness, irrationality, mala
fides and bias. However, this Court in all the
aforesaid decisions has cautioned time and again
that courts should exercise a lot of restraint while
exercising their powers of judicial review in
contractual or commercial matters. This Court is
normally loathe to interfere in contractual
matters unless a clear-cut case of arbitrariness or
mala fides or bias or irrationality is made out.
One must remember that today many public
sector undertakings compete with the private
industry. The contracts entered into between
private parties are not subject to scrutiny under
writ jurisdiction. No doubt, the bodies which are
State within the meaning of Article 12 of the
Constitution are bound to act fairly and are
amenable to the writ jurisdiction of superior
courts but this discretionary power must be
exercised with a great deal of restraint and
caution. The Courts must realise their limitations
and the havoc which needless interference in
commercial matters can cause. In contracts
involving technical issues the courts should be
even more reluctant because most of us in Judges'
robes do not have the necessary expertise to
adjudicate upon technical issues beyond our
domain. As laid down in the judgments cited
above the courts should not use a magnifying
glass while scanning the tenders and make every
small mistake appear like a big blunder. In fact,
the courts must give "fair play in the joints" to the
government and public sector undertakings in
matters of contract. Courts must also not
interfere where such interference will cause
unnecessary loss to the public exchequer.
20. The essence of the law laid down in the
judgments referred to above is the exercise of
restraint and caution; the need for overwhelming
public interest to justify judicial intervention in
matters of contract involving the state
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instrumentalities; the courts should give way to the
opinion of the experts unless the decision is totally
arbitrary or unreasonable; the court does not sit
like a court of appeal over the appropriate
authority; the court must realise that the authority
floating the tender is the best judge of its
requirements and, therefore, the court's
interference should be minimal. The authority
which floats the contract or tender, and has
authored the tender documents is the best judge as
to how the documents have to be interpreted. If
two interpretations are possible then the
interpretation of the author must be accepted. The
courts will only interfere to prevent arbitrariness,
irrationality, bias, mala fides or perversity. With
this approach in mind we shall deal with the
present case."
11. The present matter has hence to be examined in light of the
above settled legal principles. The contention of the petitioner is that
upon issuance of the LOA in its favour, a concluded contract came into
existence between the parties and the same could not have been
unilaterally cancelled by respondent No.1 in the manner as it has been
done. Prior to the same it was imperative for respondent No.1 to have
followed the principles of natural justice and issued notice to the
petitioner and afforded it opportunity of hearing. Thus, it has to be seen
whether any concluded contract came into existence between the parties.
12. The principles as regards a concluded contract coming into
existence between the parties has been considered by the Supreme Court
in the matter of South Eastern Coalfield Ltd. and Others (Supra) in
which it has been held in paragraph No.20 as under:-
"20. We would like to state the issue whether a
concluded contract had been arrived at inter se the
parties is in turn dependent on the terms and
conditions of the NIT, the LOI and the conduct of
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the parties. The judicial views before us leave little
doubt over the proposition that an LOI merely
indicates a party's intention to enter into a
contract with the other party in future. No binding
relationship between the parties at this stage
emerges and the totality of the circumstances have
to be considered in each case. It is no doubt
possible to construe a letter of intent as a binding
contract if such an intention is evident from its
terms. But then the intention to do so must be clear
and unambiguous as it takes a deviation from how
normally a letter of intent has to be understood.
This Court did consider in Dresser Rand S.A. case
that there are cases where a detailed contract is
drawn up later on account of anxiety to start work
on an urgent basis. In that case it was clearly
stated that the contract will come into force upon
receipt of letter by the supplier, and yet on a
holistic analysis - it was held that the LOI could
not be interpreted as a work order."
13. Thus, the issue is as to whether by issuance of LOA in favour
of the petitioner a concluded contract came into existence between the
parties. In the LOA the petitioner was directed to submit 10% of quoted
amount as per payment schedule of Rs.2,58,88,889/- in the form of bank
guarantee and sign the contract agreement on stamp value of
Rs.2,58,889/- within 30 days of its issue. A plain reading of the aforesaid
stipulations contained in the LOA leaves no room for doubt that no
concluded contract came into existence between the parties merely on the
basis of its issuance. It was not stated in the LOA that by mere issuance
of the same, the contract would be deemed to have been entered into
between the parties or that the contract is concluded by acceptance of the
bid of petitioner and formal acceptance of tender will follow. On the
contrary, the petitioner was directed to furnish bank guarantee as directed
therein and to sign the contract agreement on a particular stamp value and
that too within a period of 30 days. By mere issuance of the LOA binding
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agreement came into existence which as per terms of the LOA would
have come into existence only upon fulfillment of the conditions
enumerated therein by the petitioner.
14. The petitioner admittedly did not furnish the bank guarantee as
directed in the LOA and for the purpose of execution of the agreement
raised a dispute as regards the amount of stamp on which the agreement
was to be executed. Thus, in the facts and circumstances of the case, we
have no hesitation in holding that no completed/concluded and binding
contract came into existence between the petitioner and respondent No.1
by mere issuance of the LOA. The decisions relied upon by the learned
senior counsel for the petitioner do not help him in any manner since in
all of them an agreement had in fact been executed between the parties
therein subsequent to issuance of the LOA hence a concluded contract
had actually come in existence. In the present case no agreement has been
executed between the parties. Moreover, the LOA issued in favour of the
petitioner has been cancelled subsequent to withdrawal of the entire NIT
itself hence there was no necessity or occasion for issuing any notice to
the petitioner or affording it any opportunity of hearing. It is not a case
where the NIT has been kept in existence and only the LOA issued in
favour of the petitioner has been cancelled.
15. The further contention of the petitioner has been that the
communication dated 29.06.2022 issued by respondent No.1 is a non-
speaking order and hence is not sustainable in the eye of law in view of
the judgments relied upon by him. The reasons which have been
attempted to be supplied by respondent No.1 along with its reply and in
the affidavit cannot be read into the communication to make good the
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default. The said contention is wholly without merit. The communication
dated 29.06.2022 is not a judicial order passed by respondent No.1 on the
administrative side. It is only intimation to the petitioner of the decision
taken to recall the entire tender process the consequence of which is that
the LOA issued in favour of the petitioner also stood withdrawn.
16. In Ghanshyam Das Aggrawal Vs. Delhi Development
Authority 1996 SCC Online Del 193 it was held by the Division Bench
of the High Court of Delhi in paragraph No.15 as under:-
"(15) The observation made by the Supreme Court is binding
on us, but we do not think it is going to make any difference
in the case at hand. Firstly, the Rules and the Terms and
Conditions of the Public Auction did not contemplate reasons
for rejection of highest bid being communicated to the
concerned bidders. There is a distinction between existence of
reasons and assigning of reasons (see Shrilekha Vidyarthi ).
The former is a requirement of natural justice, the later is a
dictate of law. Reasons need not be assigned in the sense of
being communicated to a party unless required to be so done
by any Rule having force of law. Secondly, the reasons could
have been made available if asked for. Thirdly, the reasons
for rejection though not communicated and though not asked
for by the petitioners before filing the petitions have been
made available in the Court in response to the show cause
notice issued and it would serve no useful purpose if we may
dispose of the petitions merely by directing the respondents-
DDA to communicate the reasons to the petitioner. The
reasons now having been made known to the petitioners, they
have been heard thereon. Whatever they had to say on such
reasons they have said and we have also tested the validity of
the reasons and have found nothing unreasonable therewith.
That is an end of the matter."
17. In Sillpi Construction Contracts (Supra) also it was held in
paragraph No.25 as under:-
"25. That brings us to the most contentious issue
as to whether the learned single judge of the
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High Court was right in holding that the
appellate orders were bad since they were
without reasons. We must remember that we
are dealing with purely administrative decisions.
These are in the realm of contract. While
rejecting the tender the person or authority
inviting the tenders is not required to give
reasons even if it be a state within the meaning
of Article 12 of the Constitution. These decisions
are neither judicial nor quasi judicial. If reasons
are to be given at every stage, then the
commercial activities of the State would come to
a grinding halt. The State must be given
sufficient leeway in this regard. The Respondent
nos. 1 and 2 were entitled to give reasons in the
counter to the writ petition which they have
done."
18. In the present case also, there is no term or condition in the
tender document which may cast an obligation upon respondent No.1 to
furnish reasons in case the entire tendering process is recalled. The
petitioner has also not approached respondent No.1 for soliciting the
reasons for recalling of the tender and withdrawal of its LOA. Instead, it
has filed the petition with a grievance against the communication dated
29.06.2022 and 08.07.2022.
19. For the purpose of ascertaining as to why the entire tender
process has been scraped by respondent No.1, the CEO of respondent
No.1 was directed to furnish an affidavit and also to keep the record
present. In compliance of the said order affidavit of Divyank Singh, Chief
Executive Officer of respondent No.1 was filed on 28.01.2022 and at the
time of hearing of this petition the original record of the case was also
kept present. We have carefully perused the contents of the affidavit and
have found the same to be factually correct from the record. In the
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affidavit, the reasons which have been given for the cancellation of the
NIT have been stated the relevant portions of which is as under:-
"7. I say that after opening of the financial bid, Letter of Acceptance
dated 08/06/2021 have been issued to these successful bidders with
the conditions of deposit of performance security amounting to
10%of the bid amount and execution of agreement. I say that the
present petitioner 'did not comply these: conditions even till date
after expiry of over 18 months period, whereas they were supposed
to comply the same within 30 days. |
8. I say that during the tender Process, various writ petitions and
review petitions were filed by the occupants of the Govt. houses and
this Hon'ble Court vide order dated 29/09/2020 passed in W.P. No.
14656 of 2020 directed the Respondent Company not to evict the
residents. This interim protection was vacated by this Hon'ble Court
vide order dated: 03/03/2021 allowing the petitioners to vacate their
houses within a period of 3 months i.e. up to 03/06/2021. However,
this Hon'ble Court once again vide order dated 18/06/2021 and
13/08/2021 passed in R.P.No. 425 of 2021 extended the interim
protection up to 31/12/2021. Finally, on an application filed by the
Respondent Company, this Hon'ble Court vide order dated
12/11/2021 passed in. R.P. No. 651 of 2021 allowed the Respondent
Company to use the vacant building for the purpose of
redevelopment. Therefore; the entire project got delayed firstly, due
to various interim orders passed by this Hon'ble Court and secondly
due to Covid pandemic as the entire city was under lockdown.
9. I say that due to aforesaid reasons and more particularly due to
non-deposition of performance security and execution of agreement
as per LoA and delay of more than 1 years to implement the LoA, the
Respondent Company decided to cancel the entire process of auction
of Plot Nos. 2, 3 and 4 and to call fresh invitation as per Note Sheet
nos. 63, 64 dated 18/06/2022 which is reproduced herein below:-
"NSP पर प्राप्त स्वीकृतत के क्रम में Real Estate mixed use
redevelopment project at MOG line Old-quarters land parcel for sale on
free hold basis for construction of mixed the high rise tower for Block
No. 01,02,03 and 04 के व्यपन हेतु तिनाांक 01.07.2020 को तनतविाऐां
जारी की गई, उक्त तनतविाओां में पृथक-पृथक ब्लॉक हेतु तनतविाकरोां
द्वारा भाग तलया गया, तजसमें ब्लॉक क्रां. 02, 03, 04 हेतु तनम्नतलखित
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तनतविाए प्राप्त हुई अतिकतम िर प्रस्तुत तकए गए तनतविाकरोां को तनतविा
सतमतत द्वारा प्राप्त अनुशांसा के आिार पर Letter of Acceptance
तिनाांक 08.06.2021 को जारी तकया गया तजसका तववरण तनम्नानुसार
है:-
स. ब्लॉक सफल निनिदाकार LOANo./Date
क्रं. क्र.
01 02 मेससस तीथसगोपीकॉन प्रा. 03/ISCDL/2021-22 Dated 08.06.2021
तल.
02 03 मेससस फलौिी 05/ISCDL/2021-22 Dated 08.06.2021
कांस्ट्र क्शन एण्ड .
इन्फ्रास्ट्र चर प्रा. तल.
03 04 मेससस साथसक इण्डस्ट्र ीज 04/ISCDL/2021-22 Dated 08.06.2021
प्रा. तल.
उक्त तववरणानुसार सफल तनतविाकारोां को तिनाां क
08.06.2021 LOA जारी तकया गया तत्समय वैतिक स्तर पर चल रहे
कोतवड-19 माहामारी के कारण स्माट्स तसट्ी तवभाग को एम.ओ.जी. लाईन
खसथत आवां तट्त कायसस्थल पर तनवासरत शासकीय कमस चाररयोां द्वारा उच्च
न्यायालय में यातचका िायर की जाकर स्थगन प्राप्त तकया गया। उच्च
न्यायालय द्वारा तिनाां क 31.03.2022 तक का स्थगन आिे श पाररत तकया गया
तथा इसके पश्चात् तवभाग द्वारा एम.ओ.जी. लाईन खसथत कायसस्थल पर खसथत
सरकारी भवनोां को िाली तकए जाने हेतु तवतभन्न सरकारी तवभागोां को पत्र के
माध्यम से सूतचत तकया जाकर कायसस्थल पर खसथत पुराने भवनोां को पत्र के
माध्यम से सूतचत तकया जाकर कायसस्थल पर खसथत पुराने भवनोां को तोड़ने का
कायस प्रगतत परी है , उक्त सांबांि में तवतित हो तक तवभाग द्वारा सफल
तनतविाकारोां को जारी LOA को एक वर्स से भी अतिक समय व्यतीत हो चुका
है एवां पूवस से उच्च न्यायालय में प्रकरण लांतबत होने के कारणवांश एजेतसांयोां
द्वारा अनुबांि कायसवाही हेतु जमा की जाने वाले परामेंस बैंक ग्यारां ट्ी भी आज
तिवस तक जमा नही ां की जाने कारण कायसवाही पू णस नही ां की जा सकती है।
प्रकरण में उक्त तथ्योां को दृतिगत रिते हुए एवां तनतविा में उल्लेखित
समयसीमा समाप्त होने के कारण ब्लॉक क्रमाां क 02,03,04 हेतु जारी LOA
पर को तनरस्त कर पू वस में तैयार की गई तनतविा का पुन: आकलन तकया जाना
उतचत होगा। अत: प्लाट् क्रां. 02, 03 एवां 04 हेतु जारी तकए गए LOA को
तनरस्त तकया जाकर एवां समस्ते कायस योजना का नवीन प्रस्ताव तैयार कर
नीवन तनतविा आमांतत्रत तकया जाना प्रस्तातवत हैा''
Signature Not Verified
Signed by: JYOTI
CHOURASIA
Signing time: 23-Aug-23
4:52:28 PM
10. I say that after cancellation of the old bid for Plot Nos. 2, 3
and 4, a fresh tender was proposed on 23/07/2022 as per Note Sheet
nos. 71 and 72 for auction of Plot nos. 3, 4, 10 and 11.
12. Tenders issued for Plot No. 3, 4, 11 vide NIT no. 25/ISCDL2022-
23 dated 03/09/2022 have been cancelled for the reasons stated in the
Note Sheet no. 77 and 78 dated 08/12/2022 which is reproduced
herein below:-
"Sub: Regarding cancellation of 'tenders and appointment of
real 'estate transaction consultant for tendering process
In reference to the ongoing tendering process. of the Sale of
MOG lines plots, the entire chronology of events is stated hereunder.
Tender for Plot 1234 were invited vide NIT No.18/ISCDL/2019-
20 Dated 01.07.2020. Subsequently, due to non-participation and
request of the bidders "Key Dates" were extended multiple times till
27.10.2020. Further, the technical bid for plot 2, 3 and 4 were opened
on 28.10.2020 wherein the no. of participating bidders is: Plot 2- One
(01) Bidder, Plot 3-One (01) Bidder, Plot 4-Three (03) Bidders.
LOAs were issued to successful bidders for plot No. 2, 3 and 4 on
08.06.2021. However, due to the encroachments on the said land and
ongoing case in the Hon'ble High Court - Indore Bench in reference
to the petition filed by the residents of the land, Indore Smart City
Development Limited was unable to give the possession of land of
the successful bidders.
Further, the successful bidders did not submit the requisite bank
guarantee of amount equal to 10% of the Quoted value within 30
days of the issue date of LOAs. Furthermore, the bid validity period
of 180 Days as stated in the RFP was also expired. Hence the tenders
were cancelled.
Furthermore, due to the ongoing COVID situation and
considering the fact that Indore Smart City Development Limited
was unable to give the possession of land, 'relaxation on EMD
forfeiture was done.
Tender for Plot No. 3, 4 & 11 were invited vide NIT
24/ISCDL/2022-23 dated 03.09.2022 for the duration of 30 Days
with the bid submission date of 06.10.2022 and due to zero bidders,
Signature Not Verified
Signed by: JYOTI
CHOURASIA
Signing time: 23-Aug-23
4:52:28 PM
the dates for block No. 3, 4 & 11 were extended by 21 Days till
27.10.2022 vide Corrigendum#2 Dated 07.10.2022 and further
timelines of tender for block No. 11 was extended vide
Corrigendum#3 Dated 28.10. 2022 till 28.11.2022.
Additionally, technical bid for block #3 and Block #4 was opened
on 28.10.2022 and technical evaluation was done. Further to the
technical, evaluation of block # 3, both the participating bidders were
technically disqualified and hence tender was cancelled.
Additionally, subsequent to the technical evaluation of block # 4,
Clarification notices were issued to both the participating bidders,
however, response submitted by the bidders being unsatisfactory and
not in line with the RFP requirements. Hence, i& is hereby proposed
to cancel the tender.
Keeping in view all the above scenarios, enough competition in
the tenders is. not evident. Hence, it is recommended 'to consult Real
Estate Transaction/expert(s)/Department(s)/ Institute(s) to review the
present tender document and suggest amendments if required to
enable wider participation in the tender process which will ultimately
result in the monetary benefit for the organization.
Further, retendering of all the blocks is proposed on the
basis of received recommendations of the appointed. Real Estate
Transaction Consultant(s).
xxxxxxxx
D. EXTRACT OF THE RELEVANT RESOLUTION PASSED
IN THE 194 MEETING OF THE BOARD OF DIRECTORS OF
M/S INDORE SMART CITY DEVELOPMENTLIMITED
HELD ON SATURDAY, THE 26" DAY OF DECEMBER, 2020
37. TO CONSIDER AND RATIFY THE BID PROCESS FOR
'MIXED USE REAL ESTATE REDEVELOPMENT PROJECTS
AT MOG LINES-OLD GOVT. QUARTERS LAND PARCEL FOR
DIFFERENT TOWERS ON FREEHOLD BASIS, AS PER
MASTER PLAN FOR HIGH RISE TOWERS'
Signature Not Verified
Signed by: JYOTI
CHOURASIA
Signing time: 23-Aug-23
4:52:28 PM
The Board was informed that development of MOG line project
is an important component of Indore Smart City Proposal. Tenders
were invited on PPP model thrice for both the lands. In the invitation
of tender, there was a provision to give the entire land to one builder,
in which the period of about 10 to 14 years was occupied for
construction. Due to the high cost of work in the tender, the
prospective builder is required to have turnover of Rs. 250 crore and
Net-worth of Rs. 100 crore; but in view of the recession in real estate
at present, no builder has participated in the tender.
In view of the present market situation, a detailed master plan of
allotted lands was prepared and proposal was also prepared for
inviting tenders in various small parts of the built up area. Under
which 14 to 15 towers ate planned on different lands, the builder will
need less turnover and nets worth than the original proposal.
In previous Board Meeting held on 02.03.2020 the matter for
redevelopment of public land (MOG Line) was discussed and Board
decided to tender the work of development - of MOG lines with
offering small land parcels.
In view of above, ISCDL has invited bids for 'Mixed Use
Real Estate Redevelopment Projects at MOG Lines-Old Govt.
Quarters Land Parcel for Different towers on Freehold basis, as per
Master Plan for High Rise Towers' through NIT No. 18/ISCDL/20-
21 dtd. 01.07.2020. The NIT was published on 02.07.2020 in Hindi
daily newspaper (Dainik Bhaskar) and English daily newspaper (Free
Press) having wide circulation. The completion period of work is 5
years.
Online bid submission date was 25.10.2020 and bid was opened
On 28.10.2020. After opening of bid on due dates, the Technically
Qualified Bidders was informed for opening of Financial Proposals.
A Tender Committee is formed for bid evaluation and
recommendation for award of land(s) to H1 bidder(s).
Table below summarizes the results of the bidding process and
the actions taken:
Name of 'Mixed Use Real Estate Redevelopment Projects at MOG Lines-Old
Work Govt. Quarters Land Parcel for Different towers on Freehold basis,
As per Master Plan for High Rise Towers'
NIT No. 18/ISCDL/2020-21;Dated01.07.2020
Total Rs.59.63 Rs.59.57 Rs. 24.89 Crore Rs.23.83Crore
Estimated Crore Crore
·cost
Plot No. ForPlot-1 ForPlot-2- ForPlot-3 ForPlot-4
Signature Not Verified
Signed by: JYOTI
CHOURASIA
Signing time: 23-Aug-23
4:52:28 PM
Name of NIL M/s M/s Phaloudi 1. M/s Phaloudi
Bidder/s Teerth Constructions Constructions
submitted Gopicon and and
the bids and Private Infrastructure Infrastructure
found Limited Pvt. Ltd. Pvt. Ltd.
Technically 2. M/s Sarthak
Qualified Industries
Limited. JV with
.. M/s RRHL
Realty Limited
AndM/s
Solitaire
Creations
3. M/s Teerth
GopiconPrivate
-Limited
Technical ---------------------------- 28.10.2020 28.10.2020 28.10.2020
BidOpeningD
ate
Financial Bid - -- 20.11.2020 20.11.2020 20.11.2020
Opening
Date
H 1 Bidder -- M/s M/s Phaloudi M/s Sarthak
-Teerth Constructions Industries
Gopicon and Limited. JVwith
Private Infrastructure M/s RRHL
Limited Pvt. Ltd. Realty Limited
And M/s
Solitaire
Creations
Price -- Rs.60.60 Rs.25.89 Crore Rs.26.80 Crore
Quoted Crore
Status -- LoA to LoA to issue LoA to issue
Issue
Completion -- 5 Years 5 Years 5 Years ·.
Period
The same has been considered and approved by the Board.
After considering the facts and due deliberation following
resolution was passed unanimously:- .
RESOLVED THAT the Board be and is hereby consider and
ratify the bid process for 'Mixed Use Real Estate Redevelopment
Projects at MOG Lines-: Old Govt. Quarters Land Parcel for
Different towers on Freehold basis, as per Master Plan for High Rise
Signature Not Verified
Signed by: JYOTI
CHOURASIA
Signing time: 23-Aug-23
4:52:28 PM
Towers'; and leading to selection' of agency and implementation of
work;
RESOLVED FURTHER THAT the Board be and is hereby
gives its approval to appoint and award the work to technically
qualified and Highest Bidder (H1) for the work, subject to
recommendation of' the committee formed for evaluation of bid;
RESOLVED FURTHER THAT Executive Director of the
Company and/or Chief Executive Officer of the Company be and is
hereby authorized to do all such acts, deeds and things as may be
necessary in this regard."
14. I say that, the above Tender in dispute. before this Hon'ble Court
| & was issued by the Office of Respondent company on 01/07/2020
and during the tender process, one of the petitioner Rahul Yadav has
filed the PIL on 29/09/2020 seeking indulgence from the Hon'ble
High Court Of M.P., Bench at Indore in the form of protection
against eviction of such number of employees working in different
department of State of M.P. who have been frontline warriors during
Covid-19 pandemic from the quarters which are Govt.
accommodations. It is respectfully submitted here that
quarters/houses built on the land in question were the part of tender
which has been cancelled by the Respondent by passing the
impugned order dated 29/06/2022 due to non-compliances of the
term of LOA.
15. I say that, the above mentioned PIL, Writ Petition No. 14656 of
2020 was firstly listed before the Hon'ble High Court on 29/09/2020
and the Hon'ble High Court was granted following interim relief in
the PIL:-
"Resultantly by way of interim relief the
respondents are directed not to evict any person from
M.O.U. Lines over which the Smart City Project has to be
developed until further orders. All notices issued to all
employees shall remain in abeyance and the respondents
will not take any steps in the matter in respect of eviction,
without leave of this Court. The respondent State shall
also submit details of number of alternative
accommodations available in the township of Indore
(vacant Government Quarters). The respondent shall also
Signature Not Verified
Signed by: JYOTI
CHOURASIA
Signing time: 23-Aug-23
4:52:28 PM
furnish details of Government accommodations in which
private person/private bodies are residing or occupying.
16. I say that, the above mentioned PIL W.P. No. 14656/2020 was
finally disposed of by the Hon'ble Court vide order dated 03/03/2021
by passing the following directions:-
"Upon consideration of submissions advanced by both
the parties in fitness of things. We are of the view that such
employees occupying the Government accommodation and
covered under the instant Public Interest Litigation shall
continue to occupy the premises for three months and
thereafter shall peacefully handover the possession to the
concerned Authority.
With aforesaid observation petition stands disposed of."
17. I say that, being aggrieved by the order dated 03/03/2021 passed
in W.P. No. 14656 of 2020. The petitioner Rahul Yadav filed: the
Review Petition No. 425 of 2021 before this Hon'ble High Court on
09/06/2021 and the Hon''ble High Court vide order dated 18/06/2021
passed in R.P. No. 425 of 2021 has directed as under: -
"In the meantime parties are directed to maintain status
quo as it exists today."
18. I say that, the R.P. No. 425 of 2021 was finally disposed of by
this Hon'ble Court vide order dated 13/08/2021 and the Hon''ble
Court by passing the said order extended the time limit up to
31/12/2021 to evict the premises as mentioned in order dated
03/03/2021 passed in W.P. No. 14656 of 2020 by passing the
following directions:
"Upon consideration of rival contentions, we find it
expedient to extend this order for six months commencing
from 08.06.2021 and six months expiring on 31.12.2021,"
19. I say that, thereafter assailing the order dated 13/08/2021 passed
in Review Petition No. 425 of 2021, the respondent no. 1 has filed
the Review Petition No. 659 of 2021 before this Hon'ble High Court
on 28/08/2021. The said review petition was disposed of by this
Hon'ble High Court on 12/11/2021 by passing the following order:
Signature Not Verified
Signed by: JYOTI
CHOURASIA
Signing time: 23-Aug-23
4:52:28 PM
"During the course of hearing, learned counsel for the parties
reached a consensus. It is agreed that the order dated 13.09.2021
giving extension to the previous order may remain intact but it may
be clarified that accommodations which have been vacated resulting
into vacation of the entire building, the petitioners may utilize those
building for the purpose of starting the work. In other words, it is
agreed between the parties that building which have already been
vacated by the employees can be used for an appropriate purpose in
the Smart City Project by the petitioner."
In view of consensus arrived at between the parties, the
review petition is disposed of. Parties shall act in accordance with the
stand taken herein above.
20. 1 further say that, the Respondent after disposal of the Public
Interest Litigation W.P. No. 14656 of 2020 vide order dated
03/03/2021 issued the Letter of Acceptance (LOA) in the favour of
the petitioner vide letter dated 08/06/2021 to execute' the said
work/project. The financial bid quoted by the petitioner for the
purchase of Plot No. 03 was Rs. 25, 88, 88 888/-, therefore vide LOA
dated 08/06/2021 petitioner was required performance guarantee
equivalent to 10% of the quoted amount as per 'payment schedule of
Rs.2,58,88,889/- in the form of bank guarantee and to sign the
contract agreement at the stamp value of Rs.2,58,889/- within 30
days of issue of the LOA.
21. I further say that, after issuance of the LOA in the favour of the
Petitioner the Contact agreement was not executed by the petitioner
and also performance security was also not submitted. Therefore, it is
respectfully submitted that due to non-execution of the agreement
and non-submission of bank-Guarantee no legal right have been
created in the favour of the Petitioner."
20. When the reasons as furnished by respondent No.1 for
cancellation of the tender process are objectively considered, it is
apparent that even prior to issuance of the LOA in favour of the
petitioner, a Public Interest Litigation was filed before this Court in which
there was an order of status-quo in respect of the buildings which were to
be handed over to the petitioner in furtherance of the terms and conditions
Signature Not Verified
Signed by: JYOTI
CHOURASIA
Signing time: 23-Aug-23
4:52:28 PM
of the NIT. The petition as well as the Review Petition filed after its
decision remained pending for about one and a half year during which
period respondent No.1 was not in a position to deliver possession of the
plot to the petitioner for no fault of its own. Moreover, the petitioner did
not furnish the performance guarantee as it was directed to do under the
LOA itself. The petitioner also raised a dispute as regards the amount of
stamp required for execution of the agreement between the parties. Even
if it is assumed that the said grievance of the petitioner was genuine, then
also it is apparent that it did not deposit the performance guarantee within
the stipulated period of 30 days as was directed in the LOA itself. Taking
into consideration the fact of non-execution of the agreement between the
petitioner and respondent No.1 and non-submission of bank guarantee by
the petitioner and the delay in the entire tender process due to pendency
of litigation before this Court, respondent No.1 has validly decided to
recall the entire tender process and to issue a fresh NIT. In doing so it
cannot be said that respondent No.1 has acted arbitrarily or unreasonably
in any manner.
21. When the entire decision-making process adopted by
respondent No.1 for recalling the NIT, cancelling the LOA issued in
favour of the petitioner and issuing a fresh NIT is examined, we do not
find any illegality or infirmity therein. On the contrary, the NIT has been
recalled/cancelled by respondent No.1 for just and valid reasons. The
decision taken by it is rational and bona fide. The ground raised by the
petitioner that it would suffer huge financial losses on account of losing
the tender would not be a sufficient ground to exercise powers of judicial
review in its favour.
Signature Not Verified
Signed by: JYOTI
CHOURASIA
Signing time: 23-Aug-23
4:52:28 PM
22. In view of the aforesaid discussion, we do not find any merit in
the instant petitions and they are accordingly dismissed however without
any order as to costs.
(S. A. DHARMADHIKARI) (PRANAY VERMA)
JUDGE JUDGE
jyoti
Signature Not Verified
Signed by: JYOTI
CHOURASIA
Signing time: 23-Aug-23
4:52:28 PM
