Shapoorji Pallonji And Company ... vs The Bihar Urban Infrastructure ...
2023 Latest Caselaw 191 Patna

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                    Civil Writ Jurisdiction Case No.8782 of 2020
     ======================================================

Shapoorji Pallonji and Company Pvt. Ltd. having its registered office at 70, Nagindas Master Road, Fort, Mumbai, Maharashtra through its authorized representative Mr. Surendra Nath Prasad aged about 50 years, Son of Lt. Shri Raghubir Prasad, Resident of J/64, First Floor, P.C. Colony, P.S. Ashok Nagar, Kankarbagh, Patna- 800020

... ... Petitioner/s Versus

1. The Bihar Urban Infrastructure Development Corporation Ltd. West Boring Canal Road, Raja Pur Pul, Patna- 800001 through its Managing Director.

2. The National Mission for Clean Ganga Ministry of Jal Shakti, Department of Water Resources, River Development and Ganga Rejuvenation), Government of India, 1st Floor, Major Dhyan Chand National Stadium, India Gate, New Delhi through its Director General.

3. M/s VA TECH WABAG LIMITED, having its registered office at 'Wabag House', No. 17, 200 feet Thoraipakkam- Pallavaram Main Road, Sunnambu Kolathur, Chennai, Tamilnadu.

4. M/s DK SEWAGE PROJECT LIMITED having its registered office at No.17, Wabag House, 200 Feet Thoraipakkam, Pallavaram, Main Road, Chennai, Tamilnadu.

... ... Respondent/s ====================================================== Appearance :

For the Petitioner/s : Mr. Vivek Singh, Advocate For the Respondents No. 3 and 4 : Mr. Niraj Kumar, Advocate For the B.U.I.D.C.O. : Mr. Rabindra Kumar Priyadarshi, Advocate ====================================================== CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH and HONOURABLE MR. JUSTICE HARISH KUMAR ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH)

Date : 17-01-2023

Heard Mr. Vivek Singh, learned counsel for the

petitioner, Mr. Niraj Kumar, learned counsel for the respondents

no. 3 and 4 and Mr. Rabindra Kumar Priyadarshi, learned counsel

for the Bihar Urban Infrastructure Development Corporation Ltd.

(hereinafter referred to as the 'BUIDCO').

Patna High Court CWJC No.8782 of 2020 dt.17-01-2023

2. The petitioner has moved the Court for the following

reliefs:

"A. A Writ in the nature of Certiorari or any other appropriate writ, order/s, direction/s quashing the letter of award [hereinafter referred to as LOA] and consequent execution of Contract Agreement by the Respondent No.1 to develop/construct Digha-Kankarbagh sewage treatment plant and sewerage network in Patna to the Respondent No.3 pursuant to its Invitation for Bids- IFB No. IN-BUIDCo/yo-911/18-32 and consequently declare the concession agreement with respondent no.4 null and void and inoperative;

B. A Writ in the nature of Mandamus or any other appropriate writ, order/s direction commanding the Respondent No.1 to consider the bid of the petitioner herein and award the project as per its Invitation for IFB No. IN- BUIDCo/yo-911/18-32 to develop/construct Digha-Kankarbagh sewage treatment plants and sewerage network in Patna to the petitioner herein.

C. For any other relief/s for which the Petitioner is entitled to."

3. Basically, the contention of the petitioner is that the

work experience for having executed successfully the sewerage

work for 150 kilometres is not satisfied by the respondents no. 3

and 4 who have been allotted the work in question. In support of

such contention, learned counsel submits that as per the Central

Public Health and Environmental Engineering Organisation

(hereinafter referred to as the 'CPHEEO') guidelines, the

experience had to be in laying down of actual sewerage having a Patna High Court CWJC No.8782 of 2020 dt.17-01-2023

diameter of 150 mm and not the last mile connection from the

main sewerage to the individual houses which is included in the

work experience of the respondents no. 3 and 4 which makes them

ineligible for even being considered for the tender in question.

Learned counsel submitted that these guidelines are now required

to be strictly followed and the respondents no. 3 and 4 not

satisfying the same, ought not to have been considered. On the

other hand, it was contended that the petitioner fully satisfied the

requirement having done sewerage work for more than the

required experience needed for the current tender.

4. Learned counsel for the State submits that the award

has already been awarded in the year 2019 and there is no major

complaint.

5. Learned counsel for the respondents no. 3 and 4

submit that the contention of the petitioner is misconceived for the

reason that the requirement of any tender or project is as per what

the contractor would have to do once awarded the contract.

However, it was submitted that there is a distinction between a

pre-tender qualification and the requirement to execute the work

in terms of the specification which may be required. In the present

case, it was submitted that the respondents no. 3 and 4 shall

comply with all the required standard of the work which has been Patna High Court CWJC No.8782 of 2020 dt.17-01-2023

allotted to them including the guidelines of CPHEEO. It was

contended that the contention of not fulfilling the eligibility

criteria is also erroneous for the reason that the work allotted to

the respondents no. 3 and 4 with regard to laying down the

sewerage network in the city of Chennai was a composite project

of sewerage and cannot be bifurcated into segments like the main

sewerage, the last mile connection to the houses, etc. Thus, it was

contended that the objection with regard to the diameter of the

pipes to be laid is not worth considering as it is only a change in

the size of the pipes and not the nature of the work. Thus, learned

counsel submitted that the work having been satisfactorily

concluded, it is immaterial as to what size of material was used,

which varies from project to project and even in the present case,

there will, but necessarily, be different sizes of pipes, which will

have to be put in place. However, on a categorical query of the

Court with regard to the quality and time frame, an unconditional

assurance has been given to the Court that the work would be

completed as per the specification and standard without any

compromise and the time limit would also be adhered to barring

unforeseen circumstances.

6. At this juncture, the Court also called upon learned

counsel for the BUIDCO to take a stand and he also reiterated that Patna High Court CWJC No.8782 of 2020 dt.17-01-2023

they would maintain strict supervision over the work to be

executed and would ensure that there is no slackness in the quality

of the work done and also the time frame.

7. Learned counsel for the petitioner submitted that even

till date after more than three years of the contract being awarded

to the respondents no. 3 and 4, only 15 per cent of the work has

been done.

8. Learned counsel for the BUIDCO and respondents

no. 3 and 4 submitted that it is close to 30 per cent. It was further

explained that initially the laying down of the foundational work

takes more time and once the basic structure is in place, the

execution of the work is at a faster pace and still they will be able

to complete the work in the extended time which has been allowed

to them.

9. Be that as it may, as the respondents no. 3 and 4 have

been allotted the work and there is no complaint from the

BUIDCO, the Court does not find any grounds to interfere in the

matter.

10. The issue with regard to the eligibility may not be

germane for the reason that as has been submitted by learned

counsel for the respondents no. 3 and 4, the experience had to be

in execution of sewerage line as a whole being a composite Patna High Court CWJC No.8782 of 2020 dt.17-01-2023

project and could not have been bifurcated at the time of award of

contract. From perusal of the documents on record, it appears that

the sewerage laying contract as a composite project was awarded

to the respondents no. 3 and 4 for Chennai and thus this would not

technically unsuit them in the eligibility criteria.

11. Having considered the matter, the writ petition

stands disposed of.

12. The Court, at the cost of repetition, would indicate

that the work to be performed under the contract by the

respondents no. 3 and 4 should not be lacking in any manner with

regard to the quality and the time frame should also be adhered to

being in the larger public interest.

(Ahsanuddin Amanullah, J)

(Harish Kumar, J)

Arish/-

P.Kumar/-

AFR/NAFR U T