High Court
Facts
WP 2098 24.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO. 2098 OF 2024Pride Ventures (I) Pvt. Ltd.,Chh. Sambhajinagar,Through its Authorized Signatory,Mohammad Hares Siddiqui,Age 44 years, Occ. Business,R/o. House No. 8-8-585,Rashidpura, HUDCO road,Aurangabad.…PetitionerVERSUS1)The State of Maharashtra,Through its Public Works Department,Mantralaya, Mumbai-32.2)The Chief Engineer,Public Works Region,Chh.Sambhajinagar.3)The Superintending Engineer,Public Works Circle,Chh. Sambhajinagar.4)The Executive Engineer,Public Works Division,Chh. Sambhajinagar....Respondents…Advocate for Petitioner : Mr. D.P. PalodkarA.G.P. for Respondent nos. 1 to 3 : Mr. P.S. PatilAdvocate for Respondent No. 4 : Mr. Gunaratna Sadawarte, Special CounselCORAM: MANGESH S. PATIL & SHAILESH P. BRAHME, JJ.RESERVED ON PRONOUNCED ON :: 31.07.2024 05.08.2024JUDGMENT : ( MANGESH S. PATIL, J.)Heard. Rule. Rule is made returnable forthwith. The learned A.G.P.1/12
Legal Reasoning
WP 2098 24.odtso as to include the name of the other member of the consortium. We,therefore, are of the view that it cannot be said that the petitioner is not anaggrieved person.29.As far as the authority of the individual through whom the petition aswell as the rejoinder has been filed, the petitioner has filed a general powerof attorney expressly titled as ‘For signing of bid (Exh. R1)’. A bare look atthis power would demonstrate that it is a general power of attorneyenabling the holder to do, in the name of Laxmi Construction Company andas authorized signatory of Pride Ventures, to submit bids and deal with thePublic Works Division, Aurangabad, in the matter of the tender process.Ex facie it does not authorize him to initiate any litigation for and on behalfof Laxmi Construction Company, which is the partner in the joint venture.However, in our considered view, when it has been expressly mentioned inthe rejoinder that the petitioner is not avers to carrying out necessarycorrection in the title, in our considered view, one need not go into theaspect of authority of the person, who has filed the petition for and onbehalf of one of the partners of the joint venture, which submitted the bid.30.As far as the other objection regarding availability of the alternate andefficacious remedy as contemplated in the government resolution dated17.09.2019, it contemplates a recourse to be adopted for a bidder in thematter of objection being raised by the bidders during the tender process.We are of the view that this government resolution only provides for someremedy for redressal of the grievances and provides for a complaintredressal mechanism. It would not be a quasi judicial authority and cannotbe regarded as a statutory remedy to challenge the disqualification of abidder. This mechanism may, possibly, avoid some litigation but cannotpartake the place of judicial or quasi judicial authority so as to adjudicate agrievance being made by a bidder. We, therefore, do not see the mechanismprovided under government resolution dated 17.09.2019 as an alternate andefficacious remedy.9/12 WP 2098 24.odt31.As far as the merits of the matter are concerned, it is a matter ofrecord that in pre-bid meetings, not only the petitioner’s joint venture buteven few other bidders had also participated, wherein, after consideringtheir requests, common set of deviations were published. Though therelevant clause was contemplating “completion of a building from start tofinish” and the words “from start to finish” were replaced by “executed”,even after our query as to if such change would connote any deviation insubstance, Mr. Palodkar would seek to interpret such a change to mean thatexecution would mean a certification by the IGBC to undertake a greenbuilding project. He would advert our attention to the norms from thewebsite of the IGBC. He would submit that it contemplates registration ofthe project with IGBC, preparation for documentation and calculations tosatisfy mandatory requirements and credit submittal requirements. Hewould submit that the norms contemplate a pre-certification of a projectwhich requires registration of such project. Such pre-certified projects haveto submit six monthly reports. The petitioner had obtained such pre-certification in September 2021, of its My World VXL Residencies,Aurangabad, which was submitted along with the bid. He would submitthat having obtained the pre-certificate it was a sufficient indication ofexecution of a green building project and should have been treated as duecompliance of the condition.32.We have considered this submission of Mr. Palodkar in the light of theprintout from the website of the IGBC (Exh. R4). At the outset, it isnecessary to note that this pre-certification would essentially mean that aproject is registered with IGBC, proposing to carryout construction of agreen building. As has been mentioned in these broacher/printout (Exh.R2), such pre-certification is contemplated to give the owner/developer aunique advantage to market the project to potential buyers. By no stretch ofimagination can such pre-certification, in our considered view, would beindicative of completion of a green building project. Hypothetically, it may10/12 WP 2098 24.odtso happen that though it is a pre-certified project, the project itself could notbe completed for variety of reasons. Would it mean that even such a pre-certified project would lend credence to the experience of constructing agreen building, if such pre-certified project does not reach completion so asto obtain a certificate from IGBC. In our considered view, in such a case, theessential requirement which was inserted, of having experience by theproposed bidders of carrying out construction of a green building would notbe fulfilled. To our mind, “execution” literally would mean not mere‘capacity to execute’ but ‘completion of the work’.33.We are, therefore, unable to persuade ourselves with this submissionof Mr. Palodkar.34.Besides, since it is a matter of interpretation of a term and conditionexpressly in respect of IGBC certification, as laid down in the matter ofJagdish Mandal (supra), in exercise of the powers under Article 226 of theConstitution of India, this Court cannot undertake a judicial review of thewisdom of the employer. When the expert’s committee constituted underthe government resolution dated 27.09.2018 has disqualified the petitionerprecisely for being non compliant with the condition requiring IGBCcertificate, we neither can allow the petitioner to interpret the clause in itsown way nor can we undertake a judicial review and interpret the clauseaccording to our own notions. The employer is the best judge and has takena decision that the petitioner is non compliant and we cannot sit in appeal. 35.Again, there is one more aspect, which needs a specific emphasis.Though the petitioner has now been seeking to question even the authorityof the respondents to issue CSD, it is clearly an after thought. He had neverraised any objection to the stipulation of IGBC certification beforesubmitting his bid or even thereafter till he was disqualified, except raisingqueries seeking clarification on that count. Rather it had even tried tocomply with it by submitting pre-certification of IGBC. Even submissions ofMr. Palodkar are also on the same lines.11/12
Arguments
WP 2098 24.odtand learned advocate Mr. Sadawarte waive service for the respondents. Atthe joint request of the parties, the matter is heard finally at the stage ofadmission.2.Respondent no. 4, who is the Executive Engineer of Public WorksDepartment, Chhatrapati Sambhajinagar, published ‘E’ tender notice on08.09.2023 for the construction of ‘Collector Office building at VishwasNagar (Labour Colony) Aurangabad’.3.By publishing Errata/Corrigendum on 09.09.2023 a condition wasadded directing the bidders to upload ‘green building certificate’ issued byIndian Green Building Council (IGBC). The petitioner submitted his bid on06.10.2023 and even uploaded a certificate issued by IGBC (page 688). On10.10.2023 technical bids were opened. By a communication dated30.10.2023 (Exh. ‘C’) respondent No.4 called upon the petitioner torectify/comply with the deficiencies inter alia containing item no. 9, whichread as under:“9.The IGBC (Green Building) certificate is precertificatedated September 2021 but the actual date of work completionis 31/03/2023. Hence certified certificate of green building isrequired”4.The petitioner replied to the queries by a communication dated01.01.2023 (Exh. ‘D’), as follows:“With reference to the above-mentioned tender and therequirement for the clause of completion of IGBC Buildingcertificate, it is to be noted that our consultant “BuildingEnvironment India Pvt. Ltd.” has submitted the six monthlycompliance to the IGBC department timely and also appliedfor final certification as per IGBC norms.An interim certification from the IGBC department hasbeen issued for the project which we are submitting alongwith this letter. Hence request you to please accept this letter2/12 WP 2098 24.odtand qualify our bid”5.By a separate communication of the even date, even reply was givento five of the other queries raised in the communication (Exh. ‘C’).6.On 08.01.2024 (Exh.’E’) stating that since pursuant to the governmentresolution dated 27.09.2018 the work estimate was of more than 100 Crore,the evaluation committee in its meeting dated 04.01.2024 had recorded theminutes, evaluating the bids and mentioning inter alia that five biddersincluding the petitioner’s Joint Venture were not qualified and only onebidder Shubham EPC Pvt. Ltd., was qualified. It further stated that pursuantto the self-same government resolution since there was only one qualifiedbidder, it was decided to go for a second call. It was further resolved topublish this decision on the website for a period of five days.7.Aggrieved by a similar disqualification, one of the other biddersnamely Hi Tech Wonder, J.V. Aurangabad, preferred Writ Petition No.552/2024 on 12.01.2024. By the order dated 12.01.2024, this Court stayedfurther tender process.8.The petitioner questioned its disqualification by filing this petition on16.02.2024.9.The petitioner was disqualified with the reason that it wasnoncompliant with the terms and conditions regarding ‘green buildingcertificate’.10.It is the stand of the petitioner that by a communication dated24.01.2024 (Exh. ‘F’) the petitioner submitted IGBC green rating certificatefor project “Pride Century” to which Aurangabad Municipal Corporation hadgiven occupancy certificate on 19.07.2021.11.The petitioner in Writ Petition No.552/2024, with the leave of theCourt withdrew its writ petition on 10.07.2024. 3/12 WP 2098 24.odt12.Alleging that taking advantage of this, the second call was publishedon 12.07.2024 (Exh. ‘I’), the petitioner with the leave of the Court has nowamended the petition and has put up a challenge even to the second call.13.The learned advocate Mr. Palodkar based his arguments essentially onthe ground that the additional condition in respect of certification by IGBC,modified and corrected from time to time by issuing corrigendum itself wasvague. He would point out that initially no such condition was there in thetender notice published on 08.09.2023. It was incorporated by issuingcorrigendum on 09.09.2023. By adding clause 4.5 (A)(d), it was added thatthe requirement would be regarding satisfactorily completed (from start tofinish) as a prime contractor of at least one green building project of valuenot less than 30 crores from any government department.14.He would submit that in order to clear the confusion the issue wasraised by the petitioner and even some other bidders in a pre-bid meeting toremove the requirement of “from start to finish” or to consider workscompleted during last five years. It was accepted in the pre bid conferenceheld on 27.09.2023. Accordingly, common set of deviations were publishedwhereby this clause regarding green building certification was modified toread “satisfactorily completed/executed as a prime contractor of at leastone green building project of value not less than 25 crores and the sameshall be certified by authorized bodies e.g. GRIHA/LEED/IGBC. Financialturnover and cost of completed/executed works of previous years shall begiven weightage of 10% per year based on a Rupee value to bring them to2023-24 price level.15.Mr. Palodkar would, therefore, submit that there was no clarity anddeletion of words “from start to finish” and replacing them by word“executed” was confusing. The petitioner, pursuant to the query raised inthat respect had even forwarded the certificate with reply dated 01.01.2024.It could have been treated as compliant with the condition. However,4/12 WP 2098 24.odtdesignedly, taking advantage of the clause from the government resolutiondated 27.09.2023, in order to enable issuance of a second call, the petitionerwas disqualified thereby rendering the tender process incomplete as onlyone of the bidders was held to be qualified. Accordingly, the second call hasbeen issued and the last date for submission is 01.08.2024, and the technicalbids are to be opened on 04.08.2024. The decision to disqualify thepetitioner is not sustainable in the light of the wording of the condition.Substitution of letters from “start to finish” by the word “execution” issusceptible to mean that a pre- certification of a green building by the IGBCwas sufficient compliance. Mr. Palodkar would then take us through theguidelines of the IGBC, which contemplate pre-certification of a greenbuilding project, which is valid for three years, and which contemplatesperiodical submission of the reports after every three months. This wasclearly indicative of the fact that the petitioner was in fact undertaking agreen building project duly certified by IGBC. The condition could not havebeen treated as requiring completion of a green building.16.As far as objection being raised in affidavit in reply of respondentno.4, regarding maintainability of the petition, Mr. Palodkar, would submitthat filing of bid through joint venture was initially not allowed by thetender notice. By the Errata/Corrigendum dated 09.09.2023 bids by jointventures were permitted and Common Set of Deviations (CSD) alsopermitted that. Clause no. 2 of CSD required joint venture to nominate arepresentative having authority to conduct the business for and on behalf ofany or all the members of the joint ventures. The general power of attorneywas executed in favour of the petitioner (Exh. R1). The petitioner isotherwise not avers to carrying out necessary correction in the title clause ofthe petition and the objection is not sustainable.17.As regards the objection regarding availability of alternate andefficacious remedy as per the government resolution dated 17.09.2019, Mr.Palodkar would submit that as per that government resolution the remedy5/12 WP 2098 24.odtwas available regarding the complaints made by the contractors afteropening of the technical bids and any objections raised to the technical bidsetc. Since, admittedly, the respondent no. 4 has now issued a second call,no such remedy is now available much less can be effective and efficaciousone.18.Lastly, Mr. Palodkar would submit that as per the governmentresolution dated 17.09.2019 the terms and conditions of the tender and CSDshould have been approved by the competent authority at the governmentlevel. The corrigendum dated 09.09.2023 was issued by respondent no. 4only and not by the competent authority prescribed under that governmentresolution. Even the CSD was approved by the Chief Engineer and not bythe competent authority. Consequently, the condition regarding certificationof green building added subsequently under the signature of respondentno. 4-Executive Engineer and respondent no. 2-Chief Engineer cannot beregarded as essential condition.19.Per contra, the learned advocate Mr. Sadawarte would makesubmissions in tune with the affidavit in reply. He would submit that thepetition has been filed by Pride Ventures India Pvt. Limited, which had notparticipated in the tender process. It was filled by P.V.I.P.L. and L.C.C. J.V.,Aurangabad ( A consortium of Pride Ventures (India) Private Limited andLaxmi Construction Company Joint Venture, Aurangabad). He wouldsubmit that Pride Ventures (India) Limited, alone could not have filed thepetition.20.Mr. Sadawarte would further submit that even the power of attorneyfiled by the petitioner does not expressly specify conferment of power inrespect of any specific act like filing of the present petition. He wouldsubmit that the title clause describes individual as authorized signatorythrough whom Pirde Ventures (India) Private Limited has filed the petition.He would refer to the full bench decision of Allahabad High Court in the6/12 WP 2098 24.odtmatter of Syed Wasif Husain Razvi Vs. Hasan Raza Khan & 6 Ors; 2016 SCCOnLine All 175.21.Mr. Sadawarte would then submit that government resoution dated17.09.2019 expressly provides for alternate and efficacious remedy whichthe petitioner ought to have resorted to. In the absence of which the writpetition is not maintainable. He would cite the decision in the matter ofPHR Invent Educational Society Vs. UCO Bank and others; 2024 SCC OnLineSC 528.22.On merits, Mr. Sadawarte would submit that there is expressstipulation in the tender document whereby, the respondents have expresslyreserved the right to revise the invitation to offer and right to resort todeviations, amendments and extension. Even it contains a specificstipulation reserving a right to reject all or any of the tenders withoutassigning any reason. He would, therefore, submit that no fault can befound in issuing Common Set of Deviations, which were duly notified.23.Mr. Sadawarte would further submit that the petitioner is merelychallenging the disqualification but had never objected to the CSD’s issue.He would, therefore, submit that the challenge by the petitioner is to theoutcome or result of the tender process rather than the terms andconditions.24.Mr. Sadawarte would then submit that initial requirement of“satisfactory completion from start to finish” replaced by the modified clauserequiring “satisfactory completion/execution”. Both would include andcontemplate a completed project. In spite of specific queries raised byrespondent no. 4, the petitioner had failed to furnish the requisite certificateof a green building. The interim certificate issued by IGBC would onlydemonstrate that he was undertaking construction of a green building buthad no certification about completion of any green building issued by theIGBC. He was, therefore, rightly disqualified.7/12 WP 2098 24.odt25.The learned advocate Mr. Sadawarte would also submit that acompliance was sought to be made by the petitioner after the technical bidswere scrutinized and he was disqualified, and even after the decision wastaken to go for a second call. Admittedly, the petitioner had not submittedany certificate regarding execution of a green building project before thecut-off date and cannot be heard.26.Mr. Sadawarte would advert our attention to the resolution passed bythe committee constituted under the government resolution dated27.09.2018. He would submit that a committee of experts had found thepetitioner not eligible for the specific reason. With a limited power ofundertaking a judicial review resorting to Article 226 of the Constitution ofIndia in tender matters, in the absence of any mala fides being attributableto the respondents, no fault can be found in the committee of expertsdisqualifying the petitioner by resorting to the interpretation of the term andcondition regarding certification of IGBC. He would cite followingdecisions:(1) N.G. Projects Limited Vs. Vinod Kumar Jain and others;(2022) 6 SCC 127.(2) Jagdish Mandal Vs. State of Orissa and others; (2007) 14 SCC517.(3) Tata Motors Limited Vs. Brihan Mumbai Electric Supply andTransport Undertaking (BEST); 2023 SCC Online SC 671,27.We have considered the rival submissions and perused the papers.28.As far as the preliminary objections are concerned, admittedly, thepetitioner was one of the members of the consortium of the joint venturewhich had submitted the bid. Therefore, it cannot be said that the petitionerhas no locus. Besides, as has been mentioned in the rejoinder, the petitioneris also not avers to make necessary correction in the title of the writ petition8/12
Decision
WP 2098 24.odt36.In this regard, it is quite interesting to note that contrary tosuch a stand the petitioner’s joint venture, in fact, had raised a specificobjection to a bid of another bidder vide letter dated 01.01.2024 (pageNo.682) stating that its offer was non-compliant with the very same clauseof IGBC certification. This is nothing but blowing hot and cold at the sametime, which cannot be permitted. 37. Once having participated in the tender process with an openeye, understanding the stipulation and precise requirement of greenbuilding completion/execution certification, it would be too late in the dayfor the petitioner to make a grievance about his disqualification. 38.There is no substance in the writ petition and it is liable to bedismissed.39.The Writ Petition is dismissed.40.Rule is discharged. ( SHAILESH P. BRAHME, J.) (MANGESH S. PATIL, J.)mkd/-12/12