High Court
Legal Reasoning
wp-2717-2024.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO.2717 OF 2024Janadhar Sevabhavi Sanstha, Latur,A Public Charitable Trust havingRegistration No.F17206 (Latur),Through its President,Sanjay Digambar Kamble,Age: 52 years, Occu.: Agril. & Business,R/o. Shamkunj, Shamnagar,Ambejogai Road, Latur,District Latur. .. PETITIONERVERSUS1.The State of MaharashtraThrough Department of Urban Development,Mantralaya, Mumbai-32.2.Latur City Municipal Corporation,Latur, Through its Administrator,Municipal Corporation, Latur,Tq. And District Latur.3.The Municipal Commissioner @Administrator,Latur City Muncipal Corporation,Latur Tq. And Dist. Latur. .. RESPONDENTS…Mr. D. P. Palodkar, Advocate for the petitioner.Mr. A. B. Girase, Government Pleader for respondent No.1.Mr. S. P. Urgunde, Advocate for respondent Nos.2 and 3.… CORAM : SMT. VIBHA KANKANWADI AND S. G. CHAPALGAONKAR, JJ. RESERVED ON : 19th MARCH, 2024. PRONOUNCED ON : 2nd APRIL, 2024. [1] wp-2717-2024.odtJUDGMENT [Per Smt. Vibha Kankanwadi, J.] :- .Rule. Rule made returnable forthwith. Heard learned Advocatesfor the appearing parties finally by consent.2.Present petition has been filed by the petitioner for followingreliefs :-“A)The Hon’ble High Court may be pleased to issueany appropriate writ, order or direction in the nature ofwrit, and thereby quash and set aside request for proposalissued by the Latur City Municipal Corporation vide TenderNotice No.1-2023/2024 dated 28.02.2024 for selection ofoperator for Collection, Transportation and Processing ofMunicipal Solid Waste in Latur City Municipal Corporation,Latur.B)The Hon’ble High Court may be pleased to issuewrit of mandamus or writ or order in the nature of writ, andthereby to direct the respondent tendering authority toissue fresh Tender Notice only after complying the variousnorms set out by of Central and State Government by wayof various Government Resolutions and Rules described inthe Writ Petition.”3.Learned Advocate Mr. D. P. Palodkar appearing for the petitionersubmitted that the petitioner is a registered Society and it is engagedin various social activities of Rag Pickers Community and their welfare.The petitioner is also engaged in the Solid Waste Management,processing, disposal and value addition which are also helpful for thelivelihood of the Rag Pickers and their families. It gives employment[2]
Decision
wp-2717-2024.odtto around 750 men and women in Latur city. There are more than 15self-help groups of women engaged in collecting waste per day fromdoor to door by making use of GHANTA GADI (the vehicle with bell).The petitioner has received various awards for doing the work. Thepetitioner and respondent No.3 had entered into an agreement dated12.09.2017 for five years collecting waste and its disposal.Respondent No.3 had extended the term for two years i.e. up to12.09.2024, however, now respondent No.2 has floated Tender NoticeNo.1/2023-24 on 07.02.2024. The petitioner was intending toparticipate in the tender notice. Pre Bid meeting was conducted on15.02.2024, which was attended by the petitioner. Petitioner raisedobjections regarding several conditions. Other bidders also have raisedwritten objections regarding the eligibility criteria pertaining toturnover, past experience, net worth, solvency certificate andblacklisting. The tendering authority has prepared the minutes of PreBid meeting. Several objections were considered and clarificationswere issued, however, the objections raised by the petitioner andsome others were not considered. Since the petitioner was alreadyworking with respondent No.2 and the present period was up to12.09.2024, in respect of issue of pending bills with respondent No.2,the petitioner has filed Writ Petition No.13723 of 2023 and it came tobe disposed of on 01.09.2023. There are several irregularities thosehave been done by respondent Nos.2 and 3. Those are as follows.[3] wp-2717-2024.odti)The last submission of Bid expired on28.02.2024 up to 2.00 p.m., however, then theextension was granted beyond the said period. Thetime was then extended to 05.03.2024.ii)The eligibility criteria was arbitrary and high-handed.iii)The respondent authority has not given theamount of work for which the tender has been issued,but still on arbitrary basis is charging the securitydeposit and the bank guarantee.iv)It was stated that there was only single bidderwho was qualified and, therefore, the extension of bidafter the time period was over, is not justified.4.Affidavit-in-reply on behalf of respondent Nos.2 and 3 has beenfiled by one Kanchan Babruwan Tawade, Deputy Commissioner,Municipal Corporation, Latur. She does not deny that there was anagreement with the petitioner in respect of collection of solid waste inLatur Municipal Corporation area, however, according to her, thepetitioner society has failed to perform duty to collect the solid waste.More than 30 notices in the year 2023 were issued and, there wereseveral complaints of the citizens as well as political leaders againstthe petitioner. The petitioner had participated in the Pre Bid meetingand, therefore, has no right to raise objection in respect of terms andconditions. The tender was required to be in consonance with[4] wp-2717-2024.odtdirections issued by the Government Resolution dated 26.10.2006.The population of Latur city is estimated at 5 lakhs and everyday 150tons of garbage is generated from the city, therefore, considering allthese things and the past experience of the petitioner society,conditions were placed that it should be by the experience contractors.Some of the suggestions given in the Pre Bid meeting have beenaccepted. The bank guarantee in E-tender was kept at 20% of thetender amount, but as the price of the work was not fixed, the bankguarantee was kept Rs.4 Crores instead of 20%.Regarding extensions,only after the E-tender was opened after the time was over i.e. 2.00p.m. on 28.02.2024, it was realized that only one tender documenthas been received within the prescribed time and, therefore, thetender was extended till 06.03.2024 till 14.00 hours. Further, thereason for extending the deadline is code of conduct of upcoming LokSabha Election and current garbage issue of Latur city. As regards theTurnover Net Worth condition is concerned, it is said that the financialcondition of the contractor should be capable because the financialcondition of the Municipal Corporation is poor. If the payment of workis delayed in the future, then the contractor should be able to makethe cost of all the work.5.The learned Advocate for the petitioner submits that theGovernment Resolution dated 27.09.2018 issued by the Public Works[5] wp-2717-2024.odtDepartment is applicable to the tenders of all the departments ofGovernment as well as the Municipal Corporation also, wherein RuleNo.4.3 prescribes for Procedure Regarding Processing Single Tender, itis said that, “Single Tender / Bid means, only one bid is receivedduring the tendering process or only one bidder is technically qualifiedafter opening of bid Envelope No.1. In such cases, all the tendersshall be rejected without opening their 2nd Envelope and fresh tendersshall be invited immediately. However, no changes in the draft of thetender paper shall be made while going for re-invitation of tenders. Ifchanges are not done in the draft tender document, then this shall betreated as ‘second call’.” Therefore, on 28.02.2024, after it wasrealized by respondent Nos.2 and 3 that there is only one bid, it oughtnot to have gone ahead, but there ought to have been re-tendering.Further, the action on behalf of respondent Nos.2 and 3 was arbitrarywhen arbitrary changes have been made and, therefore, in view of thethree Judge Bench decisions of the Hon’ble Apex Court in ViceChairman and Managing Director, City and Industrial DevelopmentCorporation of Maharashtra Ltd. And Another Vs. Shishir Realty PrivateLimited and others, [2021 SCC OnLine SC 1141] and MonarchInfrastructure (P) Ltd. Vs. Commissioner, Ulhasnagar MunicipalCorporation and others, [(2000) 5 SCC 287], interference by thisCourt is necessary.[6] wp-2717-2024.odt6.Learned Advocate for respondent Nos.2 and 3 relied on thedecisions of the the Hon’ble Apex Court in Tata Motor Limited Vs. TheBrihan Mumbai Electric Supply and Transport Undertaking, [2023 (5)ALL MR 306 (S.C.)], N. G. Projects Limited Vs. Vinod Kumar Jain andothers, [(2022) 6 SCC 127] and Galaxy Transport Agencies,Contractors, Traders, Transports and Suppliers Vs. New J. K.Roadways, Fleet Owners and Transport Contractors and others,[(2021) 16 SCC 808], wherein the Hon’ble Supreme Court has heldthat “the Court ordinarily should not interfere in the matters relatingto tender or contract. Initiating fresh tender process may consume lotof time and also lose the public exchequer to the tune of crores ofrupees. While invoking the power of judicial review in matters as totenders or award of contracts, certain special features should be bornein mind that evaluation of tenders and awarding contracts areessential commercial functions. Principles of equity and natural justicestay at a distance. If the decision relating to award of contract is bonafide and is in the public interest, Courts will not interfere by exercisingpower of judicial review even if the procedural aberration or error inassessment or prejudice to a tenderer, is made out.”7.Many facts are not in dispute. At the outset, we would like toclarify that as regards the petitioner’s claim that the tender ought notto have been issued in view of the directions by the Government to[7] wp-2717-2024.odtgive such contracts to the societies working for the Rag Pickers isconcerned, we may not go into the same, as it will not be in theinterest of the Municipal Corporation. As regards inviting bid isconcerned, it would be giving competition to the eligible persons andwith the competitive price, the Municipal Corporation may gain.Therefore, as regards the eligibility criteria mentioned in the tender,we are not considering the same, as the authority inviting tender hasto decide the eligibility to whom they should invite. However, asregards the other points are concerned, certainly we would like tore-look the facts and assess the same.8.As per the tender document, the bid was to be opened at 2.00p.m. on 28.02.2024, however, the documents on record, which are notin dispute, would show that the first corrigendum came to be issuedaround 6.04 p.m., which was after the 2.00 p.m. deadline givenearlier. The bid submission end date was then extended till 2.00 p.m.of 06.03.2024 and the bid opening date was 07.03.2024 at 3.00 p.m.The justification for such corrigendum is stated in the affidavit-in-replythat as after the time was over when it was opened i.e. after 2.00p.m. of 28.02.2024, there is only one bidder who has uploaded thedocuments. The affidavit-in-reply is totally silent as to why theguidelines issued in Government Resolution dated 27.09.2018 werenot followed. It is not the case of respondent Nos.2 and 3 that the[8] wp-2717-2024.odtsaid Government Resolution issued by the Public Works Department isnot applicable to them. If that is applicable to respondent Nos.2 and3, then without opening Envelope No.1 of single bidder and also whenno changes were proposed in the draft of the tender paper, thenre-invitation ought to have been given. No documentary proof hasbeen produced along with the affidavit-in-reply as to on what point orreason, decision was taken to extend the bid time without followingthe Government Resolution dated 27.09.2018.9.Further, it can be seen from the affidavit-in-reply that the priceof the tender is not fixed. This is more dangerous. At-least the personwho is inviting tender should know as well as should quote the price ofthe work, then only appropriate bidders would come. Initially, the bankguarantee was kept at 20% of the tender amount when in fact thetender amount is not fixed. Then after negotiations in the Pre Bidmeeting when it was pointed out, it is said that it was then fixed atRs.4 Crores instead of 20% of the tender amount. In the affidavit-in-reply there is absolutely no justification as to on what basis the saidamount of Rs.4 Crores was arrived at. This shows the arbitrariness onthe part of respondent Nos.2 and 3 and the approach with which theyhave undertaken the E-tender process. Certainly, the decisions in TataMotors (Supra), N. G. Projects (Supra) and Galaxy Transport Agencies(Supra) are binding on this Court, however, taking into consideration[9] wp-2717-2024.odtthe facts of the case and even as per the ratio laid down in those casesas well as the three Judge bench decision of the Hon’ble Apex Court inVice Chairman and Managing Director (Supra), there cannot be changein the tender conditions after it is floated as it is observed that “afterall one cannot change the rules of the game, once it is started.”In Monarch Infrastructure (P) Ltd. (Supra), it is observed that “broadlystated, the Courts would not interfere with the matter ofadministrative action or changes made therein, unless theGovernment’s action is arbitrary or discriminatory or the policyadopted has no nexus with the object it seeks to achieve or is malafide”. As aforesaid and at the cost of repetition, the extension of thebid opening is arbitrary. When there was single bid received, theGovernment Resolution dated 27.09.2018 ought to have been followedand basically, since beginning when no efforts were taken to fix theprice even approximately, the authorities were not justified in going forthe tender and, therefore, interference is required.10.No doubt, it appears that respondent Nos.2 and 3 has issuedmany show cause notices to the petitioner in respect of the work thatwas undertaken by the petitioner. Even the photographs those havebeen shown shows pathetic situation in respect of lifting of garbage.Throwing waste/garbage by general public on the road is certainly amenace. Unless there is public awareness on the point and publicparticipation, the situation will not improve, however, when[10] wp-2717-2024.odtinstitutions/persons like petitioner are undertaking the contracts ofcollecting waste and that too with aim that has been stated in thepetition, then it is expected that the petitioner should deliver and workas expected with no or less complaints. But on that point respondentNos.2 and 3 cannot estop the petitioner from participating in thetender. The tender was open for public i.e. to the specific persons asper the eligibility and, therefore, it is for respondent Nos.2 and 3 toaccept the tender document and, thereafter to scrutinize the same. Afair play is certainly expected.11.Learned Advocate for respondent Nos.2 and 3 has raised thatnow re-tendering would cause loss to the public exchequer. This oughtto have been in fact considered by respondent Nos.2 and 3 beforegoing for the tender. Respondent Nos.2 and 3 ought to have ensuredthat every aspect is clear in the tender document itself and, thereafteron the second occasion when there was a single bid received, theyought to have followed the Government Resolution dated 27.09.2018.Respondent Nos.2 and 3 have not considered the said point and loss tothe public exchequer and, therefore, we need not consider the same.12.For the aforesaid reasons, following order is passed.ORDERI)The Writ Petition stands allowed.[11] wp-2717-2024.odtII)The E-tender Notice No.1 of 2023-24 dated 07.02.2024 ishereby quashed and set aside.III)Respondent Nos.2 and 3 are directed to issue fresh tendernotice as per the existing laws and Government Resolution.IV)Rule is made absolute in the above terms.[ S. G. CHAPALGAONKAR ] [ SMT. VIBHA KANKANWADI ] JUDGE JUDGEscm[12]