1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.2361 OF 2009 SMS Paryavaran Limited & Anr. : Petitioners V/s. State of Maharashtra & Ors. : Respondents .... Mr.S.G.Aney, Senior Advocate, with Mr.Chirag Balsara i/b. Negandhi, Shah & Himayatullah for the petitioners. Mr.D.A.Nalawade, Govt. Pleader for respondent no.1. Mr.G.S.Hegde with Mr.P.P.Chawan and Mr.C.M. Lokesh i/b. Mr.A.R. Bhole & Co., for respondent nos.2 & 3. .... CORAM : J.N.PATEL, ACTING C.J. & B.R. GAVAI, J. DATE : FEBRUARY 02, 2010. P.C.: The petitioners challenge the decision of the respondent nos.2 & 3 whereby holding the petitioners to be technically disqualified for awarding the work of construction of Intake Well, Jackwell, MS Rising Main and 80MLD capacity WTP Sump at an estimated cost of Rs.23,59,92,879/- for implementing the Permanent Water Supply Scheme for Chakan and Talegaon industrial area (hereinafter referred to as the said “work”). 2. The respondent no.1 had invited bids for award of the aforesaid 2 work. According to the tender notice, price-bid of only such bidders was to be opened who were found to be technically qualified. Since in the present petition the dispute pertains to the question as to whether the petitioners are qualified with respect to only one condition, it is not necessary to refer to the other conditions. The said condition reads thus:- “d) The contractor should have executed works as mentioned at Sr.No.1 form General 1.2 on Page 3 costing not less than Rs.1400.00 Lakhs or more.” It is the contention of the petitioners that the petitioners had fulfilled the said condition whereas, according to the respondent nos.2 & 3, the petitioners did not qualify the said condition. According to the respondent nos.2 & 3, since the petitioners did not qualify the aforesaid condition, their price bid was not opened. The petitioners were, therefore, required to approach this Court seeking a writ of mandamus directing the aforesaid respondents to consider the price bid, submitted by the petitioner no.1 for competing with eligible bidders. 3. Mr.Aney, the learned counsel appearing on behalf of the petitioners, submitted that the respondents have totally erred in holding 3 the petitioners to be disqualified. He submitted that the petitioners had given details about four works which would satisfy the aforesaid condition. He submits that it is a normal commercial practice that if a work is completed at an earlier point of time, then the benefit of inflation has to be given, between the date of issuance of the work order and the date of eligibility. He submits that if the said principle is properly applied, then three works executed by the petitioners would show that the petitioners had completed the said works, which would not be less than Rs.1400 lakhs. He further submitted that insofar as the 4th work is concerned, though the cost of the said work is Rs.1495 lakhs, the same has been refused to be considered on a hyper-technical ground. He submitted that insofar as the work which was awarded, the same has been fully completed by the petitioners. However, the said project could not be commissioned due to certain circumstances beyond the control of the petitioners such as non-supply of electricity, etc. He, therefore, submits that non-consideration of the said work while considering the eligibility of the petitioners is illegal. 4. Mr.Aney, the learned counsel for the petitioners, further submitted that in an initial screening, the petitioners were found to be qualified. He submits that, however, subsequently, the superior authorities of the respondent no.2 have for no valid reason, found the 4 petitioners to be disqualified and have found the other bidders who were initially disqualified to be qualified. He, therefore, submit that the process that has been adopted by the respondents while arriving at the decision, suffers from arbitrariness and, therefore, the ultimate decision itself is vitiated on the ground of bias and as such, the process is liable to be quashed and set aside. 5. Mr.Hegde, the learned counsel appearing on behalf of the respondent nos.2 & 3, on the contrary, submitted that since none of the works relied upon by the petitioners were found to be costing more than Rs.1400 lakhs, the petitioners did not answer the requirement of conditions stipulated by the respondents. It is, therefore, submitted that the petitioners were rightly held to be not qualified. It is submitted that insofar as the two works of the petitioners are concerned, even after giving benefit of inflation, the said works did not reach the figure of Rs.1400 lakhs and, as such, it was found that the said works did not answer the condition. He further submitted that insofar as the other two works are concerned, it is found from the certificates that the works were not completed and, therefore, the same work was also found to be not answering the condition stipulated in the tender notice. 6. Having heard the learned counsel for the petitioners, the only 5 question that falls for consideration before us is as to whether the aforesaid condition no.15(d) has been satisfied by the petitioners or not. It is not disputed that the said condition stipulates one of the essential qualifications so as to permit a bidder to participate in the commercial bid. In support of the petitioners’ claim that they satisfy the condition, the petitioners have relied upon the following four works:- “(a) 10.21 MLD Water Supply Scheme at Hazaribagh, Jharkhand,WTP, RCC sump Jackwell and pipeline. Date of work order, 08.01.2003 Date of completion, 04.05.2007 [period as of 2009 is – 6.5. Yrs., Contract Value : Rs.895.71*1.10^6.5=1664 lacs inflation considered @ 10% per annum] (b) 12 MLD Water supply scheme, Gumla, Jharkhand, WTP, RCC sump Jackwell and pipeline, Date of work order -04.01.2006, Date of completion- 27.11.2008, [period as of 2009 is – 3 yrs, 6 months. Contract value – Rs.1047*1.1 ^3.5 = 1461.15 lakhs inflation consider @ 10% per annum] (c) Birsanagar Water Supply scheme at Jharkhand, WTP, RCC sump Jackwell and pipeline Date of work order – 03.01.2006, Date of completion - completed, but not commissioned due to extra work of app. Bridge & non availability of power. Value of completed work is Rs.1495 lakhs as of 6 24.07.2009. (d) 100 MLD Water treatment plant at Pune, Maharashtra,WTP, RCC sump and Ms pipeline Date of work order – 09.09.2004 Date of com- pletion – 31.03.2008, [period as on 2009 is 4 yrs. 9 months. Contract Value Rs.921.44* 10^4.75 = Rs.1449 Lakhs inflation considered @ 10% per annum.] 7. It is the contention of the petitioners that though work at sr. nos. (a), (b) and (d) are below Rs.1400 lakhs, if benefit of inflation is given from the date on which the work order was issued, the cost of all these three works would go beyond Rs.1400 lakhs. It is, therefore, submitted that all these three works are required to be taken into consideration while determining the qualification of the petitioners. Insofar as the work at sr. no.(c) is concerned, it is submitted that the said work is costing more than Rs.1400 lakhs. It is submitted that though the work, in fact, has been completed, completion certificate is not issued due to commissioning of extra work and non-availability of power. It is, therefore, submitted that though the work is completed, completion certificate is not granted to the petitioners for reasons beyond the control of the petitioners and, as such, the said work cannot be excluded while considering the qualification of the petitioners. 7 8. The respondents in their affidavit-in-reply have not denied that the benefit of inflation has to be given to a contractor if the work is completed at an earlier point of time. But it is the contention of the petitioners that the benefit of inflation has to be given from the date on which the work is completed. It is the specific contention of the respondents that it is a settled commercial practice that the benefit of inflation would be available to a party from the date on which he completes his work till the qualifying date. Though it is the case of the petitioners that certain other contractors who were initially found not qualified were subsequently found qualified by giving benefit of inflation, it is not the case of the petitioners that the principle which has been applied while giving benefit of inflation to the petitioners is something different than the one which has been made applicable to the case of the aforesaid bidders. We may note that in the present petition, the petitioners have only challenged the question regarding their entitlement on the basis of being qualified. No averment regarding any favoritism in favour of any particular bidder has either been made in the petition or such other bidders have been made party respondents. In the absence of such bidders being party-respondents and there being no specific pleadings regarding favouritism or mala fides, we are of the view that it will not be permissible for us to go into that aspect of the matter. 8 9. It could be seen that the ground on which the petitioners have been held to be technically disqualified is that they have not executed similar work of not less than Rs.1400 lakhs. It can also be seen that the works at sr. nos.(a) and (b) referred to hereinabove are of the cost less than Rs.1400 lakhs. It can be seen from the affidavit-in-reply filed on behalf of the respondents that while giving the benefit of inflation, they have taken into consideration the date on which the work was completed. The details have been stated in the affidavit as to how even after giving the benefit of inflation, the works at sr. nos.(a) and (b) do not reach the figure of Rs.1400 lakhs. Insofar as the works at sr. nos.(c) and (d) are concerned, it has been found that the works were not completed and the completion certificates were not received by the petitioners in respect of completion of the works. 10. Even from the perusal of the documents submitted by the petitioners in support of the contention that the works at sr. no.(c) has been completed, it can clearly be seen that the project is not yet commissioned and the completion certificate has not been issued in favour of the petitioners in that respect. It is the case of the respondents that unless the plant is commissioned, it cannot be ascertained as to whether the performance of the plant is upto the mark or not. It is the 9 specific case of the respondents that unless the performance of the plaint is judged after its commissioning, it cannot be ascertained as to whether the work has been successfully completed or not. Even insofar as the work at sr. no.(d) is concerned, it would be seen that the work in question is not completed in all respects. In the document on which the petitioners rely in this respect, the column regarding completion is kept blank. 11. Insofar as the grievance of the petitioners that the benefit of inflation has been given to other bidders is concerned, from the affidavit- in-reply, it can be clearly seen that even in the case of other bidders while giving the benefit of inflation, what has been taken into consideration is the date of completion of the work and not the date of issuance of the work order. It can thus clearly be seen that the principle which has been applied by the respondent nos.2 & 3 while giving the benefit of inflation has been done uniformly to the petitioners and so also to other bidders. The scope of interference in such matters is very limited. The apex Court in Tata Cellular v. Union of India [(1994) 6 SCC 651] has observed at page 677 paragraph 77 as under:- “77. The duty of the court is to confine itself to the question of legality. Its concern should be: 1. Whether a decision-making authority exceeded its powers? 10 2. Committed an error of law, 3. committed a breach of the rules of natural justice, 4. reached a decision which no reasonable tribunal would have reached or, 5. abused its powers. Therefore, it is not for the court to determine whether a particular policy or particular decision taken in the fulfilment of that policy is fair. It is only concerned with the manner in which those decisions have been taken. The extent of the duty to act fairly will vary from case to case. Shortly put, the grounds upon which an administrative action is subject to control by judicial review can be classified as under: (i) Illegality : This means the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it. (ii)Irrationality, namely, Wednesbury unreason- ableness. (iii) Procedural impropriety.” 12. From the perusal of the material on record, it cannot be said that the decision making process of the respondents has been either vitiated by illegality, irrationality or impropriety. The authorities, after applying a uniform policy which has been applied in the case of the petitioners and 11 so also other bidders, have found that the petitioners do not conform the condition of having completed the work costing not less than Rs.1400 lakhs. The factors which have been taken into consideration by the authorities while arriving at such a decision cannot be said to be irrational or arbitrary. 13. In that view of the matter, we do not find that a case is made out for interference in the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India. Accordingly, the Writ Petition is dismissed. No order as to costs. 14. At this stage, the learned counsel for the petitioners prays for extension of the interim order which was granted earlier for a period of four weeks. In the interest of justice, we direct that the respondents would not award the contract to the successful bidders till 16.2.2010. However, the process for finalising the contract may go on. ACTING CHIEF JUSTICE B. R. GAVAI, J.