1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE CIVIL JURISDICTION WRIT PETITION NO.9608 OF 2009 Kam-Avida Enviro Engineers Pvt. Ltd., Plot No.2, S.No.255/1, Hinjewadi, Mulshi, Pne 411 057 ...Petitioners. v. 1 The Commissioner, The Municipal Corporation of Gr. Mumbai, Chhatrapati Shivaji Market, 4h floor, Mata Ramabai Ambedkar Road, Mumbai 2 The Chief Engineer (Solid Waste Management) The Municipal Corporation of Gr. Mumbai, Chhatrapati Shivaji Market, 4th floor, Mata Ramabai Ambedkar Road, Mumbai 3 Antony Motors Pvt Ltd. A390/391, MIDC Industrial Estate Area, Mahape Navi Mumbai 400 701 4 Mak Automobiles, C65 Bhujbal Nivas, Opp. Gaurav Hotel J.N.Rd Mulund West, Mumbai ...Respondents. Mr.D.J.Bhanage a/w Priya Aggarwal i/by M/s. Halai & Co., advs. For the Petitioners. Mr.N.V.Walawalkar, Sr.Counsel a/w M.M.Malvankar, advs. For the Respondent Nos.1 and 2. Mr. M.P.Vashi i/by M.P.Vashi & Associates, adv. for the respondent no.3. 2 CORAM : F.I.REBELLO & J.H. BHATIA, JJ. DATED : 16th December , 2009 P.C. 1 The respondent no.1 Municipal Corporation had floated tender on 23rd June, 2009 for purchase of 38 Medium Weight Mini Compactors for transport of solid waste within the limits of Municipal Corporation of Greater Mumbai and comprehensive maintenance contract for 7 years for the said Compactors. Tenders were to be submitted in three packets, i.e., packet A containing technical information; Packet B containing price bid and packet C containing EMD i.e. Earnest Money Deposit. Packet B containing price bid was to be opened only after bidder was found qualified and also if the EMD was made as per the terms of tender documents. Petitioner also submitted the tender accordingly on 21.7.2009. On 25.8.2009 certain clarifications were sought by the respondent no.2 and the petitioner submitted clarifications vide letter dated 1st September, 2009 alongwith the additional documents. On oral query from the respondent no.2, i.e., the Chief Engineer of the Municipal Corporation, additional technical information alongwith certain technical designs and drawings were submitted alongwith the letter dated 8.10.2009. On 7.11.2009, the 3 petitioner came to know that price bids were opened but the packet B containing the price bid submitted by the petitioner was not opened and on enquiry, the petitioner was informed that the petitioner was found by the Tender Committee as ‘not responsive’ and, therefore, the packet B was not opened. Petitioner contends that in the tender documents there was no mention of any specifications regarding hopper volume, the point about which oral query was made and the respondents appear to have changed the specifications or the conditions of the tender and, therefore, this is arbitrary and lacks transparency and amounts to violation of principles of natural justice. Petitioner sought direction to the Corporation to open price bid of the petitioner and to consider the tender. 2 Respondent No.2 Chief Engineer filed affidavit-in-reply and contended that as per the requirements, it was necessary that hopper volume indicating capacity of hopper to pick up garbage should be 1.1 Cu.M. equivalent to 1100 ltrs. From the technical bid of the petitioner, it was found that the petitioner had offered 0.5 Cu.M. sweeping volume which was very less as compared to unloading of refuse or garbage from 1.1 Cu.M. container in it, therefore, by letter dated 25.8.2009, clarification was sought and by the letter dated 1.9.09, petitioner 4 confirmed that volume of the sweeping plate is 0.5 Cu.M. It means hopper can accept only 0.5 Cu.M. of waste which will be swept by the sweep/packer blade instead of 1.1 Cu.M. as required. Therefore, Chief Engineer called the representative of the petitioner to confirm size of hopper and the said representative of the petitioner informed that the hopper offered by the petitioner is the standard design and could not be changed and it is not possible to provide 1.1 Cu.M. volume of hopper/sweep volume. Other bidders were offering 1.1 Cu.M. volume of hopper . Thereafter by letter dated 8.10.2009 , petitioner stated that their hopper could accept refuse, considering in heap volume up to 0.86 Cu.M. though the hopper volume is 0.59 Cu.M. It was also much less than the requirements of the petitioner. 3 Heard the learned counsel for the Parties and perused the documents. On perusal of the tender documents containing technical details and the description of the compactors , it appears that requirement was that the equipment shall be rear loading type and able to unload existing DIN standard 120, 240 and 1100 ltrs. containers. We are not concerned with the other descriptions. While it is contended by the petitioner that in the tender documents, there was no specifications about hopper volume, the learned counsel for the respondents contended that 5 any contractor dealing with such compactors must know terminology and 1100 ltrs. container means 1.1 Cu.M. hopper volume. The affidavit of the Chief Engineer appear to be supported by the documents. Anyhow, if there is a dispute about the facts and about the understanding of the terms of the tender documents, in the writ petition, this Court cannot enter into questions of facts, which may require evidence. 4 In Tata Cellular vs. Union of India (1994) 6 Supreme Court Cases 651, the Supreme Court observed as follows in paragraph 70: “ 70. It cannot be denied that the principles of judicial review would apply to the exercise of contractual powers by Government bodies in order to prevent arbitrariness or favouritism. However, it must be clearly stated that there are inherent limitations in exercise of that power of judicial review. Government is the guardian of the finances of the State. It is expected to protect the financial interest of the State. The right to refuse the lowest or any other tender is always available to the Government. But, the principles laid down in Article 14 of the Constitution have to be kept in view while accepting or refusing a tender. There can be no question of infringement of Article 14 if the Government tries to get the best person or the best quotation. The right to choose cannot be considered to be an arbitrary power. Of course, if the said power is exercised for any collateral purpose the exercise of that power will be struck down.” Their Lordships also held that judicial review is concerned not with the 6 merits of the decision but the decision-making process itself, and thus, the duty of Court is to confine itself to the question of legality of decision making process, and the administrative action is subject to control by judicial review on the grounds of illegality, irrationality and procedural impropriety. 5 In the present case, record itself reveals that after opening the packet A containing the technical bid, the respondents addressed a letter to the petitioner seeking clarifications about certain things including hopper volume, which was shown to be 0.5 Cu.M. in the technical bid by the petitioner. It was confirmed by the petitioner in writing in response to the queries. After that the respondent no.2 called representative of the petitioner to confirm that position. The documents clearly go to show that necessary opportunity was given to the petitioner and the petitioner had confirmed that hopper volume of the sweeping plate was 0.5 Cu.M. However, by the letter dated 8th October, 2009, petitioner clarified that capacity of the hopper is the heap volume (garbage capacity) which is 0.86 Cu.M.. It was also much less than the requirement of the petitioner as per the tender documents. 6 Taking into consideration, all these circumstances, we do not find any illegality, irregularity or impropriety in the action of the 7 respondents in not opening price bid of the petitioner. Therefore, we do not see any reason to exercise our extraordinary writ jurisdiction under the Constitution of India. 7 Therefore, petition stands dismissed. No order as to costs. (J.H. BHATIA,J.) (F.I.REBELLO, J.)