pvr 1 wp5058-11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.5058 OF 2011 1.Sahakar Global Pvt.Ltd. & Anr. ...Petitioners vs. 1.Malegaon Municipal Corporation and others. tp://172.16.4.3/upload/login.php ...Resp ondents --- Mr.Aspi Chinoy & Mr.M.P.S.Rao, Sr. Advocates & Mr.Girish Kulkarni i/b. Mr.Sandeep R.Waghmare, for Petitioners. Mr.Raghuvanshi i/b. Ms.Rutuja Ambekar, for Respondent nos.1 & 2. Mr.V.S.Gokhale, AGP for Respondent no.3. Mr.P.J.Thorat, for Respondent no.4. --- CORAM: D.K.DESHMUKH & RANJIT MORE, JJ. DATED: 21st July,2011. pvr 2 wp5058-11 P.C.:- 1. Rule returnable forthwith. Heard finally by consent of the parties. 2. The petitioners by this petition challenge the action of respondent no.1 Malegaon Municipal Corporation of opening the bid given by respondent no.4- M/s.Mayur Enterprises. The relevant facts are that the first respondent is the Corporation of Malegaon city constituted under the provisions of The Bombay Provincial Municipal Corporations Act. The Municipal Corporation issued a notice dated 30.5.2011 which was published in Maharashtra Times dated 1.6.2011 inviting tenders for appointment of agent for collection of octroi for the period 2011-12. The tender notice stipulated that the tender forms prescribed for the said tender were available for sale between 31.5.2011 to 29.6.2011. One of the conditions of eligibility was that the tenderer pvr 3 wp5058-11 should have experience of one year of working as an agent for collection of octroi. The petitioner and respondent no.4 submitted offers. Other parties had also submitted offers. The meeting of the tender committee of respondent no.1- Corporation was held on 1.7.2011. That meeting was presided over by the Commissioner of the Corporation. In that meeting, representative of the parties who had submitted the tender were also present. In the meeting an objection was raised that respondent no.4 who is one of the tenderers does not have experience of one year as contemplated in the tender notice, and therefore, the offer submitted by it should not be opened and considered. On this objection being raised, the representative of respondent no.4 who was present in the meeting walked out of the meeting saying that he is approaching the Court. The Commissioner told the meeting that the Corporation will seek opinion of lawyer on the objection raised and it is only after receiving pvr 4 wp5058-11 the opinion of the lawyer that the further course of action will be decided in so far as the offer of respondent no.4 is concerned. Thereafter, offers given by other tenderers except respondent no.4 were opened. It appears that thereafter opinion of lawyer was taken by the Corporation and decision was taken to open the offer submitted by respondent no.4. It is at that stage that the petitioners approached this Court contending that the Corporation cannot be permitted to open the offer given by respondent no.4. It is the case of the petitioners that the condition included in the notice that the tenderers must have one year s experience of collection of octroi is a mandatory condition and as respondent no.4 does not fulfill that condition, his offer cannot be considered. 3. An affidavit has been filed on behalf of the Corporation. So far as the event taking place in the meeting dated 1.7.2011 is concerned, in pvr 5 wp5058-11 paragraph 11 of that affidavit the Corporation states thus:- 11. I say that one Mr.Advay Prashant Hire and a representative of one of the tenderers, namely, Mr.Suresh M.Pawar took objection for opening of the envelope of the Respondent No.4 on the ground that the Respondent No.4 does not have experience of one year. Hereto annexed and marked as Exhibit R-3 collectively are the copies of objections raised by said Hire and Pawar. I say that, therefore, the Corporation decided to call for opinion from the Advocate on this point and till the opinion is received, it was decided not to open the envelope of the Respondent no.4 and only to open the envelopes of other five tenderers. On this decision, the representative of the Respondent No.4 mentioned that they want to approach the Court and walked pvr 6 wp5058-11 out of the meeting hall. In the affidavit, the Corporation has further stated that after receiving legal opinion on 6.7.2011 the envelop submitted by respondent no.4 was opened. The respondent no.4 has also filed an affidavit. According to respondent no.4, the respondent no.4 has necessary experience. It is the case of respondent no.4 that respondent no.4 alongwith his offer had submitted two experience certificates viz. One issued by Akola Municipal Corporation and the other issued by Dhule Municipal Corporation. It is also the case of respondent no.4 that the condition of having one year experience is not a mandatory condition. It was also contended that such a condition was not mentioned in the notice that was published inviting tenders in the English newspaper. It is submitted that even in the guide-lines issued by the Government of Maharashtra to be followed by the Municipal Corporations for inviting tenders, pvr 7 wp5058-11 such a condition is not mentioned. 4. We have heard the learned Counsels appearing for all the parties at length. We have perused the record. We take up first for consideration the contention that the condition that the offerers should have one year s experience of collection of octroi was not a mandatory condition. It is a fact that in the notice published in the English Newspaper that condition is absent, in the sense that requirement of experience is there but the period is not mentioned. However, the case of the Municipal Corporation is that they go by Marathi version of the advertisement and according to the Municipal Corporation, it is necessary for the offerers to comply with that requirement. What is said in paragraph 7 of the affidavit filed on behalf of the Corporation, in our opinion, is relevant, it reads as under:- pvr 8 wp5058-11 I say that while publishing the said tender notice in English version, due to oversight a technical mistake was occurred in condition No.3 in respect of experience clause of one year and the said clause was not printed in English version. I say that even the said condition of having experience of one year is not printed in the tender document. I say that, however, the tender notice published in Marathi news papers, the condition No.3 was mentioned about having experience of minimum one year. I say that this mistake was purely technical one and while proceeding further with the tender process, this Respondent Corporation has relied on Marathi version of the tender notice which mentions the experience of one year. Even the conduct of the parties shows that the pvr 9 wp5058-11 parties were aware of the requirement and even the respondent no.4, according to his affidavit, had submitted certificates in an attempt to comply with this requirement. All other offerers had also submitted certificates showing compliance with that condition. In our opinion, therefore, as the Municipal Corporation and all the offerers were treating that condition as an important condition, compliance with that condition would be necessary. It is not the case of the Corporation that the condition is not mandatory. On behalf of the respondent no.4, the only submission made in this behalf was that the condition is not mandatory because the guidelines issued by the State Government do not lay down the period though there is a stipulation that the offerer should have experience and that the English version of the notice inviting offers does not have this condition. In our opinion, the fact that though the guidelines issued by the State Government do not mention the period, the pvr 10 wp5058-11 Corporation decided to mention specific period, shows that the Corporation attaches importance to this aspect. The length to which the respondent no.4 has gone to show that he has the required experience shows that he also understood the condition to be mandatory. 5. The next question that arises for consideration is that whether it can be believed that the respondent no.4 had given experience certificates alongwith its offers showing that it has requisite experience . In our opinion, the conduct of respondent no.4 of not raising any objection in the meeting held on 1.7.2011 when the offer given by it was not opened because of the objection raised on the ground that it does not have requisite experience, and not pointing out that it has filed experience certificates, indicates that the respondent no.4 had not submitted the certificates alongwith the offer. What is further pertinent to be noted is that pvr 11 wp5058-11 though the respondent no.4 has filed affidavit in reply and though copies of the minutes of the meeting dated 1.7.2011 have been produced by the petitioners on record, the respondent no.4 in his affidavit in reply has not given any explanation as to why if he had given the experience certificates alongwith his offer, he did not point out to the Commissioner that fact when objection in that regard was raised and request the Commissioner not to postpone opening of his offer. Had the respondent no.4 really given the experience certificates alongwith his offer, he would have immediately pointed out to the Commissioner that he has given the experience certificates and therefore, it is not necessary to take any legal opinion on that aspect and that it is not necessary to postpone the opening of his offer. The conduct of respondent no.4 in the meeting dated 1.7.2011 and his further conduct of not making even an attempt to explain that conduct in his affidavit when that conduct pvr 12 wp5058-11 specifically commented upon by the Counsel for the petitioner in Court when the matter was heard on earlier occasion, leads us to believe that the certificate of experience on which reliance has been placed now were not submitted by the respondent no.4 alongwith his offer. Even assuming that the respondent no.4 had given the experience certificates, in our opinion, the experience certificates submitted by respondent no.4 are incapable of being relied on. The first certificate is the certificate given by the Dhule Municipal Corporation which certifies that M/s.Mega Enterprises which had joint venture with one Mr.Salahuddin Baig and the proprietor of respondent no.4 had been given contract for collection of octroi from 30.10.2007 to 29.10.2008. Perusal of the contract entered into with the Dhule Municipal Corporation shows that the contract for collection of octroi is between the Dhule Municipal Corporation and one Mr.Salahuddin H.Baig who styled himself as Mega pvr 13 wp5058-11 Enterprises. Clause 9 of that contract prohibits the agent who has been appointed by the Corporation by that agreement from entering into any partnership or sub-letting, transferring or assigning the contract or any part thereof without the approval of the Corporation. Neither there is any averments in the reply nor there is any document produced showing that the Dhule Municipal Corporation had permitted Mr.Salahuddin H.Baig to take partners for collection of octroi. Even copy of the joint venture agreement which is alleged to have been entered into, is not produced on record. Thus, the certificate of Dhule Municipal Corporation which is relied on by respondent no.4 appears to be fake and totally unreliable. What is further to be seen is that the Mega Enterprises was one of the offerers in the subject contract and an experience certificate was given to it by the Dhule Municipal Corporation, and that certificate did not mention that it had entered into any joint pvr 14 wp5058-11 venture agreement with anybody. So far as the certificate which is alleged to have been issued by the Akola Municipal Corporation is concerned, that certificate certifies that the Akola Municipal Corporation had appointed Mega Automobiles Pvt.Ltd. as its agent for collection of octroi. The owner of respondent no.4 was the partner of Mega Automobiles Pvt.Ltd. The copy of the contract by which the Akola Municipal Corporation had appointed said Mega Automobiles Pvt.Ltd. as his agent, is not produced on record. The Akola Municipal Corporation is not a party to the joint venture agreement. Neither any averment is made claiming that the agreement entered into between the Akola Municipal Corporation and said Mega Automobiles Pvt.Ltd. permitted the Mega Automobiles Pvt.Ltd. to enter into any joint venture. The joint venture agreement gives respondent no.4 only 10% share. Thus, the certificate from the Akola Municipal Corporation also appears to be equally fake. As observed pvr 15 wp5058-11 above, the very case of the respondent no.4 that those certificates were produced alongwith the offers, is unbelievable because of the conduct of respondent no.4 in the meeting held on 1.7.2011. It appears that respondent no.4 did not have necessary experience and therefore, it did not submit any experience certificate alongwith the offer. An attempt was made to show that such certificates were produced with the offer, only after it was found that its bid is highest. The most unfortunate part is that the officers of the Corporation also appears to have helped respondent no.4 in making a show that its offer was in order. 6. Taking overall view of the matter, therefore, in our opinion, it would be appropriate to direct the Corporation not to consider the offer submitted by respondent no.4 because it lacks the experience necessary for submitting the offer. In the result, therefore, pvr 16 wp5058-11 the petition succeeds and is allowed. Respondent no.1-Corporation is directed to go ahead with the process of awarding the contract pursuant to the advertisement dated 1 st June,2011, copy of which is at Exhibit-A to the petition, excluding from consideration the offer submitted by respondent no.4. Rule is made absolute accordingly. The learned Counsel appearing for petitioners before us states that the petitioners are willing to accept the contract at Rs.78 crores, which is the offer made,according to the Corporation, by respondent no.4. The statement is accepted. At this stage, a request is made on behalf of respondent no.4 for staying the operation of this order. The learned Counsel appearing for Corporation has stated before us that because of delay in awarding the contract, the interest of the Corporation is being pvr 17 wp5058-11 adversely affected. Hence, the request is rejected. (D.K.DESHMUKH, J.) (RANJIT MORE, J.) ---