1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURSIDCITION WRIT PETITION (LODGING) NO. 1054 OF 2010 Surinder Singh, Sole Proprietor ) of Bharat Construction Co. (Bombay) ) having his address at Shop No.12, Viral ) Apartments, Mumbai 400 058. ).. Petitioner VERSUS 1) Mumbai Municipal Corporation of Greater ) Mumbai, through the Municipal ) Commissioner having his office at ) Mahapalika Road, Mumbai 400 001. ) 2) The Additional Municipal Commissioner ) (City), having his office at Mahapalika ) Road, Mumbai 400 001. 3) The Chief Engineer (Roads, Traffic & Bridges) having his office at Mahapalika Road ) Mumbai 400 001. ) 4) Deputy Chief Engineer (Roads) City ) having his office at Kumar Co-op. Hsg. ) Society, 1st Floor, Patthe Bapurao Marg ) Opp. Navjeevan Co-op. Housing Society ) Grant Road (E), Mumbai 400 007. ).. Respondents Mr. S.U. Kamdar a/w Ms.Pooja Patil, Ms.Jyoti Ghag i/b. Thakore Jariwala & Associates for the Petitioner. Mr. E.P. Bharucha for the Respondents. 2010. 2 CORAM : J.N. PATEL, ACTING C.J. & S.C. DHARMADHIKARI, J. DATED : 4TH MAY 2010 ORAL JUDGMENT (Per Acting Chief Justice) Heard learned Counsel for the parties. 2. The Petition can be disposed of at the admission stage itself. 3. The Petitioner has invoked the extra ordinary jurisdiction of this Court for seeking a declaration that the pre- condition of physical verification before opening of Packet “C” of the tender de hors the bid document is illegal, arbitrary, discriminatory and thus unconstitutional and, therefore, the same should be declared as inoperative and by issuing a Writ of Mandamus it should be quashed and the rejection of the bid of the Petitioner on the basis of the same it should be set aside and so also the final decision of the Respondents in respect of publication of the list on 20th April 2010 without inclusion and/or consideration of the bid of the Petitioner be also quashed and for an order prohibiting the Respondent Nos.1 and 2 for proceeding of the final awarding of the various Wards of the tenderers forming part of the list as declared on 20th April 2010 3 without inclusion and/or consideration of the bid of the Petitioner herein and for other ancillary reliefs. 4. The Respondents had floated a tender on 2nd February 2010 and the Petitioner participated in the tender process for AC-77 Civil Works Contract (C.W.C.) for reinstatement of trenches taken by various utilities, repairs to potholes, spot repairs for the period upto 31st March 2010 vide a notice bearing No.ChE/633/SR/ Rds. The tender was required to be submitted in three packets i.e. Packet “A”, Packet “B” and Packet “C”. On 19th March 2010 notice of the said responsive tenders upon opening of the Packets was displayed on the notice board and on 23rd March 2010 the Respondents sought to introduce a rather new oral condition of “physical verification of the machineries as detailed in Proforma V-A”. 5. It is the case of the Petitioners that on 23rd March 2010 the representatives of the Respondents came for physical verification of the said equipments and certification prepared by the officers of the Respondents and as the name of the Petitioner did not find place in the final list in respect of the full compliance of all the terms and 4 conditions of the bid document which was published on 20th April 2010, the Petitioner has filed this Writ Petition. 6. In reply, the Respondent Corporation has stated that this Court in a group of Petitions filed by Contractors relating to other work contract has approved the decision taken by the Respondents for the physical verification of the machineries as detailed in Proforma V-A in which the leading Petition was Writ Petition (Lodging) No.632 of 2010 (Rajendra G. Shah vs. Municipal Corporation of Greater Mumbai and others) decided on 31st March 2010 and as such the contention of the Petitioner that the same is vague and de hors the bid document which is beyond the directions of the contract and thus illegal, arbitrary and unconstitutional and as such the Writ Petition of the Petitioner cannot be entertained. It is submitted that the Respondents invited the tenders returnable on 26th February 2010 under Code No.AC 77 for C.W.C. Work for reinstatement of trenches taken by various utilities, repairs to potholes, spot repairs for the period upto 31st March 2010 as per the tender document and that this Hon’ble Court vide order dated 31st March 2010 directed the Respondents to take physical verification of the machineries of the Petitioner and if found eligible be allowed to 5 participate in the tender process by opening Packet “C”. The Respondents carried out physical verification of the machinery of the Petitioner whose machinery as per Proforma V-A was outside Mumbai. It is their case that, after the said verification, total 23 tenderers were found eligible by the Tender Evaluation Committee as against 24 Wards of Municipal Corporation of Greater Mumbai and in respect of one Ward, the Tender Committee has already taken decision in the meeting held on 3rd May 2010 to invite the tenders separately for the said remaining one Ward. The Respondents have stated that after physical verification of the machinery of the Petitioner on 22nd March 2010 and 7th April 2010 pursuant to the Court’s order dated 31st March 2010, 3 Ton Vibratory Roller was found in the garage for repairs and was not in working condition and further the original documents of all the rollers were not made available for verification by the Petitioner and the Officer of the Respondents who made the physical inspection has prepared his report to that effect which is placed before the Court along with the affidavit in reply at Exhibits II and III and that when the machinery of the Petitioner was verified, the same was found not in working condition as required as per proforma V-A of the tender document and as such the Petitioners bid was rejected and, therefore, there is 6 no merits in the Petition and the same deserves to be dismissed. 7. Mr. Kamdar, the learned Counsel appearing for the Petitioner submitted that the Petitioner’s equipment/machinery on the first inspection visit was found in the garage for repairs and was not in working condition, but thereafter when the same was inspected on 20th April 2010, it was found to be in order and, therefore, the Petitioner sufficiently complied with the requirement of the tender document and as such the Petitioner’s case ought to have been considered. On the other hand, Mr.Bharucha, the learned Counsel appearing for the Corporation, submits that the requirement at the stage of submission of Packet “B” provided under clause 3.24(g) is that the Packet “B” shall contain the copies of the following documents, namely, “Information about ownership, or assured access (through hire, lease, purchase agreement or other commercial means) to key items of equipments (Proforma V-A, V-B and V-C (original). It is further submitted that if one reads the requirement specified in Proforma V-A, it clearly provides that the tenderer shall own equipments and it should be in full working order. It is submitted that on the date when the equipment/ machinery was inspected, admittedly, it was not in full working 7 order as it was under repairs and, therefore, the Respondents have rightly come to the conclusion that the Petitioner’s tender was not responsive. 8. On considering the contention of the Petitioner that the Petitioner’ s ownership of the equipment as contemplated by Proforma V-A is not disputed and the fact that the same was available for the work contract except that it was under repairs when on the first two occasion the officer of the Respondent Corporation visited for verification, but on the third occasion on 20th April 2010 it was repaired and functional itself goes to show that the Petitioner was having the required machinery and equipment cannot be accepted for the very reason that thought the Petitioner owns the equipment, on the date when the representative of the Respondents visited the Petitioner for its verification it was under repairs except on the third date i.e. on 20th April 2010 on which date the price bid i.e. Packet “C” was opened. The requirement was not only of ownership of the equipment but it ought to have been in full working order at least on the date the representative of the Respondents went for its verification as in the case of the other tenderers. Therefore, the Respondents were justified in disqualifying the Petitioner from 8 participating in the price bid i.e. when Packet “C” was opened. Merely because the representative of the Respondents happened to visit for the third time and the equipment was finally repaired, would not qualify to mean that it was in full working order. The equipment ought to be in full working order before Packet “C” was required to be opened otherwise a tenderer would not qualify to participate in the price bid for the reason that though the Petitioner owns the equipment, it is not found to be in full working order which requirement is clearly specified in Proforma V-A. 9. Therefore, we do not find any merits in the Writ Petition and the same is dismissed. No order as to costs. ACTING CHIEF JUSTICE S.C. DHARMADHIKARI, J. uday/judgments2010-awp-l-1054-10