[ 1 ] IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION(L) NO.1837 OF 2008 M/s. S.S.Carriers ... Petitioner. Vs. Municipal Corporation of Greater Mumbai through the Municipal Commissioner ... Respondents. Mr. Anil Singh alongwith Atul Singh i/b. D.R.Shah for the petitioner. Mr. A.Y.Sakhare Senior Counsel alongwith Ms.Archana Joshi for respondent Nos. 1 to 3. Mr.Amit Gor i/b. P.M.Shah for respondentNO.4. CORAM CORAM CORAM : P.B.Majmudar and : P.B.Majmudar and : P.B.Majmudar and A.A.Sayed, A.A.Sayed, A.A.Sayed, JJ. JJ. JJ. DATE DATE DATE : September 12, 2008. : September 12, 2008. : September 12, 2008. P.C. 1. Heard the learned Counsel on both the sides. 2. It is pointed out that though the petitioner had not taken part in the tender process, has filed this petition challenging the assignment of the tender work to respondent No. 4 on the ground that after accepting the tender of the said respondent, relaxation was given to him by extending the mobilisation period and if the petitioner was aware of the same, he would have taken part in the tender process. 3 The prayer of the petitioner is that the [ 2 ] respondent No. 1 be directed to cancel the allotment of work granted to respondent No. 4 under the tender for area base collection and transportation of municipal solid waste including material removed from slums for Zone VIII and also for directing the corporation to invite fresh tenders and to allot the work under such fresh tender to the lowest tenderer and by way of interim relief it is prayed that the respondent No.1 may be directed to discontinue further work of transporting the solid waste and said work should be allotted to the existing contractors, who has been joined as party respondent Nos. 5,6 & 7 in this petition. 4. It is submitted by the learned Counsel Mr. Anil Singh appearing for the petitioner that though it is a fact that the petitioner has not participated in the tender process, however, after accepting the tender and after issuing letter of intent and necessary permissions to the respondent No.4, subsequently, the mobilisation period was extended by the respondent No.1 and therefore since there is a divergence of conditions of tender the said acceptance of tender of respondent No.4 should be cancelled and fresh tenders should be invited. [ 3 ] 5. The petition has been strongly opposed by the learned Senior Counsel Mr. Sakhare alongwith Mrs. Joshi appearing for respondent Nos. 1 to 3 by filing affidavit-in-reply, which is found at page No. 103. Mr. Sakhare the learned Counsel appearing for the respondent Nos. 1 to 3 submitted that the petition is required to be dismissed in limine on the ground of delay and latches on the part of the petitioner as the tender was accepted in the month on January, 2008 and the present petition has been filed in the month of July, 2008 and in the meanwhile the respondent No. 4- contractor has also started the work of removing the garbage etc. The learned Counsel Mr. Sakhare further submitted that there is no relaxation of any tender condition for which he drew our attention to condition No. 14 of the tender notice. The said condition No.14 reads thus :- "14. Mobilization period: Mobilization period for all the services and vehicles/ equipments shall be five months from the date of issue of Letter of Acceptance. The contract period will start from the date of [ 4 ] expiry of mobilization period. However, thereafter no extension will be granted and contractors must provide the vehicles/ equipments as prescribed in the tender document. The contractor will be allowed to start the work in his allotted ward/area, only after complete fleet & a manpower is ready i.e. the contractor is fully geared up in all respect for compliance of contact. If the contractor fails to start the work as per the tender conditions even on expiry of mobilization period, the contractor will be penalized Rs. 50,000/- per day. However, if the contract is partially ready with the fleet & Manpower, he will be allowed to partially start the contract before five months in a particular section if the vehicles/ equipments & preparatory work for that section are available with him as per the schedule furnished by the contractor." 6. Learned Counsel Mr. Sakhare submitted that as per the said condition, the penalty is determined to be Rs. 50,000/- per day and if the contractor partially ready with the fleet and Manpower, he will be allowed [ 5 ] to partially start the contract before five months in a particular section if the vehicles etc. and preparatory work both are available with him. 7. It is further submitted that because of the circumstances which were beyond the control of the contractor, that he could not start the entire work for which even the penalty was also levied upon him. He submitted that the petitioner was very well aware of the condition No. 14 about penalty and about mobilisation period. In this connection reference has been made in the affidavit-in-reply filed by the Executive Engineer. Paragraph No. 5(j) of the said affidavit reads thus :- "5(j) I say that there the contractor has partially deployed new Euro-III vehicles and partially deployed Euro II vehicles of different categories. The contractor is deploying more number of vehicles and clearing all the Waste from the allotted area then the number of vehicles deployed through various contracts prior to M/s. Ramkay Enviro.Engineers Ltd. started the contract. The contractor is penalized as per the tender [ 6 ] condition No.14 page No. 54 of the tender and penalty of Rs. 50000/- per day is levied for delay in bringing vehicles as per the tender. Also they are not paid as per the rates quoted by them in the tender; but are paid at the lower rates at which the previous contracts were operated, till their complete fleet of vehicles are deployed. The tender conditions are not relaxed. I say that therefore the petition is liable to be dismissed, as the main contention of the petitioner is that the terms and conditions have ben relaxed, which is totally incorrect." 8. In paragraph 5 of the reply of the respondents it is averred that the contractor has already brought sufficient numbers of vehicles to fulfil the requirement of two of the Wards as per the tender and by this time all the vehicles for all the three Wards as per the tender notice are deployed and used by the contractor. It is also averred in the affidavit of Bipin J. Patel, the Director of Respondent No.4 that the respondent No.4 has brought necessary vehicles to fulfil the present requirement of re-transportation. It is averred that due to some reasons the Corporation [ 7 ] could not install all the required number of containers/ bins and the respondent No.4 is able to perform the specified duties to the full satisfaction of the respondent No.1 and presently operating the number of vehicles required for transposition of the Municipal solid waste available in the existing containers and bins and putting best efforts to remove the waste. It is also pointed out that the old contractors are trying to sabotage the new contract system by protesting and agitating against this contract, there was also a strike and the petition seems to have been filed at the instance of old contractor. The learned Counsel for the Corporation also pointed out the difficulties in connection with carrying out the work in view of the fact that there was no containers and bins in all the three wards and the waste handling become difficult without these containers/bins. 9. Considering the affidavits-in-reply filed by the concerned respondents and considering the facts and circumstances of the case, it cannot be said that the Corporation has given the contract contrary to the tender conditions and at the time when the tender work was awarded to the contractor he was also fulfilling [ 8 ] the tender conditions and subsequently because of the circumstances beyond the control that the mobilisation period was extended. Even otherwise, the tender in question was awarded to the contractor as back as in January, 2008 and the contractor has started performing the work by bringing necessary vehicles. Considering the said aspect, it is not a fit case where this Court would like to interfere in the matter regarding giving contract to the respondent No.4. It cannot be said that the action of the Corporation is in any way contrary or unreasonable. 10. Consequently the petition stands dismissed and the notice stands discharged. [P.B.Majmudar, [P.B.Majmudar, [P.B.Majmudar, J.] J.] J.] [A.A.Sayed, [A.A.Sayed, [A.A.Sayed, J.] J.] J.]