1 srk IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CIVIL WRIT PETITION NO.539 OF 2005 WITH CIVIL APPLICATION NO. 1944 OF 2009 M/s.Makhija Developers Pvt.Ltd. Petitioner Vs. 1. City and Industrial Development Corporation of Maharashtra Ltd. (CIDCO) 2. State of Maharashtra 3. BSEL Infrastructure Realty Ltd. 4. Mistry Construction Co.Pvt. Ltd. Respondents Mr.Srihari Aney, Senior Advocate with Mr.Sachin Shetye i/b. Mr.Avinash Fatangare for petitioner. Mr.A.A.Kumbhakoni, Senior Advocate with Mr.A.M. Kulkarni i/b. Mr.G.S. Hegde for respondent no.1 – CIDCO. Mr.S.D.Rayrikar, AGP for Respondent no.2. Mr.Pritesh Rajgar i/b. PDS & Associates for resp.no.3. Mr.Vijay Thorat, Senior Advocate with Mr.Vaibhav Mehta and Ms.Deepti Mistry i/b. M/s.Divyakant Mehta & Associates for resp.no.4. 2 CORAM: B.H.MARLAPALLE & R.Y.GANOO,JJ. Reserved on : December 19, 2009 Pronounced on: January 20, 2010 JUDGMENT (PER B.H.MARLAPALLE,J.) 1. This petition filed under Article 226 of the Constitution impugns the decision of the Respondent no.1 – Corporation, of allotment of land admeasuring 35.55 Hectares in A to E Pockets of Nerul, Navi Mumbai for the development of 18 Holes International Standard Golf Course and Country Club and further prays either to reconsider the proposal submitted by the petitioner or to invite fresh bids from the petitioner as well as the respondent nos.3 and 4 and award contract on the assessment of these fresh bids by quashing and setting aside the lease agreement dated 22/8/2009 signed between the respondent no.1 and respondent no.4. 2. The petitioner is a Private Limited Company and represented through its Director. Whereas the respondent no.1 is a fully owned undertaking of the Government of Maharashtra and has been incorporated under the Companies Act, 1956. It is 3 also the New Town Development Authority for Navi Mumbai so designated by the State Government under the Maharashtra Regional and Town Planning Act, 1966. It is a Government Company within the meaning of Section 617 of the Companies Act, 1956 and by virtue of Section 291 of the said Act the power of disposal of property put in possession of the said Corporation is exercisable by its Board of Directors. Respondent no.1 has with the previous sanction of the State Government framed the New Bombay Disposal of Land Regulations, 1975. 3. It appears the respondent no.1 proposed to develop an international standard golf course on its own and invited expression of interest on three different occasions since the year 1997 but nothing further materialised. In August 2001 it invited fresh bids for development of golf course and country club by leasing out about 35.55 Hectares of land in Pockets A to E in Nerul, from private parties and in response thereto 18 parties submitted their proposals. However, nothing further materialised and the Corporation was not clear in its own thinking as to how an international standard golf course could be developed. The expressions of interest so received were cancelled and the Corporation appointed M/s. Mahajan and 4 Aibara as Consultants to submit a feasibility report for setting up the golf course of international standard. On consideration of this report the Board of Directors in its meeting held on 12/6/2002 decided to invite bids to develop the golf course and country club and accordingly Request For Proposal (RFP) in the month of October / November 2002 were invited. In response thereto three parties viz. the petitioner, respondent no.3 and respondent no.4 submitted their bids within the stipulated time and in two envelopes system i.e. (a) technical bid and (b) financial bid. The land in different pockets and to be leased out, admeasured as under Pocket A 12 H. Pocket B 20 H. Pocket C 0.85 H. Pocket D 1.20 H. Pocket E 1.50 H. The Technical Evaluation Committee consisting of the (i) Chairman, (ii) Vice Chairman and Managing Director of the Respondent – Corporation, (iii) Chief Executive Officer of MIDC and (iv) Director of Sports, Government of Maharashtra 5 evaluated the technical bids as well as the financial bids and gave the following weightage Technical Bids : Name of the bidder Marks obtained out of 65 Marks obtained out of 100 M/s.BSEL Infrastructure Reality Ltd. 54.60 84 M/s.Makhija Developers 41.67 64.11 M/s.Mistry Construction Pvt. Ltd. 57.43 37.33 Financial Bids Name of the Bidder Marks obtained out of 35 M/s.BSEL Infrastructure Reality Ltd. 35 M/s.Makhija Developers Pvt.Ltd. 24.50 M/s.Mistry Construction Co. Pvt. Ltd. Non-responsive It appears that the respondent no.4 did not furnish a Bank Guarantee for Rs.20 crores and instead it suggested to accept the Bank Guaratnee for Rs.5 crores and, therefore, the Committee marked it as a non responsive bidder. 6 4. It is pertinent to note at this stage that as per the Tender Terms the technical proposal submitted would carry a weightage of 50 per cent and the presentation would carry a weightage of 50 per cent and the minimum qualifying score in each part was to be 60 per cent and over all minimum qualifying score in each part was to be 75 per cent. As per the Technical Evaluation Committee the combined score of all the three bidders after opening the bids on 3/12/2002 reflected as under: Bidder Marks obtained in Technical bid out of 65 Marks obtained in the financial bid out of 35 Total marks obtained out of 100 M/s.BSEL Infrastructure Reality Ltd. 54.60 35.00 89.60 M/s.Makhija Developers Pvt.Ltd. 41.67 24.50 66.17 M/s.Mistry Construction Co. Pvt.Ltd. 37.33 Non responsive Non responsive The petitioner, therefore, contends that at the initial stage itself the respondent no.4 was disqualified as it did not score the minimum qualifying score in each part at 60 per cent and the 7 over all minimum qualifying score of 75 per cent, and, therefore, only the petitioner and respondent no.3 ought to have been considered by deleting the name of respondent no.4. 5. However, it was the respondent no.4 who was awarded the tender vide the Corporation’s letter dated 18/6/2004 pursuant to the resolution passed by its Board of Directors on 3/6/2004 and in response to the same the respondent no.4 deposited an amount of Rs.4 Crores with the Corporation. It also deposited the security deposit of Rs.3.30 Crores (10 per cent of the bid amount) on 14/7/2004. On or about 29/6/2004 the present respondent no.3 approached this Court by filing Writ Petition No.5617 of 2004 and challenged the award of the tender made in favour of the respondent no.4. In the said petition the present petitioner was not impleaded as a party and despite the fact that the respondent no.1 – Corporation in its affidavit-in-reply pointed out that the present petitioner was one of the bidders, no steps were taken by the petitioner therein to implead the present petitioner as an additional respondent. On 18/8/2004 the present respondent no.1 and respondent no.3 arrived at a settlement and invited an order by way of consent minutes from this Court and accordingly the decision of the 8 respondent no.1 to award the tender to the respondent no.4 came to be quashed and set aside. The said order read as under: “Consent Minutes of Order signed by the learned counsel for the parties as also the petitioners and respondent nos.1 and 2 tendered, taken on record and marked “X” for identification. The order in terms of the Consent Minutes of Order. The Committee constituted under Clause 2 of the Minutes of Order shall submit its report expeditiously and in any event within four months. CIDCO will communicate the final decision of awarding of the contract to both the parties. Liberty to the respondent no.1 to apply in case of difficulty. Petition stands disposed of accordingly...” 6. On or about 16/12/2004 the respondent No.1 – Corporation filed Review Petition No.89 of 2005 (Stamp No. 31933 of 2004), as it proposed to set up a Signature Golf Club in place of an International Golf Club. On or about 1st February 2005 the present petitioner filed the instant petition as well as 9 Civil Application No.1584 of 2005. In the Civil Application it prayed for being impleaded as an additional party in Writ Petition No.5617 of 2004 and for further directions to the Committee constituted by this Court to consider its tender along with the other two tenders i.e. of M/s. Mistry Construction Co. Pvt. Ltd. and M/s. BSEL Infrastructure Realty Ltd. On 7/7/2005 by separate orders the Review Petition filed by CIDCO and Civil Application No.1584 of 2005 filed by the present petitioner came to be disposed off. It would be appropriate to reproduce the said orders. a) In Review Petition No.31933 of 2004 the order passed by this Court read as under, “Mr.Hegde, learned counsel appearing for the Applicant states that he has instructions to withdraw the review application. The Review Application is allowed to be withdrawn. Time to implement the order dated 18th August, 2004 is extended by a period of four months without prejudice to the rights of the petitioner in Writ Petition No.539 of 2005.” b) In Civil Application No.1584 of 2005 the following order 10 was passed: “Mr.Aney, the learned counsel for the applicant prays for withdrawal of the Civil Application. Civil Application is allowed to be withdrawn.” It is apparent that on 7/7/2005 while allowing to withdraw Civil Application No.1584 of 2005 filed by the present petitioner, this Court granted extension of four months to implement the order dated 18/8/2004, and it was without prejudice to the rights of the petitioner in the instant petition. Therefore, the withdrawal of Civil Application No.1584 of 2005 has not in any way affected the rights and contentions of the petitioner in the instant petition which ought to be decided on its own merits. 7. After the Review Petition filed by CIDCO was disposed off by this Court on 7/7/2005, the Technical Evaluation Committee constituted by this Court held its meetings on 1/9/2005, 17/10/2005, 11/11/2005 and 15/12/2005 and by majority it decided in favour of the present respondent no.4, as being the bidder qualified for the award of the contract and accordingly submitted its report dated 15/12/2005. By accepting the said 11 report CIDCO, on 24/1/2006, issued a letter of intent in favour of the present respondent no.4. This decision was sought to be challenged by the present respondent no.3 by filing a fresh writ petition registered as Writ Petition No.908 of 2006 on 14/2/2006. On 17/2/2006 the following order came to be passed in the said writ petition: 1. The question as to the maintainability of the writ petition in the matter of tender and contract is open for adjudication.Rule. Returnable in four weeks. Rule on interim relief returnable in two weeks. 2. Shri Manohar, learned senior advocate for the petitioners requests for deletion of prayer clause A(f). It is granted. Prayer clause (f) stands deleted. Rule on interim relief returnable in two weeks as aforesaid in terms of prayers (e) and (g). Learned counsel appearing for CIDCO submits that on the next date of hearing record and proceedings will be kept ready for inspection of the Court, if so required. 3. List the matter on 7th March, 2006 for further orders.” 12 8. On 13/6/2005 while issuing notice in the instant petition, returnable on 29th June 2005 this Court directed to place the petition along with Civil Application (Stamp) No.5918 of 2005 and Review Application (Stamp) No.31933 of 2004. However, on 15/2/2006 the instant petition came to be dismissed in default and it was restored on 14/7/2006 by allowing Civil Application No.1681 of 2006. Leave to amend the petition was granted on 18/8/2006 and on 18/9/2006 the petition was admitted and it was directed to be heard with Writ Petition No.908 of 2006 filed by the present respondent no.3 However, the prayer for interim relief was turned down. Civil Application No.2212 of 2009 filed by the petitioner was allowed for further amendments as in the mean while on 11/11/2008 Writ Petition No.908 of 2006 came to be withdrawn and the respondent no.4 deposited a further amount of Rs.29,70,29,700/- with Cidco on 21/11/2008 and in consequence thereto Cidco on 12/3/2009 issued a letter of allotment to respondent no.4 and the said respondent furnished a Bank Guarantee of Rs.20 crores with Cidco on 4/8/2009 and Lease Deed was signed between Cidco and the present respondent no.4 in respect of the land in Pockets A, D and E on 22/8/2009 and on 24/8/2009 the said Lease Deed came to be registered. Civil Application NO.1944 of 2009 came to be filed 13 praying for interim relief and rather than deciding the said application, the petition was heard for final disposal. The order passed on 11/11/2008 allowing to withdraw Writ Petition No.908 of 2006 reads as under: “This matter is not on Board. Taken on Board at the request of the learned counsel for the petitioners. 2. An affidavit has been filed, seeking withdrawal of the petition. It is dismissed as withdrawn. The Rule is discharged. All orders passed by this Court during the pendency of the petition also stand withdrawn.” It was submitted by Mr.Aney, the learned Senior Counsel for the petitioner that when both the petitions i.e. the instant petition as well as Writ Petition No. 908 of 2006 were directed to be clubbed and heard together as per the order dated 18/9/2006, the respondent no.3 surreptitiously and without giving any notice to the present petitioner withdrew Writ Petition on 11/11/2008 when the matter was not on board in the normal course and at the request made by the learned counsel the petition was taken on board and dismissed as withdrawn. As per Mr.Aney this could not have been done and if notice was 14 given to the counsel of the petitioner the same could have been brought to the notice of the Division Bench which allowed Writ Petition No.908 of 2006 to be withdrawn on 11/11/2008. It was alleged by Mr.Aney that these acts on the part of the respondent no.3 go to show that the said respondent, Cidco and respondent no.4 were in collusion with each other and so as to benefit the respondent no.4 Writ Petition No.908 of 2006 was withdrawn without notice to the present petitioner. In support of this Mr.Aney also referred to the affidavit in reply filed by the respondent no.3 in the present petition wherein the petition has been opposed and which implies that the respondent no.3 is supporting the lease agreement signed between Cidco and respondent no.4 in respect of the allotment of land admeasuring 35.55 H. It was further submitted by Mr. Aney that the order dated 11/11/2008, amounted to partly recall of the order dated 18/9/2006, passed in the instant petition and that too without notice to the petitioner. 9. CIDCO has filed more than one affidavits in reply and the first such affidavit in the present petition was on 15/7/2005 by Shri Ajay Kumar Verma working as EE (IT & SP) with CIDCO. The second affidavit has been filed by Shri Duvvuri Lakshmi 15 Narsimha Murthy, General Manager (IT & SP) of Cidco whereas the third affidavit has been filed by Shri Duvvuri Lakshmi Narasimha Murthy opposing Civil Application No.1944 of 2009 in which it has been pointed out that after Writ Petition No.908 of 2006 was withdrawn on 11/11/2008, the present respondent no.4 approached the Corporation with a request to take further steps in relation to the tender in question and at that point of time he had already deposited a sum of Rs.3,30,03,300/- and on 21/11/2008 he deposited a further sum of Rs,29,70,29,700/- so as to make up the total lease premium of Rs.33,00,33,000/- as determined by this Court vide its order dated 18/8/2004 as being the minimum lease amount. As per the CIDCO this petition is not maintainable and after Civil Application No.1584 of 2005 was withdrawn unconditionally by the present petitioner, challenge raised in this petition to the lease agreement signed between the Corporation and the respondent no.4 cannot be entertained. The only remedy available to the petitioner was either to file a review petition in Writ Petition No.5617 of 2004 and pray for recall / modification of the order dated 18/8/2004 or to approach the Supreme Court so as to challenge the said order dated 16 18/8/2004. It is further pointed out that on 3/12/2002 when all the three bidders were called upon to participate in the presentation, the petitioner did not participate and only the remaining two bidders i.e. respondent nos.3 and 4 participated in the presentation. On account of his not participating in the presentation, the petitioner is deemed to have withdrawn himself from the race and he has to be blamed for his own failures. In short it was submitted that when the first letter of allotment was issued in favour of the respondent no.4 on 18/6/2004 the present petitioner was out of the race and he ceased to be a bidder under consideration at any time after 3/12/2002. It was also pointed out that at no point of time the petitioner has taken due steps for being impleaded in Writ Petition No.5617 of 2004 till it was disposed by the consent order dated 18/8/2004. These latches on the part of the petitioner are also required to be taken into consideration by this Court and the reasonable conclusion that requires to be drawn is that the petitioner approached this Court only by way of an afterthought and though he was aware of the pendency of Writ Petition No.5617 of 2004, he did not apply for being impleaded in the said petition at any time before it was disposed off on 18/8/2004. The petitioner having been 17 disqualified for not participating in the presentation held on 3/12/2002, he ceased to be a bidder under consideration and only two bidders remained in the race i.e. respondent no.3 and respondent no.4 and, therefore, CIDCO, pursuant to the directions given by this Court in the consent order dated 18/8/2004, rightly proceeded to constitute the Technical Evaluation Committee and the Committee has considered the bids of respondent nos.3 and 4 on merits. The order passed by this Court on 18/8/2004 has been thus fully complied with by Cidco and it has not committed any illegality or any act of arbitrariness in the procedural requirements to allot the land for development of the golf course as well as country club in favour of the respondent no.4 pursuant to the order passed by this Court on 18/8/2004. As per CIDCO this petition is, therefore, required to be dismissed as not maintainable as well as being devoid of merits. It was also pointed out that the petitioner’s claim is based on his own proposal so as to include his own land adjacent to the land in pocket F of CIDCO and the petitioner cannot base his claim on such a proposal. The proposal of the petitioner to club his land is illusory and based on “ifs” and “buts” and CIDCO is not even required to look into such a proposal. The petitioner cannot sell his own proposal in a writ 18 petition challenging the award of tender and/or the lease agreement entered between the parties. 10. On behalf of the respondent no.3 Shri Shashank Joshi, Managing Director of the said company has filed affidavit-in- reply on or about 30th July 2005 and opposed the petition. However after the petition was amended, respondent no.3 has not filed any reply opposing the challenge of the petitioner to the allotment of land and the agreement of lease dated 22/8/2009 signed between CIDCO and respondent no.4. Whereas the respondent no.4 has filed the first affidavit opposing the petition on 6th August 2005 and after the petition was amended additional affidavit came to be filed on or about 1st October 2009. While opposing this petition on the same lines as done by CIDCO, respondent no.4 has further stated that after the lease agreement was signed, it has incurred substantial expenses in addition to the amount of Rs.33,00,33,000/- paid to Cidco and the Guarantee of Rs.20 crores furnished to Cidco. It has stated that towards miscellaneous expenses it has spent about Rs.17,81,500/- and has appointed the following persons for acquiring the professional services: 19 (a) Mr.Bill Amick of USA for designing of the Golf Course (b) M/s.Sree Logistics Ltd., Udaipur for reclamation of the Golf Course ((c) M/s. AMR Construction Ltd., Hyderabad for land scaping of the golf course (d) M/s. Rushikesh H. Architect, Mumbai and M/s. Ajay Bhuta and Associates, Town Planner and Architect, Mumbai for Country Club and Residential Architect for the Golf Course. (e) M/s. Viraj Projects Ltd., Pune – Country Club and Residential Project for the Golf Course. It has further claimed that it was the highest bidder at Rs. 33 crores and either the petitioner or respondent no.3 were not anywhere near the said figure and when Cidco has allotted the land to the highest bidder, interference in the same is not called for by entertaining this petition. It has been further pointed out that respondent no.4 has till now incurred total expenditure of Rs.53.18 crores and on account of the pendency of this petition further progress in the development of the golf course as well as the country club has come to a stand still and the money 20 invested by respondent no.4 is locked up. It is also stated that the respondent no.4 has paid the full stamp duty of the amount of Rs.1,65,01,650/- by taking into account the entire land in all the five pockets. Mr.Thorat, the learned Senior Counsel has relied upon the following decisions of the Supreme Court, while opposing the petition: 1. Tata Cellular Vs. Union of India [(1994) 6 SCC 651] 2. BSN Joshi and Sons Ltd. Vs. Nair Coal Services Ltd. & ors. [(2006) 11 SCC 548] 3. Jagdish Mandal Vs. State of Orissa & ors. [(2007) 14 SCC 517] The following observations made in the case of BSN Joshi (Supra) have been strongly relied upon, “56. It may be true that a contract need not be given to the lowest tenderer but it is equally true that the employer is the best judge therefor; the same ordinarily being within its domain, Court’s interference in such matter should be minimal. The High Court’s jurisdiction in such matters being limited 21 in a case of this nature, the Court should normally exercise judicial restraint unless illegality or arbitrariness on the part of the employer is apparent on the face of the record.” 11. On the issue of the respondent no.4 having been shown as non responsive by the Evaluation Committee on 3/12/2002, it was contended that the said respondent vide its letter dated 28th January 2003 pointed out its willingness to deposit an amount of Rs.20 crores Bank guarantee and, therefore, the Evaluation Committee did not disqualify the bid of respondent no.4. He was not at any time labelled as a disqualified bidder and it was only a technicality which was corrected in the case of respondent no.4. In short it was contended that the allegations of the petitioner that the respondent no.4 was disqualified right at the first stage by the Evaluation Committee and his financial bid was not required to be opened, are without any merits. Mr.Thorat also urged before this Court that at no point of time the petitioner had revised his offer of lease premium and he being the lowest in that regard, it would not be in public interest to treat the petitioner as a bidder in the race and, therefore, while passing the order dated 18/8/2004 this Court rightly restricted the participation of respondent nos.3 and 4 before the 22 newly appointed Technical Evaluation Committee and restricted the proposal for award of contract only between Respondent Nos. 3 and 4 and, therefore, the order dated 18/8/2004 must be maintained and so long as CIDCO has acted as per the said order, the agreement of lease has been rightly signed between Cidco and Respondent no.4 and no interference therein is required in this petition. Mr. Thorat also urged before us that the scope of entertaining a curative writ petition is very limited and it cannot be extended to imply entertaining