1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITON (LODING) NO.2339 OF 2007 M/s Nilkamal Limited & anr. ....... Petitioners. V/s The Municipal Corporation of Greater Mumbai. ...... Respondents. ------ Mr. U.P. Warunjikar alongwith Mr. Kiran Kulkarni for the Petitioners. Mr. K.K. Singhvi alongwith Ms A.K. Savla for MCGM. ------- CORAM: SWATANTER KUMAR, C.J. AND V.M.KANADE, J. Order reserved on 07/04/2008. Order pronounced on 12/06/2008. P.C.: (Per V.M. Kanade, J.) 1. By this Petition which is filed under Article 226 of the Constitution of India, the Petitioners are seeking appropriate writ, order or direction, directing Respondent No.1 - Municipal Corporation of Greater Mumbai to disqualify the tenders submitted by Respondent Nos. 5 to 8 inter alia on the ground that they are in breach of the mandatory terms and conditions of the Tender 2 Document and, secondly, for setting aside the decision taken by Respondent Nos. 1 to 4 in approving the tenders submitted by Respondent Nos. 5 to 8 in the meeting held on 12/09/2007 and 05/10/2007. The Petitioners are also seeking further directions that Respondent No.1 be directed to take action against Respondent Nos. 5 to 8 and to award contract to Petitioner No.1. 2. Brief facts in a nutshell are as under:- 3. In August, 2007 Respondent No.1 - Municipal Corporation for Greater Mumbai (hereinafter referred to for the sake of brevity as "MCGM") had floated tenders for supply of close HDPE refuse bins of the capacity of 120 Ltrs., 240 Ltrs., and 360 Ltrs. for a period of one year vide Tender Document No.Dy.CH.ENG.(SWM)Project-T-25. Thereafter, further letter was issued by the MCGM by way of Addendum to the said tender under their covering letter dated 04/09/2007. According to the said Tender Document, tenderers were to submit their tenders in two packets viz Packet-A, containing technical specifications and Packet-B, containing the financial bids. Accordingly a responsive Tender is one which accepts all the terms and conditions of the Tender Document without any major 3 modifications. Petitioner No.1 and Respondent Nos. 5 to 8 participated in the said tender. 4. The technical bid was opened in front of all the bidders on 05/09/2007, which was subsequently postponed to 12/09/2007 by Addendum dated 04/09/2007. The commercial bid was to be opened on 17/09/2007. However, it was subsequently postponed to 05/10/2007. 5. On 12/09/2007, Packet-A of all tenderers were opened by the concerned officers in the presence of all the representatives of the Petitioners, Respondent No.5 and 7. 6. It is the case of the Petitioners that their representative made various queries with the concerned officers with respect to the Tender Documents submitted by other tenderers. By letter dated 18/09/2007, the Petitioners recorded their queries. However, no reply was given by Respondent Nos. 1 to 4 but they were informed that commercial bid would be opened on 05/10/2007 at 3.00 P.M. in the office of Respondent No.4. On 05/10/2007 Respondent No.4 opened the financial bids of the Petitioners and Respondent Nos. 5 to 4 8. Thereafter, again, Petitioner No.1 reiterated its stand by its letter dated 08/10/2007. Thereafter, on 11/10/2007, the Petitioner No.2 submitted an application under the Right to Information Act to Respondent Nos.3 and 4. Since no reply was sent by the MCGM, the Petitioners have filed this Petition under Article 226 of the Constitution of India. 7. The grievance of the Petitioners in a nutshell is as under:- (i) It is the case of the Petitioners that the technical bids of Respondent Nos. 5 to 8 are in violation of the mandatory technical conditions of the Tender Document and the Addendum and Corrigendum No.1 thereto. (ii) The MCGM erred in permitting Respondent Nos. 6 and 8 to change part of their Tender Documents. (iii) The MCGM erred in not furnishing copies of the Tender Documents submitted by Respondent Nos. 5 to 8 when the Petitioners had specifically asked for those documents under the Right to Information Act. 5 (iv) The MCGM erred in ignoring the queries and objections raised by Petitioner No.1 in the meeting held by the authorities of the MCGM on 12/09/2007 and 05/10/2007. 8. The MCGM has filed a detailed affidavit-in-reply to which the Petitioner No.1 has filed a rejoinder, denying the averments made by MCGM in their reply. The MCGM, thereafter, filed a further affidavit dated 28th March, 2008. 9. In the affidavit-in-reply filed by the MCGM, they have denied the allegations made by the Petitioners herein and they have given details which are supported by documents to show that the averments made by the Petitioners in their Petition are incorrect. 10. We have heard the learned Counsel appearing on behalf of the Petitioners and the learned Counsel appearing on behalf of the MCGM at length. 11. The MCGM through its Solid Waste Management Department has made the application of EN 840-1 Standard and EN 840-5 Standard norms mandatory for all manufacturers and dealers 6 supplying mobile waste containers i.e. containers with two wheels with a capacity upto 400 Ltrs. for comb lifting devices. It was a mandatory condition for every manufacturer/dealer to supply mobile waste containers to MCGM to obtain registration for such products and brands from MCGM. The European Committee for Standardisation was formed by the European Countries, which has stipulated European Standards (EN Standards) for manufacture and test methods to be used for various goods and products. The said Committee had also stipulated EN Standards for all types of mobile waste containers including wheeled waste containers which Standards were accepted by MCGM. The tender floated by MCGM, apart from adopting EN Standards, also stipulated that the Contractors should arrange for inspection of proto type bin of each capacity at the manufacturer's works. One of the grievances of the Petitioners in the Petition is that, in 2005, the Petitioner No.1 was intending to participate in the tender floated by MCGM for supply of mobile waste containers and it wanted to supply mobile waste containers manufactured by a German Company under the Syscon brand in addition to the brand 'Plastic Omnium' for which Petitioner No.1 was already registered. However, it is the case of the Petitioners that their application was rejected by MCGM on the ground that a dealer could 7 not represent two separate companies or two brands. This averment has been specifically denied in the affidavit filed on behalf of the MCGM wherein they have specifically stated in para 3 that after the clarification was received by the MCGM, the Petitioner was registered for Syscon brand for capacity of 100 Ltr. bins. In para 3, it has been clarified that the MCGM did not have any policy to register one dealer for one manufacturer only. Therefore, there is no substance in the said grievance of the Petitioners. 12. The Petitioners have made a grievance that the two brands were quoted by two bidders viz. IPWTC - Respondent No.6 and Sintex Limited - respondent No.7. It is the case of the Petitioners that IPWTC had quoted Helesi - SA whereas Sintex Limited had quoted Helesi brand. The second grievance is that two brands of different Companies could not be quoted by one bidder as was done by IPWTC. The third grievance is that one of the tenderers viz. Otto Waste Systems (I) Pvt. Ltd. - Respondent No.5 had quoted 'Otto' brand with country of origin (manufacture) as Singapore but Otto Waste Systems (I) Pvt. Ltd. had registered the brand 'Otto' with MCGM with the country of origin (manufacture) as Germany. A further grievance was made that the said Company had its Regional 8 Office at Singapore. However, it did not have manufacturing unit at Singapore and, therefore, the condition about inspection of the proto type bin at the manufacturer's works at Singapore was impossible. Further, it was not possible to know whether it conformed to EN 840 Standards. One other grievance was that on 12/09/2007 that is the date on which the Packet-A was opened, according to the Petitioner Antony Motors Pvt. Limited - Respondent No.8 herein had quoted for Antony brand when, apparently, no such brand was registered by it with MCGM. The grievance of the Petitioners, therefore, essentially is that the intention of Respondent No.4 was to make farce of the whole tender process by ignoring the vital issues raised by the Petitioner No.1. 13. The MCGM has filed a detailed affidavit dealing with the contentions which have been raised by the Petitioners in this Petition. In para 3 of the reply, it has been stated that there is no such policy to register one dealer for one manufacturer only. It is stated that from the year 2004 onwards, MCGM had registered M/s Kino Enviro and M/s Prince Multiplast Pvt. Ltd. for 'Otto' make bins. Similarly, in October, 2007 M/s Sintex Ltd. and M/s. Industrial Plant and Waste Treatment had been registered for 'Helesi' make bins. A list of 9 approved dealers is also annexed to the reply. 14. In rejoinder, the Petitioners have stated that the application was made under the Right to Information Act. A list of registered manufactures/authorized suppliers which was provided to the Petitioners did not contain the name of Syscon and Helesi brand quoted by the Respondent No.6. This fact has been acknowledged by the Corporation in their further affidavit and it has been stated that, through over sight, these two names were not mentioned. 15. Further, in respect of the grievance regarding 'Otto' brand bins for which Respondent No.5 was registered, it has been clarified that 'Otto' brand bins should conform to EN-840 Standard and the place of manufacture was not relevant since the said group has got various factories in the world and the said Company at Singapore was wholly owned subsidiary of OTTO Industries and OTTO Waste Systems (India) Pvt. Ltd. Further, it has been stated that in view of the inspection clause in the Tender Document, MCGM Engineers would be visiting the place of manufacture and all the tests for ascertaining confirmation with EN 840 Standard would be conducted and only then the product would be approved. Further, it is mentioned in the 10 affidavit that Respondent No.6 has been registered for Helesi make. Again, in the affidavit-in-rejoinder, the Petitioners have stated that in the information given to the Petitioners under the Right to Information Act, this fact was not mentioned. This mistake has been accepted by the MCGM in their sur-rejoinder in para 1(e). The grievance of the Petitioners, therefore, in respect of non-compliance of mandatory conditions by Respondent Nos. 5 to 8 falls to the ground. 16. In respect to the objections raised by the Petitioners in respect of Respondent No.8, MCGM has stated in its reply in para 8 that although Respondent No.8 had filed the Annexture C part I in the name of Antony, the other documents submitted alongwith the tender for qualification of manufacturer are of 'Otto' brand. Accordingly, MCGM had asked Respondent No.8 to clarify this issue as per the said clause of mandatory conditions and, accordingly, Respondent No.8 clarified this issue by submitting the letter of clarifications that their offer should be treated as responsive for 'Otto' brand. The objection therefore raised by the Petitioners that the Antony was not registered with the MCGM and, therefore, they should be disqualified has no substance. 11 17. In their reply, the MCGM in para 11 has also stated that in the year 2005, a similar tender had been issued and Respondent Nos. 5 to 8 alongwith the Petitioners had participated in that tender. It has been stated that, in that year, the tender was awarded to the Petitioners and that the contract was still in force and, at that time, the Petitioners had not raised the issue of disqualification of Respondent Nos. 5 to 8 because the offer of Petitioner No.1 was the lowest amongst all the tenderers. Further, it is mentioned in para 12 that even according to the EN-840 Standard, there was no reference of place of manufacture and the EN conformity certificate was given to the product and the manufacturer. 18. From the reply which has been given by the MCGM, it is established that there is no error in the decision making process and there is no breach committed by Respondent Nos. 5 to 8 of the mandatory conditions of the Tender Document. No change has been made in any of the terms and conditions by Respondent Nos. 5 to 8 of the Tender Document. There appears to be some substance in the averments made by the MCGM that the Petitioners have made these allegations out of sheer frustration and in order to eliminate others 12 from tender process. 19. The law on the question of interference by the High Court under Article 226 in the process of grant of tender is quite well settled. In the case of Tata Cellular Vs. Union of India, reported in AIR 1996 SC 11, the Apex Court in paras 86, 90, 93, 94, 95 and 113 has observed as under:- "86. Judicial quest in administrative matters has been to find the right balance between the administrative discretion to decide matters whether contractual or political in nature or issues of social policy; thus they are not essentially justiciable and the need to remedy any unfairness. Such an unfairness is set right by judicial review." "90. Judicial review is concerned with reviewing not the merits of the decision in support of which the application of judicial review is made, but the decision making process itself." "93. The duty of the Court is to confine itself to the question of legality. Its concern should be : 1. whether a decision-making authority exceeded its powers? 13 2. committed an error of law. 3. committed a breach of the rules of natural justice. 4. reached a decision which no reasonable Tribunal would have reached or 5. abused its powers." "94. Therefore, it is not for the Court to determine whether a particular policy or particular decision taken in the fulfilment of that policy is fair. It is only concerned with the manner in which those decisions have been taken. The extent of the duty to act fairly will vary from case to case. Shortly put, the grounds upon which an administrative action is subject to control by judicial review can be classified as under:- (i) Illegality : This means the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it. (ii) Irrationality, namely, Wednesbury unreasonableness. (iii) Procedural impropriety." "95. The above are only the broad grounds but it does not rule out addition of further grounds in course of time. As a matter of fact, in R. v. 14 Secretary of State for the Home Department ex parte Brind, (1991) 1 AC 696, Lord Diplock refers specifically to one development namely, the possible recognition of the principle of proportionality. In all these cases, the test to be adopted is that the Court should, 'consider whether something has gone wrong of a nature and degree which requires its intervention'." "113. The principles deducible from the above are: (1) The modern trend points to judicial restraint in administrative action. (2) The Court does not sit as a court of appeal but merely reviews the manner in which the decision was made. (3) The Court does not have the expertise to correct the administrative decision. If a review of the administrative decision is permitted it will be substituting its own decision, without the necessary expertise which itself may be fallible. (4) The terms of the invitation to tender cannot be open to judicial scrutiny because the invitation to tender is in the realm of contract. Normally speaking, the decision to accept the tender or award the contract is reached by process of negotiations through 15 several tiers. More often than not, such decisions are made qualitatively by experts. (5) The Govern must have freedom of contract. In other words, a fairplay in the joints is a necessary concomitant for an administrative body functioning in an administrative sphere or quasi-administrative sphere. However, the decision must not only be tested by the application of Wednesbury principle of reasonableness (including its other facts pointed out above) but must be free from arbitrariness not affected by bias or actuated by mala fides." 20. In our view, therefore, there is no infirmity in the procedure which is adopted by the MCGM in holding the Respondent Nos. 5 to 8 as responsive tenderers while accepting their Tender Documents. There is no merit in the submissions made by the learned Counsel appearing on behalf of the Petitioners. Petition is therefore dismissed in limine. Under the circumstances, there shall be no order as to costs. CHIEF JUSTICE 16 V.M. KANADE, J.