IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 1789 of 2012 For Approval and Signature:
HONOURABLE MR.JUSTICE D.H.WAGHELA HONOURABLE MR.JUSTICE G.B.SHAH =========================================
========================================= MANTHAN MARINE PVT LTD & 1 - Petitioner(s) Versus GUJARAT MARITIME BOARD THROUGHCHAIRMAN & 2 -
Respondent(s) ========================================= Appearance :
MR ASHISH H SHAH for Petitioner(s) : 1 - 2. Ms. Amita Shah, AGP for Respondent(s) : 1 - 2. MR PR NANAVATI for Respondent(s) : 3, ========================================= CORAM : HONOURABLE MR.JUSTICE D.H.WAGHELA and HONOURABLE MR.JUSTICE G.B.SHAH Date :06/07/2012 CAV JUDGMENT (Per : HONOURABLE MR.JUSTICE G.B.SHAH)
1. Petitioner No.1-Manthan Marine Private Ltd. Is a Private Limited Company whose Registered Office is situated at Navi Mumbai, Maharashtra, India as well as at Ahmedabad – 15, Gujarat, India as mentioned in the cause title as well as at page No.38. Petitioner No.2-Balraj Rameshwardas Sharma, Additional Director of petitioner No.1 Company has shown his address of Navi Mumbai as of petitioner No.1 and his present residential address as on 23.11.2011 is shown as 2-B Panchsheel society, Sanskarnagar, Bhuj 370001, Gujarat, India as mentioned at page No.36.
2. The petitioners above referred have preferred this petition to challenge the legality and validity of Tender Notice No.12/2011-12 issued by respondent No.1-Gujarat Maritime Board (for short, “the Board”) with a prayer to quash the same as the tender process is illegal, arbitrary, mala fide and in violation of Article 14 of the Constitution of India and also prayed to direct the respondent No.1 to issue fresh tender notice for dredging works at Veraval and Porbandar ports after issuing public advertisement, inviting tenders from all contractors.
3. We have heard the Learned counsel for the petitioners. He has mainly argued that petitioner No.1 company is also an 'ISO 9001-2008 certified company' and the promoters and petitioner-company have vast experience in marine, port and terminal development, dredging, shipping and logistics as detailed in the petition. Drawing our attention to the document at mark 'A' page No.13, Tender Notice No. 10/2011-12, learned counsel for the petitioner has submitted that the said tender was invited by respondent No.1 from all the bidders after issuing tender advertisement but till date the same has not been opened. He has then submitted that respondent No.1-Board has also floated Tender Notice No. 12/2011-12 inviting tenders for four dredging works at Veraval and Porbandar ports only from pre-qualified bidders. The documents related to the same are at page Nos. 53 to 64 which were made available only on internet at 'n procure.com.' and for the same no public notice was issued and thus it is clear that petitioner No.1 could not access the said tender bid and it could not submit the tender pursuant to the said Tender Notice No. 12/11-12. According to the learned counsel for the petitioners, the respondents have purposely and with mala fide intention invited tenders only from pre-qualified contractors though work of tender i.e. dredging at Veraval and Porbandar ports is similar to the work earlier tendered to the respondents by Public Notice at large. The method of inviting tenders from only pre-qualified contractors indirectly reduced the competition and arbitrarily restricted participation in the tender process by other contractors who are otherwise eligible or have become subsequently eligible after 2009 and the motive of such pre-qualified contractors is to weed out the tender process and to see that the tender is awarded to a particular contractor. On the above point, the petitioners have also issued statutory notice dated 16.1.2012 to the respondents and filed this petition on 31.1.2012. Learned counsel for the petitioners has also placed reliance on a decision in the case of “M/s. Globe Construction Company and others v. Govt. of NCT of Delhi and others (AIR 1999 DELHI 322)” and submitted that the practice of shortlisting restricted class of Tenderers for high tech project would lead to violation of rights conferred on the petitioners by Articles 14 and 19 (1) (g) of the Constitution of India.
4. Learned counsel for the respondents has drawn our attention to the documents at annexure R/1 and submitted that so far as the Tender Notice No.10/2011-12 for dredging work at Coast Guard Jetty (East Basin) and adjoining ICG area at Veraval port is concerned, the required eligibility documents submitted were opened on 3.2.2012 in the presence of the Committee and during the scrutiny it was found that petitioner No.1 had not submitted sufficient authentic documents as demanded/required in the Tender Notice and requested petitioner No.1 by the said letter at Annexure-R-1 to submit the same within seven days and petitioner No.1 has not supplied the same till date and so it is not true to say that the respondents have not opened price bid inspite of the fact that the date to consider the price bid had elapsed.
5. Drawing our attention to Annexure R/2 at pages No.83 to 85 it is submitted by the learned counsel for the respondents that in the year 2009 the Tender Notice No. 07/9-
10 was published in the local newspapers having adequate circulation through information department i.e. through proper channel pursuant to guidelines 2.47 prescribed in the hand- book of Government of Gujarat at pages No.109 and 110 and pursuant to the said advertisement, 11 parties had applied and submitted their tenders for technical bid and been found technically qualified as per the procedure prescribed under the relevant guidelines of Government of Gujarat under B-2 category. The public notice related to Tender Notice No.12/2011-12 was issued inviting the price bid from amongst technically qualified shortlisted tenders and, therefore, it cannot be said that petitioner No.1 had not been given an opportunity to participate in the said tender process.
6. Moreover, the tenderers who had responded to Tender Notice dated 07/2009-10 and who were found to be successful at the technical bid will remain qualified for a period of three years and after periodical evaluation, if found proper, the respondents are well within its right to consider the bid of such tenderers who have been pre-qualified in technical bid. Lastly, learned counsel for the respondents has submitted that as the petitioners have never chosen to participate in the tender process pursuant to Tender Notice No.07/2009-10 issued in the year 2009, the petitioners cannot be heard to say that they are being singled out in the tender process pursuant to Tender Notice No.12/2011-12.
7. We have considered the rival submissions made by learned counsel for the parties. It is not in dispute that the respondents herein had issued an advertisement in the daily newspapers in the month of August, 2009 i.e. Tender Notice No.07/2009-10 for pre-qualification of dredging contracts for Gujarat Maritime Board for three years. Pursuant to the said advertisement, eleven contractors had applied and all the eleven contractors were declared as successful pre-qualified contractors. The main grievance of the petitioners is that the very action of the respondents in publishing such advertisement and then approving eleven contractors as pre- qualified dredging contractors for a period of three years itself is illegal and arbitrary and contrary to the provisions of Article 14 of the Constitution of India inasmuch as during the period of three years, the technical capabilities and financial position of alleged pre-qualified dredging contractors would substantially change and it would arbitrarily restrict participation of contractors who have become subsequently eligible after 2009 for the tender process.
7.1. As mentioned at page No.36 the Managing Director and Director of petitioner No.1-Company have been appointed on 4.1.2010 and petitioner No.2-Balraj Sharma has been appointed as Additional Director on 2.10.2010. If we refer the documents at pages No.29 to 36 related to petitioner No.1- Company, it appears that it came into existence in the year 2010 because most of the documents are related to years 2010 and onwards. Referring to page No.30, it further appears that petitioner No.1-company has obtained PAN number for it on 4.1.2010. From the above referred documents, it can easily be presumed that when the Tender Notice No. 07/09-10 was published in the newspaper in the year 2009 inviting pre- qualified dredging contractors, petitioner No.1-Company in the present form was not in existence. Pages No. 38 to 52 are the documents related to introduction, promoters profile, objective, quality policy, vision, services, projects, list of equipments, associated companies and responsibilities and gallery of petitioner No.1-company. Under the heading 'Associated Companies & Responsibilities' para No.2 thereof at page No.48 reads as under:
“2. M/s. MANTHAN MARINE PVT. LTD.
This firm is involved in getting the prestigious projects from the various clients and off loading the same within the group.”
7.2. Under the above circumstances, if the contractor who has become eligible after 2009, could not bid pursuant to Tender Notice No.12/2011-12, in our view, he should obviously wait for completion of three years' schedule fixed pursuant to Tender Notice No.07/2009-10 but in our considered view, it cannot be said that by issuing Tender Notice No. 07/2009-10, the respondents have deliberately reduced competition and therefore, the said action is illegal and arbitrary. We do not find any mala fide or oblique motive to weed out competition in the tender process with a view to award contract only to selected few pre-qualified dredging contractors as alleged by the petitioners more particularly because on perusal of clause 2.47 at page No. 109 of the guidelines prescribed in the handbook of Government of Gujarat, Tender Notice No.07/2009-10 was published in compliance thereof.
8. So far as Tender Notice No. 12/2011-12 is concerned, it is the say of the petitioners that there is no rationale or reasons for inviting tenders only from pre-qualified dredging contractors. It is also specifically averred by the petitioners that representative of petitioner No.1-company visited office of respondent No.3 Marine Engineer and inquired as to why the bids in respect of the said tender were invited only from pre-qualified dredging contractors and not from public at large but no response was found from respondent No.3 and so the petitioners were constrained to issue a notice dated 16.1.2012 to respondent No.1. Referring the same, prima facie, petitioner No.1 and petitioner No.2 both wanted to convey that they were unaware of the public notice dated 07/2009-10 which was published in the newspaper in the month of August, 2009 because of the reasons that they did not exist in their present form. It is further averred by the petitioners that their representative has made an application under the RTI Act calling for certain information from the respondent-Board and the said application as well as information supplied is annexed by the petitioners vide Annexure – “I” (Pages No.126 to 133). So far as the Public Notice No. 07 of 2009-10 is concerned, it was informed to the representative of the petitioners that pursuant to the said advertisement eleven contractors had applied and all the said eleven have been declared successful as pre-qualified contractors.
8.1. It appears from the information gathered and placed on record by the petitioner that in Tender Notice No.12 of 2011- 12, representative of Hung Hua Construction Co. Ltd had remained present on 9.1.2012 when the pre-bid meeting was held at 12.00 hrs in the chamber of Superintending Engineer (Mech.), Dredging circle, GMB, Gandhinagar. Page No.133 is the Rojkam of the Pre-bid meeting held on 9.1.2012. Referring the same it appears that on 9.1.2012 in the said Pre-bid meeting relating to Tender Notice No. 12 of 2011-12 only one Vendor was present through their representative/Technical Advisor namely, Shri Balraj Sharma. If the present petitioner No.2 who is also the Additional Director of petitioner No.1- company is the same person, then it goes without saying that this petition is not maintainable only on the ground that the petitioners have not come with clean hands before this court and they have suppressed many material facts deliberately and knowingly. Otherwise also as discussed above, the present petition, in our considered view, deserves to be dismissed because as mentioned in Pawankumar Agarwal v. Meerut Development Authority & Anr. reported in AIR 2009 SC 2894, the bidders participating in the Tender process have no other right except the right to equality and fair treatment in the matter of evaluation of competitive bids offered by interested persons in response to notice inviting tenders in a transparent manner and free from hidden agenda. It is further held that one cannot challenge the terms and conditions of the tender except on the above stated ground, the reason being that the terms of the invitation to tender are in the realm of the contract. No bidder is entitled, as a matter of right, to insist upon further negotiations unless the terms and conditions of notice so provided.
9. Learned counsel for the petitioners has heavily relied on the decision reported in M/s.Globe Construction Co. & Ors (supra). Para 8 of the same reads as under:
“8. In the circumstances, while upholding the right of the respondents to shortlist contractors for restricted class of tenders for high tech projects which are required to be executed with great speed, it must be held that the petitioners have not been given opportunity to apply for being shortlisted for restricted class of tenders for high tech projects. The restricted class of tenders ought to have been made in accordance with para 18.4.3. of the C.P.W.D. Manual. This clause, as already noticed, envisages making of a list of selected contractors for restricted class of tenderers only after inviting the applications through advertisement from contractors possessed of technical and financial capabilities backed by sufficient experience and possessing specialised equipment, for example, excavators-cum-loaders, truck/dumpers, bulldozers, weigh batch mixers, chase cutting equipments, automatic batching plant conforming to IS 4925-1968 of required capacity for production of controlled concrete etc. The list is required to be as big as possible so that competitive tenders can be received. Since in the instant case no public notice has been issued for inviting prequalification applications generally or in respect of the work in question, the action of the respondents calling the six shortlisted contractors to submit their bids cannot be sustained as otherwise it would lead to violation of rights of the petitioners conferred on them by Articles 14 and 19 (1) (g) of the Constitution. In the circumstances, the action of the respondents inviting the above mentioned six shortlisted contractors to submit the tenders for the work in question is hereby quashed”.
10. In the above case, no public notice was issued for inviting pre-qualification applications and so it was held that the procedure adopted was violative of rights under Articles 14 and 19 (1) (g) of the Constitution of India. As discussed, in the instant case, Tender Notice No. 07/2009-10 was published in the newspaper for inviting pre-qualification applications in September, 2009. Hence in our view, the above referred case is not of any assistance to the petitioner.
11. For the aforesaid reasons, the petitioners have miserably failed to prove that the respondents have, with mala fide and oblique motive to weed out competition in tender process and with a view to awarding tender to selected few pre-qualified dredging contractors, published the Public Notice No. 07 of 2009-2010. Simply because in the Tender Notice No. 12/2011-12 under General Terms and conditions, condition No.2 - “Bidders have to submit Technical Bid as well as price bid in electronic format only on n.procure website till the last date and time for submission” has been published, it cannot be said that the respondents have committed illegality. So far as Tender Notice No. 10/2011-12 is concerned, the same was published in the newspaper inviting the Tender Bid from all the bidders but on the same line the Tender Notice No.12/2011-12 was not published. Nothing was proved to infer any mala fide action on the part of the respondents. Under the above circumstances, this Special Civil Application deserves to be dismissed. Accordingly it is dismissed and notice is discharged with no order as to costs.
[D. H. WAGHELA, J.]
[G. B. SHAH, J.]
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