TMI Blog2016 (4) TMI 223X X X X Extracts X X X X X X X X Extracts X X X X ..... ere with the conduct of the petitioner, but the conduct of the State in a matter of public tender. We are aware of the principles laid down in the case of Michigan Rubber (India) Limited (2012 (3) TMI 512 - SUPREME COURT). We are also aware that we cannot interfere with the tender conditions. We are interfering in this case simply because the respondent nos. 1 and 2 represent that the terms and conditions of the tender are those which have been notified for the benefit of all bidders and participants and then makes a marked departure therefrom without producing any material justifying such deviation. We have found that the work experience is a vital and important eligibility criteria. That could not have been compromised or given up by the State in the manner done. We have found that the State itself and particularly the Department of Public Works, its Executive Engineer (Electrical) are not serious in adhering to the terms and conditions of the tender. Given the nature of the work and the maintenance that is required, the State ought to choose the best and the most experienced in the field. Once the tender process does not meet the requirements of fairness and reasonableness, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he extent relevant, that reads as under:- GOVERNMENT OF MAHARASHTRA PUBLIC WORKS DEPARTMENT E TENDER NOTICE NO. 15/2015-16 Online percentage rate tenders in 'B-1' Form are invited by the South Mumbai Electrical Division, (P.W.D.), Mumbai for the following work from Contractors registered in appropriate class of the Public Works Department of Maharashtra State. The name of work, estimated cors, earnest money, security deposit, time limit for completion etc. are as under. E Tender No. Name of work Estimated Cost (Rupees) Earnest Money (Rupees) Security Deposit (Rupees) Class of Contractor Time limit in Tender (Calendar Months) Est. No.: SR/NVB/3005/o f 2015-16: (Revised) Providing Fully comprehensive maintenance service contract for Audio Conference System at Assembly Hall, Council Hall Central Hall at Navin Vidhan Bhavan, Mumbai-32 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nes. 9. The second submission is that the PWD and particularly the Executive Engineer, in taking the decision, has compromised the terms and conditions of the tender. They have been relaxed in order to favour or benefit the 3rd respondent. Mr. Barve would submit that the name of work is providing fully comprehensive maintenance and service contract for audio conference system at Assembly Hall, Council Hall and Central Hall at Navin Vidhan Bhavan . The earlier tender and which also resulted in a writ petition in this Court had crucial words, namely, digital audio conference system with voting, camera control and language interpretation system and which were to form part and parcel of the system to be installed at the Assembly Hall. Mr. Barve would submit that the Assembly Hall and Council Hall are the halls used when the assembly is in session and the Central Hall is used for other important events. In the session, there ought to be such comprehensive systems working and functional for the members of the assembly to be heard by each other and by the Hon'ble Speaker. Secondly, the inbuilt system enables a person or a member not familiar with the language of the State and sp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respondent has submitted the last three years income-tax returns. In dealing with para 5(d) of the petition, the Executive Engineer states that the tender does not contain any requirement of experience of three years and hence it is denied that the experience of three years was mentioned in the earlier tender notice and the same has been deleted from the present tender notice. Mr. Barve submits that if the tender notice is the one at page 55 of the paper book, then the terms and conditions which are to be satisfied and the bidding documents which have to be submitted for envelope no. 1 specifically deal with experience. In any event, the wording of this condition would indicate that there is indeed a requirement of work experience and which is to be certified in the form of documents such as work orders and work completion certificates. For all these reasons, Mr. Barve submits the the impugned work order in favour of the 3rd respondent being contrary to the constitutional mandate, which is required to be adhered to in public tender, must be quashed and set aside. 12. Justifying the issuance of work order, Mr.Venegaonkar, learned Additional Government Pleader appearing for the S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the spares are openly traded and available in the market. They can be procured by parties like the 3rd respondent and supplied whenever required. In such circumstances, not much can be made of the conditions in the tender notice. Mr. Chomal, therefore, submits that bearing in mind the legal principles, this Court should not interfere in its writ jurisdiction with the decision of the State. Secondly only because another method could have been adopted and which is in this Court's opinion a better one, that will not enable this Court to interfere in writ jurisdiction. The process is fully transparent and is not vitiated by any unfairness, arbitrariness or malafides. 15. Reliance is placed by Mr. Chomal on the decision of the Hon'ble Supreme Court of India in the case of Michigan Rubber (India) Limited vs. State of Karnataka and Others(2012) 8 SCC 216 and another decision in the case of B. S. N. Joshi and Sons Ltd. vs. Nair Coal Services Ltd. and Ors. (2006) 11 SCC 548 He also relies upon the decision in the case of Jagdish Mandal vs. State of Orissa and Ors. (2007) 14 SCC 517 16. With the assistance of the counsel appearing for both sides, we have perused the petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nk that the authorities have changed the terms and conditions in order to favour a particular bidder. Therefore, the requirement is clear and the words fully comprehensive audio video conference system would mean that such system which is equipped with inbuilt facilities of the above nature have to be maintained and serviced. It is thus a maintenance and service contract of installed equipment at Council Hall and Central Hall of the Maharashtra State Assembly, where the assembly holds its periodical sessions, discussions, deliberations on policy and law, and thereafter passes resolutions and takes decisions. In the Council Hall, those elected by the public have a right to speak. They ought to be audible to the assembly and the Speaker of the house. Therefore, whatever be the make of the installations and whatever be the systems in place, their maintenance and service ought to be of high degree so that the system operates smoothly and without any disruption. It is for that reason that a public tender was floated. The bids were notified in e-form. Therefore, considering the class of contractor, its design for the above work at such vital installation, necessarily the bidder mus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... talled at such crucial places, and going by the nature of work and the prior experience condition that is reproduced by us hereinabove, we cannot accept the stand taken in para 8 that the tender does not require any previous experience of three years, or the denial that a previous requirement experience of 3 years was mentioned in earlier tender notice but was deleted from the present tender notice. The requirement of experience is very much mentioned in that column of even the present tender. 24. We inquired from Mr. Venegaonkar as to how respondent no. 3 complies with this requirement and which is important and cannot be compromised at any cost. All that Mr. Venegaonkar would show to us is the contents of para 7 of the affidavit in reply of the State and some annexures thereto. If one looks at them, they would indicate as to how casually and lightly the matters are taken by the Department and particularly the Electrical Wing of the PWD. They are aware that they have to install such systems which are equipped with voting, camera control and language interpretation system for the Assembly and Council Hall. They convened a meeting in the office of the Chief Engineer at a pre-bid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The petitioner, in that petition, had assailed a similar exercise of the 2nd respondent. On that writ petition (being Writ Petition (L) No. 2786 of 2015), the Court called upon the parties to canvass detailed submissions. However, after some arguments, the State, in a somewhat identical situation, made a statement based on which that writ petition came to be disposed of. A copy of the order to that effect has been annexed to the present petition as Annexure 'B' at page 44 of the paper book. That order records that the 1st and the 2nd respondent would withdraw their tender dated 11th august, 2015 and the work order, which was issued by the 2nd respondent dated 24th September, 2015. The Court clarified that it would be open for these respondents to issue a fresh tender notice setting out specific and clear terms, particularly with regard to the nature of the work and the sourcing thereof, the eligibility of the contractors etc. and the tender process would then continue in accordance with law. The 3rd respondent consented to this order. It was not precluded from participating in the further process. 26. We are mindful of the fact that when same parties were before the Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Chief Minister Conference Room, Deputy Chief Minister Conference Room and the Chief Secretary Conference Room at Mantralaya. For the State to project this work as complete and as meeting the work experience requirement in the present tender and that too after taking a bold stand that such a criteria was not required to be fulfilled at all presents a misleading picture. The cabins of Chief Minister and Deputy Chief Minister are not comparable in size, dimension or requirement at all with the present work. Those are at best digital displays with accompanying sound systems and perhaps a video conferencing facility. We do not think that installation of C. C. T. V. and maintenance of computerized biometric system are works which would qualify as relevant or identical for the purpose of the present tender. 27. We reiterate that the work of providing fully comprehensive maintenance and service for audio conference system of Assembly Hall, Council Hall and Central Hall at Navin Vidhan Bhavan is the subject of the present tender. The area to be covered in a dome like structure of great height is expansive and huge. The legislative assembly accommodates 288 elected members, Speaker and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d its net value is ₹ 3,24,200/-. It is on the strength of this equipment and these financials that the 3rd respondent projects that it would be able to handle the subject contract awarded to it. The experience criteria which is stated to be satisfied as set out in the affidavit in reply of the 3rd respondent would indicate that the works claimed as successfully carried out of the monetary sum and set out in the affidavit does not form part of the statements which were furnished or maintained by the State Government. In addition to the Chief Minister's cabin, Deputy Chief Minister's cabin and Chief Secretary's cabin, this affidavit projects the successful maintenance of audio video conference system installed at the Cabinet Hall, Chief Minister Conference Room, Deputy Chief Minsiter Conference Room and the Chief Secretary Conference Room at Mantralaya. Annexure 'A' is the proof of the work completion certificate. The work completion certificate, copy of which is at Annexure 'A' would indicate supplying and installation of audio-video systems at 7th floor and 6th floor cabins of Chief Minister, Deputy Chief Minister and Chief Secretary, far from any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce the tender process does not meet the requirements of fairness and reasonableness, then there is no alternative for this Court but to interfere. If the State, or its instrumentality, acts reasonably and in public interest in awarding contracts, then the Court's interference is not justified or permissible. However, no person can claim a fundamental right to carry on business with the Government. When the decision of awarding contract is not in accordance with the terms and conditions of the tender notified and the larger public interest is affected adversely, then this Court can, in its writ jurisdiction, interfere with the decision of the State. 30. As a result of the above discussion, the writ petition succeeds. Rule is made absolute in terms of prayer clause (b) to the extent that the work order in favour of 3rd respondent being vitiated as above, is quashed and set aside. 31. At this stage Mr. Chomal appearing for respondent no.3 prays that this order be stayed for a period of two weeks so as to enable the 3rd respondent to challenge this order in a higher Court. This request is opposed by Mr. Barve appearing for the Petitioner. We have found that the decision to a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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