Full Text
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.5400 OF 2024
B-Right Real Estate Limited
Having its Registered office at 702, Shah Trade Centre, Rani Sati Road, Next to Western Express Highway, Malad (East) Mumbai – 400097 : Petitioner
Vs.
1. Pune Metropolitan Region
Development Authority Pune
Through the Deputy Commissioner, Land and Estate Department, 3rd
Floor PMRDA, Akrudi, Pune. Maharashtra – 411044
2. Metropolitan Commissioner and Chief Executive Officer, PMRDA, Having his office at New
Administrative Building, Akrudi, Pune – 411007, Maharashtra.
3. Deputy Commissioner (Land and
Estate Department)
PMRDA, Having his office at
3rd
Floor, PMRDA Akurdi, Pune – 411007, Maharashtra : Respondents
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Dr. Milind Sathe, Senior Advocate, a/w Mr. Chirag Kamdar, Ms. Sonam Mhatre, Ms. Saloni Sulakhe and Mr. Punit Agarwal i/by
Dhaval Vussonji and Associates for the Petitioner.
LGC 1 of 13
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JUDGMENT
1. The Petitioner has in the captioned Writ Petition sought the following reliefs:- (a) That this Hon’ble Court be pleased to issue a Writ of Mandamus or any other writ in the nature of mandamus or any other appropriate writ, direction or order directing the Respondents and their officers and agents to accept the submission of bid of the Petitioner for the E-Auction of the leasehold rights in respect of the said Leasehold Land to be held on 12th April 2024. (b) In the alternative, that this Hon’ble Court be pleased to issue a Writ of Mandamus or any other writ in the nature of mandamus or any other appropriate writ, direction or order directing the Respondents to extend the date of submission of bids for the E- Auction of the Lease Rights over the said Lands to be held on 12th April 2024; LGC 2 of 13
(c) In the alternative, that this Hon’ble Court be pleased to issue a Writ of Mandamus or any other writ in the nature of mandamus or any other appropriate writ, direction or order directing the Respondents to extend the date of the E-Auction of the Lease Rights over the said Lands to be held on 12th April 2024.
2. Respondent No. 1 had on 12th March, 2024 issued a Public Notice through Respondent No. 2 on its website inviting proposals for e-auction for grant of lease of 7.14 hectares of land bearing Final Plot No. 19 and Final Plot No. 20 of TPS-1 admeasuring about 71,400 square meters situated at Bhamburda, (Shivajinagar) old Bombay – Pune Road, Pune City, for a period of eighty years. A perusal of the Request for Proposal (RFP) inter alia reveals that the reserve price for said plot was Rs. 397.50 crores, and that prospective bidders were required to submit (a) an earnest money deposit of Rs. 20 crores (b) a performance bank guarantee of Rs. 20 crores and an RFP fee of Rs. 1 lakh. The RFP further sets out the following “Important Dates” viz. LGC 3 of 13 Important Dates Milestone From Date/Time To Date/Time RFP document download 12.03.2024
12.00 hrs (IST) 02.04.2024
12.00 hrs (IST) Last date for query 15.03.2024 at 15.00 hrs (IST) Pre-Bid Meeting 18.03.2024 at 15.00 hrs (IST) Venue: PMRDA, New administrative building, Opposite Akurdi Railway Stn., Akurdi, Pune Maharashtra – India Late date of online submission both documents (Financial & Technical) 02.04.2024 at 12.00 hrs (IST) Date of e-Auction 12.04.2024
3. Dr. Sathe Learned Senior Counsel appearing on behalf of the Petitioners essentially made two-fold submissions in support of the reliefs prayed for. His first submission was that the Respondents had not given adequate publicity to the e LGC 4 of 13 auction and that the same was published only on the website of Respondent No. 2. He submitted that resultantly the Petitioner did not have adequate time to make the requisite submissions before 2nd April, 2024 i.e. the last date as per the RFP. It was thus that Dr. Sathe submitted that the time to submit the bids be extended and/or that the Petitioner’s bid be accepted since the same was being submitted before the date of the e-auction which was on 12th April, 2024. Dr. Sathe then stated if the Petitioner was permitted to submit its bid the same would not prejudice any party but infact encourage competition since the Petitioners bid was well over the reserve price of Rs. 397.50 crores.
4. The second submission of Dr. Sathe was that even though the date for the e-auction was 12th April 2024, the result of the e-auction would not be declared on that date in view of the code of conduct imposed by Election Commission of India which was in force for the ensuing elections. Basis this he submitted that there was no reason as to why the Respondents LGC 5 of 13 could not permit the Petitioner to participate in the said eauction. He submitted that the Petitioner had infact made a representation to the Respondents, however the same had not been responded to. He submitted that the Respondents ought to be directed at least to consider the Petitioners representation before proceeding with the e-auction.
5. Per Contra Mr. Sakhadeo Learned Counsel appearing for the Respondents opposed the reliefs sought for. He pointed out that more than adequate time and notice for participation had been given by the Respondents. He pointed out that from a plain reading of the averments in the Petition shows that the Petitioner was aware of the tender and had adequate time to participate but had not done so. He submitted that the Petitioner had not made out any case as to why they should, after expiry of the timelines prescribed in the RFP, be permitted to participate in the said e-auction. He then invited our attention to clause 8 of the RFP and pointed out that the same clearly stipulated that Respondent No. 1 shall not in any manner be responsible for delay in online submission due to any reason and LGC 6 of 13 that the bidders were required to upload their complete bid proposal well in advance so as to avoid any unforeseen problems.
6. After having heard Learned Counsel, we find that the Petitions deserves to be dismissed for the following reasons, viz.
1 Exhibit D pg. 74 LGC 7 of 13 “Regrettably, we missed the bid submission application date of 2nd April 2024 due to unforeseen circumstances”. Likewise, in the Petition it is inter alia stated that “The Petitioner submits that due to the detailed bid submission requirement, the Petitioner faced unintentional delay in submission of its bid on or before 2nd April 2024[2] ” and “Thus, by condoning the Petitioner’s inadvertent and unintentional delay in submitting the bid, no prejudice, hardship, or disadvantage shall be caused to the Respondents.[3] ” Clearly therefore, the Petitioners inability to participate was not for any fault and/or reason of the Respondents but was solely due to the Petitioners lack of alacrity and nothing else.
2 Paragraph 14 page 7 3 Paragraph 19 page 9 LGC 8 of 13 tender matters is only too well settled in as much as the Court will not interfere in tender matters and/or the tender process unless it is found that the conduct and/or action of the tendering authority is arbitrary, irrational, perverse or mala fide as held by the Hon’ble Supreme Court in the case of Tata Motors Vs. Birhan Mumbai Electric Supply Transport (BEST) and others[4]. In the present case we find that there is not even a hint to suggest that the conduct of the Respondents is in any manner arbitrary, irrational, perverse or mala fide.
Petitioner to participate though seemingly innocuous, would if granted, have deleterious effects. Aside from the fact that the scope of judicial review in tender matters is extremely circumscribed as laid down by the Hon’ble Supreme Court in a catena of cases, including Tata Cellular vs. Union of India[5] and Michigan Rubber India vs. State of Karnataka and others[6], any such interference would then
LGC 9 of 13 embolden prospective bidders who without any compelling reasons would seek participation in the tender process by ignoring the timelines set out by the tendering authority and infact permitting participation contrary to terms of the tender. This would effectively result in Court rewriting the terms of the RFP which in our view is wholly impermissible and lies squarely within the domain of the tendering authority.
Petitioners would unsettle the entire object and purpose of the tender process. As noted above the terms of a tender are within the sole and exclusive domain of the tendering authority. These terms would naturally include the timelines prescribed in the tender document which undoubtedly have been fixed so as to best ensure that the object of the tender is achieved in the manner contemplated by the tendering authority and keeping in mind the best interests of the tendering authority. LGC 10 of 13
7. Hence, for the aforesaid reasons we find the Petition to be one which lacks merit in its entirely. Hence we dismiss the Petition as follows; i. Petition is dismissed with cost of Rs.50,000/- (Rupees Fifty Thousand only). ii. Cost is payable to K.E.M. Hospital within a period of 30 days from the date this order is uploaded. The account details of K.E.M. Hospital are as follows; Bank Account of Hospital: Poor Box Charity Fund, K.E.M. Hospital, Mumbai Bank Account No.: 99350100000877 (S.B.) LGC 12 of 13 Bank: Bank of Baroda, Parel Branch Address, Tel. No., Fax No. and email of the concerned Bank: Bank of Baroda, Madina Manzil, 88, Dr. Ambedkar Road, Mumbai – 400 012, Maharashtra, 022-24713820 dbpare@bankofbaroda.com MICR Code No.: 400012246 IFSC No.: BARB0BBPARE (5th Letter is zero) PAN No.: AAAPK3087D Type of Account: Saving Account iii. Petitioner to file with the office of the Registrar Judicial-I proof of compliance of the above within eight weeks. iv. In the event it is found that the Petitioner has not complied with the above, suitable orders shall be passed. (ARIF S. DOCTOR, J.) (CHIEF JUSTICE) LGC 13 of 13