SHAH,J. - (1.) Rule Shri Dhaval Nanavati, learned advocate waives service of notice of Rule on behalf of respondent no.1 and Shri Mahavir Gadhvi, learned advocate waives service of notice of Rule on behalf of respondent no.2. In the facts and circumstance of the case and with the consent of the learned advocates for the respective parties, present petition is taken up for final hearing today.
(2.) By way of this petition under Article 226 of the Constitution of India, the petitioners have prayed for an appropriate writ, direction and order to quash and set aside the impugned decision of the respondent Corporation to disqualify the petitioner no.1 treating its bid as non-responsive and ineligible on the sole ground that while submitting the bid the petitioner no.1 has not paid Goods and Services Tax (hereinafter referred to as the "GST") to the respondent with the Bid/ Document Fee.
(3.) The facts leading to the present Special Civil Application in nutshell are as under: 3. 1. That the respondent Corporation has issued a Request for Proposal (hereinafter referred to as "RFP") for "Development of Integrated Group Housing Facility at Dumbhal Tenements of FP No. 18/A TPS No. 33 (Dumbhal) on PPP basis under Redevelopment of Public Housing Scheme 2016". As per the RFP, initially the online bid was to be submitted by 29.03.2017 and the physical bid was to be submitted by 07.04.2017. However, the aforesaid deadlines came to be extended upto 22.06.2017 for the online submission and 01.07.2017 for the physical submission. One of the conditions of the FIR RFP required the bidder to make payment of Rs.18,000/- towards "Bid/Document Fee". Pursuant to the first RFP the petitioner no.1 submitted its online bid on 22.06.2017 and the physical bid on 23.06.2017. It is the case on behalf of the petitioners that as per the condition of First RFP, the petitioner no.1 also made the payment of Rs.18000/towards bid/document fee. It appears that since the petitioner no.1 was the only entity who had submitted its bid in response to the First RFP, the respondent reissued the RFP (hereinafter referred to as 'Second RFP") on 1.8.2017 for the tender works. As per the conditions of Second RFP, the online bid was required to be submitted on 07.09.2017 and the physical bid was to be submitted by 15.09.2017. The Second RFP also required the bidder to pay Rs.18000/- towards bid/document fees, however this time the said amount was to be paid along with GST @ 18%. That as per the tender notice, time schedule was as under: JUDGEMENT_210_LAWS(GJH)11_2017_1.html It is submitted that pursuant to the Second RFP, the petitioner no.1 submitted its online bid on 07.09.2017 and the physical bid on 09.09.2017. It is the case on behalf of the petitioners that as per the condition of Second RFP, the petitioner no.1 also prepared a Demand Draft of Rs.18,000/- for the payment of Bid/ Document Fee. However, since the respondent had provided any details pertaining to its GST Registration/GSTIN, the Enterprise Resource Planning (ERP)system of the petitioner no.1, which is GST complaint, provided for the payment of GST @18% on reverse charge basis as per the provisions of Central Goods and Service Tax, 2017, petitioner did deposit 18% GST. 3. 2. It is the case on behalf of the petitioners that thereafter, during the internal audit of the petitioner no.1, the auditor enquired from the concerned office of the petitioner no.1 about the SAC for the service in respect of which the respondent had demanded GST @ 18% since the respondent, in case of other tenders invited by it, had demanded GST at different rates. It is the case on behalf of the petitioners that pursuant thereto, upon inquiry from the respondent Corporation, it came to be informed to the petitioner no.1 that the amount of GST @ 18% was paid along with bid/document fee. It is the case on behalf of the petitioners that in view thereof, despite having made a provision for the payment of GST on reverse charge basis as per law, the petitioner no.1 out of abundant caution, addressed a letter dated 19.09.2017 and submitted a Demand Draft No.052513 dated 19.09.2017 towards the said amount of GST as per the information provided by the respondent. At this stage, it is required to be noted that at the time of submitting bid the petitioners made the payment of Rs.18000/- towards bid/document fees, however without GST @18% as demanded as per the tender document/notice. It is the case on behalf of the petitioners that thereafter the petitioner no.1 in good faith, addressed another letter to the respondent on the very next day i.e. 20.09.2017, thereby undertaking to bear any penalty, if any, imposed for late deposit of the amount of GST. That on 21.09.2017, the petitioner no.1 was received back the cover containing the letter dated 19.09.2017 along with the Demand Draft dated 19.09.2017 with an endorsement "Not Accept" and "Refused to accept". It is the case on behalf of the petitioners that in view of the aforesaid refusal, the petitioner no.1 addressed letter dated 22.09.2017 to the Municipal Commissioner of the respondent Corporation narrating the chain of events and inter alia requesting him to grant an opportunity to the petitioner no.1 to rectify the purported technical irregularity, if any, more so since such opportunities are generally given to bidders in order to keep the competition alive and that the RFP was reissued in the form of Second RFP to achieve the same object. 3. 3. It is the case on behalf of the petitioners that thereafter, in absence of any information about the GSTIN of the respondent Corporation, the petitioner no.1 has made the payment of GST by depositing the amount as per reverse charge mechanism on 3.10.2017 at around 12.00 p.m within the time prescribed for the said purpose under law. 3. 4. It is the case on behalf of the petitioners that on 3.10.2017, ar around 9.30 a.m, the petitioner no.1 checked the status of the tender on online tender on online tender portal "nProcure". According to the petitioners, at that time, the status showed that the technical bids of all the bidders were under evaluation. According to the petitioner, however, at around 1.00 p.m, the petitioner no.1 rechecked the status of the tender on nProcure and found that the petitioner no.1 had been disqualified. It is the case on behalf of the petitioners that as per the latest status of the tender process that out of the three bidders who participated in the tender process, two have been disqualified and thereby newly added respondent no.2 herein Siddhi Constructions only remained in fray. 3. 5. Feeling aggrieved and dissatisfied with the impugned action of the respondent no.1Surat Municipal Corporation - bid submitted by the petitioner disqualified at technical base solely on the ground that the petitioners had deposited the bid/ document fee with 18@ GST and thereby to that extent the petitioners were responsive of the eligibility criteria/terms and conditions of the tender document/notice that bidder was required to deposit the bid/document fee Rs. 18000/- with GST @18%, the petitioners have preferred present Special Civil Application under Article 226 of the Constitution of India. ;