M.R.SHAH,J. - (1.) Rule. Shri Hardik Vora, learned Assistant Government Pleader waives service of notice of Rule on behalf of respondent State, Shri Apurava Jani, learned advocate waives service of notice of Rule on behalf of respondent no.5 and Shri Dhawal Nanavati, learned advocate waives service of notice of Rule on behalf of the respondent No.2. In the facts and circumstances of the case, the matter is taken up for final hearing today.
(2.) The petitioner has preferred present petition on 30.07.2017 under Article 226 of the Constitution of India for an appropriate writ, direction and order to quash and set aside the action of the respondent Corporation in considering the bid submitted by the respondent no.5 herein as qualified for the Tender Notice No. PHD/DCHH/19/201617 issued by the Surat Municipal Corporation for door to door refuse garbage collection and transportation for a period of five years and also consequential decision taken thereof. The petitioner has also prayed for an appropriate writ, order or direction in the nature of mandamus directing the respondent Corporation to consider the bid submitted by the petitioner vide Annexure G for Central Zone as qualified competitive bid and to award the contract to the petitioner. 2.1. The petitioner has also prayed to quash and set aside the decision of the respondent Corporation in considering the bid submitted by the petitioner as disqualified.
(3.) That online E Tenders were invited by the respondent Surat Municipal Corporation for the door to door refuse garbage collection and transportation. That date of download of online tender was between 23.11.2016 to 12.12.2016. The last date of online submission was fixed for 12.12.2016, however the same was extended from time to time and lastly it was extended to 16.3.2017.The last date of submission of demand draft of tender fees EMD for physical form was between 14.12.2016 to 19.12.2016. However, the same was extended from time to time and lastly it was extended to 29.1.2017. That prebid meeting was fixed December 1, 2016. All those bidders who remained present in the prebid meeting were apprised about the process and procedure. It appears that respondent no.4 herein M/s. Facile Maven Pvt Ltd was appointed to evaluate the bid / tender documents. That as per the schedule, the opening date of technical bid was fixed on February 1, 2017, whereas the opening date of price bid was fixed on 10.02.2017. It appears that the respondent Corporation divided the bid opening process in three parts i.e. (1) opening of prequalification bid (wherein Earnest Money Deposit, Tender Fees will be verified);(2) Technical bid will be opened (after the verification and scrutinizing the aspect of Earnest Money Deposit and Tender Fees). At the second stage technical and financial capabilities will be evaluated and after qualifying criteria is completed the bidder will be marked as "qualified" or "disqualified" bidder and (3) Those bidders who are technically qualified at qualifying evaluation process at stage one and stage two, financial (price) bid will be opened by the Corporation. It appears that the petitioner along with other 20 bidders submitted their bids which included the wife of the petitioner P. Kavitha. That all the bidders were required to comply with the necessary terms and conditions of the NIT. The respective bidders were required to upload the tender document like financial turnover, solvency certificate, experience certificate, technical bid document and reference document Demand Draft details for tender fees and EMD details and other documents in electronic forms only through online (by scanning). That as per the post qualification criteria and evaluation procedure and to consider the financial capacity, average turnover of last three years (2015-16, 2014-15 and 2013-14) were required to be considered for evaluation. All the bidders were required to submit audit annual report / financial report of last 7 years. As in the present case, question with respect to Central Zone financial qualifying criteria for average annual turnover and solvency of Central Zone was Rs.2,66,37,000/-. As per the tender notice as the NIT was issued for all the zones (7 in number) the contractors /bidders were required to submit their preference for opening of the price bid as per Annexure XIV. As per important instruction to the contractors /tenderer, the tenderer were required to submit the complete set of tender document as downloaded dully filled in and signed by the tenderer, as prescribed in the different clause of the tender document. That all the pages were required to be initialed. That clause 25 of the important instruction provided for disqualification, which reads as under: "25. Disqualification A tender shall be disqualified and will not be taken for consideration if: (a). The outer envelope does not show on the outside the reference of bid and thus get opened before the due date of opening. (b). The Earnest Money Deposit is not deposited in full and in the manner as specified. (c). The tender is in a language other than English or English Translation in case of other language preparation. (d). The tender documents are not signed by an authorized person. (e). The tenderer does not agree to Security Deposit. (f). The tendererdoes not agree to payment terms. (g). Conditional tender. (h). Instrument of DD/Pay order submitted and mentioned on web site and hard copy does not match. Tenderer may further be disqualified if. .The validity of tender is less than that mentioned. .Any of the page or pages of tender is / are removed replaced. .All corrections or pasted slips are not initiated by Tenderer. .Any erasure is made in the tender." 3.2. That bidder was also required to submit the undertaking to carry out the work and to abide by and to fulfill all the terms and provisions of specification and conditions. 3.3. As stated herein above, 20 bidders submitted their bids. However, 14 parties / bidders included the petitioner came to be technically disqualified, whereas the following six parties were declared technically qualified. , (1). Global Waste Management Cell Pvt. Ltd. (2). Jigar Transport Company i.e. respondent no.5 (3). Western Imaginary. (4). Aum Swachatha Corporation (5). P. Kavitha i.e. wife of the petitioner herein and (6). Swachatha Corporation. The ground on which the petitioner came to be disqualified on 8.2.2017 shall be considered herein below. 3.4. That the price bids of the above mentioned technically qualified bidders / parties came to be opened on 10.02.2017 and following parties were found to be L1 for the Zones. (1). Global Waste Management Cell Pvt. Ltd for (a) South Zone, and (b) West Zone: , (2). M/s. Jigar Transport Company i.e. respondent no.5for (a) Central Zone and (b) East Zone. (3). Western Imaginaryfor West Zone and South East Zone. (4). Swachatha Corporationfor North Zone. 3.5. It appears that on 13.2.2017 one Center for Development Communication Trust preferred writ petition before this Court being Special Civil Application No. 2596 of 2017 challenging the decision of the Corporation dated 10.02.2017 declaring it as technically disqualified. That in the said petition, a grievance was also voiced that in case of other three bidders viz. (1) M/s. Jigar Transport Company (respondent no.5 herein); (2) M/s. Western Imaginary Transcon Private Limited; (3) Aum Swachatha Corporation, the Tender Evaluation Committee had accepted their technical bid though they had not fulfilled all the conditions. It appears that on 14.2.2017 one Shri Shakti Enterprise preferred SCA No. 2606 of 2017 also with respect to very tender inquiry. One another petition came to be filed on 14.2.2017 by one R and B Infra Project Pvt Ltd being SCA No. 2610 of 2017 also with respect to very tender inquiry. The wife of the petitioner P. Kavitha who was also one of the bidders, also preferred writ petition being SCA No. 4731 of 2017 on 28.02.2017 also with respect to very tender inquiry. That vide judgment and order dated 13.06.2017 the Division Bench of this Court dismissed the aforesaid Special Civil Application No. 2606 of 2017 filed by Shri Shakti Enterprise and Special Civil Application No.2610 of 2017 filed by R and B Infra Project Pvt Ltd. That vide detailed judgment and order dated 19.06.2017 the Division Bench of this Court dismissed the Special Civil Application No.2596 of 2017 filed by Center for Development Communication Trust. The Special Civil Application No. 4731 of 2017 filed by the wife of the petitioner - P. Kavitha came to be partly allowed by the Division Bench of this Court whereby original respondent no.5 therein i.e. Aum Swachatha Corporation came to be disqualified. At this stage, it is required to be noted that in the said petition, the petitioner therein - P. Kavitha also challenges the action of the respondent Corporation in disqualifying her and also prayed directing the respondent authority to consider price bid submitted by her. That vide judgment and order dated 21.6.2017, the Division Bench of this Court as observed herein above, partly allowed the said petition to the aforesaid extent, however rejected the prayer of the petitioner - P Kavitha to consider her bid and to award contract to her. It appears that thereafter M/s. Aum Swachatha Corporation Corporation preferred SLP before the Hon'ble Supreme Court challenging the judgment and order dated 21.06.2017 passed in Special Civil Application No. 4731 of 2017, by which, M/s. Aum Swachatha Corporation was held to be disqualified. That by order dated 27.07.2017 the Hon'ble Supreme Court dismissed the said SLP. It appears that against the judgment and order passed by this Court in Special Civil Application No.4731 of 2017, Ms. P. Kavitha also preferred SLP before the Hon'ble Supreme Court being Special Leave Petition (Civil) No.20011 of 2017 on 24.07.2017. That in the meantime on 13.07.2017 the Standing Committee of the respondent Corporation passed a Resolution deciding to give tender work to the four parties in the aforesaid tender inquiry and for that purpose, the Municipal Commissioner was authorized to arrive at agreement with the said parties. That on 14.07.2017 the letter of intent came to be issued to the respective bidders including respondent no.5 herein M/s. Jigar Transport Company. That thereafter, Hon'ble Supreme Court dismissed the SLP preferred by Aum Swachatha Corporation preferred against the decision of this Court in Special Civil Application No.4731 of 2017, on 27.07.2017. It appears that pursuant to the letter of intent, the respondent no.5 herein - M/s. Jigar Transport Company submitted two deposits of Rs. 18,98,000/- for Central Zone and Rs.24,52,800/- for East Zone. Thereafter on 09.08.2017 the work order came to be issued to the respective parties / successful bidders. That on 11.08.2017 the petitioner has preferred present Special Civil Application for the aforesaid reliefs.;