The Bombay High Court dismissed a Public Interest Litigation (PIL) filed alleging that the qualified bidders do not possess the necessary qualification as required under the tender notice for construction of dwelling units under the Ashray Yojana using prefabrication technology.
The Municipal Corporation of Brihan Mumbai invited tenders for construction of dwelling units under the Ashray Yojana using prefabrication technology. The work order is issued in favour of the private respondent . The petition is filed alleging that five bidders had participated in the tender process. Two were disqualified at the stage of the technical bid and the three bidders, who were qualified, in fact did not possess the necessary qualification as required under the tender notice.
The advocate for the petitioner submits that as per the terms of the tender, the bidder should have completed three prefabrication technology works or is currently executing the same. The certificates produced by the three qualified bidders, including private respondent, were false and forged. The work done by these persons did not qualify the condition as required under the tender document, i.e., completion of fabrication works by using prefabrication technology. The counsel submits that the work completion certificate produced by the private respondent to the respondent no. 1 issued by one Architect is erroneous and not in accordance with the requirement nor is it in accordance with the actual state of affairs. The advocate, to substantiate his contention, relies upon the certificate issued by an Architect and submitted to the SRA. The advocate for the petitioner further submits that the same Architect, on whose certificate the petitioner relies, on the very same date, has also issued certificate in favour of another party. The advocate further submitted that the private respondent did not submit any certificate of an Engineer-in-charge certifying that the private respondent has indeed carried out construction using prefabrication technology .
Milind Sathe, Senior Advocate , for private respondent submitted that the petitioner is not concerned with the matter in hand. The Municipal Corporation of Brihan Mumbai had scrutinized all the documents, the documents of the Architect certifying the work done and also the declaration given by the bidders. The requirement in the tender was not that the entire building constructed should be by prefabrication technology. It required a particular area to be constructed by use of prefabrication technology. That if a multi-storied residential building is constructed all that is necessary is that the area constructed using prefabrication technology should not be less than 2,67,000 square feet. It is submitted that even a criminal case is filed against the petitioner.
The advocate for the petitioner argued that the criminal case sought to be referred to by the private respondent was filed in the year 2003 and still under the caption ‘not heard’ and has no relevance with the present case.
While considering the PIL , the Division Bench of Acting Chief Justice S. V. Gangapurwala and Justice Sandeep V. Marne held that in tender matters, the scope of judicial review is in a narrow compass.
“In normal course, this Court does not sit as an appellate authority on the decision taken by the principal. This Court would be concerned with due adherence to the decision-making process. In a challenge to the tender or the work awarded, this Court would only consider as to whether the decision is arbitrary and that the procedure as is laid down under the tender document is adhered to”, observed by the High Court.
The petitioner is alien to the instant tender process conducted by Municipal Corporation of Brihan Mumbai . The requirements and the qualification of the tenderer are specified in the tender document. The petitioner is harping on the ground that the private respondent and the other two qualified tenderers did not conform to the required qualification of completion of the work with prefabrication technology as required under the tender document. The petitioner certainly is not a technical person. By naked eyes, the petitioner cannot conclude as to the nature of the construction.
“The petitioner, it appears, is relying upon a certificate of an Architect Achyut Watve issued on 22nd August 2013 certifying the structural design as per Indian Standard Codes of Practice rendering the buildings safe and stable. According to the petitioner, the said certificate is applicable to RCC construction and not to the construction done using prefabrication technology “, said the High Court.
A work is completed by the private respondent of a building at Borivali, Orlem at new link road in the year 2019 and a structural certificate is issued dated 16th February 2021. The building has received OC of building no. 1 on various plots mentioned in the said certificate at village Valnai, Malad West, Taluka Borivali and he confirms that this construction has been done with prefabrication technology (offsite/factory made steel encased in concrete). The Court noted that another certificate is relied on of an Architect dated 24th October 2020 certifying that the private respondent has completed the work of the building at Valnai, Malad West, Taluka Borivali and has been issued OC on 8th November 2019 and that the said construction is done with prefabricated technology (offsite/factory made steel encased in concrete.
The Municipal Corporation of Brihan Mumbai has filed an affidavit affirming that due process has been followed and the qualifications possessed by the qualified tenderers are adhered to. There are certificates to that effect. The petitioner, who is alien to the subject matter in issue, certainly could not have vouched about the technology used for the construction only by viewing the building from outside.
“The present matter would not come within the ambit and purview of a public interest litigation. It is not a case that the petitioner has approached this Court for the protection of fundamental rights of a poor or an illiterate litigant. We also do not find any mala fides during the tender process”, the order reads.