{"id":3711,"date":"2010-10-28T00:00:00","date_gmt":"2010-10-27T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/reliance-infrastructure-limited-vs-maharashtra-state-road-on-28-october-2010"},"modified":"2019-01-01T09:28:04","modified_gmt":"2019-01-01T03:58:04","slug":"reliance-infrastructure-limited-vs-maharashtra-state-road-on-28-october-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/reliance-infrastructure-limited-vs-maharashtra-state-road-on-28-october-2010","title":{"rendered":"Reliance Infrastructure Limited vs Maharashtra State Road … on 28 October, 2010"},"content":{"rendered":"
Bombay High Court<\/div>\n
Reliance Infrastructure Limited vs Maharashtra State Road … on 28 October, 2010<\/div>\n
Bench: Dr. D.Y. Chandrachud<\/div>\n
    VBC                                   1                            wp1542.09\n\n\n              IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n                               O. O. C. J.\n\n\n\n\n                                                                                 \n                           WRIT PETITION NO.1542 OF 2009\n\n\n\n\n                                                         \n    1.  Reliance Infrastructure Limited,\n         a Company registered under the \n         Companies Act, 1956, having its \n\n\n\n\n                                                        \n         Registered Office at Reliance \n         Energy Centre, Santa Cruz (East),\n         Mumbai-400 055.\n\n\n\n\n                                              \n    2.   Reliance Infrastructure & \n          Consultants Limited, a Company\n                                  \n          registered under the Companies Act,\n          1956, having its Registered Office\n          at 'H' Block, 1st Floor, Dhirubhai \n                                 \n          Ambani Knowledge City (DAKC),\n          Navi Mumbai-400 710,\n\n    3.  Shri Surendra R.Khot\n             \n\n\n         of Mumbai, Indian Inhabitant,\n         having office at Reliance Centre,\n          \n\n\n\n         Walchand Marg, Ballard Estate,\n         Mumbai.                                ...Petitioners.\n\n\n\n\n\n                            Vs.\n\n    1.  Maharashtra State Road Development\n         Corporation Limited, a Government \n         of Maharashtra Undertaking,\n\n\n\n\n\n         registered under the Companies' Act, \n          1956, having its Registered Office\n          at Near Priyadarshini Park, Napean\n          Sea Road, Mumbai-400 036, India.\n\n    2. The State of Maharashtra,\n         through the Principal Secretary,\n         Public Works Department, \n         Mantralaya, Mumbai-400 001.\n\n\n\n\n                                                         ::: Downloaded on - 09\/06\/2013 16:35:09 :::\n     VBC                                   2                           wp1542.09\n\n\n\n\n    3.  MEP Toll Road Ltd., \n\n\n\n\n                                                                                \n         a Company registered under the\n          Companies Act, 1956, having its\n\n\n\n\n                                                        \n          registered office at 1RB Complex,\n          Chandavili Farm, Chandavili Village,\n          Andheri (East), Mumbai-400 072.\n\n    4. Ashoka Buildcon Ltd.,\n\n\n\n\n                                                       \n       a Company registered under the\n         Companies' Act, 1956, having its \n         registered office at Ashoka House,\n         Ashoka Marg, Nasik-422 011.\n\n\n\n\n                                                \n    5.  IL & FS, a Company registered \n                               \n         under the Companies' Act, 1956, \n         having its registered office at, \n         IL & FS Financial Centre, Plot No.C-22,\n                              \n         'G' Block , Bandra-Kurla Complex,\n         Bandra (East), Mumbai-400 050.        ....    Respondents.\n                                    ....\n    Mr.J.J.Bhat,   Senior   Advocate   with   Mr.Janak   Dwarkadas,   Senior \n             \n\n\n    Advocate,   Ms.Anjali   Chandorkar,   Mr.Naval   Agarwal   and \n    Mr.D.J.Kakalia i\/b. M\/s.Mulla & Mulla & CBC for  the Petitioners.\n          \n\n\n\n    Mr.Rafique   Dada,   Senior   Advocate   with   Mr.Prashant   Chavan, \n    Mr.J.Kapadia, Mr.F.Lakdawala and Mr.M.Bootwala i\/b. Little & Co. \n\n\n\n\n\n    for Respondent No.1.\n\n    Mr.D.A.Nalavade, Government Pleader for Respondent No.2.\n\n    Mr.Rohington   Nariman,   Senior   Advocate,   Mr.Furdoon   De'vitre, \n\n\n\n\n\n    Senior   Advocate,   Mr.Aspi   Chinoy,   Senior   Advocate,   Mr.Rajev \n    Kumar,   Mr.Rudreshwar   Singh,   Mr.Deepak   Y.Chitnis   i\/b. \n    M\/s.Chitnis-Chinparikar & Co. for Respondent No.3.\n\n    Mr.R.S.Apte,   Senior   Advocate   i\/b.   Mr.Aniruddha   A.Garge   for \n    Respondent No.4.\n\n    Ms.Savitha   Kundar   i\/b.   Negandhi,   Shah   &   Himayatulla   for \n\n\n\n\n                                                        ::: Downloaded on - 09\/06\/2013 16:35:09 :::\n     VBC                                          3                                wp1542.09\n\n\n    Respondent No.5. \n                                    .....\n\n\n\n\n                                                                                            \n                                    CORAM : SHRI MOHIT S.SHAH, C.J. AND\n                                            DR.D.Y.CHANDRACHUD, J. \n<\/pre>\n
                                                  October 28, 2010.\n<\/p>\n
    ORAL JUDGMENT (PER MOHIT S.SHAH, C.J.) :\n<\/p>\n
    1.           The   Maharashtra   State   Road   Development   Corporation <\/p>\n
    (MSRDC)   has   been   engaged   in   the   implementation   of   a   project <\/p>\n
    involving   the   construction   of     fifty   five   flyovers   in   Mumbai.     In <\/p>\n
    order to recover the cost of construction, MSRDC has been given a <\/p>\n
    right   to   collect   a   toll   at   five   entry   points   to   the   city.     MSRDC <\/p>\n
    proposed   to   award   a   contract   under   which   it   would     take   an <\/p>\n
    upfront payment for the repayment of a project loan, against the <\/p>\n
    securitization   of   collection   at   the  five   entry   points   into  Mumbai, <\/p>\n
    and for other related work.  In addition to the payment of upfront <\/p>\n
    money   to   MSRDC,   the   proposal   required   (i)   Operation   and <\/p>\n
    maintenance of flyovers and allied structures; and (ii) Collection of <\/p>\n
    tolls at  five entry points into Mumbai.  In order to implement the <\/p>\n
    project, MSRDC floated a tender inviting bids for the appointment <\/p>\n
    of a contractor.   The tender notice invited bids  from Companies or <\/p>\n
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\n     VBC                                        4                              wp1542.09<\/p>\n
    Consortia of not more than three members.  An upfront payment of <\/p>\n
    Rs.2,100\/- crores was stipulated and there was a requirement of <\/p>\n
    bid security in the amount of Rs.105 crores.\n<\/p>\n
    2.          The   eligibility   criteria   for   bidders   contained   financial <\/p>\n
    criteria and toll experience.   The financial criteria stipulated that <\/p>\n
    where   the   bidder   was   a   consortium   or   a   joint   venture,   the   lead <\/p>\n
    member must continue to hold at least a 26% equity stake at all <\/p>\n
    times during the lock-in-period and all members of the Consortium <\/p>\n
    together   must   hold   51%     of   equity.       The   minimum   annual <\/p>\n
    turnover, including toll collection, in any one of the previous three <\/p>\n
    years as per the audited balance sheet\/profit and loss account for a <\/p>\n
    period ending not earlier than 31 March 2008 was required to be <\/p>\n
    Rs.125   crores   for   all   the   members   of   the   consortium   taken <\/p>\n
    together.   Of   this,   the   Lead   Member   was   required   to   have   an <\/p>\n
    average  annual turnover towards toll collection of at least  Rs.75 <\/p>\n
    crores.   The toll experience required was as follows:\n<\/p>\n
                ”   i)   Individual   Company\/   at   least   one   member   of <\/p>\n
                consortium shall have experience of operating minimum <\/p>\n
                20   automated   –   computerized   toll   lanes   under   one <\/p>\n
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\n     VBC                                        5                              wp1542.09<\/p>\n
                contract for minimum 1 year.  Certificate from competent <\/p>\n
                authority   not   below   the   rank   of   Executive   Engineer   or <\/p>\n
                equivalent shall only be accepted for this purpose.\n<\/p><\/blockquote>\n
                -ii)  The turnover and experience of octroi collection will <\/p>\n
                not be considered for the above eligibility.”\n<\/p><\/blockquote>\n
    3.          Clause   5.5.1.1.2   of   the   bid   document   provided   that <\/p>\n
    where   a   bidder   was   a   Consortium,   each   member   shall   furnish   a <\/p>\n
    Power of Attorney in favour of the lead member duly signed by an <\/p>\n
    authorised   representative   of   the   members   in   accordance   with   a <\/p>\n
    stipulated format.     The bid was required to be signed by a duly <\/p>\n
    authorised   signatory   of   the   lead   member   and   was   to   be   legally <\/p>\n
    binding on all the members of the Consortium.   Under clause 5.6, <\/p>\n
    every bidder was required to submit or participate in only one bid <\/p>\n
    in   the   bidding   process   either   individually   as   a   bidder   or   as   a <\/p>\n
    consortium partner in a joint venture.  The draft contract appended <\/p>\n
    to the bid stipulated that the first instalment of Rs.1350\/- crores <\/p>\n
    (out of a total payment of Rs.2100\/- crores)     was required to be <\/p>\n
    paid within 90 days of the letter of allotment.\n<\/p>\n
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     VBC                                     6                              wp1542.09<\/p>\n
    4.          MSRDC   had   appointed   an   independent   consultant   for <\/p>\n
    scrutinizing,   evaluating   and   advising   on   the   bid   submitted   by <\/p>\n
    various bidders.  Seven bidders including the Petitioners  submitted <\/p>\n
    their bids.  The bids were required to be submitted in two covers, <\/p>\n
    the first being the technical proposal and the second the financial <\/p>\n
    proposal.     Technical bids were opened on 23 July 2009.   During <\/p>\n
    the   course   of   the   scrutiny,   clarifications   were   sought   by   the <\/p>\n
    Consultants   from   bidders,   including   the   Petitioner.     A   joint <\/p>\n
    inspection was carried out of the Toll Plaza in Kolkata  in respect of <\/p>\n
    which   the   Petitioner   had   submitted   a   certificate   of   experience <\/p>\n
    dated 31 August 2006 and a subsequent certificate dated 11 August <\/p>\n
    2009.  The Consultant submitted a final report on 17 August 2009 <\/p>\n
    of the technical scrutiny.   The Board of Directors of MSRDC, at a <\/p>\n
    meeting   held   on   17   August   2009,     concluded     that   four   bids, <\/p>\n
    including   that   of   the   Petitioner   were   to   be   rejected   as   non-\n<\/p>\n
    responsive.\n<\/p>\n
    5.          The reasons for the rejection of the bid of the Petitioner <\/p>\n
    were communicated by a letter dated 18 August 2009 addressed to <\/p>\n
    the Lead Member of the Consortium, SMS Infrastructure Limited by <\/p>\n
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\n     VBC                                        7                               wp1542.09<\/p>\n
    MSRDC. The   grounds   on   which   the   bid   submitted   by  the <\/p>\n
    Petitioner was disqualified are as follows:\n<\/p>\n
    -(i)        The consortium of the Petitioners – SMSIL-Rel Infra-RICL <\/p>\n
    had by a letter dated 17 August 2009 shown a turnover of Rs.34.45 <\/p>\n
    crores from  a Delhi based toll collection  agreement for 2007-08.\n<\/p>\n
    The work was executed   by SMS Infrastructure Limited on behalf <\/p>\n
    of     Banas   Sands   TTC   JV.     The   toll   collection   was   on   behalf   of <\/p>\n
    Banas   Sands   TTC   JV   with   whom   there   was   a   Government   toll <\/p>\n
    collection contract.   Banas Sands TTC JV  is a member of another <\/p>\n
    Consortium, Sadhav-Prakash, which was also one of the bidders for <\/p>\n
    the  present  project.    This  breached  the  Anti-Collusion  Certificate <\/p>\n
    and was in violation of the eligibility criteria which specified that <\/p>\n
    “Experience of any activity relating to an eligible project shall not <\/p>\n
    be claimed by two or more members of the consortium.   In other <\/p>\n
    words, no double counting by a consortium in respect of the same <\/p>\n
    experience shall be permitted in any manner whatsoever”;<\/p>\n
\n\n\n\n    -(ii)       One of  the Consortium partners of the Sadhav-Prakash \n\n    Consortium,   is   Banas   Sands   TTC   JV,   a   partnership   firm     which \n\n\n\n\n                                                                 ::: Downloaded on - 09\/06\/2013 16:35:09 :::<\/span>\n     VBC                                       8                              wp1542.09\n\n\n<\/pre>\n
    holds   33.34%   of   the   capital   of   Valancia   Construction   Pvt.Ltd.\n<\/p>\n
    (“Valancia”).     Valancia   has   an   87.36%   equity   holding   by   Anil <\/p>\n
    Sancheti   and   has   been   shown   as   an   Associated   Company   in   the <\/p>\n
    annual report of SMS Infrastructure Ltd.     Anil Sancheti is also a <\/p>\n
    Director   in   SMS   Infrastructure   Ltd.     The   authorised   signatory   of <\/p>\n
    Banas   Sands   TTC   JV   is   an   employee   of   SMS   Infrastructure   Ltd.\n<\/p>\n
    Hence,   the   Consortium   involving   the   Petitioner   and   the   Sadhav-\n<\/p>\n
    Prakash Consortium had a common interest in both the respective <\/p>\n
    bids;\n<\/p>\n
    -(iii)      The Consortium of the Petitioner claimed a toll collection <\/p>\n
    experience   of   Rs.97.53   crores.     The   bidder   had   clarified   on   17 <\/p>\n
    August 2009 that the toll collection at Delhi was on behalf of the <\/p>\n
    Banas   Sands   TTC   JV.     Hence,   that   could   not   be   taken   as   valid <\/p>\n
    experience of the Consortium of the Petitioner.   If that turnover is <\/p>\n
    excluded, the Consortium did not satisfy the eligibility criteria for <\/p>\n
    toll collection turnover;\n<\/p>\n
    -(iv)       The eligibility criteria of toll experience stipulates that at <\/p>\n
    least   one   member   of   the   Consortium   must   have   experience   of <\/p>\n
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\n     VBC                                        9                               wp1542.09<\/p>\n
    operating a minimum of twenty automated computarized toll lanes <\/p>\n
    under one contract for at least one year.   In October 2008, SMS <\/p>\n
    Infra while submitting a certificate, during the bidding process, for <\/p>\n
    a six months’ toll collection tender for five toll stations at the Entry <\/p>\n
    Points   to   Mumbai   had   stated   that   the   toll   collection   points   at <\/p>\n
    Vidyasagar   Setu   Kolkatta   had   eighteen   toll   lanes.     Hence,     the <\/p>\n
    experience certificate submitted less than one year earlier showed <\/p>\n
    that the  number of lanes was less than twenty.  As a result, the toll <\/p>\n
    collection experience did not meet the stipulated criterion;\n<\/p>\n
    -(v)        The   comfort   letter   of   the   State   Bank   of   India   had   not <\/p>\n
    been signed by a prescribed authority; and <\/p>\n
    -(vi)       The   MoU   between   the   members   of   the   Consortium <\/p>\n
    involving the Petitioner stated that SMS Infrastructure Ltd. would <\/p>\n
    be a 34% equity partner in the Consortium as  lead member of the <\/p>\n
    Consortium.     Reliance   Infrastructure   Ltd.   (RIL)   and   Reliance <\/p>\n
    Infrastructure   Consultancy   Ltd.   (RICL)   each   held   33%   equity, <\/p>\n
    aggregating to 66%.   Both these Companies are related Companies <\/p>\n
    and RIL held 40.17% equity in RICL.   Hence, the bid criteria that <\/p>\n
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\n     VBC                                       10                               wp1542.09<\/p>\n
    the   lead   member   should   hold   the   maximum   share   would   be <\/p>\n
    defeated.\n<\/p>\n
    6.           After receipt  of  the letter communicating    that the bid <\/p>\n
    submitted   by   the   Petitioner’s   Consortium   had   been   found   to   be <\/p>\n
    non-responsive, the authorised signatory of the   Consortium, by a <\/p>\n
    letter dated 18 August 2009 applied to MSRDC for refund of the <\/p>\n
    earnest money deposit of Rs.105 crores and the financial bid.  The <\/p>\n
    letter was signed by the authorised signatory of the Consortium.\n<\/p>\n
    MSRDC returned the financial bid and refunded the earnest money <\/p>\n
    deposit   of   Rs.105   crores   to   the   authorised   representative   of   the <\/p>\n
    Consortium on 18 August 2009.\n<\/p>\n
    7.           After   the   financial   bids   were   opened,   the   Third <\/p>\n
    Respondent was found to be the lowest  bidder,  having quoted a <\/p>\n
    concession period of seventeen years and one month.   By a letter <\/p>\n
    dated   18   August   2009,   the   Superintending   Engineer   of   MSRDC <\/p>\n
    called   the  Third   Respondent   for   negotiations   in  accordance   with <\/p>\n
    Clause 5.25 of Vol.I of the Bid Document.   The Third Respondent <\/p>\n
    by a letter dated 18 August 2009 reduced the concession period to <\/p>\n
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\n     VBC                                      11                               wp1542.09<\/p>\n
    sixteen years, eleven months and twenty seven days.\n<\/p>\n
    8.          In   these   proceedings   under   Article   226   of   the <\/p>\n
    Constitution, the Petitioner has inter alia,  challenged the decision <\/p>\n
    of MSRDC to reject its consortium bid and has sought a direction in <\/p>\n
    the nature of Mandamus to the Corporation to award the contract <\/p>\n
    for securitization of five entry points to Mumbai pursuant to the <\/p>\n
    tender notice to the Petitioner or, in the alternative, to invite fresh <\/p>\n
    bids.\n<\/p>\n
    9.          The submissions which have been urged on behalf of the <\/p>\n
    contesting parties can now be summarised.\n<\/p>\n
    ARGUMENTS OF THE COUNSEL FOR THE PETITIONERS:\n<\/p>\n
    -A)         Mr.J.J.Bhat,   learned   counsel   for   the   Petitioners   has <\/p>\n
    raised following contentions:-\n<\/p>\n
    (i)         The   Petitioners’   technical   bid   has   been   held   non-\n<\/p>\n
    responsive   on   the   basis   of   the   grounds   raised   in   the   impugned <\/p>\n
    communication but none of the grounds is germane to the matter;\n<\/p>\n
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     VBC                                        12                                wp1542.09\n\n\n\n\n                                                                                         \n    (ii)        The Petitioners' bid was for 11 years and 7 months which \n\n\n\n\n                                                                 \n<\/pre>\n
    is a much shorter period than the offer of Respondent No.3 for 16 <\/p>\n
    years 11 months and 27 days.   Since the same amount has to be <\/p>\n
    paid   by   the   successful   bidder   i.e.   Rs.2,100   crores,   the   length   of <\/p>\n
    period for which the successful bidder is to be permitted to collect <\/p>\n
    the toll, should be the only determining criterion for deciding who <\/p>\n
    should be awarded the contract;\n<\/p>\n
    (iii)       By awarding the contract to Respondent No.3,   MSRDC <\/p>\n
    will suffer a loss  of about Rs.10,000 crores as per the statement <\/p>\n
    submitted before the Court at the hearing ;\n<\/p>\n
    (iv)        The CAG has made scathing remarks in respect of various <\/p>\n
    contracts awarded by the Respondent-Corporation to Respondent <\/p>\n
    No.3;\n<\/p>\n
    (v)         In the past, this Court had also an occasion to examine <\/p>\n
    the legality  and bona fides of the decision of MSRDC in favour of <\/p>\n
    Respondent No.3;\n<\/p>\n
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     VBC                                        13                                wp1542.09<\/p>\n
    ARGUMENTS OF THE COUNSEL FOR RESPONDENT NOS.1 & 3:\n<\/p>\n
    (i)         On the other hand, the learned Counsel Mr.Rafique Dada <\/p>\n
    and Mr.Nariman appearing for the MSRDC and Respondent No.3 <\/p>\n
    respectively opposed  the petition and submitted that the Petitioner <\/p>\n
    has been disqualified from the tender process and has no right to <\/p>\n
    challenge   the   decision   of   MSRDC   in   awarding   the   contract   to <\/p>\n
    Respondent No.3;\n<\/p>\n
    (ii)        The   Petitioner   has   been   held   to   be   ineligible   on     five <\/p>\n
    counts and this Court would not sit   in appeal over the decision <\/p>\n
    taken by the Respondent authorities.   Judicial review under Article <\/p>\n
    226 of the Constitution of India does not contemplate a review of <\/p>\n
    the decision itself but only a review of the decision making process.\n<\/p>\n
    Since  the  tender  notice  was  issued  in daily  newspapers;      seven <\/p>\n
    bidders   had   submitted   their   bids;     after   a  detailed   scrutiny   only <\/p>\n
    three bids were held to be qualified and the Petitioner was one of <\/p>\n
    the   four   non-responsive   bidders,   no   further   judicial   scrutiny   is <\/p>\n
    called for ;\n<\/p>\n
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     VBC                                          14                                 wp1542.09\n\n\n\n\n                                                                                            \n    (iii)        The petition has been filed by only two members of the \n\n\n\n\n                                                                    \n<\/pre>\n
    consortium but the lead member, SMS Infrastructure Ltd. with a <\/p>\n
    34% share in the equity has not come forward to file the petition.\n<\/p>\n
    After initial  letters dated 12 August 2009 and 18 August 2009 the <\/p>\n
    authorized signatory and constituted attorney for the consortium <\/p>\n
    has   not   signed   any   document   and,   therefore,   the   other   two <\/p>\n
    members of the consortium have no locus standi to file the present <\/p>\n
    petition;\n<\/p>\n
    (iv)         Even   otherwise,   the   present   two   Petitioners   hold   66% <\/p>\n
    share in the equity stake of the consortium (33% + 33%).   Since <\/p>\n
    Petitioner No.2 is holding 40% share in Petitioner No.1 company, <\/p>\n
    they are inter-related and their total holding exceeds the holding of <\/p>\n
    the lead member of the consortium;\n<\/p>\n
    (v)          The calculations given by the Petitioners at the hearing <\/p>\n
    today   are   given   for   the   first   time   but   there   is  no  basis   for   such <\/p>\n
    calculations;\n<\/p>\n
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     VBC                                          15                                wp1542.09\n\n\n    (vi)         The Petitioner having asked for a refund of the financial \n\n\n\n\n                                                                                           \n<\/pre>\n
    bid and the refund of the earnest money of Rs.105 crores,  waived <\/p>\n
    all its rights  and, therefore, the Petition is not maintainable.\n<\/p>\n
    (vii)        On   account   of   various   projects   undertaken   by   the <\/p>\n
    Corporation, the Corporation is in dire need of funds to the tune of <\/p>\n
    Rs.2,100 crores to pay off its debts immediately.  On this account, <\/p>\n
    as per tender conditions,  Rs.1,340 crores is required to be paid by <\/p>\n
    the successful bidder within 90 days from the date of acceptance <\/p>\n
    letter   to   be   issued   by   the   Respondent   Corporation   and   the <\/p>\n
    remaining amount  in the 2nd to 5th years, but Respondent No.3 has, <\/p>\n
    by a letter dated 31 August 2010, agreed to pay a substantial sum <\/p>\n
    of   Rs.1,710   crores   within   90   days   from   the   date   of   acceptance <\/p>\n
    letter of the Respondent Corporation and the remaining amount in <\/p>\n
    the   2nd  to   5th  Years.     It   is,   therefore,   submitted   that   the   project <\/p>\n
    should start as early as possible and any further litigation will only <\/p>\n
    result   into   uncertainty   and   unbearable   financial   burden   on   the <\/p>\n
    Respondent-Corporation;<\/p>\n
\n\n\n\n    -(viii)      Without  prejudice  to the rights and contentions in this \n\n\n\n\n                                                                   ::: Downloaded on - 09\/06\/2013 16:35:10 :::<\/span>\n     VBC                                         16                                wp1542.09\n\n\n<\/pre>\n
    petition,   Mr.Nariman,   the   learned   senior   counsel   appearing   for <\/p>\n
    Respondent No.3 has stated that Respondent No.3 is ready to pay <\/p>\n
    the entire contract amount of Rs.2,100 crores up-front within 90 <\/p>\n
    days from the date of the letter of acceptance by the Respondent-\n<\/p>\n
    Corporation   and   Respondent   No.3   is   also   agreeable   to   have   the <\/p>\n
    concession period reduced from 16 years 22 months and 27 days to <\/p>\n
    16 years.\n<\/p>\n
    10.          The submissions can now be considered.\n<\/p>\n
    11.          The eligibility criteria specified in clause 5.5.2.1 of the <\/p>\n
    bid   document   stipulated   a   requirement   of   a   minimum   annual <\/p>\n
    turnover   in   any   one   of   the   last   three   years   as   per   the   audited <\/p>\n
    balance   sheet\/profit   and   loss   account   for   a   period   starting   not <\/p>\n
    earlier   than   31   March   2008.     In   the   case   of   a   consortium,   the <\/p>\n
    turnover had to be at least  Rs.1250 million (Rs.125 crores) for all <\/p>\n
    members   taken   together   out   of   which,   the   lead   member   of   the <\/p>\n
    consortium   was   required   to   have   an   average   annual   turnover <\/p>\n
    towards   toll   collection   of   at   least   Rs.750   million   (Rs.75   crores).\n<\/p>\n
    On   13   August   2009,   the   Petitioners   submitted   a   break   up, <\/p>\n
                                                                  ::: Downloaded on – 09\/06\/2013 16:35:10 :::<\/span>
\n     VBC                                        17                                wp1542.09<\/p>\n
    projectwise   of   the   receipt   of   toll   collection   of   the   lead   member, <\/p>\n
    SMS   Infrastructure   Ltd.     For   financial   year   2007-08   the   lead <\/p>\n
    member of the consortium claimed a turnover of Rs.97.53 crores <\/p>\n
    in order to meet the requirement of a turnover of at least Rs.75 <\/p>\n
    crores in one  financial year.   Of this, the lead member claimed a <\/p>\n
    turnover of Rs.34.45 crores against a toll collection contract at New <\/p>\n
    Delhi.       However,   it   was   found  that   for   2007-08,   the   work   was <\/p>\n
    executed       by   the   lead   member   of   the   consortium   on   behalf   of <\/p>\n
    Banas Sands JV.     This was clarified by  the Petitioners  in a letter <\/p>\n
    dated 17 August 2009.   In holding that the bid of  the Petitioner <\/p>\n
    was not responsive, MSRDC has found that the lead member of the <\/p>\n
    consortium did not satisfy the eligibility criteria of a minimum toll <\/p>\n
    turnover of Rs.75 crores in one financial year,  upon the exclusion <\/p>\n
    of an amount of Rs.34.45 crores for  the Delhi toll contract where <\/p>\n
    the   project   was   executed   on   behalf   of   Banas   Sands   JV.     Banas <\/p>\n
    Sands   JV   is   independently   a   consortium   member   of   the   Sadhav <\/p>\n
    Prakash Consortium, which was one of the bidders for the contract <\/p>\n
    in this case.   This conclusion which has been arrived at by MSRDC <\/p>\n
    cannot be regarded as perverse.     The determination is consistent <\/p>\n
    with   the   eligibility   criteria.     The   rejection   of   the   bid   as   non <\/p>\n
                                                                 ::: Downloaded on – 09\/06\/2013 16:35:10 :::<\/span>
\n     VBC                                    18                              wp1542.09<\/p>\n
    responsive on this ground does not suffer from any illegality.\n<\/p>\n
    12.        Clause   5.5.2.2   of   the   bid   document   stipulated   as   a <\/p>\n
    condition of eligibility that at least one member of the consortium <\/p>\n
    shall   have   experience   of   operating   a   minimum     of   twenty <\/p>\n
    automated computerized toll lanes under one contract for at least <\/p>\n
    one   year.     SMS   Infrastructure   Ltd.,   the   lead   member   of  the <\/p>\n
    Petitioners’   consortium,   had   participated   earlier   in   what   is <\/p>\n
    described as a ‘short tender’ of twenty six weeks in 2008 floated by <\/p>\n
    MSRDC.   In connection   with that tender, the lead member had <\/p>\n
    produced   a   certificate   from   the   Hooghly   River   Bridge <\/p>\n
    Commissioner   in   respect   of   Vidyasagar   Setu   Toll   Plaza   which <\/p>\n
    showed that there were eighteen lanes involved in the work under <\/p>\n
    the contract.  The Learned Counsel appearing on behalf of MSRDC <\/p>\n
    has drawn the attention of the Court to the pre-qualification notice <\/p>\n
    issued by the Hoogly River Bridge Commissioner which was to the <\/p>\n
    effect that toll bars will have to be installed at eighteen toll gates of <\/p>\n
    the toll plaza.   Out of the eighteen lanes, one ‘up’ and one ‘down’ <\/p>\n
    lane had been converted into four lanes dedicated for two wheeler <\/p>\n
    traffic for safety and smooth movement.  The position was verified <\/p>\n
                                                           ::: Downloaded on – 09\/06\/2013 16:35:10 :::<\/span>
\n     VBC                                      19                               wp1542.09<\/p>\n
    by the consultants appointed by MSRDC in a second Report dated <\/p>\n
    18 August 2009, as stated in the affidavit in reply.  A site visit was <\/p>\n
    jointly   conducted   together   with   the   representative   of   the <\/p>\n
    Petitioners on 13 August 2009.  MSRDC has stated in its affidavit in <\/p>\n
    reply that in a certificate of October 2008 submitted by the lead <\/p>\n
    member   of   the   consortium   for   the   earlier   tender   of   twenty   six <\/p>\n
    weeks, it had claimed an experience of operating an eighteen lane <\/p>\n
    facility for the Vidyasagar Setu.  Later,  in a subsequent certificate <\/p>\n
    dated 11 August 2009, the experience claimed was of twenty lanes.\n<\/p>\n
    In any event, from October 2008 until August 2009 when the fresh <\/p>\n
    certificate  of  experience  was produced,  the experience  of twenty <\/p>\n
    lanes was for the period of less than one year. The material upon <\/p>\n
    which   reliance   has   been   placed   by   MSRDC   before   the   Court <\/p>\n
    supports the finding of ineligibility of the Petitioners’ consortium.\n<\/p>\n
    This   finding   essentially   turns   upon   an   evaluation   of   facts   by <\/p>\n
    MSRDC.   The conclusion which was drawn by MSRDC cannot be <\/p>\n
    regarded as perverse or contrary to the weight of the evidence on <\/p>\n
    record.   In the exercise of the jurisdiction under Article 226 of the <\/p>\n
    Constitution, this Court would not be justified in reappreciating a <\/p>\n
    determination of fact based upon which an inference of ineligibility <\/p>\n
                                                              ::: Downloaded on – 09\/06\/2013 16:35:10 :::<\/span>
\n     VBC                                       20                               wp1542.09<\/p>\n
    has been drawn.\n<\/p>\n
    13.         Finally, the attention of the Court has been drawn to the <\/p>\n
    fact that on 18 August 2009, the consortium of the Petitioners was <\/p>\n
    intimated   of   its   tender   being   held   to   be   non-responsive.\n<\/p>\n
    Thereupon,   Mr.D.V.   Deshkar,   who   was   the   authorized <\/p>\n
    representative   of   the   consortium     applied   by   his   letter   dated   18 <\/p>\n
    August   2009   for   refund   of   the   earnest   money   deposit   of   Rs.105 <\/p>\n
    crores and Envelope 2 containing a financial   bid.     By the letter, <\/p>\n
    MSRDC was requested to issue a demand draft or cheque towards <\/p>\n
    refund of the EMD, in favour of the First Petitioner.   Accordingly <\/p>\n
    EMD of Rs.105 crores was returned to an authorized representative <\/p>\n
    on 18 August 2009 together with the financial bid.          Once the <\/p>\n
    financial   bid   was   returned   on   the   request   of   the   authorized <\/p>\n
    representative together with the earnest money deposit,   no valid <\/p>\n
    bid   remained   in the field.     This petition has been instituted by <\/p>\n
    two members of the consortium. SMS Infrastructure Ltd., the lead <\/p>\n
    member has not  joined in the Petition.\n<\/p>\n
    14.         It   was   urged   on   behalf   of   the   Petitioners   that   the <\/p>\n
                                                               ::: Downloaded on – 09\/06\/2013 16:35:10 :::<\/span>
\n     VBC                                      21                               wp1542.09<\/p>\n
    Consultants   had   underestimated   the   revenue   realization.     The <\/p>\n
    Consultants,   while   computing   the   estimated   concession   period <\/p>\n
    adopted an IRR of 11.50% and a 5% traffic growth rate.   On this <\/p>\n
    basis, the concession period was worked out as fifteen years.   We <\/p>\n
    do not propose to examine the contentions assailing the working <\/p>\n
    out of the period by the Consultants, which was done on the basis <\/p>\n
    of   upfront   payment   of   only   Rs.1350   crores   to   be   made   within <\/p>\n
    ninety days of acceptance and the rest to be paid over a period of <\/p>\n
    2-3 years.  Now that Respondent No.3 has agreed to pay the entire <\/p>\n
    amount of Rs.2100 crores within ninety days, the contention pales <\/p>\n
    into insignificance. In any event due consideration would now be <\/p>\n
    given to the circumstance that the Third Respondent has agreed to <\/p>\n
    make a payment of the entire amount of Rs.2100 crores upfront, <\/p>\n
    while reducing the concession period to sixteen years.\n<\/p>\n
    15.         For these reasons, we are of the view that MSRDC was <\/p>\n
    justified in coming to the conclusion that the bid submitted by the <\/p>\n
    Petitioners was not responsive on the ground that it did not meet <\/p>\n
    the   eligibility   criteria.     That   apart,   upon   the   communication   of <\/p>\n
    ineligibility by  MSRDC, the earnest money deposit was withdrawn <\/p>\n
                                                              ::: Downloaded on – 09\/06\/2013 16:35:10 :::<\/span>
\n     VBC                                         22                                wp1542.09<\/p>\n
    and the financial bid was returned.     The plea which was urged <\/p>\n
    before the Court at the hearing was that if the financial bid of the <\/p>\n
    Petitioners   were   to   be   opened,   it   would   be   found   to   be   more <\/p>\n
    favourable,   in   terms   of   the   period   of   concession,     than   the   bid <\/p>\n
    which has been accepted. The submission  is lacking in substance.\n<\/p>\n
    Such an argument would have been open to a bidder who  is found <\/p>\n
    to   be   eligible   and   who   had   a   grievance   about   the   award   of   the <\/p>\n
    contract.     A   bidder   who   does   not   meet   the   eligibility   criteria, <\/p>\n
    cannot complain of the award of the contract on the ground that its <\/p>\n
    financial   bid   offers   better   terms.     The   question   of   comparing <\/p>\n
    financial bids arises as between  bidders who are eligible.  The bid <\/p>\n
    submitted   by   the   Petitioners     was   non-responsive   since   the <\/p>\n
    Petitioners   did   not   fulfill   the   conditions   of   eligibility.     There   is <\/p>\n
    hence no merit in the submission.\n<\/p>\n
    16.          While we find that there is no substance in the petition, <\/p>\n
    for the reasons  noted earlier, Learned Senior Counsel appearing on <\/p>\n
    behalf of the Third Respondent  stated that the Third Respondent is <\/p>\n
    ready   and  willing   to   pay   the   entire   contract   amount   of   Rs.2100 <\/p>\n
    crores   upfront   within   ninety   days   from   the   date   of   the   letter   of <\/p>\n
                                                                  ::: Downloaded on – 09\/06\/2013 16:35:10 :::<\/span>
\n     VBC                                    23                                wp1542.09<\/p>\n
    acceptance of MSRDC and the Third Respondent has reduced the <\/p>\n
    concession period from 16 years 11 months 27 days to 16 years.\n<\/p>\n
    We record that statement.\n<\/p>\n
    17.       For the reasons aforesaid, we do not find any merit in <\/p>\n
    the Petition.  The Petition is accordingly dismissed.\n<\/p>\n
                                                             CHIEF JUSTICE<\/p>\n
                                                          (DR.D.Y.CHANDRACHUD, J.)<\/p>\n
                                                            ::: Downloaded on – 09\/06\/2013 16:35:10 :::<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Reliance Infrastructure Limited vs Maharashtra State Road … on 28 October, 2010 Bench: Dr. D.Y. Chandrachud VBC 1 wp1542.09 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O. O. C. J. WRIT PETITION NO.1542 OF 2009 1. Reliance Infrastructure Limited, a Company registered under the Companies Act, 1956, having its Registered Office […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-3711","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nReliance Infrastructure Limited vs Maharashtra State Road ... on 28 October, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/reliance-infrastructure-limited-vs-maharashtra-state-road-on-28-october-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Reliance Infrastructure Limited vs Maharashtra State Road ... on 28 October, 2010 - 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