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TMI Blog2006 (12) TMI 521X X X X Extracts X X X X X X X X Extracts X X X X ..... en exercised by the Executive Committee in rejecting the tender. The power has been exercised by the Authority in cancelling the tenders so as to enable it to have a re-look of the entire project. Some reasons may be required to be assigned for rejecting the bid, but in the instant case, in our opinion, no reason was required to be assigned as there has been a change in the policy decision. The news item appearing in the Economic Times is not of much significance. No affidavit has been affirmed as regards the correctness or otherwise of the said news item. may be true that the Authorities at one point of time, as was disclosed in the Counter Affidavit, had thought of setting up a Convention center of their own and without any private participation, but only because there has been a deviation from the said stand would not, in our considered opinion, render the entire policy decision vitiated in law. It had set up its Evaluation Committee. The decision presumably has been reached by experts. The reasons as regards purported unsatisfactory performance of Appellants, take a back seat once having a re-look to the entire situation was thought of. It is not a case where the Court is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Authority would be violative of the provisions of the Act or any master plan, the same cannot be entertained The question, however, is left open. Thus, there is no merit in these appeals, which are accordingly dismissed. - Hon'ble Judges S.B. Sinha and Dalveer Bhandari, JJ. For Appellant : R.F. Nariman and Abhishek Manu Singhvi, Sr. Advs., P.N. Gupta, H. Devarajan and N.V. Vimadalal, Advs For Respondents : Shekhar Naphade, Harish Salve and Milind Sathe, Sr. Advs., Ajit S. Bhasme, Ravindra Keshavrao Adsure, Atul S. Dayal, K.R. Sasiprabhu, Ashwin Dave, Meenakshi Grover and Chandrachud, Advs. JUDGMENT S.B. Sinha, J. 1. Leave granted. 2. The Mumbai Metropolitan Region Development Authority (for short, the Authority') was created under the Mumbai Metropolitan Region Development Authority Act, 1974 ('the Act'). It conceptualized the idea of establishing a Convention and Exhibition center ('C EC). Pursuant thereto and in furtherance thereof it called for Expression of Interest for development of C EC in Bandra Kurla Complex. An advertisement was issued inviting 'Expression of Interest for development of C EC'. Appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The Authority, however, took a decision to reject all the bids on 1.9.2003, which was said to have been communicated to Appellants by a fax message on 22.10.2003. 5. Allegedly, the news item appeared in the 'Economic Times' on 2.10.2003, wherein, inter alia, it was reported that: a) The Authority is close to finalizing the much talked about Convention center in Bandra Kurla Complex. b) An official of the Authority had stated that they were trying to get private participation and three bidders had been finalized and in a few days the plans for the center would be finalized in an area of 5.5 hectares. 6. Appellant issued a letter to the Chairman of the Authority, in terms whereof he was, inter alia, informed that the project would start getting yield only after 12 years from the date of commencement thereof. It was furthermore informed that its consortium members included L T and IMAG. It was contended: i) The company has offered highest bid price for the land at BKC for a reserved plot for C EC since the company is interested in bringing up an international standard Exhibition center, a long over-due infrastructure asset for a city like Mumbai in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the power was conferred by the terms of the contract. b) the authorities acted reasonably and fairly and have now reached a decision to set up the convention center on their own without any private participation. c) By virtue of Sections 12(1)(b)(d) and (h) and the power to issue directions under Section 14 of the Act, it could, at any stage, review any decision including the decision of the executive committee and direct either rejection of all bids or issuance of fresh bids. 9. The writ petition filed by Appellants was dismissed by the High Court holding: A. the Executive Committee is not the sole judge in matters of approval or rejection of tenders for projects and schemes of the authorities. B. In view of Sections 12, 13, 14 and other provisions of the Chapter, the power of the Authority cannot be whittled down or restricted. C. It being the authority entitled to acquire, hold and dispose of the property it cannot be said that its power in such mattes will not include the power to reject a tender or bid which is invited for projects and schemes framed by it. D. In exercise of the powers under Article 226 it could not act as an Appellate Author ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs pertain to the construction of a Convention-cum-Exhibition center and commercial complex at Bandra Kurla, Mumbai. The petitioner before us is the unsuccessful bidder who has challenged the action of the Mumbai Metropolitan Region Development Authority (MMRDA) cancelling all the bids at an earlier stage. Despite the application made by the petitioner, we declined to grant injunction in the matter. As a result, MMRDA re-tendered and we are informed that the highest bid was by Reliance Industries Limited, which is said to have been granted the contract and paid a sum of Rs. 552 crores. The petitioner desires to demonstrate to this Court (a) that the bid was cancelled by the MMRDA, which had no jurisdiction to do so under the Act; and (b) that there was mala fides in cancelling all the bids as it was intended to engineer the re-tendering process to favour the party who has now succeeded. To demonstrate his bona fides, the petitioner's counsel states that the petitioner would not only match the bid of the presently successful party only for the Convention center, but that he would also pay the amount at one go instead of paying it over a period of time. We are informed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its Chairman and Metropolitan Commissioner. Section 7 provides for constitution and powers of Executive Committee. Clause (iii) of Sub-section (3) of Section 7 reads as under: 7 (3)(iii) approval or rejection of tenders for projects and schemes of the Authority; Section 12 of the Act provides for powers and functions of the Authority. Clause (b) of Sub-section (1) of Section 12 deals with the power of reviewing any project or scheme for development which may be proposed or may be in the course of execution or may be completed in the Metropolitan Region. Clause (d) thereof refers to execution of projects and schemes and Clause (h) provides for co-ordination in execution of the project or schemes for the development of the Metropolitan Region. Pursuant to or in furtherance of its regulation making power contained in Section 50 of the Act, regulations were framed by the Authority, known as the Mumbai Metropolitan Region Development Authority (Disposal of Land) Regulations, 1977 (Regulations). Regulations 7 and 9 of the Regulations are as under: 7. Disposal of land by offers to Government, Local Authority or Public Sector Undertaking Where the Authority determines to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proximately 35,750 sq.m. of built up area which will be reckoned as 44,525 sq.m. for computation of FSI after allowing for height in excess of 4.20 m. for exhibitions areas. In Phase II there is a provision of a further 10,650 sq.m. of built up area (which will be reckoned as 15,975 sq.m for computation of FSI for Exhibition areas having height in excess of 4.20 m) that is to be used for further expansion of exhibition areas having at least 2 additional exhibition halls having an area of 5000 sq.m. each. The total built-up area comes to about 60,500 sq.m. 16. Provision of Convention Auditorium was made in Clause 5.3. Clause 7 provides for submission and evaluation of bids stating that interested parties shall submit their bids in three separate sealed covers: (1) Cover 1 should contain compliance in regard to minimum eligibility criteria. Evaluation of minimum eligibility criteria is contained in Clause 7.15 in the following terms: 7.15 The objective of the minimum eligibility criteria is to short list Bidders who have: The financial strengths necessary to contribute and/or arrange the funds required to execute the Project in the desired time frame. The tec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Significant Consortium Member, the strengths of which is to be considered for the purpose of evaluation. Clause 7.26 reads as under: 7.26 MMRDA on demand will return unopened Financial Bids and Technical Bids (Covers 2 and 3) of the Bidders who do not comply with the minimum eligibility criteria. Step 2 (Cover 2) provides for financial bid. Clause 7.30 provides for methodology for evaluation of bids. Clause 7.30 deals with the manner in which the bids would be dealt with. Clause 7.34 provides for technical and business proposal evaluation criteria. Clauses 7.38 and 7.39 are as under: 7.38 In evaluating the Business Proposal, MMRDA reserves the right to seek clarifications from the Bidders. The Bidders shall be required to furnish such clarifications. 7.39 The Technical and Business Proposal of only the Rank 1 bidder will be opened. He may also be requested to make a presentation at his own cost, for clarifications and additional information on bidder's capability, concept plan and the business proposal in this regard to the evaluation committee appointed by the Metropolitan Commissioner, MMRDA. The Committee may seek further clarificat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion that the power of the Vice Chancellor to regulate work also included the power to initiate disciplinary action, stating: This takes us to the second contention urged for the appellants. The contention relates to the legal effect of ratification done by the Executive Council in its meeting held on December 26/27, 1985. The decision taken by the Executive Council is in the form of a resolution and it reads as follows: Considering the issues, the Executive Council resolved as follows: 1. The Executive Council at its meeting held on 22-3-1979, had by a resolution given full authority to the Vice-Chancellor for taking further proceedings and decision in both the cases of the defaulting officers. 2. In exercise of above authority, the Vice-Chancellor appointed an inquiry Officer and as suggested by the Inquiry Officer issued show-cause notices, obtained replies from the officers and lastly issued orders for terminating their services; * * * It was further resolved that-- (i) There has been no inadequacy in the proceedings against both the officers; (ii) The punishment ordered against both the officers is commensurate with the defaults and alleg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty, obscurity, or inconsistency therein and not otherwise. An effort must be made to give effect to all parts of statute and unless absolutely necessary, no part thereof shall be rendered surplusage or redundant. We fail to understand as to how the principle laid down therein can be said to have been violated. 23. Reliance has also been placed on State of Uttar Pradesh v. Sinshara Singh and Ors. [1964]4SCR485 , wherein this Court quoted with approval the decision in Taylor v. Taylor [1875] 1 C. D. 426 for the proposition that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all and that other methods of performance are necessarily forbidden. There is again no quarrel over the aforementioned proposition of law. Here the Authority has not exercised any power forbidden by law. The Authority has also not exercised its power in the manner which is not in accordance with law. 24. On merit of the matter, Mr. Nariman has pointed out, the distinction between 2002 and 2005 tenders to show that such a policy decision as laid down in the 2005 tender was not in pari material with 2002 tender. The comparison of methodology for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also various other responsible officers. It, while exercising its power under the Act, must necessarily take policy decisions. Whereas under the 2002 tender the bidder had to quote the rate of premium in terms of rupees per square meter of FSI and the total premium separately for C EC and the Real Estate component subject to the condition that the rate quoted for the Real Estate component should be greater than that quoted for the C EC, upon having come to know that the value of the land would be much more, the Authority in the 2005 tender decided that the bidders should be required to quote a fixed rate of 20,000 per sq.m. of built-up area for total built-up area 65,000 sq.m. for Convention Exhibition center. Economic viability of the entire project component, taking into consideration two different components for C EC and the Commercial Complex, could have been taken differently. The premium amount was to be quoted higher than Rs. 350 crores for the Commercial Complex. While exercising its jurisdiction of judicial review, the Court is required to decide the cases before it, keeping the well known principles therefore in mind and having regard to the fact situation obtaining the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of highest offers. That very often involves long stakes and availability of reasons for action on the record assures credibility to the action; disciplines public conduct and improves the culture of accountability. Looking for reasons in support of such action provides an opportunity for an objective review in appropriate cases both by the administrative superior and by the judicial process. The submission of Mr. Dwivedi, therefore, commends itself to our acceptance, namely, that when highest offers of the type in question are rejected reasons sufficient to indicate the stand of the appropriate authority should be made available and ordinarily the same should be communicated to the concerned parties unless there be any specific justification not to do so. 27. In this case, highest offer has not been rejected. A new policy decision has been taken. Question as noticed herein is not as to whether the offer of the Appellants should have been rejected but is as to whether the Authority in law could have altered its policy in regard to disposal of its properties. 'Public Trust Doctrine' was also sought to be invoked by Mr. Nariman against the Authority and in this behalf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y a party merely because it has that power, particularly, when the same can be exercised only on the existence of certain conditions which in the opinion of the Railways are not in the interest of the Railways to accept the offer. 31. We have noticed hereinbefore that power has not been exercised by the Executive Committee in rejecting the tender. The power has been exercised by the Authority in cancelling the tenders so as to enable it to have a re-look of the entire project. Some reasons may be required to be assigned for rejecting the bid, but in the instant case, in our opinion, no reason was required to be assigned as there has been a change in the policy decision. The news item appearing in the Economic Times is not of much significance. No affidavit has been affirmed as regards the correctness or otherwise of the said news item. 32. It may be true that the Authorities at one point of time, as was disclosed in the Counter Affidavit, had thought of setting up a Convention center of their own and without any private participation, but only because there has been a deviation from the said stand would not, in our considered opinion, render the entire policy decision vitiate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AIR1985SC1147 , but it is another thing to say the Court would under all circumstances not allow a play in joint in favour of the employer. However, if the Court in a given situation is not in a position to allow a bid to take place before, it may not still venture to strike down an Act in the name of public interest, although, no such public interest exists. Appellant stated before us that he is ready and willing to take a part of the contract, viz., construction of the C EC and pay the same amount as has been done by Reliance Industries Ltd. and in addition it would pay 2.5% of its annual turnover from the Convention center from the 21st year, as was initially offered. 35. Appellant did not participate in the second bid. The tender process is complete. Before us only a higher bid has been given. We do not intend to enter into the intricacies of the question. Appellants could have submitted its bids pursuant to the new tender and new conditions, even without prejudice to its rights and contentions in this appeal. The stipulations made in 2002 tender could have been repeated by it so as to demonstrate before the experts comprising members of the Executive Committee that its b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ustries Ltd. was very low., now it has offered a bid of Rs. 1104,00,00,111/-. From the chart placed before us it would appear that there had been a stiff computation. The Reliance Industries Ltd. has become the highest bidder, its competitors had taken part in the earlier contracts. No mala fide in accepting the tender has been alleged nor do we find any. 37. We, therefore, in the facts and circumstances of this case and having regard to the subsequent events, are of the opinion that it is not a case where we should interfere with the judgment of the High Court. It, however, would not mean that the Authority or the Executive Committee would not be entitled to take note of the offer of Appellant. It may do so. It would not further mean that if the terms of new tender are violative of the provisions of the master plan, the same would not be suitably dealt with. We merely place on record that we have not gone into the said questions, although raised before us by the learned Counsel for the appellant, simply on the ground that no such plea had been taken before the High Court. In the absence of any plea that the policy decision adopted by the Authority would be violative of the prov ..... X X X X Extracts X X X X X X X X Extracts X X X X
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