w w w . L a w y e r S e r v i c e s . i n



MEP Infrastructure Developers Ltd. & Another v/s HRBC & Others


Company & Directors' Information:- MEP INFRASTRUCTURE PRIVATE LIMITED [Active] CIN = U45203MH2010PTC199329

Company & Directors' Information:- MEP INFRASTRUCTURE DEVELOPERS LIMITED [Active] CIN = L45200MH2002PLC136779

Company & Directors' Information:- G K S INFRASTRUCTURE LIMITED [Active] CIN = L45400DL1985PLC021038

Company & Directors' Information:- K D P INFRASTRUCTURE PRIVATE LIMITED [Active] CIN = U74899DL1993PTC054780

Company & Directors' Information:- C INFRASTRUCTURE CORPORATION LIMITED [Strike Off] CIN = U61100DL1982PLC013968

Company & Directors' Information:- B & G INFRASTRUCTURE COMPANY PRIVATE LIMITED [Active] CIN = U40105TN2001PTC047408

Company & Directors' Information:- Y T INFRASTRUCTURE PRIVATE LIMITED [Active] CIN = U45202MH2010PTC206409

Company & Directors' Information:- J K INFRASTRUCTURE DEVELOPERS PRIVATE LIMITED [Active] CIN = U74899DL1995PTC067965

Company & Directors' Information:- N K B INFRASTRUCTURE PRIVATE LIMITED [Active] CIN = U45200HR2011PTC042402

Company & Directors' Information:- D J INFRASTRUCTURE DEVELOPERS PRIVATE LIMITED [Active] CIN = U45201DL2005PTC141730

Company & Directors' Information:- U C C INFRASTRUCTURE PRIVATE LIMITED [Active] CIN = U45201MH2003PTC139844

Company & Directors' Information:- L K INFRASTRUCTURE PRIVATE LIMITED [Active] CIN = U45400MH2010PTC203711

Company & Directors' Information:- B N A INFRASTRUCTURE PRIVATE LIMITED [Active] CIN = U45201MH2006PTC163769

Company & Directors' Information:- S K J INFRASTRUCTURE PRIVATE LIMITED [Active] CIN = U45102MH2001PTC131284

Company & Directors' Information:- V P M INFRASTRUCTURE PRIVATE LIMITED [Strike Off] CIN = U45400TN2011PTC082368

Company & Directors' Information:- MEP INDIA PRIVATE LIMITED [Active] CIN = U74140DL2010FTC309544

Company & Directors' Information:- MEP INDIA PRIVATE LIMITED [Active] CIN = U74140HR2010FTC041343

Company & Directors' Information:- K INFRASTRUCTURE PRIVATE LIMITED [Active] CIN = U45201GJ2009PTC056299

Company & Directors' Information:- E K INFRASTRUCTURE PRIVATE LIMITED [Active] CIN = U45200TN2008PTC066962

Company & Directors' Information:- K L N INFRASTRUCTURE PRIVATE LIMITED [Active] CIN = U70100KA2013PTC070361

Company & Directors' Information:- C P INFRASTRUCTURE PVT LTD [Active] CIN = U45201DL2005PTC143865

Company & Directors' Information:- G. R. INFRASTRUCTURE PRIVATE LIMITED [Active] CIN = U45200MH2005PTC152633

Company & Directors' Information:- K. J. INFRASTRUCTURE PRIVATE LIMITED [Active] CIN = U45201MH2006PTC165014

Company & Directors' Information:- B S Y INFRASTRUCTURE PRIVATE LIMITED. [Active] CIN = U70101HR2006PTC064456

Company & Directors' Information:- G B K INFRASTRUCTURE PRIVATE LIMITED [Active] CIN = U45202MH2008PTC177202

Company & Directors' Information:- G K INFRASTRUCTURE PRIVATE LIMITED [Strike Off] CIN = U45200GJ2005PTC046213

Company & Directors' Information:- G S M INFRASTRUCTURE PRIVATE LIMITED [Active] CIN = U45201DL2004PTC125377

Company & Directors' Information:- V K M INFRASTRUCTURE PRIVATE LIMITED [Active] CIN = U45400UP2008PTC034606

Company & Directors' Information:- A V INFRASTRUCTURE PRIVATE LIMITED [Active] CIN = U45203WB2006PTC111599

Company & Directors' Information:- B. N. S. INFRASTRUCTURE PRIVATE LIMITED [Strike Off] CIN = U45400MH2010PTC206202

Company & Directors' Information:- B G M INFRASTRUCTURE PRIVATE LIMITED [Active] CIN = U45400WB2011PTC162415

Company & Directors' Information:- S M V INFRASTRUCTURE PRIVATE LIMITED [Active] CIN = U45200DL2006PTC155016

Company & Directors' Information:- K B S INFRASTRUCTURE PRIVATE LIMITED [Active] CIN = U70101DL2005PTC136641

Company & Directors' Information:- D L H INFRASTRUCTURE PRIVATE LIMITED [Active] CIN = U52600JH2010PTC014524

Company & Directors' Information:- S N N INFRASTRUCTURE PRIVATE LIMITED [Active] CIN = U45202KA2011PTC059893

Company & Directors' Information:- G. V. INFRASTRUCTURE PRIVATE LIMITED [Active] CIN = U45400DL2012PTC234078

Company & Directors' Information:- S A P INFRASTRUCTURE PRIVATE LIMITED [Active] CIN = U45201DL2005PTC141285

Company & Directors' Information:- K S K INFRASTRUCTURE PRIVATE LIMITED [Strike Off] CIN = U45400DL2008PTC175908

Company & Directors' Information:- N P L INFRASTRUCTURE PRIVATE LIMITED [Active] CIN = U45400CH2009PTC031638

Company & Directors' Information:- P A S INFRASTRUCTURE PRIVATE LIMITED [Active] CIN = U45200DL2006PTC155015

Company & Directors' Information:- G S T INFRASTRUCTURE PRIVATE LIMITED [Active] CIN = U45200MH2006PTC160073

Company & Directors' Information:- S B M INFRASTRUCTURE LIMITED [Active] CIN = U70102CH1992PLC012381

Company & Directors' Information:- P S INFRASTRUCTURE AND DEVELOPERS PRIVATE LIMITED [Active] CIN = U45201DL1996PTC081337

Company & Directors' Information:- G M INFRASTRUCTURE AND DEVELOPERS PRIVATE LIMITED [Active] CIN = U45201DL1996PTC081739

Company & Directors' Information:- I V M INFRASTRUCTURE PRIVATE LIMITED [Active] CIN = U45209TG2011PTC073968

Company & Directors' Information:- C. I. INFRASTRUCTURE PRIVATE LIMITED [Active] CIN = U45203MP2005PTC018149

Company & Directors' Information:- S G INFRASTRUCTURE PRIVATE LIMITED [Active] CIN = U45201RJ1999PTC015467

Company & Directors' Information:- J N INFRASTRUCTURE PRIVATE LIMITED [Active] CIN = U45201OR2008PTC009789

Company & Directors' Information:- K C INFRASTRUCTURE PRIVATE LIMITED [Active] CIN = U45200PB2008PTC032011

Company & Directors' Information:- L V S INFRASTRUCTURE PRIVATE LIMITED [Active] CIN = U45200TG2006PTC051289

Company & Directors' Information:- V H B INFRASTRUCTURE PRIVATE LIMITED [Strike Off] CIN = U45400DL2008PTC172682

Company & Directors' Information:- G A V INFRASTRUCTURE PRIVATE LIMITED [Active] CIN = U74999DL2007PTC158113

Company & Directors' Information:- V V S INFRASTRUCTURE PRIVATE LIMITED [Active] CIN = U70100KA2015PTC084214

Company & Directors' Information:- K V J INFRASTRUCTURE DEVELOPERS PRIVATE LIMITED [Strike Off] CIN = U45200KL2010PTC026669

Company & Directors' Information:- G. H. INFRASTRUCTURE PRIVATE LIMITED [Active] CIN = U45309UP2020PTC126090

Company & Directors' Information:- L R INFRASTRUCTURE PRIVATE LIMITED [Active] CIN = U45402TN2007PTC064029

Company & Directors' Information:- A R K INFRASTRUCTURE INDIA PRIVATE LIMITED [Strike Off] CIN = U74900TG2015PTC100714

Company & Directors' Information:- B K INFRASTRUCTURE PRIVATE LIMITED [Strike Off] CIN = U45201DL2005PTC136992

Company & Directors' Information:- R A INFRASTRUCTURE PRIVATE LIMITED [Active] CIN = U74899DL2005PTC143884

Company & Directors' Information:- C. A. D. INFRASTRUCTURE INDIA PRIVATE LIMITED [Strike Off] CIN = U45201MP1997PTC012280

Company & Directors' Information:- R. S. V. INFRASTRUCTURE PRIVATE LIMITED [Strike Off] CIN = U70100WB2008PTC127373

Company & Directors' Information:- C D E INFRASTRUCTURE PRIVATE LIMITED [Active] CIN = U45201MH2012PTC235483

Company & Directors' Information:- D B G INFRASTRUCTURE (INDIA) PRIVATE LIMITED [Strike Off] CIN = U45209PN2010PTC137319

Company & Directors' Information:- C & C INFRASTRUCTURE PRIVATE LIMITED [Active] CIN = U74210PN2008PTC133179

Company & Directors' Information:- M N V INFRASTRUCTURE (INDIA) PRIVATE LIMITED [Strike Off] CIN = U45202AN2010PTC000130

Company & Directors' Information:- S P H R INFRASTRUCTURE PVT LTD [Strike Off] CIN = U45209WB2006PTC109280

Company & Directors' Information:- S I S INFRASTRUCTURE PRIVATE LIMITED [Under Process of Striking Off] CIN = U70200DL2014PTC263278

Company & Directors' Information:- A S INFRASTRUCTURE PRIVATE LIMITED [Active] CIN = U70109DL1996PTC084029

Company & Directors' Information:- P G INFRASTRUCTURE PRIVATE LIMITED [Converted to LLP] CIN = U70109DL1996PTC084030

Company & Directors' Information:- B S INFRASTRUCTURE PRIVATE LIMITED [Active] CIN = U70109DL1996PTC084031

Company & Directors' Information:- J B C INFRASTRUCTURE PRIVATE LIMITED [Strike Off] CIN = U45203PN1998PTC112753

Company & Directors' Information:- R L E S INFRASTRUCTURE PRIVATE LIMITED [Strike Off] CIN = U45309TN2008PTC069251

Company & Directors' Information:- H. G. INFRASTRUCTURE PRIVATE LIMITED [Strike Off] CIN = U45201GJ2007PTC049740

Company & Directors' Information:- G L INFRASTRUCTURE PRIVATE LIMITED [Active] CIN = U45201GJ2007PTC050660

Company & Directors' Information:- M I J INFRASTRUCTURE PRIVATE LIMITED [Strike Off] CIN = U45201DL2004PTC125213

Company & Directors' Information:- S B H INFRASTRUCTURE PRIVATE LIMITED [Active] CIN = U60231MH2011PTC217039

Company & Directors' Information:- S & O INFRASTRUCTURE PRIVATE LIMITED [Active] CIN = U45400MH2011PTC214034

Company & Directors' Information:- D P S INFRASTRUCTURE PRIVATE LIMITED [Strike Off] CIN = U45200MH2006PTC159955

Company & Directors' Information:- T S A INFRASTRUCTURE PRIVATE LIMITED [Active] CIN = U45400UP2014PTC065137

Company & Directors' Information:- V B G INFRASTRUCTURE PRIVATE LIMITED [Strike Off] CIN = U70100TG2010PTC069278

Company & Directors' Information:- M N C INFRASTRUCTURE PRIVATE LIMITED [Active] CIN = U45209TG2011PTC077524

Company & Directors' Information:- R S S N INFRASTRUCTURE DEVELOPERS PRIVATE LIMITED [Active] CIN = U70100UP2014PTC063165

Company & Directors' Information:- M I T INFRASTRUCTURE PRIVATE LIMITED [Strike Off] CIN = U45400DL2008PTC180830

Company & Directors' Information:- K K S INFRASTRUCTURE PRIVATE LIMITED [Strike Off] CIN = U74999DL2007PTC159678

Company & Directors' Information:- I K INFRASTRUCTURE PRIVATE LIMITED [Active] CIN = U45201DL2005PTC135711

Company & Directors' Information:- A J S INFRASTRUCTURE PRIVATE LIMITED [Active] CIN = U45201DL2005PTC140640

Company & Directors' Information:- M R INFRASTRUCTURE PRIVATE LIMITED [Strike Off] CIN = U45201DL2005PTC143565

Company & Directors' Information:- K W INFRASTRUCTURE PRIVATE LIMITED [Strike Off] CIN = U70102DL2011PTC224462

Company & Directors' Information:- A S M INFRASTRUCTURE PRIVATE LIMITED [Active] CIN = U70102DL2015PTC279049

Company & Directors' Information:- J V B INFRASTRUCTURE PRIVATE LIMITED [Active] CIN = U70102DL2015PTC283560

Company & Directors' Information:- A K S T INFRASTRUCTURE PRIVATE LIMITED [Strike Off] CIN = U70109DL2012PTC236675

Company & Directors' Information:- H V INFRASTRUCTURE PRIVATE LIMITED [Active] CIN = U45200DL2007PTC158234

Company & Directors' Information:- B P M INFRASTRUCTURE PRIVATE LIMITED [Strike Off] CIN = U45200DL2008PTC179121

Company & Directors' Information:- M & H INFRASTRUCTURE PRIVATE LIMITED [Active] CIN = U80904DL2007PTC166303

Company & Directors' Information:- S AND Y INFRASTRUCTURE PRIVATE LIMITED [Active] CIN = U45200MP2013PTC031382

Company & Directors' Information:- P V R N INFRASTRUCTURE PRIVATE LIMITED [Active] CIN = U45400HR2010PTC040311

Company & Directors' Information:- C D INFRASTRUCTURE PRIVATE LIMITED [Strike Off] CIN = U74900HR2007PTC037175

Company & Directors' Information:- R J S INFRASTRUCTURE PRIVATE LIMITED [Strike Off] CIN = U45201GJ2009PTC055941

Company & Directors' Information:- B R B INFRASTRUCTURE PRIVATE LIMITED [Strike Off] CIN = U45201GJ2008PTC053682

Company & Directors' Information:- B. R. INFRASTRUCTURE PRIVATE LIMITED [Strike Off] CIN = U45201GJ2008PTC054103

Company & Directors' Information:- S K J K INFRASTRUCTURE DEVELOPERS PRIVATE LIMITED [Active] CIN = U45200KL2015PTC039701

Company & Directors' Information:- J S INFRASTRUCTURE PRIVATE LIMITED [Strike Off] CIN = U45203GJ2003PTC042641

Company & Directors' Information:- A AND H INFRASTRUCTURE LIMITED [Strike Off] CIN = U45203MH1998PLC117368

Company & Directors' Information:- D L C INFRASTRUCTURE PRIVATE LIMITED [Strike Off] CIN = U45201PB2007PTC031022

    M.A.T. No. 638 of 2019 with C.A.N. No. 4665 of 2019

    Decided On, 25 July 2019

    At, High Court of Judicature at Calcutta

    By, THE HONOURABLE CHIEF JUSTICE MR. THOTTATHIL B. RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE ARIJIT BANERJEE

    For the Appearing Parties: Anindya Kr. Mitra, Jaydeep Kar, Sr. Advocates, Abhrotosh Majumder, Addl. Advocate General, Amitesh Banerjee, Ld. Sr. Standing Counsel, Jayanta Sengupta, Sagnik Basu, D. Khan, Debasis Ghosh, Satadeep Bhattacharya, Saptarshi Mukherjee, Uttam Sharma, Tarak Karan, Advocates.



Judgment Text

Arijit Banerjee, J.

1. This is an appeal against the Judgment and order dated 11 April, 2019 passed by a learned Single Judge whereby the appellant's writ petition was dismissed. In a tender process pertaining to collection of toll at Vidyasagar Setu (Second Hooghly Bridge), the private respondent was the highest bidder (H-1) and the appellant no. 1 was the second highest bidder (H-2). The appellants approached the learned Single Judge contending that the private respondent did not meet the Technical Criteria as mentioned in the notice inviting tender and hence the Authorities should be restrained from awarding the contract to it. The learned Single Judge negated such contention of the appellant.

2. The brief facts of the case are that a notice dated 6 March, 2019 inviting E-Bid for collection of toll at Vidyasagar Setu, Kolkata including handling operation, maintenance, renewing and renovation and upgrading of existing electronically operated Toll Collection system as per requirement was issued by the Hooghly River Bridge Commissioner (in short, "HRBC"). The Technical Criteria stipulated in such notice were to the following effect:

"5.1. Technical Criteria a. The bidder must have minimum 4(four) years experience of operating Toll Bridges and/or Toll Roads.

b. The bidder must have experience of operation of a Toll bridge or Toll road having at least 10(ten) lanes preferably with provision of at least 2(two) reversible lanes with fully electronically operated Toll Collection system at single location in India, involving collection of toll fees from vehicles only.

c. The bidder shall have experience of handling minimum 50,000 (fifty thousand) vehicles per day in any single Toll Bridge/ Toll Road at a single location in India. d. The amount of average annual toll collection made should be at least Rs. 50(fifty) crore for the last 3(three) years in all locations in India ending on 31st March, 2018. The supporting document is to be submitted duly certified by Chartered Accountant. The Bidders should submit appropriate Credential Certificate from the competent authority in support of all the above technical criteria."

3. In the tender process the private respondent emerged as the highest bidder (H-1). The appellant no. 1 (in short, "MEP") became the second highest bidder (H-2) .

4. The appellants approached the learned Single Judge by way of a writ petition praying for essentially a writ of or in the nature of mandamus commanding the respondent authorities to hold that the private respondent did not have eligibility criteria and to allot the contract in favour of MEP. Cancellation of the subject tender was also sought for.

5. On behalf of the appellants two points were urged before the learned Single Judge as also before us.

6. Firstly, it was urged that the private respondent does not have experience of handling minimum 50,000 vehicles per day in any single Toll Bridge/ Toll Road at a single location in India. In effect, learned Senior Counsel for the appellants argued that requisite experience for a minimum period of four years as envisaged by clause 5.1(a) must be read into clause 5.1(c). Secondly, it was submitted that the Central Vigilance Council (CVC) guidelines have been flouted. The said guidelines required the authorities to evaluate the tender documents in the presence of the tenderers in order to maintain transparency. The appellants received a message through Short Message Service (SMS) from the respondents to the effect that they would be opening the tender offers at a certain point of time. The SMS was received 10 (ten) minutes before such opening. This was deliberately done to keep the appellants out of the loop at the time of opening and evaluation of the tenders. The entire tender process stands vitiated by reason of non-compliance with the CVC guidelines.

7. Learned Additional Advocate General appearing for HRBC submitted that the authorities are at liberty to interpret the terms and conditions of the tender process and so long as such interpretation is not perverse and are applied to all bidders uniformly, the Writ Court would be slow to interfere. He submitted that clause 5.1 contemplates two different time periods i.e. four years for clause (a) and three years for clause (d). Clauses (b) and (c) do not contemplate any particular time period. In other words, the experience that a bidder is required to have under clauses (b) and (c) need not be for any specified period of time. There is no reason to read into clauses (b) or (c) the four years time period that has been specified in clause (a). The authorities have interpreted clauses (b) and (c) to mean that the experience contemplated therein should be for a reasonable period of time.

8. As regards alleged violation of the CVC guidelines, learned Additional Advocate General submitted that the CVC guidelines apply to Central Government and Public Sector Undertakings and are not attracted in the facts of the present case. The time line prescribed in the tender process was strictly followed. The evaluation process was undertaken online. The appellants had adequate notice of commencement of the evaluation process online and nothing prevented them from participating in such process. There was no lack of transparency in the evaluation process.

9. We have carefully considered the rival contentions of the parties.

10. The eligibility criteria (clause 5.1) stipulated time periods. The first sub-clause required a bidder to have minimum four years' experience of operating Toll Bridges/ Toll Roads. The fourth sub-clause stipulates that for the last three years ending on 31 March, 2018 the average annual toll collection made by the bidder should be at least Rs. 50 crores in all locations in India. Sub-clauses (b) and (c) do not mention any minimum time period for which the bidder must have experience of matters stated in the said sub-clauses.

11. We are of the considered view that there is no warrant for reading the four years time period specified in clause (a) into clauses (b) or (c). The clauses are disjunctive and not conjunctive. The word "and" is conspicuous by its absence in between the four sub-clauses. The respondent authorities did not interpret sub-clause (c) as requiring a bidder to have the experience of handling minimum 50,000 vehicles per day in any single Toll Bridge/ Toll Road at a single location in India for a period of four years. All that the authorities wanted to ensure, as we understand, is that the bidder is capable of handling at least 50,000 vehicles per day in any single Toll Bridge/ Toll Road and that it /he has such experience for a reasonable period of time. This was also the submission of the learned Additional Advocate General. The learned Single Judge rightly held that the interpretation given by the authorities is a plausible one and there is nothing to suggest that the respondents did not apply such interpretation uniformly across all tenderers. The private respondent produced before the authorities certificate issued by the National Highways Authority of India (NHAI) to the effect that it was capable of handling minimum 50,000 vehicles per day at a single Toll Bridge/Toll Road. The learned Single Judge further held that the interpretation given by the official respondents to sub- clause (c) does not militate against any of the clauses of the eligibility criteria and there is nothing perverse about such interpretation. We are in complete agreement with the views of the learned Single Judge.

12. Further, as the learned Additional Advocate General rightly submitted, the respondent authorities being the authors of the tender documents, their interpretation and understanding of the terms and conditions contained in such documents should be duly respected. There is no doubt in our mind that in case of commercial tenders, the authorities floating a tender are in the best position to decide how to construe a term of the tender or what meaning is to be ascribed thereto. In a particular case the Writ Court may not agree with the interpretation of a term of a tender by the authority issuing such tender, but that per se would not be a ground for the Writ Court to substitute the authority's interpretation with the Court's interpretation. While exercising the high prerogative writ jurisdiction under Article 226 of the Constitution, the High Court does not function as an Appellate Court. In this connection, one may refer to the decision of the Apex Court in the case of Afcons Infrastructure Ltd. - vs.-Nagpur Metro Rail Corporation Ltd. & Anr. reported in (2016) 16 SCC 818, wherein at paragraph 15 of the reported judgment it has been observed as follows:

"We may add that the owner or the employer of a project, having authored the tender documents, is the best person to understand and appreciate its requirements and interpret its documents. The constitutional courts must defer to this understanding and appreciation of the tender documents, unless there is mala fide or perversity in the understanding or appreciation or in the application of the terms of the tender conditions. It is possible that the owner or employer of a project may give an interpretation to the tender documents that is not acceptable to the constitutional courts but that by itself is not a reason for interfering with the interpretation given."

13. In so far as the CVC guidelines are concerned, even assuming that the same apply to the facts of this case, we do not see that the same have been violated in any manner. Clause 11 of the tender document prescribes a time frame for undertaking the different steps in the tender process. The learned Single Judge has noted such time schedule and has come to the conclusion that admittedly the appellants/writ petitioners received an SMS that the bid was going to be opened on 30 March, 2019 at 1 P.M. No case has been made out by the appellants nor is there any material to suggest that the appellants could not log on to the concerned website and participate in the tender opening and evaluation process. It is not the case of the appellants that they did not have access to internet service. They were aware that as per the tender document the bids were to be opened for technical purpose on 30 March, 2019 at 1 P.M. The appellants should have been prepared by logging on to the website to participate in the process. We do not find from the materials on record that the appellants were prevented from participating in the evaluation process by any reason which can be attributed to the respondent authorities. We do not find any lack of transparency in the process of

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opening or evaluation of the bids. 14. Before concluding we repeat that the Writ Court while exercising the power of judicial review does not sit in appeal over the decision which is under challenge before it. As is frequently said, the Writ Court is not concerned with the decision but is concerned with the decision making process. We do not find any irregularity, infirmity, arbitrariness or perversity in the decision making process that is under challenge in the present proceeding. The learned Single Judge rightly dismissed the writ petition. We affirm the judgment and order of the learned Single Judge. Consequently, this appeal fails and is dismissed along with the connected application. The interim order that is subsisting stands vacated. There will be no order as to costs. 15. Urgent certified photocopy of this judgment and order, if applied for, be given to the parties upon compliance of necessary formalities. I agree. Thottathil B. Radhakrishnan, C.J. Later, On pronouncement of the judgment, learned counsel for the appellants sought for an order of stay of the operation of the judgment. The prayer is considered and rejected.
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