JUDGMENT : Anant S. Dave, J. 1. Heard Mr. Sudhir Nanavati, learned Senior Advocate, for the petitioners. 2. Rule. Learned counsel Mr. Satyam Chhaya waives notice of Rule on behalf of respondents. 2.1 With consent of learned counsels for the parties, the petition is taken up for hearing and disposal together. 3. The petitioners have filed this petition invoking extraordinary jurisdiction under Article 226 of the Constitution of India challenging the Tender Conditions; viz. [a] Condition No. 1(i) pertaining to 25% of total vehicles shall have to be owned by bidder with RTO passing year 2015; [b] Condition No. 3 which provides for disqualification if applicant or any of its constituent partners have been debarred or terminated or black listed by any State or Central Government agency; [c] Tenderer must have to submit bank solvency certificate to the extent of Rs. 2.92 crores; [d] Condition No. 10 which provides for 50% of the vehicle shall be owned by bidder for carrying out door to door work for collection of garbage as per notice inviting tender by respondent - AMC for door to door/gate refuse garbage collection and transportation up to refused transfer station/dumping site/treatment plant using own close body vehicles with tipping arrangement including labours in accordance with Solid Waste Management Rules, 2016 for the period of 5 years for Ahmedabad City, as unjust, unreasonable, arbitrary and violative of Articles 14 and 19(1) (g) of the Constitution of India and prayed to quash and set aside the E-Tender Notification issued by respondent No. 2 on 31.12.2016. 3.1 This court by CAV Judgment dated 17.04.2017 disposed of Special Civil Application No. 1994 of 2017 with Special Civil Application No. 1367 of 2017 pertaining to the same subject tender issued by the respondent - AMC. Barring one contention pertaining to disqualification clause under Item No. 3, all other contentions are considered, dealt with and answered. The above reasons, findings and conclusions drawn in the above writ petitions are applicable qua contentions about 50% fleet of vehicles to be owned by the tenderer and registration number of RTO passing of the vehicle as 2015 and furnishing bank solvency to the extent of Rs. 2.92 crores are upheld and declared not onerous or incapable of complying with in the context of magnitude of nature of disposal of waste/garbage in the city of Ahmedabad. 2.92 crores are upheld and declared not onerous or incapable of complying with in the context of magnitude of nature of disposal of waste/garbage in the city of Ahmedabad. This petition is also disposed of qua the above issues for the reasons recorded in CAV Judgment dated 17.04.2017 in Special Civil Application No. 1994 of 2017 and allied matter. 4. Now, we deal with the contention pertaining to disqualification clause in the facts and circumstances of the present case. 5. According to the petitioners, a contract given in favour of petitioner - Trust by Gwalior Municipal Corporation, State of Madhya Pradesh, came to be terminated in the year 2009. The petitioner - Trust challenged the said action by filing Writ Petition No. 3847 of 2009 before the High Court of Madhya Pradesh, which came to be disposed of on 09.09.2009 with a direction to the petitioner - Trust to approach Gwalior Municipal Corporation in terms of clause 53 of the contract and further directed the Commissioner that such representation qua the dispute be decided without being influenced by the resolution of Councilors. However, the Commissioner, Gwalior Municipal Corporation by order dated 25.11.2009 stated that since the contract was terminated the issue was required to be resolved in accordance with clause 53(2) of the contract, which provides for resolving the disputes by Arbitration. The above order was again subject matter of Writ Petition No. 3847 of 2009, which came to be dismissed and against which SLP No. 28523 of 2010 was preferred before the Apex Court and the Apex Court disposed of the said SLP on 07.05.2014 by not interfering with the impugned order of the High Court, however, the issues with regard to validity of the termination of the contract so also determination of damages are kept open in the pending arbitration proceedings and the fact remains that the above arbitration proceedings are still pending. 6. In the above backdrop of the case, Mr. Sudhir Nanavati, learned Senior Advocate, appearing for the petitioners, submits that legality and validity of the termination of contract of the year 2009 is not subject matter of arbitration proceedings, and the same cannot be a ground for not accepting the tender submitted by the petitioners. 6. In the above backdrop of the case, Mr. Sudhir Nanavati, learned Senior Advocate, appearing for the petitioners, submits that legality and validity of the termination of contract of the year 2009 is not subject matter of arbitration proceedings, and the same cannot be a ground for not accepting the tender submitted by the petitioners. In addition to the above, it is submitted that credibility and capacity of the petitioners to deal with nature of the contract cannot be doubted and denied only on the ground of termination of order passed by one of the Municipal Corporations since the petitioner-Trust is dealing with number of projects in that field and even received many accolades and achievements to which reference is made in para 2.3 of the writ petition. It is, therefore, submitted that conditions under challenge are required to be quashed, more particularly, condition No. 3(A) with regard to disqualification is de void of any rationale and debarring and/or blacklisting the applicant in perpetuity would render him ineligible forever. According to learned Senior Advocate, there is a dichotomy in various sub-clauses of Special Note 3(A) that if any criminal proceedings is pending in any court of law in India against any of the directors, partners or a proprietor and if any such proceeding culminates into conviction in last seven years, then only it incurs disqualification but not otherwise. Therefore such special note 3(A) being arbitrary, unreasonable, violative of Article 14 and 19(1) (g) of the Constitution of India deserves to be set aside. 6.1 Mr. Nanavati, learned Senior Advocate, placed reliance on the decision of the Apex Court in the case of B.S.N. Joshi & Sons Ltd. v. Nair Coal Service Ltd. & Ors. reported in (2016)11 SCC 548 on the point of disqualification and submitted that the petitioner-Trust is not declared defaulter nor actual defaulter and validity of termination of contract by Municipal Corporation of Gwalior in the arbitration proceedings which are to be gone into and what is held in paras 40, 41, 42 and 43 in that decision will squarely apply to the facts of the present case and when person concerned raises bonafide dispute in regard to claim and so long as the dispute is not resolved, he may not be declared to be defaulter. When a contractor is blacklisted by a department he is debarred from obtaining a contract, but in terms of the notice inviting tender when a tenderer is declared to be defaulter, he may not get any contract at all and it may result into winding up of business and the same would have a disastrous effect on him. It is therefore submitted that Special Note 3(A) pertaining to disqualification deserves to be quashed and set aside. 6.2 Mr. Nanavati, learned Senior Advocate, has also placed reliance on oral order dated 07.05.2014 rendered by a Division Bench of this Court in Special Civil Application No. 4115 of 2014 in the case of Hindustan Construction Company v. Sardar Sarovar Narmada Nigam Ltd. whereby applicability of termination order and consequences thereof were made applicable to the tenderer with regard to that respondent Nigam only and the effect of the order of termination was put in abeyance for other states of India and for other projects in the State of Gujarat. Therefore, solitary case of termination of contract by Gwalior Municipal Corporation was of the year 2009 and thereafter the petitioner has undertaken many other projects for which no grievance is made of whatsoever in nature and at this stage the action of the respondent-AMC disqualifying the petitioner for tender bid deserves to be set right by this Court. 7. Mr. Satyam Chhaya, learned counsel appearing for the respondent-AMC relying on affidavit in reply filed by the Director, Solid Waste Management of AMC and submitted that the conditions with regard to bank solvency/security amount to the tune of Rs. 2.92 crores is reasonable and further para 8 of the said affidavit justifies reasons for requirement of 100% vehicles and 50% of the vehicles to be owned by the bidder and usage of such vehicles in the subject contract. Mr. Chhaya, relying on the affidavits dated 1.2.2017 & 6.3.2017 filed by the respondent-AMC in SCA Nos. 1994 & 1376 of 2017, submitted that in absence of merit, the writ petition deserves to be dismissed. Mr. Chhaya, relying on the affidavits dated 1.2.2017 & 6.3.2017 filed by the respondent-AMC in SCA Nos. 1994 & 1376 of 2017, submitted that in absence of merit, the writ petition deserves to be dismissed. 7.1 With regard to challenge to the clause incorporated under the head of 'Qualifying Criteria' and challenge to condition 3(A) which provide for disqualification with regard to termination or blacklisted entity, it is submitted that admittedly the contract of the petitioner was terminated by the Municipal Corporation of Gwalior and High Court of Madhya Pradesh as well as Apex Court have not interfered with such contract. Though arbitration proceedings may be pending, but prima facie termination order passed against the petitioner is in force and according to clause 3(A) of the tender condition, petitioner is not qualified to bid for the present tender. If the defaulter like the petitioner is allowed to bid for tender, in all probabilities, it may result into financial losses and also disruption of system of collection of waste/garbage and bar created by the above clause 3(A) of the tender condition cannot be termed as unjust, unreasonable or arbitrary and violative of Article 14 and/or Article 19(1)(g) of the Constitution of India. 8. Heard learned counsels for the parties and perused the record of the case and relevant provisions of Gujarat Municipal Corporations Act, 1949 and Solid Waste Management Rules, 2016. So far as the relevant conditions of the NIT qua challenge to conditions with regard to procuring 50% of the vehicles to be owned by bidder for carrying out work relating to contract and submitting bank solvency certificate to the extent of Rs. 2.92 crores and vehicle passing of RTO of year 2015, we have already considered and given our findings and reasonings in the above writ petitions being Special Civil Application Nos. 1994 of 2017 and 1367 of 2017 and same shall govern the outcome of the present petition. Paras 10.3 and 10.4 of CAV Judgment dated 17.04.2017 read as under: "10.3 That a careful perusal of record of the case viz. 1994 of 2017 and 1367 of 2017 and same shall govern the outcome of the present petition. Paras 10.3 and 10.4 of CAV Judgment dated 17.04.2017 read as under: "10.3 That a careful perusal of record of the case viz. notice inviting tender along with its conditions/clauses/instructions/notes/clarifications contained therein, it is about door to door of the gate refusal garbage collection and transportation up to refused transfer station/dumping site/treatment plant using own closed body vehicles with tipping arrangement, including labour in accordance with Solid Waste Management Rules, 2016 for the period of 5 years in various zones for Ahmedabad city. That role of the successful bidder for the above contract will be collection of garbage/waste from gate of the society/apartment/residential or commercial unit in closed vehicles and the duty is cast upon waste generator to segregate dry/wet waste and the same to be dumped at various sites earmarked by the respondent - Corporation outside such residential units. Thus, no role is to be played by the respondent - Corporation at the end of waste generator and no obligation whatsoever in nature for providing employment or job to waste pickers/collectors at their end. It will be exclusively the duty cast upon waste generator to take waste from the residential units to outside the area of unit, a place earmarked by the respondent - Corporation. Again, no obligation cast upon the respondent - Corporation to employ or provide a job to waste pickers/collectors for collecting and dumping the waste from such earmarked locations in the closed vehicles owned and operated by the contractor. As stated in the affidavit and submissions made by learned Senior Advocate for the respondent - Corporation, active and substantive role of waste pickers and collectors will be at the place when waste is transferred to Refused Transfer Station and dry waste will be further segregated with the help of waste pickers/collectors for further transportation and transfer to authorized waste recyclers. So far as wet waste is concerned, it will be transferred through highly mechanized system to a heavy body vehicle with carrying capacity of 20 MT provided by the respondent - Corporation from Refuse Transfer Station to processing or energy plant. So far as wet waste is concerned, it will be transferred through highly mechanized system to a heavy body vehicle with carrying capacity of 20 MT provided by the respondent - Corporation from Refuse Transfer Station to processing or energy plant. That integration of waste pickers/collectors in collection and disposal of solid waste system is to ensure their participation in such a system in a phased manner so that it may not render the whole system of collection and transportation of garbage ineffective. Even their capacity to procure vehicles prescribed with the facility of storing dry and wet waste separately i.e. in segregation, reaching the specified places with the vehicles, transferring such waste to Refuse Transfer Station through such vehicles and subsequent transportation and transfer of waste to authorized waste recyclers will be primary consideration and no relaxation can be granted as prayed for. As far as possible and practicable participation of waste pickers/collectors is undertaken by respondent - Corporation on the basis of the pilot project and in future in a phased manner 5 more wards are to be covered and enough work will be provided at the stage of segregation of waste at Refused Transfer Station and Municipal Corporation and contractors can be impressed upon so as to provide job to such waste pickers/collectors. Further, the city of Ahmedabad is divided into 6 administrative zones and each zone is divided into 8 wards, in all 48 wards. Each zone consist of 8 wards again divided into 2 groups viz. 4 wards in each group for the purpose of inviting tenders and effective implementation and proper monitoring. In all, 12 tenders have been issued covering 12 groups and each group contain 4 wards in view of growing population of Ahmedabad Municipal Corporation area and to deal with 1500 MT of waste generated, various conditions are incorporated, which are also modified during the pendency of this petition to which reference will be made later on. That EMD of Rs. 25 lakhs is value of the tender for each group, which is approximately Rs. 14.60 crores i.e. in consonance with Government Resolution dated 03.06.2016 issued by the Department of Industries and Mines, State of Gujarat which provides that the employer to prescribe 3% EMD of the tender value which may come to Rs. 42 lakhs, but instead it is only kept at 2% for inviting more competition. 14.60 crores i.e. in consonance with Government Resolution dated 03.06.2016 issued by the Department of Industries and Mines, State of Gujarat which provides that the employer to prescribe 3% EMD of the tender value which may come to Rs. 42 lakhs, but instead it is only kept at 2% for inviting more competition. That requirement of 100% vehicles and 50% vehicles owned by the bidders and registration thereof for the year 2015 is again to see that uninterrupted collection and transportation of waste by the contractor remain throughout the period of contract and to rule out possibility of any breakdown, malfunctioning or technical failure. That various categories of closed vehicles will be able to reach narrow streets or ways of the areas and collection and transportation of waste do not affect environment and overall hygiene of the residents. That bank solvency which not older than one year amounting to 20% value of the estimate, work experience, annual turnover are in consonance with Office Memorandum dated 17.12.2002 issued by the Central Vigilance Commissioner, Government of India and Circular dated 19.07.2013 issued by the Department of Industries and Mines, State of Gujarat. Looking to the magnitude of the work bank solvency of Rs. 2.92 crores is reasonable. 10.4 The Corrigendum-3 and AMC's response for Pre-Bid Queries read as under: "CORRIGENDUM-3 "TENDER FOR DOOR TO DOOR/GATE REFUSE GARBAGE COLLECTION AND TRANSPORTATION UPTO REFUSE TRANFER STATION/DUMPING SITE/TREATMENT PLANT USING OWN CLOSE BODY VEHICLES, WITH TIPPING ARRANGEMENT INCLUDING LABOURERS IN ACCORDANCE WITH SOLID WASTE MANAGEMENT RULE - 2016 FOR THE PERIOD OF FIVE YEARS. E-TENDER NOTICE NO.1 TO 12/2016-2017 FOR ALL GROUPS OF ALL ZONES PRE-BID QUARRIES SUBMISSION LAST DATE, AMC'S RESPONSE FOR PRE-BID QUARRIES DATE, BID SUBMISSION DATE AMC would endeavour to adhere to the following schedule: Event Description Date AMC's response for pre-bid quarries date 08/02/2017 Date and time of Submission of Online Tender 22/02/2017 up to 18:00 Hour Date of Submission of Technical Bid, Tender Fees, EMD and other documents in hard copy 27/02/2917 up to 17:00 Hour Date of opening of Technical Bid 01/03/2017, 11:30 a.m. onwards *Note :- Subject to the outcome of SCA No. 1367 of 2017 & SCA No. 1994 of 2017 before Hon'ble Gujarat High Court. AMC's response for Pre-Bid Queries Vol Existing Clause Now Read as Volume I POST-QUALIFICATION CRITERIA AND EVALUATION PROCEDURE QUALIFYING CRITERIA 1 TECHNICAL CRITERIA: Note :- Bidder must adhere format of Work Completion Certificate as per Annexure-XIII Note :- Bidder must adhere format of Work Completion Certificate as per Annexure-VII Volume I POST-QUALIFICATION CRITERIA AND EVALUATION PROCEDURE Financial Capacity “Annual Turnover”: Average annual financial turnover during the last three (3) years, ending 31.03.2016 should be at least 30% of the estimated cost of door to door/gate garbage collection and transportation work done in any municipal corporation/Nagarpalika will be considered for evaluation. Income from “contractual receipts” only will be taken into consideration. Rest as per tender clause. Volume I QUALIFYING CRITERIA Tender Fee EMD They will be submitted in the form of Demand draft/Pay order. Rest as per tender clause. Volume I QUALIFIYING CRITERIA 1 TECHNICAL CRITERIA: It should be up to 3 MT payload capacity (with/ without GPS system). Rest as per tender clause. Volume I POST-QUALIFICATION CRITERIA AND EVALUATION RPOCEDURE 2. NOTE TO THE BIDDER Minimum Experience of having successfully completed similar works i.e. door to door/gate garbage collection and transportation in any three (3) years out of last seven (7) years i.e. till 31.12.2016. Rest as per tender clause. Volume II Technical Bid SCHEDULE (A) IMPORTANT INSTRUCTIONS TO THE CONTRACTOR/ TENDERERS: 1. General e. The tender shall be kept valid for a period of 180 days. (From the opening date of technical bid) Volume II Technical Bid SCHEDULE (A) IMPORTANT INSTRUCTIONS TO THE CONTRACTORS/ TENDERERS: 1. General 8. It shall be 5% of the work order value based on the approved rate by AMC. Rest as per tender clause. Volume II Technical Bid SCHEDULE (A) IMPORTANT INSTRUCTIONS TO THE CONTRACTORS/ TENDERERS: IMPORTANT INSTRUCTIONS TO THE CONTRACTORS/ TENDERERS: 1. Taxes and Duties Any change in Govt. Statutory levies, taxes, duties, etc applicable to such services will be considered & applicable. However, tenderer has to submit necessary valid documents for verification to the Solid Waste Management Department. Volume II Technical Bid SCHEDULE (A) IMPORTANT INSTRUCTIONS TO THE CONTRACTORS/ TENDERERS : 28. Number of Vehicles to be allotted zone – Group wise AMC may change the wards of the group internally as per administrative requirements, which will be mentioned in work order subsequently. Volume II Technical Bid SCHEDULE (A) IMPORTANT INSTRUCTIONS TO THE CONTRACTORS/ TENDERERS : 20. Volume II Technical Bid SCHEDULE (A) IMPORTANT INSTRUCTIONS TO THE CONTRACTORS/ TENDERERS : 28. Number of Vehicles to be allotted zone – Group wise AMC may change the wards of the group internally as per administrative requirements, which will be mentioned in work order subsequently. Volume II Technical Bid SCHEDULE (A) IMPORTANT INSTRUCTIONS TO THE CONTRACTORS/ TENDERERS : 20. Work related Conditions/ Important notes 10. The vehicle/s which has collected garbage shall have to be weighted at AMC weighbridge (with in the zone or nearby the zone) before disposing garbage to Transfer station/waste treatment plant/landfill site. The weight taken for each trip shall be recorded and the contractor shall collect the weighing data and produce whenever the bill is submitted for payment. Volume-II Technical Bid SCHEDULE (A) IMPORTANT INSTRUCTIONS TO THE CONTRACTORS/ TENDERERS: 30. Work related Conditions/ Important notes 1. Contractor shall commence the work stage wise within 3 (Three) months from the date of work order issued and shall commence 100% work within 4 (Four) months. If fails to do so, the penalty at the rate of Rs.1000/- per vehicle per day shall be levied at the discretion of Municipal Commissioner of AMC based on reason for delay submitted by the contractor. Having payload capacity of up to 3 MT (approx) close body vehicles should be deployed for door to door/ gate garbage collection and transportation work activity. Rest as per tender clause. Volume-II Technical Bid SCHEDULE (A) IMPORTANT INSTRUCTIONS TO THE CONTRACTORS/ TENDERERS : GENERAL CONDITIONS OF CONTRACT:- 62. Statement of Door to Door waste collection from zones from the month January – 2016 to November – 2016 attached with Annexure-III Please read column title as new west zone instead of west zone and vis-a-vis. Volume-II Technical Bid SCHEDULE (A) IMPORTANT INSTRUCTIONS FOR FEELING THE SCHEDULE: 7. Tenderer shall have to propose number of trips based on numbers of route given in statement no.2. Statement No.2 reads as detailed. Volume III Page No. Present Clause Page No. Modified Clause 3 1. The contractor shall quote his rate for any or all of the various options shown as shown in Schedule B 3 1. The contractor shall quote his rate as shown in Schedule B 3 2. Base year (1 st year) for increment shall be applicable on commissioning of Door to Door garbage collection of transfer station service 3 2. The contractor shall quote his rate for any or all of the various options shown as shown in Schedule B 3 1. The contractor shall quote his rate as shown in Schedule B 3 2. Base year (1 st year) for increment shall be applicable on commissioning of Door to Door garbage collection of transfer station service 3 2. Base year (1st year) for increments shall be applicable on commissioning of Door to Door garbage collection services. 4 Note : 2. Rate quoted includes tipping charge in Rs. Per ton. 4 Note : 2. Rate quoted includes all charges in Rs. Per ton 4 Note : 3. Payment shall be made on actual quantity of MSW transported to transfer station. Any variation in the qty. shall be paid on rates quoted by contractor 4 Note : 3. Payment shall be made on actual quantity of MSW transported and registered at AMC weighbridge. 8.1 With regard to challenge to condition No. 3(A) of NIT it is reproduced herein below for better appreciation: "3. Special Notes (A) Disqualification Even though the Applicants meet the above criteria, they are subject to be disqualified if applicant or any of its constituent partners have : - Made misleading or false representation in the forms, statements, and attachments submitted; or - Been debarred or terminated or black listed by Central Government organization/State Government Organization/AMC/any Municipal Corporation/ULBs. In case of a proprietary firm, partnership, private limited firm, the following are the disqualification in case of failure to disclose information by partners or the proprietor: [i] If, any of the directors, partners or the proprietor is debarred/blacklisted by Central govt. organization/State Govt. organization/ULB/Any Municipal Corporation/AMC or any other Agency of Government of India or any of the State Government. [ii] If, any of the Directors, Partners or the Proprietor has a criminal history or has been convicted by any Court of Law for any of the offences under any Indian Laws. [iii] If, any criminal proceeding is pending in any court of law in India against any of the Directors, Partners or a Proprietor and if any such proceeding culminates into conviction in last seven years". 8.2 If the above conditions are perused, it disqualifies the petitioner, a bidder/tenderer or any of its constituent, partner either debarred or terminated or blacklisted by Central Government organization/State Government organization/AMC/Municipal Corporation/ ULB and the said ban will operate for ever. 8.2 If the above conditions are perused, it disqualifies the petitioner, a bidder/tenderer or any of its constituent, partner either debarred or terminated or blacklisted by Central Government organization/State Government organization/AMC/Municipal Corporation/ ULB and the said ban will operate for ever. At the same time, disqualification qua any partner, director or proprietor for criminal proceedings pending in any court of law against any of them and result into conviction in last 7 years, but prior to that even if conviction is recorded against any of them, it would not be a bar or disqualification. But termination or blacklisting of a firm would result into disqualification in perpetuity. The condition, as above, according to us is harsh and operate against the petitioner indefinitely making him ineligible for bid to such contractor for ever. In addition to the above, arbitration proceedings are pending and legality and validity of termination of contract by Municipal Corporation of Gwalior is yet to be undergone by the Arbitrator. We find force in the arguments of learned counsel for the petitioner based on what is held in the case of B.S.N. Joshi [supra] that the petitioner is not declared or even found defaulter and in terms of notice notifying tender when a tenderer is declared to be defaulter, he may not get any contract at all and this would result into disastrous consequences and such deprivation would be unjust, unreasonable, arbitrary and violative of Article 14 of the Constitution of India and imposes unreasonable restriction upon the business carried out by the tenderer and, therefore, violative of Article 19(1)(g) of the Constitution of India. That every case is to be judged on the basis of nature of default and any bonafide plea raised about nature of the dispute or action taken by the authority and so long arbitration remained undecided, Special Note 3(A) of NIT would militate against, a limited right of a tenderer to offer bid subject to fulfillment of other conditions of NIT. 8.3 That Special Note 3(A) making the petitioner for bid ineligible is held to be contrary to law as it is unjust, unreasonable, arbitrary, violative of Articles 14 and 19(1)(g) of the Constitution of India and accordingly it is held that if the petitioner - Trust is otherwise eligible and fulfilling all other criterion, conditions, clauses, special notes or instructions, the tender form be accepted for further scrutiny for finalizing tender process. Accordingly, this petition is allowed. Rule is made absolute to the aforesaid extent only. However, there shall be no order as to costs.