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Judgment
Rule. By consent of parties, heard finally.
By this Petition, the Petitioner challenges the notification of award of SubSea Pipe Line Project for B193 Field Development dated 28 May, 2010 by Respondent No.1Oil & Natural Gas Corporation Ltd. (ONGC) in favour of Respondent No.3Swiber Offshore Construction Pte. Ltd. (Swiber). Respondent no.1 issued Notice dated 28 May 2010 inviting tenders for Subsea Pipeline Project. The Petitioner and Respondent no.3 admittedly submitted their tenders. On 18 August 2010 unpriced bids were opened and on 25 October 2010 priced bids were opened. After opening of the priced bids and after evaluation of price, it was observed that the total lump sum price of USD 131.327 Million of consortium of the Petitioner are higher by 5.22% in comparison to the lowest foreign bidder i. e. Respondent no.3. On that day Respondent no.1 informed the bidders that the Petitioner has claimed price preference. The terms in relation to price preference in the Tender document reads as under:
a. Price Preference
Domestic Bidders would be entitled to a price preference of ten percent (10%) over the lowest acceptable (quoted) foreign bid subject to domestic bidders providing all evidence necessary to prove that they meet the following criteria:
i) is registered within India,
ii) have majority ownership by nationals of India and
iii) not subcontract more than 50% of the Works measured in terms of value to foreign contractors.
For (iii) above, an original certificate from Statutory Auditor engaged by the company (bidder) for auditing their annual accounts indicating therein various details, which could establish that no more than 50% of the works measured in terms of value has been subcontracted to foreign contractors must be furnished along with price bid. It must be noted that above information so furnished, if at any stage, found wrong, incorrect or misleading, will attract action as per rules/law.
Consortium between domestic (Indian) and foreign firms but led by Indian party shall also be eligible for the price preference provided they fulfill the conditions of price preference given for domestic bidder at i, ii, iii above. However, consortium between domestic and foreign firms led by foreign firm shall not be eligible for price preference even though their domestic partner satisfies the conditions given for domestic bidder at i, ii, k iii above.
It appears that the matter was then considered by the Tender committee. The Tender Committee found thus:
10.0 As the lumpsum evaluated price of Consortium of Punj Lloyd Limited and PTPunj Lloyd Indonesia is higher by 5.22% over the lowest acceptable (quoted) foreign bidder, hence the bidder i.e. Consortium of Punj Lloyd Limited and PTPunj Lloyd Indonesia is eligible for price preference subject to fulfilling other conditions of BEC Clause C.5.
11.0 While reviewing the documents submitted by M/s. PLL for claiming the price preference, the conditions stipulated in the tender documents BEC clause No. C.5 was examined. The conditions i) and ii) have been met by the bidder, whereas the condition iii very categorically spells out that the activities of the subcontracting should not be more than 50% to foreign contractors. Whereas the certificate submitted by the Statutory Auditors M/s. S R. Batliboi does not clearly bring out about the sub contracting. The Certificate mentions only foreign cost component. The certificate is reproduced as under:
Quote
We have received from the Company a working of the budgeted cost of the proposed Project that bifurcates the cost between its local and foreign components. In terms of the said working of cost, and using exchange rate of Rs. 46.50 for USD, the foreign cost component is less than 50% as verified based on the attached Annexure.
Unquote
While examining the Certificates submitted by bidders in previous tenders, for Tender No.MR/OW/MM/MHNRDII/ PL/08/2009 for laying of Sub Sea Pipeline for MHNRD Phase II Project, same company M/s. PLL has submitted a certificate from the same statutory auditors clearly stating about the sub contract to foreign contractors. However, in this tender as PLL''s bid was more than 10% of LI Price, it was not eligible for price preference.
For further comparison, a certificate submitted by L&T in another tender no.MR/OW/MHNPGC/ 17/2008 also explicitly states about sub contracting.
Copies of certificate from Statutory Auditors for the aforesaid tenders are placed at Annexure C & D. Accordingly, the certificate now submitted for the present tender under evaluation does not mention about subcontracting. Hence ES is of the view that the certificate is not properly given to establish that the value of works to be sub contracted to foreign contractors is not more than 50% of the total value of the works. Hence, M/s.PLL is not entitled for the price preference.
Submitted for kind perusal.
Unquote
The copy of certificate dated 16.10.2010 received from Statutory auditor M/s. S.R. Batliboi & Co., Gurgaon of M/s PLL submitted in present tender and certificate submitted by same Statutory auditor in previous Tender No.MR/OW/MM/MHNRDII/ PL/08/2009 for laying of Sub Sea Pipeline for MHNRD Phase II and certificate of statutory auditor submitted by L&T in another tender no.MR/OW/MHNPGC/ 17/2008 is placed at Sl.No.48,49 & 50.
1.9 The remarks of EDCOES on the above note are as under:
Quote
In the present case, legal/PMC opinion may be taken to bring clarity on the subject.
Unquote
1.10 The remarks of Director (Offshore) on the above note are as under:
Quote
The matter was discussed with Dir (F) also yesterday; he also felt the need of an exparte interpretation.
Considering the potential of litigation in this case based on the applicability or otherwise of price preference, it will be only prudent that the BEC clause as mentioned in our tender & the certificate from CA submitted to ascertain as to whether price preference is applicable in this case or not.
Unquote
1.11 The remarks of EDChief MM on the above note are as under:
Quote
On perusal of n/s 13, it is observed that ES Group sought documents from the bidders for claiming price preference in separate sealed envelop and it appears that this envelop was opened after the price bids were opened.
The documents submitted by PLL for claiming price preference contain a certificate from their Statutory Auditors that foreign cost component is less than 50% based on attached annexure which contains break up of their prices in US Dollars and Indian Rupees for various elements of the price format. However, the BEC clause mentioned at para 9.0 at N/p2 states that documents required for establishing eligibility of a domestic bidder for price preference are to be furnished along with the unpriced bid.
In our view, as the documents for ascertaining the eligibility of price preference need to be examined and evaluated to ascertain the eligibility of the bidder for price preference prior to price bid opening and accordingly as per the BEC clause mentioned above these documents have to be submitted along with unpriced bid. In case of any shortcoming in the Statutory Auditor certificate or if there is any lack of clarity in the information submitted by the bidder in claiming his eligibility for price preference, if the TC feels, clarifications can be obtained from the bidder at that stage, i.e. Before opening of the price bid. Thereafter, if it emerges that the bidder is eligible for price preference, then the same has to be recorded in the TC proceedings before putting up the recommendations of shortlisting of bids to the competent authority for approval. Further, after opening of the price bids, the Work Centre needs to scrutinize the price bid to ascertain correctness of the information given in the unpriced bid and decide on the interse ranking of the bidders.
At this stage, after the price bids have been opened and considering the fact that the Work Centre in their joint note has brought out the difference in language in the certificate submitted by PLL in this tender and the previous MHNRD tender, it would be prudent only for the TC to examine the subcontracting arrangements indicated by PLL in their bid amongst their Indian / foreign vendors / subcontractors and the price bid of PLL in detail along with the certificate furnished by their Statutory Auditor to ascertain whether they fulfill the criteria of not subcontracting more than 50% of works measured in terms of value to foreign contractors or not.
Based on the above scrutiny, Tender Committee should put up the case along with their recommendations to the CPC for approval.
It would be also pertinent to mention here that after opening of price bids, the case should have been deliberated by the TC and recommendations submitted to CPC for approval instead of sending a joint note to Director (Offshore) only w.r.t. Issue of price preference." Unquote.
(emphasis supplied)
It appears that two objections were raised in so far as the claims of the Petitioner for price preference is concerned; i) documents required to establish eligibility of the Petitioner for price preference were not submitted with the unpriced bid but are submitted with price bid and in the sealed envelop submitted after the unpriced bid was opened and ii) the certificate of the Statutory Auditor has deficiencies. The Tender Committee, however, ultimately recommended that the contract be awarded to the Petitioner subject to their matching the price of Respondent no.3 and providing an explicit conformity certificate of subcontracting. The relevant portion is as under:
3.24 From the above, it can be seen that the foreign sub contracting varies from 32% to 54% based on the assumptions of subcontracting provided by the bidder under different categories of foreign and Indian subcontractors.
The exercise thus reveals that the subcontracting component varies from 32% to 54% which is a marginal case. The certificate provided by M/s. PLL mentions the value of foreign exchange outgo is less than 50%. Presumably an inference can be drawn that the intent is to restrict subcontracting within 50% under various options available to the bidder. In light of the above, option available is to consider price preference to M/s. PLL. Thus it would be prudent to match the L4 bidder seeking price preference to match the price of L1 (USD 124.80 mm) and also to take a certificate in conformity of BEC clause (subcontracting to Foreign contractors shall not be more than 50%).
3.2.5 In terms of PMC guide lines vide circular no: MM/28/2007 Dated 11.06.2007 (SL No.), no negotiation is permissible with other than L1 bidder. However in the instant case in order to ensure that no additional financial impact accrues to ONGC by considering the price preference to M/s. PLL, it would be prudent to seek matching of price.
4 TC Recommendations:
In view of above TC recommends to award the work to M/s. PLL subject to their matching the price with L1 and providing an explicit conformity certificate of subcontracting as deliberated above.
It appears that thereafter a representation was made by Respondent no.3 to the Independent External Monitor in relation to the decision of the Tender Committee. According to Respondent no.3, the tender submitted by the Petitioner should not have been considered for two reasons; (i) that they did not submit the Statutory Auditor''s certificate in "C" folder and (ii) the Statutory Auditor''s certificate does not comply with the requirement of the tender conditions.
The Independent External Monitor in their opinion dated 2 December 2010 observed thus:
The portions quoted above show that a bidder is required to furnish the bid along with all appendices and copies of documents in the document area in C folder (as per Clause 10.3) an original certificate from the Statutory Auditor along with the unpriced bid (as per Clause C.5a) it may be clarified that C folder, to which we have been referring above, is also part of the unpriced bid documents. The action taken by Punj Lloyd to meet the tender requirements was to furnish the requisite documents in C folder except for the certificate of the Statutory Auditor, which was uploaded along with the documents pertaining to the price bid. It has been explained to us by the representatives of Punj Lloyd that the certificate furnished then by their Statutory Auditor contained various details (in terms of Clause C.5a) that these details contained figures to establish that the proportion of work subcontracted to foreign contractors would not exceed 50% of the works measured in terms of value, that these details and figures, if opened along with the techno commercial bid documents, would have been indicative of the price quoted in their tender and would have led to their being disqualified. The dilemma faced by Punj Lloyd arose from the fact, in our view that the certificate details could be construed to indicate their price bid whereas the stipulation in the portions quoted above did not require details that would lead to the price bid being inferred. We have noted that ONGC had not prescribed any format for such a certificate or indicated the details of the details that were required to be furnished in accordance with Clause C.5a. Hence, if the same information to convey the proportion of works subcontracted to foreign contractors had been indicated by Punj Lloyd in a different fashion (that did not have the potential of revealing their price bid), they would perhaps not have fallen out of the tender conditions.
The upshot of the position brought out in the preceding paragraphs is that all the documents that needed to be furnished along with the unpriced bid were not furnished by Punj Lloyd. In other words, their unpriced bid did not contain the certificate to establish that the value of work subcontracted to foreign contractors was not going to be in excess of 50%. The consequence of this expression has to be adverse to the case of Punj Lloyd and we see no option but to appoint accordingly the representation of Swiber in this respect carries weight.
By representation dated November 24, 2010 received from Swiber asserts also that Punj Lloyd would not be complying with the third condition in clause C.5.a of the BEC about not subcontracting more than 50% of the work measured in terms of value to foreign contractors. In support of this assertion, Swiber has given its assessment of the proportion of work under different category. We have been informed by ONGC that they have made an analysis in this respect on the basis of tender submitted by Punj Lloyd. This conclusion arrived at from the analysis is that in case Punj Lloyd were to subcontract the work to only Indian subcontractors where a choice between foreign and Indian subcontractors has been shown in their document, the proportion of work would be 32.10% whereas, if everything were to be subcontracted to foreign contractor, the percentage would come to 54.87%. These are obviously the two extremes and it would no unreasonable to assume that the actual may fall somewhere in between beside the margin between the prescribed limit of under 50% and the above figure of 54.87% is not too much. Hence, the argument advanced by Swiber against the eligibility of Punj Lloyd for price preference does not seem carries weight.
(emphasis supplied)
The Independent External Monitor thus found fault with the Petitioner in not submitted the certificate claiming price preference in "C" folder. However, the Independent External Monitor found that the certificate which was submitted by the Petitioner of the Statutory Auditor was in order.
6 At this stage, the Petitioner approached this Court by filing Writ Petition No.2645/2010. That writ petition was disposed off by an order dated 7 February, 2011. The operative part of the order of the Division Bench is reproduced below:
3 In these circumstances having due regard to the consensus that has emerged at the hearing, this Petition is disposed of by a direction to the effect that:
(i) A copy of the recommendation made by the IEM shall be supplied to the Petitioner as expeditiously as possible and in any event within a period of one week from today;
(ii) The Petitioner would be at liberty to furnish to the First Respondent such further material that may have a bearing on the recommendation of the IEM and on the question as to whether the Petitioner is entitled to a price preference under the tender condition. The Tender Purchase Committee while considering the report of the IEM would be at liberty to have due regard to the additional material which may be produced by the Petitioner.
(iii) A copy of the material to be supplied by the Petitioner under (ii) above will be supplied to the Third Respondent by the First Respondent.
It appears that after the order was passed by this Court, the Petitioner submitted representation dated 14.02.2011 and the Respondent no.3 submitted representation dated 19.02.2011. Pursuant to the order of the Division Bench, the Independent External Monitor reconsidered the matter and made a fresh order on 2 March 2011. The Committee found that the Petitioner was not justified in not filing the certificate of the Statutory Auditor with reference to claim of price preference in the "C" folder. So far as the other aspect of the matter, whether the certificate of the Statutory Auditor itself did not comply with the requirement of the tender conditions, was not considered. Ultimately, final decision it appears was taken by the Executive Procurement Committee and it was decided to award the contract to Respondent no.3 It is this decision which is challenged in this Petition.
We have heard the learned counsel for both the sides in detail.
There is no dispute that the certificate of the Statutory Auditor was not submitted by the Petitioner in "C" folder, though other documents necessary for claiming price preference was submitted in "C" folder, but it was submitted by the Petitioner at the same time when "C" folder was submitted in RFX folder. It is also common ground that that certificate was also submitted in a sealed packet after three days of opening of the unpriced bids. The question, therefore, to be considered is, according to the terms of the Tender document, was the Petitioner required to submit the Statutory Auditor''s certificate in "C" folder? If yes, can the offer of the Petitioner be rejected for that reason alone? It appears from the record that in this regard the stand of the Petitioner was that though as per Tender document the Statutory Auditor''s certificate is to be submitted with unpriced bid it was not possible for them to do that because had they submitted the Statutory Auditor''s certificate with the unpriced bid it would have disclosed their price because as per the tender document the Statutory Auditor''s Certificate must contain all the necessary details. This stand has been referred to in the recommendation of the Independent External Monitor dated 2/12/2010 thus:
The portions quoted above show that a bidder is required to furnish the bid along with all appendices and copies of documents in the document area in C folder (as per Clause 10.3) an original certificate from the Statutory Auditor along with the unpriced bid (as per Clause C.5.a) it may be clarified that C folder, to which we have been referring above, is also part of the unpriced bid documents. The action taken by Punj Lloyd to meet the tender requirements was to furnish the requisite documents in C folder except for the certificate of the Statutory Auditor, which was uploaded along with the documents pertaining to the price bid. It has been explained to us by the representatives of Punj Lloyd that the certificate furnished then by their Statutory Auditor contained various details (in terms of Clause C.5.a) that these details contained figures to establish that the portion of work subcontracted to foreign contractors would not exceed 50% of the works measured in terms of value, that these details and figures, if opened along with the technocommercial bid documents, would have been indicative of the price quoted in their tender and would have led to their being disqualified. The dilemma faced by Punj Lloyd arose from the fact, in our view that the certificate details could be construed to indicate their price bid whereas the stipulation in the portions quoted above did not require details that would lead to the price bid being inferred. We have noted that ONGC had not prescribed any format for such a certificate or indicated the details of the details that were required to be furnished in accordance with Clause C.5a. Hence, if the same information to convey the proportion of works subcontracted to foreign contractors had been indicated by Pun Lloyd in a different fashion (that did not have the potential of revealing the price bid), they would perhaps not have fallen out of the tender conditions.
The upshot of the position brought out in the preceding paragraphs is that all the documents that needed to be furnished along with the unpriced bid were not furnished by Punj Lloyd. In other words, their unpriced bid did not contain the certificate to establish that the value of work subcontracted to foreign contractors was not going to be in excess of 50%. The consequence of this expression has to be adverse to the case of Punj Lloyd and we see no option but to appoint accordingly the representation of Swiber in this respect carries weight.
It was also the stand of the Petitioner that the condition that the Statutory Auditor''s certificate shall be submitted with unpriced bid is not a mandatory condition, therefore, submission of that certificate with the priced bid and in the sealed envelop is substantial compliance of the condition. It was their case, as submission of the Statutory Auditor''s certificate with the priced bid does not give them an unfair advantage and also does not result in causing any prejudice to the interest of other bidders their tender cannot be rejected for that reason. The submission of the Petitioner in this regard is referred to in the recommendation of the Independent External Monitor dated 2.03.2011 thus:
8 As far as Punj Lloyd are concerned, they placed reliance on a judgment of the Supreme Court (Poddar Steel Corporation versus Ganesh Engineering Works and others) which discusses and distinguishes between essential and inessential conditions of tender. In that case, the bidders were required to provide security deposits through instruments drawn on State Bank of India. The successful bidder had drawn an instrument on Union Bank of India. It was held that this variance was an inessential condition. Extending this logic, Punj Lloyd argued that providing the price preference document in folder should be construed as an inessential condition while the essential condition is in Clause 27, which requires nondisclosure of price; noncompliance leads to rejection. Hence the argument of Punj Lloyd is that in not furnishing the price preference document in folder, they were noncompliant regarding an inessential condition, but compliant with the essential condition.
We have been taken through all the terms and conditions of the Tender document. It is clear from those terms and conditions that the certificate of the Statutory Auditor was relevant for claiming price preference and the Petitioner would become entitled to claim price preference, only after opening of the price bids, if it is found that the lowest tender is of a foreigner and that between the price offered by the lowest tenderer and the Petitioner, the difference is less than 10%. It is an admitted position that this position would emerge only after opening of the priced bid and it is common ground before us that the Statutory Auditor''s certificate was filed in the RFX folder which contained the priced bid. In our opinion, each and every conditions contained in the Tender document cannot be regarded as a mandatory. In other words, it cannot be said that noncompliance of any condition in the Tender document results in vitiating the offer. In our opinion, before holding a particular condition to be mandatory, so as to require strict compliance, several factors are required to be considered. The first factor to be considered would be whether noncompliance of that condition gives any unfair advantage to the person concerned or causes any prejudice to the interest of the other tenderer or to the owner i. e. ONGC. If noncompliance with a particular condition of the tender does not result in giving any unfair advantage to the person who has committed the breach and also does not result in causing any prejudice to other parties and the ONGC, then, in our opinion that condition cannot be regarded as a mandatory so as to render the action taken in noncompliance of that condition to be invalid. In the present case, despite repeatedly asking, the Respondents were not able to tell us as to whether the Petitioner has gained any unfair advantage by not submitting the Statutory Auditor''s certificate in the "C" folder or that Respondent no.3 and ONGC has suffered any prejudice. In our opinion, as the Petitioner had submitted that certificate in the RFX folder, which was submitted on the same day as the information in "C" folder, it cannot be said that the Petitioner had any intention of withholding that certificate. There was also no question of the Petitioner manipulating any figures in that certificate subsequently. The Petitioner did not gain any unfair advantage by not submitting the certificate in "C" folder. Similarly, it does not appear to have caused any prejudice either to the interest of the Respondent no.3 or other bidders or the Respondent no.1ONGC. In other words, therefore, the Petitioner has committed a technical breach of a condition in the tender which has not resulted in causing any prejudice to the interest of Respondent No.1 or Respondent No.3.
The learned counsel for Respondent no.1 relied on the following judgments of the Supreme Court to contend that following the conditions of Tender, is necessary. In our opinion, it cannot be said that as a general rule that each and every condition in the Tender document has to be followed exactly and even slight deviation from that terms will result in vitiating the offer made.
(i) Shri Sachidanand Pandey and Another Vs. The State of West Bengal and Others, ;
(ii) West Bengal State Electricity Board Vs. Patel Engineering Co. Ltd. and Others, ;
(iii) Reliance Energy Limited and Another Vs. Maharashtra State Road Development Corporation Ltd. and Others, ; and
(iv) B.S.N. Joshi and Sons Ltd. Vs. Nair Coal Services Ltd. and Others, .
The Supreme Court has considered the law on this aspect in para 8 of its judgment in the case of M/s. Poddar Steel Corporation Vs. M/s. Ganesh Engineering Works and others, thus:
8 In the present case the certified cheque of the Union Bank of India drawn on its own branch must be treated as sufficient for the purpose of achieving the object of the condition and the Tender Committee took the abundant caution by a further verification from the bank. In this situation it is not correct to hold that the Diesel Locomotive Works had no authority to waive the technical literal compliance of clause 6, specially when it was in its interest not to reject the said bid which was the highest. We, therefore, set aside the impugned judgment and dismiss the writ petition of the respondent No.1 filed before the High Court. The appeal is accordingly allowed with costs throughout.
We do not see that in any of the judgments relied on behalf of Respondent no.1 a different view has been taken. Perusal of the opinion of the Independent External Monitor given after the order of the Division Bench shows that though they refer to the judgment of the Supreme Court in Poddar Steel Corporation, they have not been able to understand the law laid down by the Supreme Court. In so far as the aspect that it was not possible for the Petitioner to submit the Statutory Auditor''s certificate with the unpriced bid because that would have resulted in the Petitioner disclosing the price quoted by the Petitioner and it would have resulted in Petitioner breaching a condition in the tender document that a bidder cannot disclose his price before the price bid is opened is concerned, in our opinion, the stand taken by the Petitioner has substance. The stand taken by the Respondent no.1 in this regard is that the Petitioner should have submitted the Statutory Auditor''s certificate and accompanying documents with unpriced bid and blocked the figures mentioned in the certificate and accompanying documents has no substance because if the figures are blocked out, there will be no material available to find out whether the certificate is reliable or not.
Then it was contended on behalf of Respondents that though the Tender Committee and the Independent External Monitor have not found that the defect in the certificate of the Statutory Auditor submitted by the Petitioner vitiates the offer of the Petitioner and that the statutory Auditor''s certificate generally complies with the condition of the Tender, it is clear that the certificate of the Statutory Auditor submitted by the Petitioner was not exactly in the terms in which it was sought and, therefore, ONGC was justified in not accepting the offer of the Petitioner. In this regard, in our opinion, what is said by the Independent External Monitor in their opinion dated 2 December 2010 which we have quoted above is relevant. In paragraph 10, they have recorded a clear finding that the certificate submitted by the Petitioner of the Statutory Auditor complied with the requirement of the Tender document. The learned counsel appearing for the Petitioner submitted that Respondent no.3 is not entitled to raise this point now because when the matter went back to the Independent External Monitor, the Respondent no. 3 gave up this point inasmuch as after order of the High Court what was considered by the Independent External Monitor was the representation of Respondent no.3 dated 19 February 2011 and perusal of that representation shows that in that representation, the Respondent no.3 has not made any grievance about the Statutory Auditor''s certificate submitted by the Petitioner not complying with the requirement of the Tender condition. We have perused the letter dated 19 February 2011 submitted by Respondent no.3. In that letter, this aspect of the matter has not been referred to at all and, therefore, in the opinion of the Committee dated 2 March 2011, this aspect has not been considered. It appears that so far as the ONGC is concerned, they had accepted the opinion of the Independent External Monitor and the Tender Committee on this aspect of the matter and Respondent no.3 had given up its challenge on this aspect of the matter at the juncture when the Independent external Monitor reconsidered the matter pursuant t the order of the High Court. We thus find that the reason given by Respondent no.1 for rejecting the offer of the Petitioner and denying to the Petitioner the benefit of price variation, namely, non submission of the Statutory Auditor''s certificate in "C" folder is totally unacceptable and is arbitrary. In our opinion, therefore, the decision of Respondent no.1 of awarding the contract to Respondent no.3 which is impugned in this Petition will have to be set aside. We find that in the process of taking decision, the Respondent no.1 allowed itself to be influenced by entirely wrong consideration and, therefore, in our opinion, their decision is vitiated.
In the result, the Petition succeeds and is allowed. Rule is made absolute in terms of prayer (a). There shall be no order as to costs.
At this stage, oral request is made on behalf of Respondent no.3 to stay the operation of this Order for a period of six weeks. The request is opposed on behalf of the Petitioner. According to the Petitioner, the Petitioner is willing to take over the work and that the Petitioner at no stage has stopped the progress of the work. In our opinion, as Respondent no.3 wants to approach higher Court, it will be appropriate to stay the operation of this order for a period of six weeks. However, it is made clear that Respondent no.3 shall not be entitled to claim any equities on the basis of the work that may be done by Respondent no.3 during the period this order operates. It is accordingly so ordered.