G.S. Express Pvt. Ltd. Lko. Thru. ... vs State Of U.P. Thru. Prin. Secy. ...
2023 Latest Caselaw 11162 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

 High Court of Judicature at Allahabad
 
(Lucknow)
 
**********
 
Reserved on: 15.03.2023
 
Delivered on: 17.04.2023
 
Reserved
 

 
Case :- WRIT - C No. - 4184 of 2022
 

 
Petitioner :- G.S. Express Pvt. Ltd. Lko. Thru. Its Director Sandeep Anand
 
Respondent :- State Of U.P. Thru. Prin. Secy. P.W.D. U.P. Lucknow And Others
 
Counsel for Petitioner :- Anuj Kudesia
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Rajan Roy,J.

Hon'ble Manish Kumar,J.

(Per Rajan Roy, J.)

Heard Sri J. N. Mathur, learned Senior Advocate assisted by Sri Anuj Kudesia, learned counsel for the petitioner and Sri Nishant Shukla, learned Standing Counsel for the State Respondents.

This petition was finally decided by this Court vide order dated 07.07.2022. However being aggrieved, the petitioner herein filed Special Leave Petition (C) No.15345 of 2022 'G.S. Express Pvt. Ltd. vs. State of U.P. & Ors.' which was decided on 20.10.2022. The judgment of this Court dated 07.07.2022 was set aside and matter was remanded back for consideration afresh one way or the other on its merits in accordance with law. The fresh tender floated on 10.10.2022 was stayed and made subject to decision of this Court to be taken afresh as aforesaid.

Against the aforesaid background, we have heard learned counsel for the parties and are rendering our judgment on merits.

The petitioner herein has challenged an order dated 03.06.2022 passed by the Superintending Engineer (Building Cell) Public Works Department, Lucknow communicating withdrawal of the letter of acceptance dated 25.05.2022 regarding construction for establishment of new medical college attached with district referral hospital at Amethi (Uttar Pradesh), India on E.P.C. basis. This order has been issued in view of the Office Order issued by Chief Engineer (Building Cell), Public Works Department, Lucknow dated 03.06.2022. This Office Order of the Chief Engineer dated 03.06.2022 has also been challenged by way of an amendment in the petition. Apart from it, another order dated 21.06.2022 issued by the Superintendening Engineer aforesaid cancelling the aforesaid tender in respect to which the petitioner was issued the letter of acceptance, has also been challenged. Writ of Mandamus has also been sought to allow the petitioner to perform the work of design, engineering etc. for the establishment of new medical college as referred hereinabove in terms of letter of acceptance dated 25.05.2022 and not to initiate fresh tender process in this regard.

The facts of the case, in brief, are that on 05.05.2021, a tender notice was issued inviting tenders for establishment of new medical college attached with district referral hospital at Amethi having an estimated cost of Rs.248.05 crores. The petitioner herein submitted its technical and financial bid. The technical bids were opened on 13.05.2022 and the petitioner was found technically qualified. The bid of another company namely, M/s Vensa Infrastructure Ltd. was also found to be qualified. The financial bids were opened on 17.05.2022 and the petitioner's bid was found to be the lowest but the price quoted by it, as per the opposite parties, was very high and it was above the departmental bid price, therefore, the petitioner was requested to put a revised unconditional financial offer in a sealed envelope latest by 12:30 P.M. of 20.05.2022. The petitioner submitted the revised unconditional financial offer/ bid for the amount of Rs.248.05 crores in terms of the departmental bid price. Thereafter, on 25.05.2022, a letter of acceptance was issued to the petitioner. The letter of acceptance stated that the petitioner's quoted rate of 248.05 crores including G.S.T. was at par with the tendered amount which is accepted in accordance to para no.2.5 of ITB. The petitioner was required to furnish Performance Security in the prescribed form for 3 per cent of the acceptance amount equivalent to Rs.7.45 crores within ten days of receipt of such letter valid upto sixty days after the intended date of completion of work i.e. up to 26th January, 2024 and to sign the contract, failing which, action as stated in Para 2.3.6.1 B II (c) & 2.5 of ITB would be taken. Certain other conditions were also mentioned therein.

It is claimed that on 25.05.2022 itself, the petitioner gave an acknowledgment for the acceptance letter and that it would furnish the required Performance Bank Guarantee shortly. The Performance Bank Guarantee was submitted on 25.05.2022 itself. Stamp papers etc. for formal execution of the contract were also deposited as claimed by the petitioner's counsel.

On 30.05.2022, one Universal Contractors and Engineers Pvt. Ltd. made a complaint to the Chief Engineer, Superintending Engineer and the Executive Engineer (Building Cell), U.P. P.W.D., Lucknow about certain discrepancies in the bids submitted by the petitioner with respect to two projects one was the project with which we are concerned in this writ petition and the other project related to construction of residential and non-residential buildings of police line Amethi, U.P., India. As per the complaint, there was misrepresentation of average annual turnover requirement; non-disclosure of ongoing projects in road sector and various other organizations and geographies and non-achievement of required additional qualifying criteria. In the complaint, it was prayed that the L.O.A. issued for construction of medical college, Amethi should be cancelled and fresh tender should be invited for the same. It was also prayed that the petitioner should be technically disqualified in the project for construction of Police Line, Amethi.

It is not out of place to mention that tender process for construction of Police Line, Amethi was still pending at that stage whereas the tender process for the Medical College at Amethi, the Letter of Acceptance had been issued but no formal contract had been executed. Though the complainant was not a bidder in respect of the tender relating to construction of Medical College at Amethi but was a bidder for construction of Police Line, Amethi wherein the petitioner had also submitted the bid, in respect of Medical College, Amethi he alleged illegalities as aforesaid and prayed that the tender for Medical College, Amethi be refloated.

Be that as it may, on 02.05.2022, P.W.D. Minister took cognizance of the complaint and his Office ordered for high level inquiry into the matter by a Committee of two Chief Engineers who had to submit their report within seven days. Learned counsel for the State informed that this direction was for a departmental inquiry against the concerned officials who were involved in the tender process in which irregularities were alleged to have been committed as were mentioned in the complaint and they were not with respect to any action proposed to be taken against the petitioner, therefore, contention of petitioner's counsel that the impugned orders were hurriedly passed without waiting for the result of the inquiry ordered by the Minster is incorrect.

On 03.06.2022, the Chief Engineer (Building Cell), U.P. P.W.D., Lucknow passed an order, inter alia, to the effect that statement of T.1- average annual turnover for construction work was false and malafide and that wrong information had been submitted by the petitioner regarding average annual turnover and it had concealed the ongoing works/ commitments which according to him violated the affidavit as provided in Form-G of the bid. It further violated Article-2 of the Integrity Pact Agreement furnished by the bidder along with the bid. He referred to the tender condition, according to which, average annual turnover on construction works should be at least 50 per cent of the cost of proposed work during the immediate last three consecutive financial years ending 31st March, 2021. He found that petitioner had submitted proforma T.1 of average annual turnover for construction work of the last three financial years ending March, 2021 certified by a chartered accountant for Rs.113.01 crores while the financial statements attached with bid documents for three financial years namely 2018-19, 2019-20 and 2020-21 contained contractual receipts of Rs.106.86 crores, Rs.84.03 crores and Rs.143.09 crores. The average of three years turnover comes to Rs.111.33 crores and does not match with the figures shown in the T.I., which is one of the most essential document for making the firm technically responsive. He found that the petitioner had submitted Form-K showing building works currently in progress, however, as the petitioner worked in P.W.D. in both road and building sectors, therefore, additional chance was given to the petitioner vide letter dated 10.05.2022 to show all its ongoing works/commitments in hand so as to calculate the Bid Capacity correctly. In response, petitioner submitted a revised list of ongoing commitments/works with the same undertaking as of Form-K in this regard but the petitioner did not disclose the work awarded to it by P.W.D., Agra for an amount of Rs.41.93 crores. Despite the chances given to the petitioner to show the projects/commitments in hand, the petitioner intentionally concealed the project awarded to him in April, 2022 at P.W.D., Agra, even certifying at the bottom of Form 'K' attached with the bid documents and even the letter dated 10.05.2022 to the effect 'it is to undertake that above is the total list of works under progress and information furnished is true and nothing has been hiding. Further that, if such a violation comes for hiding information or incorrect information to the notice of the Department, then I/we shall be debarred for bidding in PWD in future forever'. Form-K which is an important parameter for technical evaluation of bid for Bid Capacity submitted by the petitioner was false and malafide.

Thus, on a consideration of the aforesaid two points raised in the complaint, he found that petitioner had furnished wrong information regarding the average annual turnover and had hidden the ongoing works/ existing commitments which violated the affidavit as provided in Form G of the bid. It further violated Article-2 of Integrity Pact Agreement furnished by the bidder along with the bid.

Accordingly, the Chief Engineer opined that the letter of acceptance dated 25.05.2022 may be withdrawn by the issuing authority.

He further opined that if the petitioner had submitted the same bid document for another tender for construction of residential and non-residential Police Line, Amethi, which was under process, then, cognizance of this office order should be taken for technical evaluation of said tender also.

At this stage, it is not out of place to refer to the complaint submitted by the complainant on 30.05.2022. The first point in the complaint with regard to Medical College tender was that as against the requirement of average annual turnover on construction work, it should be at least 50 per cent of the cost of proposed work during the immediate last three consecutive financial years ending 31st March, 2021. The petitioner had shown his average annual construction turnover at Rs.113 crores only including rental and other income during the last three financial years. The complainant submitted that after deduction of rental income and other income, the average annual turnover for the last three financial years of bidder was only Rs.111.60 crores. Secondly, the petitioner had deliberately deducted the GST amount from the cost of the tender to reduce the eligibility criteria and to meet the requirement as per the average annual turnover. The petitioner/ bidder had calculated the cost of above project excluding GST to qualify their credentials which is not the correct method as per the tender conditions.

As regards the first point, the total cost of project i.e. construction of Medical College at Amethi was mentioned in the tender document as Rs.248.05 crores. At page no.56 of the petition is the notice inviting tender which clearly mentions the estimated cost of the project as aforesaid. As per relevant condition in the tender document under the heading 'turnover' the average financial turnover on construction works was required to be at least 50 per cent of the cost of proposed work during the immediate last three consecutive financial years ending on 31.03.2022, if available, otherwise upto 31.03.2021. Now, 50 per cent of the cost of the proposed work would come to Rs.124.025 crores, therefore, this should have been the average financial turnover of the petitioner for the last three consecutive financial years referred hereinabove. As against this, the petitioner very cleverly deducted the GST amount from Rs.248.05 crores and thus taking the total project cost as Rs.221.47 crores (after deduction of GST) instead of Rs.248.05 crores, and its 50 per pent as Rs.110.74 crores submitted the documents mentioning the average annual turnover as aforesaid to be Rs.113.01 crores. We do not find any such condition in the tender document which permitted the petitioner or any other bidder to recalculate the total cost of the project instead of the one mentioned in the tender notice by deducting GST and then to submit that it fulfills the criteria of 50 per cent of the total project cost as its average annual turnover for the last three financial years. We asked learned counsel for the petitioner to kindly show any such provision in the tender notice but he could not show any such provision.

In fact, we may at this very stage mention that the petitioner had also submitted a similar bid for another work under the opposite parties which was for construction of Police Line at Amethi and for the said tender, the total project cost was mentioned as Rs.213.90 crores which was also inclusive of GST and accordingly, 50 per cent of the total project cost was calculated by the opposite parties as Rs.106.95 crores inclusive of GST and based thereon the average annual turnover of the petitioner for the past three years was found to be Rs.112.38 crores which was above the 50 per cent of total project cost i.e. Rs.110 crores. Accordingly, the said bid of the petitioner was held to be responsive. This is evident from the Resolution of the Technical Evaluation Committee meeting dated 13.06.2022 pertaining to the tender for Police Lines, Amethi. This goes to show that the total project cost was inclusive of GST and it was not open for the bidder to deduct GST from the same and then submit its bid to make out a case of having qualified or being eligible for the same. The fact that ultimately petitioner was not found to be L1 in respect of the Police Line tender is not of much relevance.

Reliance placed by learned counsel for the petitioner in this regard on a document prepared by a Chartered Accountant which is annexed at page no.118 of the petition as part of the bid document submitted by the petitioner does not help the petitioner's cause at all as here also GST has been deducted from the total cost of the project which was impermissible. The bid was submitted on an incorrect premise.

Apparently, the average annual turnover of the petitioner for the past three years in respect of the Medical College tender was less than 50 per cent of the cost of the proposed work, therefore, it ought to have been declared non-responsive at the technical bid stage itself but surprisingly, the technical bid was declared as responsive. Who was responsible for this, would be found in the inquiry ordered by the Minister which for some reason has not been completed as yet. Thus, the Chief Engineer was justified in recording its finding with regard to point no.1 of the complaint.

As regards the other point regarding the petitioner having concealed the existing commitments and ongoing works regarding construction of road awarded to it by P.W.D., Agra which had a cost of about Rs.41 crores, it was submitted that the petitioner did not conceal anything, it was just that the fact was overlooked and could not be mentioned. Existing commitments and ongoing works are to be disclosed so as to enable the Tender Committee to evaluate the bid capacity of the bidder after taking into consideration relevant factors including the total expenditure which would have to be incurred by the petitioner for the exiting commitments and ongoing works and based thereon to evaluate as to whether the petitioner has the financial capacity to undertake the work proposed or not. In this regard, clause-4.1.2 c(a) of Section 4 of the tender document is relevant which mentions about bidding capacity of the bidder which had to be equal to or more than the estimated cost of the work. A formula for working out the bidding capacity was given in the said clause. In this context, as per the said formula, the value of existing commitments and ongoing works to be completed during the completion of work for which tender had been invited was also a factor to be considered along with other factors and the bidder was required to disclose such existing commitments and ongoing works.

Now, the order of the Chief Engineer says that the petitioner did not disclose the aforesaid road construction work having a cost of about Rs.41 crores. The stand of the petitioner's counsel was that the contract had not been executed in respect thereof as such the same could not be disclosed. However, this reasoning has not been given in the representation of the petitioner dated 08.06.2022 which only mentions that this fact was overlooked. Therefore, obviously, this is an afterthought. As regards reliance placed by the petitioner's counsel on the representation dated 03.06.2022 wherein this reasoning is mentioned, the opposite parties have categorically denied receipt of this representation dated 03.06.2022 in para no.20 of their counter affidavit while responding to para no.35 of the writ petition in this regard. Therefore, this representation does not help the petitioner. It is also the case of the petitioner that even if this omission is taken into consideration still the bidder's capacity was Rs.517 crores as is evident from the minutes of the Technical Evaluation Committee meeting pertaining to other tender i.e. the tender relating to Police Lines, Amethi wherein this aspect has been considered. However, we find that in the supplementary counter affidavit filed by the opposite parties which is dated 12.12.2022 there is a mention of at least two or three existing commitments/ ongoing works which were not disclosed by the petitioner in their bid documents and these facts have not been denied by the petitioner in any of the affidavits although the supplementary counter affidavit was served upon their counsel. Non-disclosure of these relevant information was a violation of the tender conditions and the undertaking given at the bottom of Form-K that the total list of works mentioned therein are true and nothing has been hidden and also that if such a violation comes for hiding information or incorrect information to the notice of the Department then the petitioner shall be debarred from bidding in P.W.D. in future forever. Form-K is an important parameter for technical evaluation of a bidder's bid capacity as already stated hereinabove. Non-disclosure of relevant fact was a violation of the tender conditions as is mentioned in the order of the Chief Engineer.

Even if this violation is ignored for a moment considering the petitioner's assertion that despite of it the bid capacity was Rs.517 crores, although, if apart from existing commitments with regard to the road construction at Agra, there were other works which had also not been disclosed then it would be a relevant factor which would go against the petitioner, the fact that the total project cost and its 50 per cent was calculated erroneously and by twisting the facts as already discussed, this itself is an apparent violation of the tender condition about which there cannot be two views and no satisfactory explanation could be offered on behalf of the petitioner in this regard.

We may now consider the submission of the petitioner's counsel that the explanation offered vide representations dated 03.06.2022 and 08.06.2022 were found to be genuine and were accepted by the Technical Evaluation Committee in respect of the tender for construction of Police Line, Amethi, therefore, withdrawal of letter of acceptance issued with regard to construction of Medical College at Amethi on the same grounds is incongruous and unacceptable.

We have perused the resolution of Technical Evaluation Committee dated 13.06.2022 pertaining to Police Line, Amethi and we find that contention of petitioner's counsel is factually incorrect. Considering the fact that tender process pertaining to Police Line, Amethi was still pending and the technical bids had not been evaluated, therefore, in view of the last line in the order of Chief Engineer dated 03.06.2022, this aspect was taken into consideration in respect to the tender pertaining to Police Line, Amethi and as the bidder provided the updated average annual turnover for Police Line tender which was Rs.110 crores and the cost of the said project being only Rs.213.90 crores, therefore, 50 per cent of the project would be around Rs. 106.95 crores and as the petitioner's average annual turnover for the three financial years was Rs.112.38 crores, therefore, as far as Police Line, Amethi tender was concerned, the said condition was found to be satisfied by the petitioner, meaning thereby, it was not a case where reply of the petitioner was accepted so far as illegalities pertaining to Medical College, Amethi tender was concerned but the same was accepted for the project of the Police Line, Amethi on account of lower cost of the project.

Further, as regards the other ground of non-disclosure of ongoing works, the resolution dated 13.06.2022 says that incorporating the ongoing works shown in the representation dated 08.06.2022, bidder qualified the bidding capacity criteria. Thus, the representation dated 08.06.2022 was treated as disclosing the ongoing work which had not been disclosed in the context of the Medical College tender and accordingly, the petitioner was found as qualifying the bid capacity for Police Line's tender which was under process but it does not mean that concealment in respect of the tender pertaining to Medical College was found to have been explained or the explanation had been accepted in respect thereof. The petitioner has misread and misunderstood the minutes dated 13.06.2022 pertaining to Police Line, Amethi's tender as if its stand and explanation has been accepted with regard to the first tender also which is not the case. Thus, the Resolution dated 13.06.2022 does not help the petitioner so far as the tender in question is concerned.

At this stage, it needs to be mentioned that when the order dated 03.06.2022 was passed by the Chief Engineer with regard to the tender process pertaining to construction of Medical College, Amethi, the other tender process pertaining to Police Line, Amethi was still under process and was pending. The petitioner and the complainant, both were bidders in the said tender and after passing of the order dated 03.06.2022 in view of the recital contained in the last line of said order, the Technical Evaluation Committee pertaining to the Police Line tender took into consideration the order dated 03.06.2022 also and that is how there is a reference in the Resolution dated 13.06.2022 to the representation of the petitioner dated 08.06.2022 as discussed hereinabove. So far as tender for construction of Medical College at Amethi is concerned, the representation dated 08.06.2022 does not offer any such explanation that based on the total project cost, the average annual turnover of the petitioner for the last three financial years was more than 50 per cent of such cost. Here again, out of the total project cost, it is mentioned that GST was deducted and accordingly the bid was submitted which as already mentioned was impermissible and contrary to the tender conditions.

Another argument advanced by learned counsel for the petitioner was that once the Minister concerned had instituted an inquiry on the complaint dated 30.05.2022, there was no occasion for the Chief Engineer who passed the order dated 03.06.2022 for withdrawal of letter of acceptance, consequent to which, it was actually withdrawn by the Superintending Engineer concerned on the same day without waiting for the result of the said inquiry. We have been informed by learned counsel for the opposite parties that the inquiry ordered by the Departmental Minister was a departmental inquiry and not an inquiry for taking action against the petitioner, therefore, the order dated 03.06.2022 passed by the Chief Engineer and consequential order passed by the Superintending Engineer withdrawing the letter of acceptance issued to the petitioner was unaffected by such inquiry. The contention does not help the petitioner's cause as long as the facts mentioned in the order of the Chief Engineer dated 03.06.2022 are correct and are not belied. The illegalities are so apparent on the face of the record that they can't be ignored merely on such grounds. Of course, the departmental inquiry, if it is pending, should be completed at the earliest and if there was any malafide on the part of the officers or employees involved in the tender process, suitable action should be taken against them, subject however to appropriate procedure being adopted in this regard as per law. Thus, this contention is also rejected.

Another argument was advanced by learned counsel for the petitioner that the impugned order is stigmatic as it mentions about fraudulent practice having being adopted by the petitioner especially as no opportunity of hearing was given to it prior to passing of such order. It was contended that the balance sheet and other documents were on record along with the requisite certificates of the Chartered Accountant as such no fraud could be established based on the document. In this regard, we find that condition No.2.4.3. of the tender document under the heading ''Evaluation of Bids' Clause-(ii) mentions that U.P. P.W.D. reserves the right to reject any bid if :- (a) at any time, material representation is made or uncovered. Clause -(c) says that bid can be rejected if it is found that the information provided is not true or incorrect or facts/ material for the evaluation has been suppressed. Now, in view of the discussion already made, it is apparent from the record that the petitioner very conveniently recalculated the total project cost as also its 50 per cent so as to submit figures based thereon and project a picture as if its average annual turnover for three consecutive years was equal to or more than 50 per cent of the total project cost. This was a clear misrepresentation of facts in the bid document and merely because the Chartered Accountant had issued the certificate in this regard does not improve the petitioner's case for the reasons we have already discussed which need not be reiterated again. The tender conditions did not permit such an exercise. The officers of the Tender Committee also ignored this glaring irregularity. Moreover, even the average annual turnover as disclosed i.e. Rs.113.01 crores did not match with the balance sheet etc annexed with the bid document but even if this aspect is ignored as a mere irregularity, the first point still holds good and was a major violation of the tender conditions.

As already stated, even if non-disclosure of one of the existing commitments/ ongoing works is ignored unless there were other works / commitments of the petitioner but were not disclosed as claimed in the supplementary counter affidavit, the fact remains that calculation of average annual turnover as aforesaid was clearly based on facts being twisted and the officers of the Technical Committee either turned a blind eye to it or it escaped their notice. This, of course, would be seen during inquiry against such officers.

In view of the above, we are not persuaded to accept the contention of the petitioner's counsel that Clause-2.4.3. of the tender condition would not apply in the case of withdrawal of acceptance of tender after the same had been accepted and its acceptance had been acknowledged, as, for the purposes of exercise of our discretionary extraordinary jurisdiction, that too, in a tender matter, such twisting of facts and misrepresentation by the petitioner apart from the non-disclosure is sufficient to persuade us to decline to interfere under Article 226 of the Constitution of India.

No doubt, in given set of facts, a writ petition can be entertained and is maintainable even in respect of a tender/ contract matter but it does not mean that in every case, this Court has to exercise its powers under Article 226 of the Constitution of India in favour of the petitioner. It all depends upon the facts of the case. In matters of tender and contract, such discrepancies in the bid document vis-a-vis the tender condition are often fatal unless there is a provision in the tender document permitting removal of such discrepancies and an opportunity is given for the same which is not the case here.

Moreover, any document such as the certificate of the Chartered Accountant dated 07.06.2022 which is of a date subsequent to date of withdrawal of letter of acceptance cannot be taken into consideration in view of the specific provision in the tender document itself and even otherwise. Therefore, reliance placed upon the letter of the Chartered Accountant dated 07.06.2022 is misconceived. Even this document does not calculate the cost project including GST nor does it mention the average annual turnover accordingly. Therefore, it is of no avail.

There was clear misrepresentation of facts by the petitioner as is evident from the above discussion. The plea that no opportunity of hearing was given prior to passing of the impugned order which according to the petitioner was stigmatic is not acceptable in view of the factual position with regard to calculation of average annual turnover of the petitioner which are apparent and regarding which it cannot be said that there are two views possible nor could it be demonstrated before us that it was so, as such, principles of natural justice in the facts of this case cannot be reduced to an empty formality nor any benefit can be given to the petitioner in this regard. Merely because the officers of the Tender Committee overlooked this relevant aspect does not enure to the benefit of the petitioner especially as their role itself is under scruitiny and is required to be inquired. This contention is also therefore rejected.

In view of the above, we do not find violation of Article 14 of the Constitution of India in this regard.

It was also argued by Sri Mathur, learned Senior Counsel appearing for the petitioner that after receipt of letter of acceptance by the petitioner and its acknowledgment even though no formal contract had been executed, the petitioner invested heavily by purchasing raw material and in this regard reliance was based on a table/ chart prepared by the petitioner and filed along with its pleadings. We are of the opinion that there is no such letter / order on record by which the petitioner may have been asked by the opposite parties to start purchasing raw material for construction of Medical College without waiting for execution of the contract. In fact, learned counsel for the opposite parties submitted that the contract at hand was a design, engineering, procurement and construction (E.P.C.) based contract in which, first of all, the design is prepared and as the design itself had not been prepared where was the occasion for the petitioner to purchase raw material and if he has done so, the opposite parties cannot be made liable for this alleged expense. We find force in the submission of learned counsel for the opposite parties. The petitioner is admittedly engaged in other construction works and had several ongoing projects, therefore, it is difficult to accept this contention that the raw material was purchased for this very project and even if it was, the opposite parties cannot be made liable for the same as there is nothing on record to show that opposite parties ever asked the petitioner to commence the work. This contention is, therefore, rejected in the facts of this case.

Another argument was advanced by learned counsel for the petitioner based on Section 5 of the Indian Contract Act, 1872 that after the letter of acceptance had been issued and it had been acknowledged by the petitioner, it could not have been withdrawn. In the facts and circumstances already noticed above, as there was glaring twisting of facts by the petitioner and on the face of it, average annual turnover for the last preceding consecutive three years was not 50 per cent of the total project cost, we are not persuaded to exercise our discretionary and extraordinary jurisdiction under Article 226 of the Constitution of India based on this plea. In the facts of the this case, we decline to exercise our discretionary jurisdiction in favour of the petitioner.

Learned counsel for the petitioner has relied upon the decisions rendered in 'ABL International Ltd. vs. Export Credit Guarantee Corporation of India Ltd.' (2004) 3 SCC 553; 'UNITECH Limited & Ors. vs. Telangana State Industrial Infrastructure Corporation (TSIIC) & Ors.' (2021) SCC Online SC 99; 'Mahabir Auto Stores & Ors. vs. Indian Oil Corporation & Ors.' (1990) 3 SCC 752; 'Dharam Chand Gupta vs. Indian Oil Corporation Ltd.' (2006) 130 DLT 102; 'Michigan Rubber (India) Ltd. vs. State of Karnataka & Ors.' (2012) 8 SCC 216; 'Dresser Rand S.A. vs. Bindal Agro Chemical Ltd. & Ors.' (2006) 1 SCC 751; 'Rishi Kiran Logistics Pvt. Ltd. vs. Board of Trustees of Kandla Port Trust & Ors.' (2015) 13 SCC 233 and 'Municipal Council Neemuch vs. Mahadeo Real Estate & Ors.' (2019) 10 SCC 738 in support of his contention. However, in view of the discussions already made, none of the decisions cited on behalf of the petitioner helps its cause.

Fresh tender has already been floated. If the petitioner is otherwise eligible and there is no legal impediment in its participation in this fresh tender, it can do so. Requisite parties are at liberty to proceed with the fresh tender which has been floated and finalize it.

It is made clear that any observation made herein shall not be treated as conclusive so far as guilt, if at all, of any of the officers involved in the tender process is concerned and the same would be inquired independently but promptly and the inquiry in this regard, if any, would be completed within six months, unless already completed.

In view of the above discussion, we accordingly dismiss this petition subject however to the above.

(Manish Kumar,J.) (Rajan Roy,J.)

Order Date :- 17.04.2023

Shanu/-