Smart Chip Pvt. Ltd vs State Of Maharashtra And 2 Ors
2016 Latest Caselaw 3225 Bom

    Dixit
                      IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                                   
                                 ORDINARY ORIGINAL CIVIL JURISDICTION

                                       WRIT PETITION NO.864 OF 2016




                                                           
            Smart Chip Pvt. Ltd.,                                        ]
            Through its Authorised Signatory                             ]
            Registered Office :                                          ]




                                                          
            714, Raheja Chambers,                                        ]
            213 Nariman Point, Mumbai.                                   ]
            Corporate Headquarter :                                      ]
            D-216, Sector 63, Noida, Uttar Pradesh                       ] .... Petitioner




                                                 
                        Versus
            1. State of Maharashtra,    ig                               ]
               Through Principal Secretary,                              ]
               Transport Department, 4th Floor,                          ]
               Main Building, Mantralaya,                                ]
                                      
               Mumbai - 400 032, Maharashtra.                            ]
                                                                         ]
            2. Commissioner of Transport,                                ]
               State of Maharashtra,                                     ]
               Administrative Building, 4th Floor,                       ]
              


               Government Colony,                                        ]
               Opp. Dr. Babasaheb Ambedkar Garden,                       ]
           



               Bandra (East), Mumbai - 400 051.                          ]
                                                                         ]
            3. Rosmerta Technologies Limited,                            ]
               Through its Managing Director,                            ]





               137, Udyog Vihar, Phase-I,                                ]
               Gurgaon, Haryana - 122 016.                               ] .... Respondents

Mr. D.K. Singh, a/w. Ms. Mansa Bhatia,

Mr. Saurabh Agrawal and Mr. Rajesh Prajapati, for the Petitioner.

Mr. M.D. Naik, A.G.P., for Respondent Nos.1 and 2.

Mr. Kevic Setalwad, Senior Counsel, a/w.

Mr. Prashant Raul, i/by Mr. Sanjeev P. Kadam, for Respondent No.3.

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CORAM : S.C. DHARMADHIKARI & DR. SHALINI PHANSALKAR-JOSHI, J.J.

                             RESERVED ON          :   16TH JUNE 2016.
                             PRONOUNCED ON :          27TH JUNE 2016.




                                                       

JUDGMENT : [Per Dr. Shalini Phansalkar-Joshi, J.]

1. Rule. Rule is made returnable forthwith. By consent, heard finally at

the stage of admission.

2. By this Petition, filed under Article 226 of the Constitution of India,

the Petitioner is invoking extra-ordinary writ jurisdiction of this Court

against the act of Respondent Nos.1 and 2 of treating Respondent No.3

as a qualified Bidder, despite Respondent No.3 being debarred and black-

listed by the State Government of Sikkim, which act of Respondent Nos.1

and 2, according to the Petitioner, is illegal, arbitrary, malafide and in

violation of the express terms of the Tender Document dated 17 th August

2015. The Petitioner is, therefore, seeking a writ in the nature of

mandamus directing Respondent Nos.1 and 2 to declare Respondent

No.3 to be a disqualified Bidder and reject its technical and financial bid

and further directing Respondent Nos.1 and 2 to declare the Petitioner as

"L-1 Bidder" and, therefore, entitled to get contract under the said tender

bid.

3. Brief facts, as are necessary, for deciding this Writ Petition can be

stated as follows :-

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. The Petitioner herein is a part of Multinational Group having Head

Quarter in Paris and operates in 54 countries, including India, for nearly

60 years in various sectors and providing "State of Art Technologies" to

several sectors such as Banking, Airport, Police, Health, Security etc.

Petitioner has also been a pioneer company, having more than 4,000

employees, in offering "State of the Art Smart Card Solutions" for various

applications in the field of e-Governance and is the first company to have

successfully implemented Smart Card Based Driving License Project in

1999 in the entire State of Gujarat and Sikkim.

4. In August 2014, Respondent No.1, the State of Maharashtra,

through Respondent No.2, the Transport Commissioner, had released the

"Request for Proposal" (RFP) for Tender No.TCO/COMP/D-11/2014-

15/ON/16004, for selection of a vendor for providing manpower, hardware,

software, consumables etc. for the preparation of SCOSTA Certified Smart

Card Registration Certificates across all offices of the Transport

Department in the State of Maharashtra on Build, Own, Operate and

Transfer Basis (BOOT). Despite several extensions of the date for

submission of the tender documents, the said tender was cancelled by the

competent authority in May 2015, which act, according to the Petitioner,

was merely to facilitate Respondent No.3, the existing Contractor, to

continue with its efforts to get the work without any tendering process.

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5. Thereafter, on 29th June 2015, Respondent No.2 issued a fresh RFP

Tender Notice No.TCO/COMP/D-11/2015-16/ON.7552 for selection of a

vendor for the same project. On 6th August 2015, three Bidders, including

the Petitioner, submitted online bids as per the terms of the tender

process. The last date for submitting the hard copies of the respective

bids of the Bidders was 10th August 2015. However, till that date, only two

Bidders, including the Petitioner, had submitted the hard copies and

hence, according to the Petitioner, in order to enable Respondent No.3 to

submit such hard copy, which Respondent No.3 had not submitted till

then, Respondent No.2, in a arbitrary and illegal manner, deviated from

the terms of the RFP and allowed Respondent No.3 additional time to file

the hard copies till 5 pm on 13 th August 2015. However, as, till 14 th August

2015, Respondent No.3 did not submit such hard copy, Respondent No.2,

by way of Corrigendum, cancelled the tender process on the ground that

there was lack of sufficient number of valid bids. By the said Corrigendum,

a revised time-table for submission of bids was published.

6. It is the case of the Petitioner that as per Clause No.1.4.3 of the

RFP, Respondent No.2 intended to follow a two stage, three cover

process, for selection of the successful Bidder for the project. Certain

terms and conditions were laid down for Pre-Qualification Criteria in order

to entertain the Technical Bid. The essential criteria, as laid down in

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Clause 1.5.11 of the RFP was to the effect that, "the Bidder (individual or

all the members of the Consortium) should not have been black-listed by

Central Government or any State Government Organization / Department

in India at the time of submission of the Bid". In proof of this pre-

qualification condition, the Bidders were required to file an undertaking in

the format provided for in Appendix-XVI of the RFP. As per Clause

1.25.3(ii) of the RFP, in the event the successful Bidder was found as

having been debarred by the Transport Department of any State as on the

date of submission of the Bid, the Security Deposit of such Bidder was to

be forfeited and en-cashed wholly or partly.

7. As per further terms and conditions of the RFP, especially, Clause

1.7.3, only when a Bidder was deemed to be qualified, the technical

proposal of the said qualified Bidder was to be considered for further

evaluation. As per Clause 1.22.5.4, Respondent No.2 has right to reject

the Bid of any Bidder where any material misrepresentation was made.

8. It is submitted by the Petitioner that, on 26 th August 2015, the on-

line Bids for the said tender were submitted by Respondent No.3 and the

hard copies of the Bids were submitted thereof on 27 th August 2015.

According to the Petitioner, Respondent No.3 was debarred / black-listed

by the Government of Sikkim vide order dated 10 th April 2015 and hence

Respondent No.3 cannot meet the Pre-Qualification Criteria in terms of

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Clause 1.5.11 of the RFP. However, Respondent No.3 filed a false

declaration in the format provided for in Appendix-XVI of the RFP and

concealed the order dated 10th April 2015 passed by the Government of

Sikkim, debarring it from participating in the tendering process, for fixing

the HSRP on motor vehicles in the State of Sikkim.

9. Thus, according to the Petitioner, in view of the specific order dated

10th April 2015 passed by the State Government of Sikkim debarring

Respondent No.3 from participating in the tendering process, the tender

bid of Respondent No.3 could not have been considered, but, ought to

have been outrightly rejected by Respondent No.2, as Respondent No.3

was not qualifying the essential criteria laid down in the RFP. Despite that,

in a meeting of the Technical Evaluation Committee, held on 8 th October

2015, the Technical Bid of Respondent No.3 was accepted, ignoring the

notice sent by the Petitioner to Respondent No.2 bringing the said fact to

its notice. Not only that, even the Financial Bid of Respondent No.3 also

came to be accepted, Respondent No.3 being declared the lowest Bidder

"L-1". A decision to that effect was taken in the meeting dated 19 th March

2016. In the said meeting, the Petitioner was declared as "L-2".

10. The grievance of the Petitioner is that though the Bid of Respondent

No.3 was not liable to be considered, being a disqualified Bidder, the said

Bid was not only considered and accepted. Hence this act of Respondent

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Nos.1 and 2 smacks of malafides, arbitrariness and is in violation of the

fundamental rights of the Petitioner guaranteed under Articles 14 and

19(1)(g) of the Constitution of India. The Petitioner is, therefore,

constrained to approach this Court seeking direction that Respondent

Nos.1 and 2 declare Respondent No.3 as disqualified Bidder and reject its

Technical and Financial Bids and award the contract to the Petitioner, who

is the next lowest Bidder.

11. To substantiate the grievances raised in the Petition, learned

counsel for the Petitioner has relied upon Clause 1.5.11 of the RFP, which

reads as follows :-

"1.5.11 The Bidder (individual or all the members of the

Consortium) should not have been blacklisted by

Central Government or any State Government

organization / department in India at the time of

submission of the Bid."

12. Further he has relied upon Clause 1.22.5.4.2 of the RFP, which

provides for Respondent No.2's right to reject the Bid in case of the Bidder

acquiring disqualification; and Clause No.1.25.3 providing for forfeiture of

the Security Deposit in case it is found that successful Bidder has made

misleading or false representation in the forms, statements and

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attachments submitted or attached to the Bid. The learned counsel for the

Petitioner has also drawn attention of this Court to Appendix-XVI, which

pertains to the format for declaration to be submitted by the Bidder about

not being debarred / black-listed by the Central Government / any State

Government Department in India as on the date of submission of the Bid.

13. To prove that Respondent No.3 was not qualified Bidder, the

Petitioner has placed reliance on the letter dated 10 th April 2015 issued by

Motor Vehicles Division (Transport Department), Government of Sikkim,

addressed to Mr. Sandeep Malik, Director of Respondent No.3, wherein

Respondent No.3 was informed that the Government of Sikkim has

decided not to entrust to Respondent No.3 the responsibility of affixing

High Security Registration Plates to his company and thereby rejecting

the Bid submitted by Respondent No.3.

14. According to learned counsel for the Petitioner, this letter produced

at Exhibit-E, Page No.182 of the paper-book, is more than sufficient to

prove that Respondent No.3 was debarred from participating in the

tendering process by the Government of Sikkim and this was done in view

of the show cause notice issued by Delhi Government for alleged violation

of certain terms of the Contract Agreement by Respondent No.3 and a

Committee constituted by the Delhi Government had found the allegations

to be true. According to learned counsel for the Petitioner, this document

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clearly goes to prove that Respondent No.3, being debarred by the

Government of Sikkim from participating in the tendering process, the

acceptance of his Bid by Respondent Nos.1 and 2 is in clear violation of

Clause No.1.5.11 of the RFP in this case and hence this action of

Respondent Nos.1 and 2, on the face of it also, being arbitrary, manifestly

illegal and in violation of the terms and condition of the tender document,

is required to be quashed and set aside.

15. In support of his submissions, learned counsel for the Petitioner has

also relied upon various authorities of the Hon'ble Supreme Court laying

down the scope of the judicial review of the administrative action, which

authorities will be considered in the course of the Judgment.

16. On behalf of Respondent No.2, an affidavit-in-reply is filed on

record, of the Deputy Transport Commissioner (Computer) denying all the

adverse allegations and contending, inter alia, that on the receipt of the

complaint received from Advocate Abhishek Samant on 18th March 2016,

demanding black-listing of Respondent No.3 on the ground that

Respondent No.3 was already black-listed by Government of Sikkim, the

Tender Scrutiny Committee of Respondent No.2, in its meeting dated 19 th

March 2016, decided to call upon the relevant information from both the

authorities, i.e. Government of Sikkim and Government of Delhi. In

response thereto, reply was received from the Transport Department,

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Government of Sikkim, vide e-mail dated 2 nd April 2016, clearly stating that

the Government of Sikkim has not black-listed Respondent No.3. Thus, it

is urged that whatever grievances raised by the Petitioner herein are not

at all substantiated or even, prima facie, proved on record. The Petition,

therefore, being misconceived, needs to be dismissed.

17. On behalf of Respondent No.3, its Authorized Representative has,

in his affidavit-in-reply, categorically stated that Clause No.1.5.11 of RFP

is not applicable to the present Respondent, as Respondent No.3 has not

been black-listed by any State or Central Government. The Government

of Sikkim has clarified the said fact vide its letter dated 2 nd April 2016.

Moreover, Respondent No.3 has already challenged, by filing Writ Petition

(C) No.53 of 2015, the act of Government of Sikkim of not accepting his

Bid document of HSRP. The said Writ Petition is pending and subjudice

before the High Court of Sikkim. As regards the show cause notice issued

by Delhi Government for alleged violation of certain terms of the Contract

Agreement, it is submitted by Respondent No.3 that the said dispute is

also the subject matter of Arbitration Proceedings, which are pending

before the Arbitral Tribunal, in which the Delhi Government is restrained

from taking any action, pursuant to the show cause notice dated 10 th

March 2014.

18. Thus, according to Respondent No.3, there is absolutely no

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substance in the contention of the Petitioner that it was not fulfilling the

Pre-Qualification Criteria or has committed any misrepresentation.

According to Respondent No.3, neither the Government of Sikkim nor

Government of Delhi has issued any show cause notice to Respondent

No.3 stating as to why it should not be black-listed and no prior hearing to

the stage of alleged black-listing had taken place. Not only that, even the

Government of Delhi has neither terminated nor suspended the contract

given to Respondent No.3.

19.

It is also urged that the present Petition is filed at a belated stage,

only after opening of the Financial Bid and when it was clear that

Respondent No.3 was declared as "L-1" and, therefore, entitled to get the

contract. According to Respondent No.3, therefore, the present Petition is

an attempt to obstruct Respondent No.3 from getting the contract arising

out of the tender notice and hence the same is liable to be quashed.

20. On this Petition, having heard at length learned counsel for the

Petitioner and the Respondents, we are of the opinion that a very short

question is raised for our consideration, 'as to whether Respondent No.3

fulfills the Pre-Qualification Criteria, as laid down in Clause 1.5.11 of RFP,

which pertains to whether Respondent No.3 has been black-listed by

Central Government or any State Government Organization / Department

in India at the time of submission of the Bid ?' If it is proved to be so, then,

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the Petition succeeds. If not, the Petition fails.

21. However, before adverting to this factual aspect, as learned counsel

for the Petitioner has relied upon number of authorities of the Hon'ble

Supreme Court of India on the aspect of the scope of the judicial review of

administrative action regarding the award of Government contract, it

would be necessary to make a reference, albeit, briefly to those decisions.

22. The first decision relied upon by learned counsel for the Petitioner is

that of Harminder Singh Arora Vs. Union of India & Ors., (1986) 3 SCC

247, wherein, relying on its own observations in Ramana Dayaram

Shetty Vs. International Airport Authority of India, (1979) 3 SCC 489, it

was held as follows :-

"14. Where the Government is dealing with the public,

whether by way of giving jobs or entering into contracts or issuing quotas or licences or granting

other forms of largesse, the government cannot act arbitrarily at its sweet will and, like a private individual, deal with any person it pleases, but its action must be in conformity with standard or norms which is not

arbitrary, irrational or irrelevant. The power or discretion of the Government in the matter of grant of largesse ... must be confined and structured by rational, relevant and non-discriminatory standard or norm and if the Government departs from such

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standard or norm in any particular case or cases, the action of the government would be liable to be struck

down, unless it can be shown by the government that

the departure was not arbitrary, but was based on some valid principle which in itself was not irrational, unreasonable or discriminatory."

23. The learned counsel for the Petitioner has then relied upon

Siemens Public Communication Networks Private Limited & Anr. Vs.

Union of India & Ors., (2008) 16 SCC 215, wherein the Hon'ble Supreme

Court has reiterated the law relating to the scope of judicial review by

relying upon its earlier decision of Reliance Airport Developers (P) Ltd.

Vs. Airports Authority of India & Ors., (2006) 10 SCC 1, relied upon by

learned counsel for the Petitioner in this case also and observed that the

decision making process of Government or its instrumentality should

exclude remotest possibility of discrimination and favoritism. It should be

transparent, fair and bonafide and in the public interest and if it is so, the

Court will not interfere in exercise of power of judicial review, even if there

is a procedural lacunae. It was further held that principles of equity and

natural justice do not operate in the field of such commercial transactions.

24. Learned counsel for the Petitioner has lastly taken recourse to the

landmark decision of the Hon'ble Supreme Court of India in the case of

Michigan Rubber (India) Limited Vs. State of Karnataka & Ors., (2012)

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8 SCC 216, wherein, after considering its long line of decisions, including

Reliance Airport (Supra) and Jagdish Mandal Vs. State of Orissa &

Ors.,(2007) 14 SCC 517, relied upon by learned counsel for the

Petitioner, it was held that the principle of law is well settled and well

recognized by now to the effect that;

"21.In Jagdish Mandal v. State of Orissa, the following conclusion is relevant :

"22.Judicial review of administrative action is intended to

prevent arbitrariness, irrationality, unreasonableness, bias and mala fides. Its purpose is to check whether

choice or decision is made 'lawfully' and not to check whether choice or decision is 'sound'. When the power of judicial review is invoked in matters relating to tenders

or award of contracts, certain special features should be

borne in mind. A contract is a commercial transaction. Evaluating tenders and awarding contracts are essentially commercial functions. Principles of equity

and natural justice stay at a distance. If the decision relating to award of contract is bona fide and is in public interest, courts will not, in exercise of power of judicial review, interfere even if a procedural aberration or error

in assessment or prejudice to a tenderer, is made out.

The power of judicial review will not be permitted to be invoked to protect private interest at the cost of public interest, or to decide contractual disputes. The tenderer or contractor with a grievance can always seek

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damages in a civil court. Attempts by unsuccessful tenderers with imaginary grievances, wounded pride

and business rivalry, to make ountains out of molehills of

some technical/procedural violation or some prejudice to self, and persuade courts to interfere by exercising power of judicial review, should be resisted. Such

interferences, either interim or final, may hold up public works for years, or delay relief and succour to thousands and millions and may increase the project

cost manifold. Therefore, a court before interfering in tender or contractual matters in exercise of power of

judicial review, should pose to itself the following questions :

(i) Whether the process adopted or decision made by the authority is mala fide or intended to favour

someone;

OR

Whether the process adopted or decision made is so arbitrary and irrational that the court can say:

'the decision is such that no responsible authority acting reasonably and in accordance with relevant law could have reached';

(ii) Whether public interest is affected.

If the answers are in the negative, there should be no interference under Article 226. Cases involving blacklisting or imposition of penal consequences on a tenderer / contractor or distribution of State largesse

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(allotment of sites / shops, grant of licences, dealerships and franchises) stand on a different footing as they may

require a higher degree of fairness in action.

23. From the above decisions, the following principles emerge :

(a) The basic requirement of Article 14 is fairness in action by the State, and non-arbitrariness in essence and substance is the heartbeat of fair play. These

actions are amenable to the judicial review only to the extent that the State must act validly for a

discernible reason and not whimsically for any ulterior purpose. If the State acts within the bounds

of reasonableness, it would be legitimate to take into consideration the national priorities;

(b) Fixation of a value of the tender is entirely within the purview of the executive and the courts hardly have

any role to play in this process except for striking down such action of the executive as is proved to be

arbitrary or unreasonable. If the Government acts in conformity with certain healthy standards and norms such as awarding of contracts by inviting tenders, in those circumstances, the interference by courts is

very limited;

(c) In the matter of formulating conditions of a tender document and awarding a contract, greater latitude is required to be conceded to the State authorities unless the action of the tendering authority is found

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to be malicious and a misuse of its statutory powers, interference by courts is not warranted;

(d) Certain preconditions or qualifications for tenders

have to be laid down to ensure that the contractor has the capacity and the resources to successfully execute the work; and

(e) If the State or its instrumentalities act reasonably, fairly and in public interest in awarding contract, here

again, interference by court is very restrictive since no person can claim a fundamental right to carry on

business with the Government.

24. Therefore, a court before interfering in tender or contractual matters, in exercise of power of judicial review, should pose to itself the following questions :

(i) Whether the process adopted or decision made by

the authority is mala fide or intended to favour someone; or whether the process adopted or decision made is so arbitrary and irrational that the

court can say : "the decision is such that no responsible authority acting reasonably and in accordance with relevant law could have reached"?

and

(ii) Whether the public interest is affected?

If the answers to the above questions are in the negative, then there should be no interference under Article 226."

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25. Being fully conscious of well-recognized legal principles of Judicial

Review, we find that the only issue raised for consideration in this Petition

is, 'whether Respondent No.3 was fulfilling the Pre-Qualification Criteria in

terms of Clause 1.5.11 of the RFP?' The said Clause is reproduced for

ready reference as under:-

"1.5.11 The Bidder (individual or all the members of the Consortium) should not have been blacklisted by

Central Government or any State Government

organization / department in India at the time of submission of the Bid."

26. Thus, the essential criteria is that the Bidder should not have been

"black-listed" by the Central Government or State Government

Organization/Department in India at the time of submission of the Bid. The

process of black-listing is by now well settled. As black-listing of any

Contractor is considered to be in the nature of a civil death, as having

serious implication for such an entity or a person, it is held that such

action cannot be taken without following the principles of natural justice.

Such action, therefore, must be preceded by issuance of show cause

notice and an opportunity of hearing being extended to such entity or a

person.

27. In the instant case, even a cursory perusal to the letter issued by

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the Government of Sikkim dated 10th April 2015, on which the entire

reliance is placed by learned counsel for the Petitioner to support his

contention that Respondent No.3 was disqualified from tendering his Bid,

nowhere reflects that Respondent No.3 was black-listed by the

Government of Sikkim or any process for such black-listing was initiated

against Respondent No.3. As this letter dated 10 th April 2015 is pivotal for

deciding this Petition, the relevant contents thereof can be reproduced. It

may be stated that this letter is addressed to the Director of Respondent

No.3 Mr. Sandeep Malik. It reads as under :-

"It has come to the notice of State Government that M/s. Rosmerta Technologies Ltd. is a part of consortium that has bagged the contract for fixation of HSRP for Delhi

and that Delhi Government has issued a show-cause notice

for alleged violation of certain terms of the contract agreement and a committee constituted by the Delhi Government had found the allegation to be true. This being

a serious lapse, the State Government has decided not to entrust the responsibility of affixing High Security Registration Plates to your company.

Therefore, you are hereby informed that conferred to clause 2.23.5 of Section IV of bid document of HSRP, your bid cannot be accepted by the State Government."

28. Thus, even a cursory perusal of the letter nowhere reveals that

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either Respondent No.3 is black-listed or any process for black-listing is

undertaken or intended to be undertaken by the Government of Sikkim or

even by the Government of Delhi against Respondent No.3. At the most,

what the letter says is that Respondent No.3 is a part of Consortium that

has bagged the contract for fixation of HSRP for Delhi and Delhi

Government has issued show cause notice for alleged violation of certain

terms of the Contract Agreement and a Committee constituted by Delhi

Government had found the allegation to be true. But the letter nowhere

states that on account of it, Respondent No.3 is debarred or black-listed. It

is given only as a reason for not accepting Respondent No.3's Bid for that

particular project.

29. As regards these contents of the letter, the affidavit filed by

Respondent No.3 goes to show that the show cause notice issued by

Delhi Government is subject matter of the Arbitral Proceeding and Arbitral

Tribunal has issued an interim order dated 1 st April 2016, restraining Delhi

Government from taking any action pursuant to the said show cause

notice dated 10th March 2014. A copy of that order issued by the Arbitral

Tribunal to that effect is produced at Exhibit-D, Page No.237, of the paper-

book.

30. The letter dated 10th April 2015 issued by the Transport Department

of Government of Sikkim only alleges that in view of the show cause

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notice issued by the Delhi Government to Respondent No.3 relating to

violation of certain terms of the Contract Agreement, the Government of

Sikkim has decided not to entrust the responsibility of affixing High

Security Registration Plates to Respondent No.3 and, therefore, the Bid

submitted by Respondent No.3 was not accepted by the Government of

Sikkim. Thus, these contents in the letter also nowhere reflect that

Respondent No.3 is either black-listed or debarred from tendering

process. Only action taken against Respondent No.3 by this letter is that

its Bid was not accepted for that particular tender or contract, but nowhere

the said letter reveals that Respondent No.3 was, hence, debarred or

black-listed from participating in tendering process.

31. Though learned counsel for the Petitioner has relied upon the

meaning attributed to the word "Debar", as given in The Law Lexicon, to

mean "excluding from admission or right; precluding from doing certain

acts", this letter dated 10th April 2015 issued by Government of Sikkim

does not even preclude or exclude Respondent No.3 from participating in

tendering process. The letter only pleads inability of Government of Sikkim

from accepting its Bid document of HSRP Project, in view of Clause

2.23.5 of Section 4 of that particular Bid document.

32. Therefore, this letter dated 10th April 2015 cannot be of any help to

the Petitioner to prove that Respondent No.3 was either debarred or

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black-listed, as contemplated under the law, from participating in other

tendering processes. Whatever action was taken by Government of

Sikkim against Respondent No.3 by this letter dated 10th April 2015 was in

respect of a distinct particular contract and limited to that contract only, of

not accepting his Bid for that particular project. Nothing more than that

can be read in the said letter so as to infer that the Government of Sikkim

or for that matter even Government of Delhi has either precluded or

debarred, much less black-listed Respondent No.3, which is the essential

condition to disqualify Respondent No.3 in the present Tender Bid.

33. It is also pertinent to note that the Transport Department of

Government of Sikkim vide its letter dated 2 nd April 2016 produced by

Respondent No.2 at Exhibit-5, on Page No.205 of the paper-book, makes

the things further clear. It is stated therein that the action of Sikkim

Government of not accepting the Tender Bid of Respondent No.3 is

challenged by Respondent No.3 in the High Court of Sikkim and the said

show cause notice is subject matter before the High Court of Sikkim in

Writ Petition No.53 of 2015. In the said Writ Petition, an interim order is

passed on 12th February 2016 allowing Respondent No.2 to go ahead with

notice inviting tenders, but not to take any final decision. The copies of the

Writ Petition and orders passed therein are also produced on record by

Respondent No.3.

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34. This letter dated 2nd April 2016 issued by the Government of Sikkim

to Respondent No.2 states further in categorical terms that, "the State

Government of Sikkim has not black-listed M/s. Rosmerta Technologies

Limited" i.e. Respondent No.3 herein.

35. Thus, in this case, there is absolutely not a single document to

prove that, at the time of submission of the Bid in this case, Respondent

No.3 was either debarred or black-listed, either by Central Government or

any State Government Organization / Department in India. In view thereof,

there is no breach of the essential Pre-Qualification Criteria laid down in

Clause 1.5.11 of RFP (tender document). In such situation, in our

considered opinion, there is absolutely no merit or substance in the

Petition filed by the Petitioner challenging the action of Respondent Nos.1

and 2 of entertaining the Technical and Financial Bids of Respondent

No.3. The reliefs, therefore, claimed by the Petitioner cannot be granted.

36. The Petition, hence, stands dismissed. Rule is discharged

accordingly.

[DR. SHALINI PHANSALKAR-JOSHI, J.] [S.C. DHARMADHIKARI, J.]

WP-864-16.doc