M/S Saluja Transport Co., ... vs M/S Western Coalfields Limited, ...
2021 Latest Caselaw 16542 Bom

        wp-3098-21(J).odt                                       1/19


                IN THE HIGH COURT OF JUDICATURE AT
                              BOMBAY
                      NAGPUR BENCH, NAGPUR.

                       WRIT PETITION NO.3098 OF 2021

        M/s Saluja Transport Company,
        Office at: Opposite New Nagar Palika,
        Ward No.8, Parasia District
        Chhindwada (M.P.)
        Represented through its partner
        Varun Singh Saluja S/o Manjeet Singh,
        Aged about 35 years,
        Email ID: [email protected]
        Mob.No.9406661111                     .... PETITIONER

                          // VERSUS //

        1) M/s Western Coalfields Limited
        Acting through its Chairman-cum-
        Managing Director, having its office
        Coal Estate, Civil Lines, Nagpur-01
        Telephone (91-712) 2510440, 2510315

        2) General Manager (Contracts)
        M/s Western Coalfields Limited
        having its office at Coal Estate,
        Civil Lines, Nagpur-01.
        E-mail. [email protected]
        westerncoal.gov.in                        .... RESPONDENTS

        Shri S.P. Bhandarkar, Advocate for the petitioner.
        Shri S.P. Dharmadhikari, Senior Advocate assisted with
        Shri S.S.Ghate, Advocate for the respondent nos. 1 and 2.
        ___________________________________________________________

                               CORAM      : SUNIL B. SHUKRE AND
                                            ANIL S. KILOR, JJ.

wp-3098-21(J).odt 2/19

RESERVED ON : 14th OCTOBER, 2021.

PRONOUNCED ON : 30th NOVEMBER, 2021.

ORAL JUDGMENT: [PER: ANIL S. KILOR, J.]

Rule. Rule made returnable forthwith, heard

finally by consent of the parties.

2. The decision, debarring the petitioner firm

from the tender process vide letter dated 16 th August, 2021

issued by the respondent no.2 is the subject matter of

challenge in the present petition.

3. The brief facts of the present case, are as under:

The respondent-Western Coalfield Limited

Mathani UG Mine was desirous of "Transportation of coal

from coal stock yard Heap No.1 of Urban OCM to CHP

hopper of Urdhan OCM by hiring of tippers loaded by

hired payloader via weighbridge of Urdhan OCM &

unloading in to hopper of CHP. Transportation of crushed

coal from bunker of CHP loaded directly under gravity to

BG Siding of Pench Area by hiring of tippers via

weighbridge of Urdhan OCM OC (for weighment) and

weighbridge of BG Siding (for re-weighment)" and

wp-3098-21(J).odt 3/19

accordingly tender was invited/floated by WCL vide tender

notice no.06/2020-21 dated 23rd April, 2021.

4. In response to the tender notice, the petitioner

which is a partnership firm and dealing in the work of coal

transport, submitted its offer.

5. However, the petitioner had provided incorrect

information that, the petitioner firm has not been banned

or delisted by any Government, or Quasi Government

Agencies or PSUs in the undertaking whereas, it was

banned to participate in the tenders floated at Kannan area

for six months from the date of order dated 9 th December,

2018.

6. Accordingly, the petitioner firm was held to be

not eligible in the tender process vide letter dated 16 th

August, 2021 issued by the respondent no.2 and the same

is under challenge in the present petition.

7. We have heard learned counsel for the

respective parties.

wp-3098-21(J).odt 4/19

8. Shri Bhandarkar, learned counsel for the

petitioner submits that debarring the petitioner from the

tender process is based on a complaint made by a rival

bidder and the respondent nos. 1 and 2 had acted blindly

on its complaint. It is submitted that before debarring the

petitioner from the tender process no hearing was granted

to the petitioner and thereby respondents have violated the

principle of natural justice. In support of his contention, he

has placed heavy reliance on the case of UMC Technologies

Private Ltd., Vs. Food Corporation of India and another1

9. Shri Bhandarkar, learned counsel for the

petitioner further submits that the petitioner firm was

barred to participate in the tender process floated at

Khanan area for six months from the date of order i.e. 9 th

December, 2008 and said ban had automatically got over

on expiry of six months period, therefore, at the time of

submission of undertaking in the present tender process

there was no ban in operation and therefore it cannot be

said that the petitioner firm has suppressed or hidden any

1 2021(2) SCC 551

wp-3098-21(J).odt 5/19

information. It is submitted that even in the criminal

complaint relating to the alleged theft case which was the

basis to ban the petitioner to participate in the tender

floated at Khanan, the petitioner was acquitted and as such

there was absolute no case made out by the respondents for

non-acceptance of the bid of the petitioner.

10. Shri Bhandarkar, learned counsel for the

petitioner strenuously argued that after the ban period was

over, the petitioner has participated in various tender

processes, however, the petitioner was not debarred from

any such tender processes. He therefore, submits that the

decision of debarring the petitioner from the tender process

is not just and fair. In support of his contentions, he has

placed heavy reliance on the case of (i) Tata Cellular Vs.

Union of India2 (ii) M/s Acer India (Pvt) Ltd., Vs. Central

Bank of India and others3, (iii) Kulja Industries Limited Vs.

Chief General Manager, Western Telecome Project Bharat

Sanchar Nigam Limited and others4 and (iv) M/s J.K.

        2   1994(6) SCC 651
        3   2018 SCC Online Bom 1459
        4   2014(14) SCC 731




         wp-3098-21(J).odt                                         6/19

Surface Coatings Pvt. Ltd., Vs. Oil and Natural Gas

Corporation and others5

11. Per contra, Shri S.P. Dharmadhikari, learned

Senior Advocate assisted by Shri S.S.Ghate, appearing for

the respondent nos. 1 and 2 submits that in view of the fact

that the petitioner is not disputing the facts that the

petitioner was banned to participate in the past and in the

undertaking the petitioner has not disclosed the said fact,

the petition needs to be dismissed.

12. It is further submitted that petitioner who has

not disclosed true, candid and relevant facts while

participating in the tender process, was rightly debarred

from the process of tender as per the terms and conditions

of the tenders which have been accepted by the petitioner

without any demur.

13. As far as, the case of the petitioner that the

impugned action of debarring the petitioner from the

tender process is a result of complaint made by the rival, the

5 2016 SCC Online Bom 9281

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same has been emphatically denied by the respondent nos.

1 and 2.

14. Shri Dharmadhikar, learned Senior Advocate

further submits that the respondent nos. 1 and 2 having

authored the tender documents, are the best persons to

understand and appreciate its requirement and interpret its

documents and therefore unless there is any malafide act or

perversity in the understanding or appreciating of the terms

and conditions of the tender, as per well settled principle of

law, this Court cannot interfere any such matters.

15. It is further pointed out that there are no

pleadings as regards malafides or perversity in the petition,

on the contrary the suppression and non-disclosure of fact

of ban imposed in the past on the petitioner for

participating in the tender process for six months, has been

tried to be justified. The learned counsel for respondent

nos. 1 and 2, in support of his contention has placed

reliance on the judgments of Vidarbha Irrigation

wp-3098-21(J).odt 8/19

Development Corporation Vs. Anoj Kumar Garwala 6 and

M/s New Bihar Biri Leaves Co. and others Vs. State of

Bihar and others7

16. To consider the rival contentions of the parties,

we have gone through the record and various relevant

judgments.

17. In this case there is no dispute that the

petitioner firm was banned to participate in the tender

floated at Khanan area for six months from the date of

order of i.e. 9th December, 2008. It is also not disputed that

as per the tender conditions it was mandatory for all

bidders to submit a format of undertaking for genuineness

of the information furnished online and authenticity of the

documents uploaded online in support of bidder's

eligibility.

18. In the said undertaking two clauses are relevant

for the decision in the present matter, which read thus:

"8. I/We have not been banned or delisted by any Government or Quasi Government Agencies or PSUs (in case of JV, all partners are covered).

6 2019 SCC Online SC 89

7 1981(1) SCC 537

wp-3098-21(J).odt 9/19

*I/We....... have been banned by the organization named "______" for a period of.......... years/s, effective from ....... to ...... (in case of JV, name(s) of the JV Partner(s)).

10. If any information and document submitted is found to be false/incorrect at any time, department may cancel my/or Bid and action as deemed fit may be taken against me/us, including termination of the contract, forfeiture of all dues including Earnest Money and banning of our firm and all partners of the firm etc."

19. The petitioner firm accordingly submitted the

aforesaid undertaking on 29th April, 2021 wherein he has

submitted information as under:

"8. I/We have not been banned or delisted by any Govt. or Quasi Govt. Agencies or PSUs (in case of JV, all partners are covered)."

20. In the said undertaking, in clause (10), just

above the signature of the partner of the petitioner firm, the

petitioner firm has agreed that if any information and

document submitted is found to be false and incorrect at

any time, department may cancel the bid and action as

deemed fit may be taken against the petitioner, including

termination of the contract, forfeiture of all dues including

wp-3098-21(J).odt 10/19

Earnest Money and banning of the firm and all partners of

the firm etc.

21. The petitioner is not disputing any of the above

referred facts. However, the only justification offered is

that the interpretation of clause (8) of the format of

undertaking leads to the understanding that the bidder has

to disclose the information about the ban or delisting by

any Government or Quasi Government, Agencies or PSUs

which is in operation while submitting the bid and there is

no requirement to disclose any ban or delisting which had

taken place in the past and on expiry of period of such ban.

22. In the above referred backdrops, in the present

matter, the whole controversy according to us revolves

around the interpretation of clause (8) of the format of

undertaking and in view of the interpretation of the same,

"whether the action of the respondents debarring the

petitioner firm from participating in the tender process is

just and fair ?".

wp-3098-21(J).odt 11/19

23. In the case of Afcons Infrastructure Ltd. Vs.

Nagpur Metro Rail Corporation Ltd., and another 8 the

Hon'ble Supreme Court of India, has observed thus:

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

24. In the case of Ramana Dayaram Shetty Vs.

International Airport Authority of India 9 the Hon'ble

Supreme Court of India, has held thus:

"It is a well-settled rule of interpretation applicable alike to documents as to statues that, save for compelling necessity, the Court should not be prompt to ascribe superfluity to the language of a document "and should be rather at the outset inclined to suppose every word intended to have some effect or be of some use". To reject words as insensible should be the last resort of judicial interpretation, for it is an elementary rule based on common sense that no author of a formal document intended 8 2016 SCC 883 9 1979(3) SCC 489

wp-3098-21(J).odt 12/19

to be acted upon by the others should be presumed to use words without a meaning. The Court must, as far as possible, avoid a construction which would render the words used by the author of the document meaningless and futile or reduce to silence any part of the document and make it altogether inapplicable."

25. In the teeth of the above referred well settled

principle of law, the interpretation as made by the

petitioner as regards clause (8) of the format of undertaking

that the bidder has to disclose the information about the

ban or delisting by any Government or Quasi Government,

Agencies or PSUs which is in operation while submitting

the bid and there is no requirement to disclose any ban or

delisting which had taken place in the past and on expiry of

period of such ban, will not give jurisdiction to this Court

for interfering with the interpretation. Even if the

interpretation of author of the document i.e respondent

nos. 1 and 2, is not acceptable to this Court, this Court

cannot interfere with it.

26. In the case of Tata Cellular Vs. Union of India

(supra), the Hon'ble Supreme Court of India, has held that

wp-3098-21(J).odt 13/19

the court does not sit as a court of appeal in tender matters,

but merely reviews the manner in which the decision was

made. The Hon'ble Apex Court has further held that the

court does not have the expertise to correct the

administrative decision. If a review of the administrative

decision is permitted it will be substituting its own decision,

without the necessary expertise which itself may be fallible.

Thus, the Apex Court has observed that the decision must

not only be tested by the application of Wednesbury

principle of reasonableness, but must be free from

arbitrariness not affected by bias or actuated by mala fides.

27. In the present matter no pleadings of biasness

or malafides are made or argued.

28. It is an admitted fact that the petitioner firm

itself, in the undertaking submitted in compliance with the

tender condition, in clause (10) has agreed that if any

information and document submitted is found to be false

and incorrect at any time, the department may cancel the

bid and action as deemed fit may be taken against the

petitioner firm including termination of the contract,

wp-3098-21(J).odt 14/19

forfeiture of all dues including earnest money and banning

of the firm and all partners of the partnership-firm.

29. In this case undisputedly the petitioner was not

debarred from the tender process because he was banned in

the past from participating in tender process, but, the

petitioner firm has been debarred for the reason that the

petitioner firm has not disclosed the said fact and not given

correct information in the undertaking submitted by the

petitioner. In the light of above referred fact unless the

petitioner points out that, in the past despite the

respondent nos. 1 and 2 were knowing the fact of ban

imposed on the petitioner and though the said fact was not

mentioned in the undertaking at the relevant time, tenders

were allotted to the petitioner firm, the fact of allotment of

work to the petitioner after imposition of ban, has no

relevance in this petition. Accordingly, the contention

raised to that effect by the petitioner is rejected.

30. The case which the petitioner has now tried to

put forth is that the petitioner had formed a joint venture

alongwith complainant Khanduja Transport Company, who

wp-3098-21(J).odt 15/19

is the complainant in this matter and that, in the tenders of

the respondents in the past, while participating, similar

undertaking was given by the joint venture, however, no

banning action has been taken against the said Khanduja

Transport Company.

31. In this matter, the said contention raised by the

petitioner by way of additional affidavit, cannot be

accepted, in absence of such prayer made in the petition,

therefore, the said contention of the petitioner is rejected.

32. In this matter, while issuing notice on 23 rd

August, 2021 status-quo was granted by this Court.

However, on 15th September, 2021 it was pointed out by

the learned counsel for the petitioner that inspite of the

stay, the respondent nos. 1 and 2 passed an order dated 9 th

September, 2021 banning the petitioner from participation

in tender floated by the Western Coalfield Limited for one

year from the date of issuance of said letter.

33. Thereupon, this Court issued notice to the

respondent General Manager (CMC), Western Coal Field

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Headquarters, Nagpur as to why contempt proceeding be

not initiated against him.

34. The respondent no.2 thereafter filed its

affidavit on 29th September, 2021 pointing out that

challenge relating to tender notice 6/2021-22 is involved in

the present petition and the action of banning the

petitioner firm was taken in different tender notice i.e.

58/2020-21.

35. After going through this affidavit, we found

that there was no status-quo order in relation to tender

notice 58/2020-21. Accordingly, we dropped the

proceeding as regards the show cause notice issued on 15 th

September, 2021 to initiate the contempt proceeding

against the respondent no.2.

36. The petitioner while relying upon the

judgment in the case of Tata Cellular Vs. Union of India

(supra) has relied upon the observations made by the

Hon'ble Supreme Court of India in paragraphs 136, 137

and 144. After going through the above referred

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paragraphs, it is revealed that the same are distinguishable

on facts and have not found of any help to the petitioner.

The same facts is in respect of the judgment in the case of

M/s Acer India (Pvt) Ltd., Vs. Central Bank of India and

others (supra) and Kulja Industries Limited Vs. Chief

General Manager, Western Telecome Project Bharat

Sanchar Nigam Limited and others.

37. The judgment cited by the petitioner in the

case of M/s J.K. Surface Coatings Pvt. Ltd., Vs. Oil and

Natural Gas Corporation and others (supra), is on the

proportionality of imposition of ban. In view of the

findings recorded herein above, we do not find that the said

judgment is applicable to the present case.

38. The last judgment which was cited, in the case

of UMC Technologies Private Ltd., Vs. Food Corporation

of India and another (supra) on the point of opportunity

and compliance of principle of natural justice. In the

present matter, the petitioner is not disputing that he was

banned to participate in the year 2008 and further he is also

wp-3098-21(J).odt 18/19

not disputing that he did not disclose the said fact in the

undertaking submitted by him in the present matter.

39. In absence of any denial to the above referred

facts, which are the basis for debarring the petitioner from

the tender process, the case of the petitioner cannot be

accepted, as even if an opportunity of being heard was

granted in this matter, it would not have changed the final

result, in view of admitted facts.

40. In view of above, we are not inclined to

interfere in this matter. Accordingly, the petition deserves

to be dismissed.

ORDER

i. The writ petition is dismissed. Rule stands

discharged.

No order as to costs.

JUDGE JUDGE

41. Learned counsel for the petitioner has made a request for keeping the judgment in abeyance in order to approach the Hon'ble Supreme Court of India.

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42. The request is opposed by the learned counsel for the respondents.

43. The request so made cannot be granted, as we have already found that interpretation made by the respondents regarding disqualification from taking part in the tender process being reasonable, leaves no scope for this Court to make any interference in view of the law laid down in the case of Afcons Infrastructure Ltd. Vs. Nagpur Metro Rail Corporation Ltd., and another (supra). The request is rejected.

                             JUDGE                       JUDGE

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