Bombay High Court
M/S. Nizamsingh Chauhan, Thr. Partner, ... vs Union Of India, Thr. Secretary, ... on 12 November, 2024
Author: Avinash G. Gharote
Bench: Avinash G. Gharote, M.S. Jawalkar
1 WP-4446.23+9-J.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR.
WRIT PETITION NO.4446/2023
PETITIONER : M/s. Biswajeet Enterprises,
Through its Partner,
Shri Shambhunath Dnyanendrachand
Chakravarty,
Off. At Ward No.1, At Post Ramtek,
Tq. Ramtek, Dist. Nagpur.
...VERSUS...
RESPONDENTS : 1. Union of India,
Through its Secretary,
Ministry of Steel, Udyog Bhawan,
Dr. Maulana Azad Road,
New Delhi 110011.
2. Moil Limited,
Through its General Manager (Production),
Beldongri Mines,
"MOIL BHAWAN",
1A, Katol Road,
NAGPUR 440 013.
---------------------------------------------------------------------------------
Mr. U.V. Chakravarty Advocate for petitioner.
Mr.C.J. Dhumne, Advocate for respondent no.1.
Mr. Masood Shareef, Advocate for respondent no.2.
--------------------------------------------------------------------------------
WITH
WRIT PETITION NO.4445/2023
PETITIONER : M/s. Biswajeet Enterprises,
Through its Partner,
Shri Shambhunath Dnyanendrachand
Chakravarty,
Off. At Ward No.1, At Post Ramtek,
Tq. Ramtek, Dist. Nagpur.
2 WP-4446.23+9-J.odt
...VERSUS...
RESPONDENTS : 1. Union of India,
Through its Secretary,
Ministry of Steel, Udyog Bhawan,
Dr. Maulana Azad Road,
New Delhi 110011.
2. Moil Limited,
Through its General Manager (Production),
Beldongri Mines,
"MOIL BHAWAN",
1A, Katol Road,
NAGPUR 440 013.
3. M/s. Darshanlal Bhutani,
Darshan Complex, Motar Stand,
Kamptee, Dist. Nagpur.
---------------------------------------------------------------------------------
Mr. U.V. Chakravarty Advocate for petitioner.
Mr.C.J. Dhumne, Advocate for respondent no.1.
Mr. Masood Shareef, Advocate for respondent no.2.
Mr. H.I. Kothari, Advocate for respondent no.3.
---------------------------------------------------------------------------------
WITH
WRIT PETITION NO.4474/2023
PETITIONER : M/s. Nizamsingh Chauhan,
Through its Partner,
Shri Anurag s/o Mahendrasingh Chauhan,
R/o 101, Radheay Apartment,
Giripeth, Nagpur - 440010.
...VERSUS...
RESPONDENTS : 1. Union of India,
Through its Secretary,
Ministry of Steel, Udyog Bhawan,
Dr. Maulana Azad Road,
New Delhi 110011.
3 WP-4446.23+9-J.odt
2. Moil Limited,
Through its General Manager (Production),
Sitapatore Mines, "MOIL BHAWAN",
1A, Katol Road, NAGPUR 440 013.
3. M/s. Altaf Ahmed,
Ward No.33, SBI Colony, Balaghat,
Dist. Balaghat, Madhya Pradesh, 481001.
---------------------------------------------------------------------------------
Mr. U.V. Chakravarty Advocate for petitioner.
Mr. C.S.Dhumne, Adv. for respondent no.1.
Mr. Masood Shareef, Advocate for respondent no.2.
None for respondent No.3.
---------------------------------------------------------------------------------
WITH
WRIT PETITION NO.4476/2023
PETITIONER : M/s. Nizamsingh Chauhan,
Through its Partner,
Shri Anurag s/o Mahendrasingh Chauhan,
R/o 101, Radheay Apartment,
Giripeth, Nagpur - 440010.
...VERSUS...
RESPONDENTS : 1. Union of India,
Through its Secretary,
Ministry of Steel, Udyog Bhawan,
Dr. Maulana Azad Road,
New Delhi 110011.
2. Moil Limited,
Through its General Manager (Production),
Sitapatore Mines, "MOIL BHAWAN",
1A, Katol Road, NAGPUR 440 013.
3. M/s. V.J.Trivedi, Mining Cont.Pvt.Ltd.,
18/19, Agrasen Marg, Giripeth,
Nagpur-440010.
4 WP-4446.23+9-J.odt
---------------------------------------------------------------------------------
Mr. U.V. Chakravarty Advocate for petitioner.
Mr. C.S.Dhumne, Adv. for respondent no.1.
Mr. Masood Shareef, Advocate for respondent no.2.
None for respondent No.3.
---------------------------------------------------------------------------------
WITH
WRIT PETITION NO.4473/2023
PETITIONER : M/s. Nizamsingh Chauhan,
Through its Partner,
Shri Anurag s/o Mahendrasingh Chauhan,
R/o 101, Radheay Apartment,
Giripeth, Nagpur - 440010.
...VERSUS...
RESPONDENTS : 1. Union of India,
Through its Secretary,
Ministry of Steel, Udyog Bhawan,
Dr. Maulana Azad Road,
New Delhi 110011.
2. Moil Limited,
Through its General Manager (Production),
Sitapatore Mines, "MOIL BHAWAN",
1A, Katol Road, NAGPUR 440 013.
3. M/s. Altaf Ahmed,
Ward No.33, SBI Colony, Balaghat,
Dist. Balaghat, Madhya Pradesh, 481001.
---------------------------------------------------------------------------------
Mr. U.V. Chakravarty Advocate for petitioner.
Mr. C.S.Dhumne, Adv. for respondent no.1.
Mr. Masood Shareef, Advocate for respondent no.2.
None for respondent No.3.
---------------------------------------------------------------------------------
WITH
5 WP-4446.23+9-J.odt
WRIT PETITION NO.4475/2023
PETITIONER : M/s. Nizamsingh Chauhan,
Through its Partner,
Shri Anurag s/o Mahendrasingh Chauhan,
R/o 101, Radheay Apartment,
Giripeth, Nagpur - 440010.
...VERSUS...
RESPONDENTS : 1. Union of India,
Through its Secretary,
Ministry of Steel, Udyog Bhawan,
Dr. Maulana Azad Road,
New Delhi 110011.
2. Moil Limited,
Through its General Manager (Production),
Sitapatore Mines, "MOIL BHAWAN",
1A, Katol Road, NAGPUR 440 013.
3. M/s. Shri Sai Mineral
At Post Chicholi, Tah.Tumsar,
Dist. Bhandara - 441912.
---------------------------------------------------------------------------------
Mr. U.V. Chakravarty Advocate for petitioner.
Mr. C.S.Dhumne, Adv. for respondent no.1.
Mr. Masood Shareef, Advocate for respondent no.2.
Mr. A.Z.Jibhkate, Advocate for respondent no.3.
---------------------------------------------------------------------------------
WITH
WRIT PETITION NO.4916/2023
PETITIONER : M/s. Biswajeet Enterprises,
Through its Partner,
Shri Shambhunath Dnyanendrachand
Chakravarty,
Off. At Ward No.1, At Post Ramtek,
Tq. Ramtek, Dist. Nagpur.
...VERSUS...
6 WP-4446.23+9-J.odt
RESPONDENTS : 1. Union of India,
Through its Secretary,
Ministry of Steel, Udyog Bhawan,
Dr. Maulana Azad Road,
New Delhi 110011.
2. Moil Limited,
Through its General Manager (Production),
Sitapatore Mines, "MOIL BHAWAN",
1A, Katol Road, NAGPUR 440 013.
3. M/s. Eastern Mining Cont. Pvt. Ltd.,
9, Giripeth, J.B. Thakkar Marg,
Nagpur - 440010.
---------------------------------------------------------------------------------
Mr. U.V. Chakravarty Advocate for petitioner.
Mr. C.S.Dhumne, Adv. for respondent no.1.
Mr. Masood Shareef, Advocate for respondent no.2.
None for respondent No.3.
---------------------------------------------------------------------------------
WITH
WRIT PETITION NO.4913/2023
PETITIONER : M/s. Nizamsingh Chauhan,
Through its Partner,
Shri Anurag s/o Mahendrasingh Chauhan,
R/o 101, Radheay Apartment,
Giripeth, Nagpur - 440010.
...VERSUS...
RESPONDENTS : 1. Union of India,
Through its Secretary,
Ministry of Steel, Udyog Bhawan,
Dr. Maulana Azad Road,
New Delhi 110011.
2. Moil Limited,
Through its General Manager (Production),
Sitapatore Mines, "MOIL BHAWAN",
1A, Katol Road, NAGPUR 440 013.
7 WP-4446.23+9-J.odt
3. M/s. V.J. Trivedi Mining Cont. Pvt. Ltd.,
18/19, Agrasen Marg, Giripeth,
Nagpur - 440010.
---------------------------------------------------------------------------------
Mr. U.V. Chakravarty Advocate for petitioner.
Mr. C.S.Dhumne, Adv. for respondent no.1.
Mr. Masood Shareef, Advocate for respondent no.2.
None for respondent No.3.
---------------------------------------------------------------------------------
WITH
WRIT PETITION NO.4915/2023
PETITIONER : M/s. Nizamsingh Chauhan,
Through its Partner,
Shri Anurag s/o Mahendrasingh Chauhan,
R/o 101, Radheay Apartment,
Giripeth, Nagpur - 440010.
...VERSUS...
RESPONDENTS : 1. Union of India,
Through its Secretary,
Ministry of Steel, Udyog Bhawan,
Dr. Maulana Azad Road,
New Delhi 110011.
2. Moil Limited,
Through its General Manager (Production),
Sitapatore Mines, "MOIL BHAWAN",
1A, Katol Road, NAGPUR 440 013.
3. M/s. Eastern Mining Cont. Pvt. Ltd.,
9, Giripeth, J.B. Thakkar Marg,
Nagpur - 440010.
---------------------------------------------------------------------------------
Mr. U.V. Chakravarty Advocate for petitioner
Mr. C.J. Dhumne, Adv. for respondent no.1
Mr. Masood Shareef, Advocate for respondent no.2
None for respondent No.3.
---------------------------------------------------------------------------------
8 WP-4446.23+9-J.odt
WITH
WRIT PETITION NO.4914/2023
PETITIONER : M/s. Biswajeet Enterprises,
Through its Partner,
Shri Shambhunath Dnyanendrachand
Chakravarty,
Off. At Ward No.1, At Post Ramtek,
Tq. Ramtek, Dist. Nagpur.
...VERSUS...
RESPONDENTS : 1. Union of India,
Through its Secretary,
Ministry of Steel, Udyog Bhawan,
Dr. Maulana Azad Road,
New Delhi 110011.
2. Moil Limited,
Through its General Manager (Production),
Sitapatore Mines, "MOIL BHAWAN",
1A, Katol Road, NAGPUR 440 013.
3. M/s. Darshanlal Bhutani,
Darshan Complex, Motor Stand,
Kamptee, Dist. Nagpur.
--------------------------------------------------------------------------------
Mr. U.V. Chakravarty Advocate for petitioner.
Mr. C. J. Dhomne, Adv. for respondent no.1.
Mr. Masood Shareef, Advocate for respondent no.2.
Mr. H.I. Kothari, Advocate respondent no.3.
--------------------------------------------------------------------------------
CORAM : AVINASH G. GHAROTE AND
SMT. M.S. JAWALKAR, JJ.
Date of reserving the judgment : 14/10/2024
Date of pronouncing the judgment : 12/11/2024
9 WP-4446.23+9-J.odt
JUDGMENT:
(PER : AVINASH G. GHAROTE, J.)
1. Rule. Rule made returnable forthwith. The petitions are heard
finally with the consent of the learned counsel for the parties.
2. All these petitions question the rejection of the offer of the
petitioners, in the various tenders issued by the respondent No.1, for the work
of "Handling and Transport on Lumpsum Basis - Handling & Transport Service,
Truck loading by manual means Quantity 5000 MT, Handling and Transport on
Lumpsum Basis - Handling & Transport Service, Truck loading by mechanical
means Quantity 65000 MT, Handling and Transport on Lumpsum Basis -
Handling & Transport Service, Rehandling and stacking on exigency Quantity
2000 MT". The quantities of work in the various NIT are different. The
position in this regard can be depicted as under:
Sr. Writ Petn. Parties Tender No. & Date Date of Date of
No. No. Names Submissi rejection
on of Bid. of Bid.
1. 4446/2023 M/s. GEM/2023/B/346178, 07/06/23 12/07/23
Biswajeet Dt. 15/05/2023
Enterprises
-Vs. -
Union of
India and
others
2. 4445/2023 -"- GEM/2023/B/3488118, 07/06/23 13/07/23
Dt. 18/05/2023
3. 4916/2023 -"- GEM/2023/B/3488808, 13/06/23 24/07/23
10 WP-4446.23+9-J.odt
Dt. 25/05/2023
4. 4914/2023 -"- GEM/2023/B/3483895, 12/06/23 24/07/23
Dt. 25/05/2023
5. 4475/2023 M/s. GEM/2023/B/3478868, 13/06/23 13/07/23
Nizamsingh Dt. 23/05/2023
Chauhan
-Vs. -
Union of
India and
others
6. 4473/2023 -"- GEM/2023/B/3492817, 16/06/23 13/07/23
Dt. 26/05/2023
7. 4476/2023 -"- GEM/2023/B/3474584, 12/06/23 13/07/23
Dt. 22/05/2023
8. 4913/2023 -"- GEM/2023/B/3483380, 14/06/23 24/07/23
Dt. 22/05/2023
9. 4474/2023 -"- GEM/2023/B/3493073, 13/06/23 13/07/23
Dt. 26/05/2023
10. 4915/2023 -"- GEM/2023/B/3483380, 14/06/23 24/07/23
Dt. 22/05/2023
2-A. On 08/04/2024, the following position was recorded.
"Heard.
2. These batch of petitions question the rejection of the bid of the
petitioner/s, on the ground that on an earlier occasion when the
petitioner/s in a JV named as Allied corporation had been granted a
work order dated 28.03.2019 for the duration 28.03.2019 to
03.05.2019 for supply of sand, though the sand was supplied, the
Transit Passes/Permits for this supply of sand are claimed to have been
forged and fabricated, which is based upon two communications by the
Revenue Department of the Seoni Division of the State of Madhya
Pradesh both dated 06.01.2022. It is based upon this that an FIR came
to be filed against the said Allied corporation and its constituents,
which included the present petitioner/s, on 22.09.2022 . The
11 WP-4446.23+9-J.odt
petitioner/s, has challenged the FIR in Criminal Application (APL) No.
29/2023 (page 331) in which by an order dated 09.01.2023, this Court
has directed that the investigation may continue however charge-sheet
shall not be filed until further orders.
3. It is thereafter, that in a tender floated on 18.05.2023,
when the petitioner/s had submitted his bid, the same came to be
rejected on 12.07.2023 (page 17) on the ground that M/s Allied
Corporation, the JV of which the petitioner/s was the party in the
earlier work order dated 20.08.2019 had committed a fraud regarding
the transit passes/permits for supply of sand and the offer of the
petitioner and therefore, cannot be processed (page 17A typed copy).
4. A representation was made by the petitioner/s against
this (page 125) which again has been rejected on 15.07.2023 (page
18A) on the ground that the JV firm of the petitioner/s had submitted
false royalty permits, and therefore, the representation cannot be
considered (page 18A).
5. Mr. Chakravarty, learned counsel for the petitioner/s,
challenges the rejection of the bid of the petitioner/s on the ground,
that mere filing of an FIR, the consequent filing of charge-sheet of
which has been stalled by this Court by its order dated 09.01.2023
cannot be said to be a ground for not opening the offer of the
petitioner/s itself. He further contends, that there is no order of
disqualification at all by the respondents, which ought to have been
there in case, there was any truth in allegations of forgery and fraud
levelled against the petitioner/s. It is further contended, that in respect
of the non-payment of the value of the work order dated 28.03.2019,
the petitioner had initiated arbitration proceedings in which a specific
Issue No. B was famed as to whether the claimants/petitioners had
defaulted the payment of royalty on sand supplied to the respondents,
which issue has been answered in the negative (page 119), in which it
has been observed that the Mining Officer, Balaghat has issued three
letters dated 20.07.2019 and 30.11.2019 thereby confirming the
payment of royalty on the quantities supplied by the JV to the
respondents. It also records the Collector Nagpur having also
confirmed about the payment of royalty, and therefore, the issue has
12 WP-4446.23+9-J.odt
been answered in the negative and ultimately an award has been
passed against the respondents to process and make payment of 70% of
the bill amount of the petitioner/s within 30 days of the date of the
order and the remaining 30% of the bill amount of the claimant was to
become payable after payment of GST by the petitioner(s)/claimant(s).
This award dated 21.09.2020, is under challenge by way of an
Application under Section 34 of the Arbitration & Conciliation Act,
1996 which is stated to be pending. He also contends, that thereafter
also the respondents had also issued work orders to the petitioner/s, for
which he places reliance upon the work order dated 06.03.2023 (page
128). He also relied upon the work order dated 05.03.2024, a copy of
which is tendered across the bar and marked as 'X' for the purpose of
identification. Reliance is also placed upon work orders dated
20.08.2019 page 332 and onwards till page 338 and the fact that
these work orders inspite of the fact that their scheduled dates for
completion for sometime in the year 2022 were never cancelled.
6. He therefore contends, that a mere filing of an FIR
would not entitle the respondents, in not even opening the offer of the
petitioner/s on the ground that he was involved in a fraudulent activity
while completing the work order dated 28.03.2019.
7. Mr. Shareef, learned counsel for the respondent No.2/,
in this regard, relies upon the buyer aided bid specific terms and
conditions in the tender document dated 18.05.2023 (page 32), which
refers to the financial standing that the bidder should not be under
liquidation, court receivership or similar proceedings, should not be
bankrupt and an undertaking to be uploaded alongwith the bid. That in
our considered opinion, does not have any bearing whatsoever on the
matter in issue. He also refers to the Integrity Pact which is signed by
the bidder. The format of Integrity Pact is at page 175. Section II relates
to Commitment of Bidders and Section III relates to Violation and
Penalties and reads as under:
"Commitment of Bidders (Section II)
The Bidder/Contractor commits himself to take all
necessary measures not to involve in any type of corrupt
13 WP-4446.23+9-J.odt
practice during the Tender Process as well as Execution of
the Contract including the following:-
A. The Bidder/Contractor will not offer or promise to offer
to any of the MOIL's employee the gratification/benefit for
which he/she is not legally entitled to get undue
favour/advantage or information related to Tender Process
or during Execution of the Contract.
B. The Bidder/Contractor will not enter into Agreement
with other Contenders/Contractors to derail/disturb fair
Tender Process like price fixing or other unethical
understanding like Cartel Formation.
C. The Bidder/Contractor will not pass on to others the
Confidential Information provided by MOIL as a part of
Tender Documents/Contracts.
D. The Bidder/Contractor will not disclose about all the
payments made to the Agents/intermediaries, wherever
such arrangement is permissible, in connection with the
award of Contract/Tender Process.
E. The Bidder/Contractor will immediately inform MOIL,
if asked to pay any illegal gratification or bribe, in violation
of this Integrity Pact, by any of MOIL's employee or comes to
know any illegal payment made to any of the employee.
The Bidder/Contractor will not do any Act, by way of
commission or omission which may defeat the spirit behind
the present Integrity Pact.
F. A person signing Integrity Pact (IP) shall not approach
the Courts while representing the matters to IEMs and
He/She will await their decision in the matter.
Violation and Penalties (Section-III)
The Bidder/Contractor, if found to violate the clauses of
the Integrity Pact, will be liable to the following penalties:-
14 WP-4446.23+9-J.odt
A. MOIL will be entitled to disqualify the
Bidder/Contractor from the tender process.
B. If after the award of contract, the bidder is found guilty
of breach of the Integrity Pact, the MOIL will be entitled to
terminate the contract.
C. The MOIL will have right to disqualify the default
Bidder/Contractor for participation in future contracts of
the Principal (MOIL) for a certain period or black list it
permanently depending upon seriousness of offence.
D. The MOIL, if the contract is terminated due to violation
of the Integrity Pact on part of Bidder/Contractor, will be
entitled for material damages as decided by the MOIL
Management and will be binding to all. The Principal
(MOIL) will also have right to forfeit the Security deposit.
E. The CMD of the Principal (MOIL) will be the final
authority in respect of the aforesaid clauses of Violation and
Penalties. The decision taken by CMD of the Principal
(MOIL) shall be final and acceptable and would not be
amendable to any challenge."
8. He also relies upon clause 42 (i) of the NIT (page 64)
which contemplates that the bidders who failed to perform satisfactorily
during execution of earlier contracts of MOIL limited, shall not be
qualified to participate in the present tender and offers of such bidders
shall not be considered during a period of four years in case of Clause
(a) and two years in case of Clause (b), and therefore, contends there is
an automatic disqualification for consideration of the bid of the
petitioner/s. He also relies upon clause 9 (f) of Annexure 1 (page 69)
which is an order by Senior Development Officer to contend that false
declaration would be considered as a breach of the Integrity Code
under Rule 175 (1)(i)(h) of the General Financial Rules for which a
bidder or its successor can be debarred for up to two years as per Rule
151 (iii) of the General Financial Rules. He, however, seeks a day's
time to place a copy of these rules on record, as according to him they
would be relevant and germane in deciding the issue, considering
which, list the matter on 10.04.2024."
15 WP-4446.23+9-J.odt
3. Mr. Chakravarty, learned counsel for the petitioners has placed
reliance on :-
(1) Michigan Rubber (India) Ltd. v. The State of Karnataka,
MANU/Sc/0662/2012: (2012) 8 SCC 216,
(2) B.S.N. Joshi and Sons Ltd. v. Nair Coal Services Ltd,
MANU/SC/8598/2006: (2006) 11 scc 548,
(3) Shalby Limited v. The State of Goa, MANU/MH/1066/2011 : 2012 (1)
Mh.L.J. 533
(4) Atlas Transport Company v. State of Maharashtra,
MANU/MH/0333/2004 : 2004 (3) Mh.L.J. 809,
(5) Baroda Surgical (India) Pvt.Ltd. v. State of Gujarat,
MANU/GJ/0479/2020,
(6) Centre for Development Communication v. Ahmedabad Municipal
Corporation, MANU/GJ/0596/2017,
(7) Balaji Surgical, Nashik v. State of Maharashtra, 2024 (3) Mh.L.J. 356
and
(8) Banshidhar Construction Pvt. Ltd. v. Bharat Coking Coal Limited, 2024
SCC OnLine SC 2700.
4. Mr. Sharif, learned counsel appearing with Mr.Adil Mirza, learned
counsel for the respondent No.2 has placed reliance upon :-
(1) Afcons Infrastructure Limited v. Nagpur Metro Rail Corporation Limited,
(2016) 16 SCC 818,
(2) Silppi Constructions Contractors v. Union of India, (2020) 16 SCC 489,
(3) N.G.Projects Limited v. Vinod Kumar Jain, (2022) 6 SCC 127,
16 WP-4446.23+9-J.odt
(4) M/s. R.K.Sancheti v. State of Maharashtra (Writ Petition No.6216 of
2023) and
(5) Minakshi v. State of Maharashtra, 2024 (1) Mh.L.J. 171.
5. On 11/06/2024, upon a statement being made by the learned
counsel for the respondent No.2, that the work orders had been issued, and the
work was in progress which was undertaken by the respective successive
bidders they were directed to be made parties to the proceedings and upon
service have appeared being represented by learned Advocate A.Z.Jibhkate in
Writ Petition No.4475 of 2023 and Advocate H.I.Kothari in Writ Petition
Nos.4914 and 4445 of 2023. In rest of the petitions the respondent No.3 has
been served, however, none appears for it.
6. The matter has thereafter been extensively heard. Mr.Uttam
Chakravarty, learned Counsel for the petitioners, in all these petitions, has
reiterated his arguments made earlier, as indicated above. Mr. Sharif, learned
counsel for the respondent No.2 reiterates his contention regarding the
integrity pact to contend, that since the petitioners were the constituents of the
JV M/s. Allied Corporation in an earlier contract with the respondent No.2,
against whom FIR has been registered for submitting forged Transit Pass, the
same would indicate the violation of the terms and conditions of the integrity
pact, as a result of which the disqualification of the petitioner was clearly
justified. Mr. Jibhkate, (in Writ Petition No.4475 of 2023) and Mr. Kothari, (in
17 WP-4446.23+9-J.odt
Writ Petition Nos.4914 and 4445 of 2023) learned counsels for the respondent
no.3, submit that the work has progressed to a substantial degree under the
contract awarded to their clients and therefore the same may not now be
stalled by interfering in this petition.
7. The facts necessary for appreciating the controversy in issue can be
summed up as under:
7.1. M/s. Allied Corporation, a Joint Venture, of which the petitioners in
all these petitions were constituents had participated in a tender process
floated by the respondent No.2 in 2019, which was for the purpose of filling up
excavated space, created due to excavation of minerals, by sand at Munsar,
Kandri and Beldongri Mines of the respondent No.2. M/s. Allied Corporation
was awarded the contract and work order No.9100001277 dated 28/03/2019
was issued in its favour. The condition of payment was that the bills were to be
accompanied by the royalty passes. The period of supply was three months
from the date of the work order. In terms of this work order M/s. Allied
Corporation had supplied sand at the aforesaid three mines of the respondent
No.2. For the duration 09/04/2019 to 30/04/2019, out of the quantity of 3000
cubic meter to be supplied at Munsar Mine, M/s. Allied Corporation had
supplied 2981.803 cubic meter of sand and a bill of Rs.35,78,158.35 was
raised. For the duration 10/04/2019 to 03/05/2019 out of the quantity of
18 WP-4446.23+9-J.odt
6000 cubic meters to be supplied at Kandri Mine, M/s. Allied Corporation had
supplied 4796.916 cubic meter of sand and the bill of Rs.57,56,242.84 was
raised. For the duration 10/04/2019 to 24/04/2019 out of the quantity of
2500 cubic meters to be supplied at Beldongri Mine, M/s. Allied Corporation
had supplied 2594.50 cubic meter of sand and the bill of Rs.28,49,999.50 was
raised. All these bills were accompanied by total 483 transit passes issued by
the Mining Departments, in the various districts of the State of Madhya
Pradesh. Since these e-TP's upon verification with the online portal of the
Mining Department of the State of Madhya Pradesh were found not to tally, the
payments to be made by the respondent No.2 to M/s. Allied Corporation were
stopped. Upon enquiry with M/s. Allied Corporation, it is claimed that 2
different sets of e-TP's one issued by the State of Madhya Pradesh and another
issued by the State of Maharashtra were submitted, which added to the
suspicion regarding the genuineness of the e-TP's submitted by M/s. Allied
Corporation. Upon enquiries by the respondent No.2, with the Mining Offices
of Mandla and Seoni Districts of the State of Madhya Pradesh, to their
communications dated 06/01/2022, the respondent No.2 received replies from
the Mining Officers therein, that the e-TP's submitted by M/s. Allied
Corporation were indeed issued by their Offices, it was however stated that
these e-TP's were not for MOIL/respondent No.2, on account of which on an
apprehension that M/s. Allied Corporation had prepared false e-TP's, and
therefore, defrauded the respondent No.2, FIR No.0388 of 2022 came to be
19 WP-4446.23+9-J.odt
registered against the proprietors/partners of the constituents of JV -M/s.
Allied Corporation who are the present petitioners, on 27/09/2022, (Pg.107)
under sections 420, 465, 466, 467, 468, 471 read with section 120-B of the
Indian Penal Code.
7.2. In the meantime, since the respondent No.2 had failed to make
payment for the sand supplied by M/s. Allied Corporation, it had instituted
arbitration proceedings against the respondent No.2 in which an award came
to be passed on 21/09/2020 by the Sole Arbitrator directing the respondent
No.2 to process and make payment of 70% of the bill amount of the claimant
within 30 days of the receipt of the award and balance 30% of the bill would
become payable only after payment of GST by M/s. Allied Corporation
(Pg.120). This award, is stated to be under challenge, in an application under
section 34 of the Arbitration and Conciliation Act, 1996 filed by the respondent
No.2 before the learned District Judge-2, Nagpur vide Civil MA No.711 of
2021. However, no statement is forthcoming as to whether there is any stay to
the award.
7.3. In the meantime, one Mr. Anurag Singh Chauhan, who was one of
the constituents of the JV M/s. Allied Corporation, had approached this Court
vide Criminal Application (APL) No.29 of 2023 challenging the FIR, which
came to be registered at the instance of the respondent No.2, in which by an
20 WP-4446.23+9-J.odt
order dated 09/01/2023, though the investigation was permitted to be
continued, however, it was also directed that charge-sheet shall not be filed
against the applicant until further orders (Pg.331).
7.4. It is in the above background that the plea of the petitioners
challenging the rejection of the bids submitted by them in respect of the NITs
as indicated above has to be viewed.
8. It is not in dispute that under the work order dated 28/03/2019,
M/s. Allied Corporation, has indeed made the supply of the sand in the
quantities as indicated above, which supply of sand is not disputed by the
respondent No.2. What is disputed, is the genuineness of the e-TP's submitted
by the JV M/s. Allied Corporation in support of the bills raised by it upon the
respondent No.2. It is equally a position on record that the Mining Officers, of
the districts of Mandla and Seoni of the State of Madhya Pradesh have
communicated to the respondent No.2 regarding issuance of the e-TP's by
them, as is indicated in the FIR itself (Pg.111), though they have stated that
the same was not for MOIL.
9. There is however, no provision pointed out by Mr. Sharif, learned
counsel for the respondent No.2, that the purchaser of the sand has to be
named in the e-TP's to be issued by the Mining Department. Though the e-TP
21 WP-4446.23+9-J.odt
(sample at page 563) indicates that there is an entry to be made regarding the
buyer's details, however, no statutory provision, rule, regulation, policy has
been brought to our notice to indicate, that the supply and sale of the sand in
the e-TP can only be, to the buyer named in the e-TP and not to any third
person. This also cannot be true for the reason that the Mining Department
which issues the e-TP is not concerned with the buyer, but only with the
payment of royalty on the sand, which is the subject matter of the e-TP. On the
contrary, any such restrictions, would clearly be unreasonable and arbitrary,
considering the purpose for which the e-TP is to be used which is restricted to
ensuring that the proper royalty upon the quantity of sand indicated therein is
paid. In fact, there could also be multiple transactions in between the buyer
named in the e-TP and third persons, to whom the buyer may agree to sell the
sand, which is the subject matter of the e-TP. However, for the purpose of the
present petition, we need not go into all these finer niceties as they are already
subject matter of investigation and any further observation in this regard
would affect the same.
10. It is also necessary to note, what the learned Arbitrator has stated in
the arbitral award, dated 21/09/2020 passed by the learned Arbitrator in
regard to Issue No.D, which was whether the certificates issued by the Mining
Officer can be taken as proof of payment of royalty which has been answered
in the affirmative, in the following manner.
22 WP-4446.23+9-J.odt
"ISSUE D:
The Mining Officers have issued the certificate after the receipt of
letters from the concerned mines and officers of respondent, referring
to not only the work order issued to the claimant but also the quantity
of sand received there under. The mining office is responsible for the
royalty payments in the district and while issuing the said certificates
the mining officer has referred to the particular quantity mentioned in
the letter of respondent. Having particularly issued the certificates
vis-a-vis the order in question and the quantity received by the
respondent there under the certificates cannot be ignored. Moreover,
since the quantity is duly referred in the letters of respondent as well
as the certificates of Mining Officers, it can be positively inferred to be
with respect to the sand supplied to the respondent only. A perusal of
the tender document reveal that it was a tender for purchase of sand
which was open to all and was not restricted to Ghat owners of sand.
In such situation demand of royalty receipts is solely for the purpose
of ensuring that the sand is legally procured and supplied. In the
given set of facts and circumstances if the Ghat owner has supplied
false royalty receipts the supplier cannot be penalised for no fault at
his end. Having learnt about the false royalty payment receipts the
claimant has made the payments online and the same is confirmed by
the Mining Officer not at the behest of claimant but on request of
respondent itself. The certificates issued at the request of respondent
cannot be therefore doubted only for the reasons that the ETPs or TPs
does not match the mine's entry register. The payments being made at
a later date, the question as to whether the ETPs issued in such
situation can match the actual date of supply is an altogether different
issue and need not be got into in the present situation where the
supply and delivery of the material is duly admitted by the parties and
the royalty payment certified by the Mining Officer vis-a-vis the
particular work order.
I therefore answer this issue in affirmative and hereby hold that the
certificates issued by the mining officers can be taken as a good proof
of payment of royalty by the claimants."
This would clearly indicate the existence of a finding inter-se
23 WP-4446.23+9-J.odt
between the JV- M/s Allied Corporation and the respondent no.2, that the
payment of royalty upon the sand supplied to the respondent no.2, by M/s
Allied Corporation, has been held to be legal and proper, on account of which
they have been considered and an award has been passed against the
respondent no.2. Though the award is under challenge at the behest of the
respondent no.2, by way of an application under sec.34 of the A & C Act, 1996,
the finding remains binding upon the respondent no.2, till such time the same
is set aside. Neither, as indicated above, it has been brought on record that the
effect and operation of the award, has been stayed, on account of which the
respondent no.2, is estopped from raising a plea, contrary to such finding, till
such time it continues to hold the field.
11. Since much stress, has been placed by Mr.Shareef, learned Counsel
for the respondent no.2, upon the integrity pact, the language of the Integrity
Pact assumes significance. The same is reproduced as under :
"INTEGRITY PACT
On this 31th day of August, 2019, at Nagpur, in presence of
following two witnesses, this Integrity Pact is being executed
between:
MOIL LIMITED hereinafter referred to as "The Principal/MOIL" and
M/s. Allied Corporation (J.V.) hereinafter referred to as "The
Bidder/Contractor" (which expression shall include all its
partners/directors, agent, representative, servants, sub contractors,
(whatever permitted/permissible) & successor in interest etc.
24 WP-4446.23+9-J.odt
including all person claiming through it). Whereas, it has been
directed by the Ministry of Steel, New Delhi and Central Vigilance
Commission, New Delhi that Government of India undertakings shall
execute Integrity Pact with the Contracting Parties/bidders in all the
forthcoming Contracts/Tender Processes above prescribed/specified
value of Rs.1.0 Crores, it is necessary to execute Integrity Pact
between such parties. Pursuant thereto, the present Integrity Pact is
being executed.
The terms and conditions of the Integrity Pact are as under:
COMMITMENT OF MOIL (SECTION-I)
(not reproduced since they are not germane for the present
discussion).
COMMITMENT OF BIDDERS (SECTION-II)
The Bidder/Contractor commits himself to take all necessary
measures not to involve in any type of corrupt practice during the
Tender Process as well as Execution of the Contract including the
following:-
A. The Bidder/Contractor will not offer or promise to offer to any of
the MOIL's employee the gratification/benefit for which he/she is
not legally entitled to get undue favour/advantage or
information related to Tender Process or during Execution of the
Contract.
B. The Bidder/Contractor will not enter into Agreement with other
Contenders/Contractors to derail/disturb fair Tender Process like
price fixing or other unethical understanding like Cartel
Formation.
C. The Bidder/Contractor will not pass on to others Confidential
Information provided by MOIL as a part of Tender
Documents/Contracts.
D. The Bidder/Contractor will not disclose about all the payments
made to the Agents/Intermediaries, wherever such arrangement
25 WP-4446.23+9-J.odt
is permissible, in connection with the award of Contract/Tender
Process.
E. The Bidder/Contractor will immediately inform MOIL, if asked to
pay any illegal gratification or bribe, in violation of this Integrity
Pact, b any of MOIL's employee or comes to know any illegal
payment made to any of the employee. The Bidder/Contractor
will not do any Act, by way of commission or omission which
may defeat the spirit behind the present Integrity Pact.
F. A person signing Integrity Pact (IP) shall not approach the Courts
while representing the matters to IEMs and He/She will await
their decision in the matter.
VIOLATION AND PENALTIES (SECTION-III)
The Bidder/Contractor, if found to violate the clauses of the Integrity
Pact, will be liable to the following penalties:-
A. MOIL will be entitled to disqualify the Bidder/Contractor from
the tender process.
B. If after the award of contract, the bidder is found guilty of breach
of the Integrity Pact, the MOIL will be entitled to terminate the
contract.
C. The MOIL will have right to disqualify the default
Bidder/Contractor for participation in future contracts of the
Principal (MOIL) for a certain or black list it permanently
depending upon seriousness of offence.
D. The MOIL, if the contract is terminated due to violation of the
Integrity Pact on part of Bidder/Contractor, will be entitled for
material damages as decided by the MOIL.
E. Management and will be binding to all. The Principal (MOIL)
will also have right to forfeit the Security Deposit.
F. The CMD of the Principal (MOIL) will be the final authority in
respect of the aforesaid clauses of Violation and Penalties. The
decision taken by CMD of the Principal (MOIL) shall be final and
acceptable and would not be amendable to any challenge.
26 WP-4446.23+9-J.odt
INDEPENDENT MONITOR (SECTION-IV)
A. (not reproduced since they are not germane for the present
discussion).
GENERAL CONDITIONS (SECTION-V)
A. ------.
B. ------.
C. The Bidders/Contractors, who do not sign the Integrity Pact, will
not be entitled to participate in the Tender Process or continue
with the contract.
D. ---------.
E. ---------.
F. ---------.
G. ---------."
Admittedly, the respondent no.2, has not taken any action against
M/s Allied Corporation, of either to disqualify or black-list it, at any point of
time, vis-a-vis, the contract with it or future contracts. It is also necessary to
note in terms of Clause (A) of Sec.-III of the Integrity Pact, the disqualification
is of the bidder/contractor from the tender process, which would indicate the
tender process, in which the bidder is participating or the contract, which may
have been entered thereupon. The disqualification/black-listing as
contemplated by Clause (C) of Sec. III of the Integrity Pact, has to be after due
notice to the bidder/contractor and upon consideration of its reply and grant of
a hearing, to satisfy the requirement of the principles of natural justice. As
27 WP-4446.23+9-J.odt
indicated above, no such action has been taken by the respondent no.2, as
against the JV M/s Allied Corporation. In fact, Clause 7.3 (ii) of Appendix IV
(pg.733) of the Purchase & Contract Manual (PCM-2023) of the respondent
no.2, itself indicates the requirement of a show-cause notice to the agency by
the concerned department and of considering its reply, before submitting any
final recommendation to the concerned department for banning of business
dealings with the Agency/contractor. Clause 7.4 & 7.7, also contemplates the
indicating of the period for which the ban is proposed. No such procedure
appears to have been adopted as against the petitioners, in this case,
presuming that being the constituents of the JV- M/s Allied Corporation, they
were liable for such an action.
Rather on the contrary, it has come on record that M/s Allied
Corporation, has been awarded a contract of gardening by the respondent
no.2, as is indicated by its submissions dt.13/9/2023 in para 16 (pg.146)
thereof. The respondent no.2, cannot be permitted to approbate and reprobate,
in as much if they claim a fraudulent action on part of the JV-M/s Allied
Corporation, which according to them, is serious enough to permanently ban it
and its constituents, they cannot then be permitted to say that such action
would not come in its way to award of an contract to such an
agency/contractor, for any activity/work whatsoever.
28 WP-4446.23+9-J.odt
The action of disqualifying the petitioners, from the tender process
of 2023, therefore cannot be sustained on this count alone.
12. The reasons for rejection of the bids of the petitioners on technical
evaluation, are spelt out from the comments dated 12/07/2023 (Pg.17) and
20/09/2023, on the website of the respondent No.2 (Pg.127-AD). The same
read as under :
Date Status Reason Comment
2023.07.12 Disqu- Other It is noted that M/s. Nizamsingh Chauhan
11:50:51 alified and M/s. Biswajeet Enterprises two parties
are part of joint venture of M/s. Allied
Corporation (JV) who has awarded the work
order no.9100001499 dt. 20.08.2019 for
purchase of sand for Munsar, Kandri and
Beldongri mines for sand stowing purpose.
M/s. Allied Corporation (JV) has supplied the
sand to these mines using fraud royalty. MOIL
has filed the FIR case against M/s. Allied
Corporation (JV) for this fraud at Sadar
police station, Nagpur and the case is
continuing. In view of above, Dy. G.M. (Legal)
was requested to comment/advice, on
aforesaid matter (copy enclosed). On
scrutiny of all the documents, Dy.G.M.(Legal)
has opined as under. "In the said tender M/s.
Nizamsingh Chauhan and M/s. Biswajeet
Enterprises are informed to have applied
individually and separately as two different
partnership firms. It is further informed that
these two firms (through their JV viz.M/s.
Allied Corporation) were allotted work order
No.910001499 dated 20.08.2019 for
purchase of sand. Admittedly in the said
work order for supply of sand the two subject
firms through their JV have given fraudulent
29 WP-4446.23+9-J.odt
ETPs and have also defaulted in GST. A JV of
two firms is not a separate legal entity and
nothing different from the JV partners.
Therefore, the illegalities committed by M/s.
Allied Corporation in work order
No.9100001499 will go to the root of JV
partners individually. In such scenario these
two firms individually will incur the
illegalities committed through the JV. In my
opinion therefore they may not be allowed to
participate in the new tender (copy attached).
In view of above facts, TPC opines that the
offer of the M/s.Biswajeet Enterprises cannot
be processed for further evaluation & hence,
disqualified.
and
Date Status Reason Comment
2023-09- Disqua- Other During the technical recommendation,
20 lified details Chief (Survey) confirmed that M/s.
14:56:44 indicated in Nizamsingh Chauhan and M/s. Biswajeet
the Enterprises are part of joint venture of
comment M/s. Allied Corporation (JV) who has
awarded the work order no.9100001499
dt. 20.08.2019 for purchase of sand for
Munsar, Kandri and Beldongri mines for
sand stowing purpose. M/s. Allied
Corporation (JV) has supplied the sand to
these mines using fraud royalty. MOIL has
filed the FIR case against M/s. Allied
Corporation (JV) for this fraud at Sadar
police station, Nagpur and the case is
continuing. In all the tender of MOIL Ltd.
there is a specific clause stating that the
agreement is subjected to law of the land.
On the same lines the contractor has to
mandatorily sign the integrity pact. In
case work order issued to M/s. Allied
Corporation (the JV of M/s. Nizamsingh
Chauhan and M/s.Biswajeet Enterprises)
an Integrity Pact was signed. The Integrity
30 WP-4446.23+9-J.odt
Pact clearly stipulated that for the
violations MOIL shall have right to
disqualify the bidder/contractor for
participation in future contracts of MOIL.
As such, they are technically disqualified.
13. A perusal of the commitments of the bidder (Section II) of the
Integrity Pact, as quoted above would indicate that though there is allegation
regarding contravention of clauses, of the Integrity Pact, however it does not
specify, which of the clauses, A, B, C, D, E or F of the same have been violated.
There is no allegation by the respondent No.2, which of these clauses, in
section II of the Integrity Pact, have been violated by the JV M/s. Allied
Corporation. In fact, the nature of the allegations being made against the JV
M/s. Allied Corporation, would indicate, that it does not fit into the language
of either of the clauses A to E of Section-II of the Integrity Pact (Pg.190) as
quoted above, as it is not the contention of the respondent No.2, that any offer
or promise to offer was made to any of its employee of any illegal
gratification/benefit; or any agreement was entered into by the JV M/s. Allied
Corporation with any other contending contractor for any price fixing for cartel
formation; or any confidential information provided by the respondent No.2 as
part of the tender document/contract was disclosed or any information
regarding payment to agents/intermediaries was disclosed; or that the JV M/s.
Allied Corporation or its constituents had approached the Courts while
representing the matter to the IEM. Thus, the contention that the obligation
31 WP-4446.23+9-J.odt
upon M/s. Allied Corporation and its constituents, as imposed by Section-II of
the Integrity Pact, has been violated in view of the registration of the FIR
against them, is clearly misconceived and could not have been the ground for
the purpose of rejecting the offer of the petitioners on the ground of violation
of the Integrity Pact (impugned communication at page 127-AD).
14. It is also contended by Mr. Sharif, learned counsel for the respondent
No.2, that the disqualification is also justified, in terms of clause 42 (Pg. 41) of
the bid document dated 18/05/2023 (Pg.28). For the purpose of appreciating
this contention, it is necessary to consider the language of clause 42 of the bid
document, which reads as under :
"42. (i) The bidders, who have failed to perform satisfactorily
during execution of earlier contracts of MOIL Limited, shall not be
qualified to participate in the present tender. Offers of such bidders
shall not be considered during a period of four years in case of
Clause (a) and two years in case of Clause (b) given below the
time period of two and four years shall be reckoned from the date
of discontinuance or completion of work respectively.
For this purpose, failure to perform satisfactorily would mean-
(a) Incomplete execution in earlier contract(s) beyond the
applicable norms of the company
OR
(b) Completion of work order quantities beyond stipulated
period in respective work order(s) with more than two extensions
on account of reasons of poor performance attributable to such
contractor.
32 WP-4446.23+9-J.odt
(ii) If the contractors
(a) Fails to complete the work order quantity within
scheduled time period for the reasons attributed to him and leaves
the work uncompleted. OR
(b) Completes the work order quantity with more than two
extensions on account of reasons of poor performance attributable
to such contractor,
Such failure shall amount to and be treated as an automatic
disqualification incurred by the contractor to participate in any
future tender(s) or contract(s) of MOIL Limited for four years in
case of (a) above and two years in case of (b) above.
The time period of two and four years shall be reckoned from the
date of discontinuance or completion of work respectively.
In case of (i) and (ii) above foreclosure of the work by MOIL
and/or closure of contract for force majeure reasons will not be
treated as incomplete execution of work by the contractor.
(iii) If the contractor fails to comply with any of the
statutory provisions of the labour Laws/Acts applicable during the
execution of the earlier awarded work orders, such failure shall be
treated as an automatic disqualification incurred by the contractor
to participate in any future tender(s) or contract(s) of MOIL
Limited for two years.
The period of two years shall be reckoned from the date of
discontinuance or completion of work respectively.
If the contractor fails to comply with any of the statutory provisions
of the Laws/Acts applicable during execution of the work awarded
in terms of the NIT, MOIL will be free to terminate the contract and
made alternate arrangements for completing the work at the risk
and cost of the contractor."
14.1. Clause 42(i) contemplates disqualification of a bidder to participate
in a tender process, in case such a bidder has earlier failed to perform
33 WP-4446.23+9-J.odt
satisfactorily under its contracts with the respondent No.2, which
disqualification is for a period of four/two years. This clause 42(i) specifically
describes, the expression "failure to perform satisfactorily", to mean incomplete
execution of the earlier contracts or completion of work order beyond
stipulated period with more than two extensions on account of poor
performance attributable to the poor performance of the contractor.
Admittedly, it is not the contention of the respondent No.2, that the JV M/s.
Allied Corporation, had not completed the work under the contract, or had
completed it beyond the stipulated period with more than two extensions and
therefore, the disqualification as contemplated by clause 42(i), of the bid
document, is not attracted.
14.2. Clause 42(ii) of the bid document contemplates disqualification of
the contractor if he fails to complete the work order quantity within scheduled
time period for the reasons attributed to him and leaves the work
uncompleted, or completes the work quantity with more than two extensions
on account of poor performance attributable to the contractor, which is same as
clause 42(i)(b). This is also not the case of the respondent No.2, as is reflected
from the comments indicated above for disqualifying the petitioners.
14.3. Clause 42(iii) of the bid document contemplates disqualification
upon failure of the contractor to comply with the statutory provisions of the
34 WP-4446.23+9-J.odt
labour laws, Acts applicable during the execution of the earlier awarded work
orders. As indicated above, the registration of the crime against the
constituents of the JV M/s. Allied Corporation, is not on account of any of the
aforesaid actions contemplating disqualification under clause 42 of the bid
document, but is on account of a suspicion that fraudulent e-TPs have been
submitted by the JV M/s. Allied Corporation during the execution of the
earlier work order dated 28/03/2019. We have already noted above, that the
respondent No.2 has not brought to our notice any statutory provision, rule or
regulation, which would require the e-TP, to be only in the name of the
ultimate buyer/recipient of the commodity, on account of which, as of now in
absence of the same, and specifically, in light of the finding recorded by the
learned Arbitrator in his award dated 21/09/2020 while answering Issue No.D,
we are unable to hold, that any statutory provision, rule, regulation has been
violated by the JV M/s. Allied Corporation, in the matter of completion of the
work order dated 28/03/2019.
14.4. The above position would therefore indicate, that the reason for
rejecting the technical bid of the petitioners by the respondent No.2, cannot be
sustained at law.
15. Afcons Infrastructure Limited (supra) relied upon by Mr.Sharif, holds
that the words used in tender document cannot be ignored or treated as
35 WP-4446.23+9-J.odt
redundant or superfluous, which is an undisputable position, however, in the
present matter even consideration of the language of the tender document, as
indicated above does not justify the disqualification of the petitioners. Silppi
Constructions ; N G Projects ; M/s R K Sancheti and Minakshi (supra) lay down
the parameters for interference in judicial review. In Surendra Infrastructure
(P) Ltd. (supra) relied upon by Mr.Jibhkate, learned counsel for the respondent
no.3 in Writ Petition No.4475 of 2023, the Court had refrained from interfering
in the tender process being undertaken by authority on the ground that it had
reached to a stage where a work order had already been issued. These
judgments, however do not lay down a proposition of Courts adopting a totally
hands off policy, even if it notices illegality in the matter. Since we find that the
disqualification of the bids of the petitioners on the grounds claimed by the
respondent no.2, was unjustified, the Court would be bound to interfere, the
relief, to be granted to the petitioners, is however another matter.
16. A perusal of the prayer clauses in all these petitions would indicate
that the disqualification of the petitioners by the respondent no.2, on account
of the FIR pending against the JV- M/s Allied Corporation (Pg.127-AD) has
been questioned by them. It is also necessary to note, that it is also not
disputed that the work, has since been allotted to the respondent no.3, in these
petitions and has progressed to a substantial stage. This being the position, the
clock, cannot now be turned back. However, since the disqualification of the
36 WP-4446.23+9-J.odt
petitioners on the ground as indicated above having been found to be
unsustainable in law, and would affect the future opportunities of the
petitioners to participate in tender process, to that extent, we deem it
appropriate to interfere.
17. The disqualification of the petitioners is a direct result of the
petitioners being banned or blacklisted, without terming it as such, in so many
words, which is even without any hearing at all, and that stems from the lodging
of the FIR against them, in respect of an alleged claim of submitting fraudulent e-
TP's, which is being continued to be pressed into service inspite of the finding to
the contrary by the learned Arbitral Tribunal. Such a conduct on part of the
respondent no.2, which in fact is a 'State' within the meaning of Article 12 of the
Constitution, is clearly unwarranted and unsustainable in law, considering the
factual background in which it has been made.
18. Thus for the reasons recorded above, we are unable to sustain the
rejection of the bids of the petitioners by the respondent No.2. However, we
cannot at the same time, loose sight of the fact, that the work has already been
awarded to the respondent No.3 and the statement made by Mr.Jibhkate,
learned counsel for the respondent No.3 on 11/06/2024, states that the work
has already progressed to a substantial degree under the contract awarded to
the respondent No.3, which position has not been controverted by the learned
37 WP-4446.23+9-J.odt
counsel for the petitioners, in light of which, though we set aside the
communication dated 20/09/2023 (Pg. 127-AD) and similar communications
in all these petitions disqualifying the petitioners from participating in the
tender process of the respondent No.2 in future contracts of the respondent
No.2, we deem it appropriate to decline to grant the reliefs of permitting the
petitioners, to participate in the tender process, as that is already a thing over
and done with. The petitions are therefore partly allowed by holding that the
petitioners would be entitled to participate in the future tenders process of the
respondent No.2. Rule made absolute to this extent only. Considering the
circumstances, there shall be no order as to costs.
(SMT. M.S. JAWALKAR, J.) (AVINASH G. GHAROTE, J.)
Deshpande/Khunte
Signed by: Mr. G.S. Khunte
Designation: PS To Honourable Judge
Date: 12/11/2024 16:18:50
