Jai Hind Logistics And Another vs Indian Oil Corporation Ltd. And ...
2023 Latest Caselaw 4316 Cal

                     In the High Court at Calcutta
                    Constitutional Writ Jurisdiction
                             Appellate Side

The Hon'ble Justice Sabyasachi Bhattacharyya

                           W.P.A. No. 4640 of 2023

                     Jai Hind Logistics and another
                                  Vs.
                 Indian Oil Corporation Ltd. and others

     For the petitioners             :    Mr. Debabrata Saha Roy
                                          Mr. Pingal Bhattacharyya
                                          Mr. Subhankar Das
                                          Mr. Neil Basu
                                          Mr. Sankha Biswas

     For the respondent

     Nos.1 to 7                      :    Mr. Amit Kr. Nag
                                          Mr. Partha Banerjee

     For the respondent
     No.9                            :    Mr. P.K. Dutta
                                          Mr. Anant Shaw
                                          Mr. Santanu Deb Roy
                                          Mr. Mainak Ganguli

     For the respondent
     No.10                           :    Mr. Kallol Bose
                                          Mr. Joy Chakraborty
                                          Ms. Ipsita Ghosh

     Hearing concluded on            :    14.07.2023

     Judgment on                     :    19.07.2023



     Sabyasachi Bhattacharyya, J:-

1. The petitioner and the respondent nos.9 and 10 participated in a

tender floated by the IOCL (Indian Oil Corporation Limited) under a

Two-Bid System from Tank Truck (TT) owners for an award of contract

for road transportation of bulk petroleum products. The petitioner

participated therein but was disqualified at the technical evaluation

stage.

2. The present writ petition has been preferred challenging the

acceptance of the bids of respondent nos.9 and 10 as successful

bidders.

3. It is argued that, after the technical stage being crossed, a reverse

auction was to be held within the contemplation of the tender.

Thereafter, the bidder with the newest vehicles would be chosen as

successful and work orders would be issued to them.

4. In the present case, it is argued, the respondent nos.9 and 10

furnished forged documents, on the basis which they were declared to

be successful bidders. It is argued by the petitioner that fraud vitiates

all and, as such, even the writ court can enter into the question as to

whether the forgery committed by the respondent nos.9 and 10,

allegedly in collusion with the IOCL, vitiates the tender process.

5. Learned counsel for the petitioner, in such context, cites Munjal

Showa Ltd. Vs. Commissioner of Customs and Central Excise (Delhi-IV),

reported at 2022 SCC OnLine 1296, where it was held that fraud

vitiates everything. Learned counsel also relies on (2008) 12 SCC 306

[Behari Kunj Sahkari Avas Samiti Vs. State of Uttar Pradesh and

others], where it was observed by the Supreme Court that a person

committing fraud is not entitled to any equitable remedy.

6. Learned counsel for the petitioner submits that there were gross

discrepancies in the RC Books/Smart Cards offered in respect of TTs

of the respondent nos.9 and 10, insofar as the copies thereof annexed

to the opposition of the IOCL and the said respondents are concerned.

7. Uploading of RC Book/Smart Card is mandatory in tenders for

engagement of TTs, it is contended. In support of such submission,

the petitioner cites an unreported judgment of this Court dated April

19, 2022 passed in WPA No.4391 of 2022. In the said context, an

unreported Division Bench judgment of this Court passed on July 18,

2022 in MAT 687 of 2022, whereby the Single Judge secision cited

above was overturned, has also been cited. Lastly, an unreported

Supreme Court judgment dated September 30, 2022, passed by the

Supreme Court in Civil Appeal No.7038 of 2022, which distinguished

the Division Bench judgment and upheld the judgment of the learned

Single Judge, is also cited by the petitioner.

8. It is submitted next that merely because there is some disputed

question of fact, the writ court need not necessarily refuse to entertain

a writ petition. In support of such contention, learned counsel places

reliance on 2021 SCC OnLine SC 99 [Unitech Limited and Others Vs.

Telangana State Industrial Infrastructure Corporation (TSIIC) and

Others], where portions of the judgment reported at (2004) 3 SCC 553

[ABL International Limited and another Vs. Export Credit Guarantee

Corporation of India Ltd. and others] were also considered.

9. Learned counsel submits further that, in an appropriate case, where

there is a violation of a fundamental right, in the present case under

Article 14 of the Constitution of India, and/or natural justice,

alternative remedy is not a bar. In such context, the petitioner cites

Madhya Pradesh High Court Advocates Bar Association and Another

Vs. Union of India and Another, reported at 2022 SCC OnLine SC 639.

10. Learned counsel for the respondent no.9 argues that the authenticity

of the Registration Certificates issued by the concerned RTO (Regional

Transport Officer), with the seal and signature of the registering

authority, has not been rebutted. It is evident from the said

Certificates that the vehicles were registered on November 25, 2022

and the Registration Certificates were issued on November 28, 2022.

The authenticity of those was also confirmed by the RTO by a letter

dated April 17, 2023. All the said documents are part of a report filed

in the form of an affidavit by the IOCL and affirmed on June 6, 2023,

which is a part of the records of the instant writ petition.

11. It is further argued that even if there is any discrepancy in the m-

Parivahan Portal, that is, the "Vahan" portal, the respondent no.9

cannot be saddled with any responsibility in that regard. The writ

petitioners‟ Registration Certificates were also issued by the same

authority on the same date, that is, November 28, 2022.

12. Learned counsel appearing for the respondent no.10 contends that the

writ petition is liable to be dismissed in limine, since the petitioner

participated in the tender process. The tender process was completed

and Letter of Acceptance was issued on February 8, 2023. Work order

was subsequently issued on March 4, 2023. Hence, there is no scope

of interference in the present writ petition at this stage.

13. It is argued that the petitioner sought to confuse a previous co-

ordinate Bench after receiving a copy of the affidavit-in-opposition of

the respondent no.10, where photocopies of Registration Certificates of

vehicles as well as Work order and Letter of Acceptance were annexed.

The petitioner sought to argue thereafter that the RC Book was not

uploaded, by seeking to confuse the court.

14. It is submitted that the petitioners‟ document was also uploaded in

the e-tender portal, as the petitioner was technically qualified. It is

also seen from the documents-in-question that the process of

registration of the respondent no.10 was duly completed and

approved. Only in the column of RC Print/Smart Card, it was shown

as „not available‟. The mere mention of such fact, it is argued, could

not have altered the status of the petitioners‟ vehicles as duly

registered.

15. It is argued that there is no basis of the allegations of forgery

regarding the RC Books of the respondent nos.9 and 10.

16. A document is sought to be produced by the petitioner during

arguments, in support of the submission that there were

discrepancies in the RC Books/Smart Card of the vehicle. However,

the said document neither contains any seal nor any signature of the

transport authority. Not only has the IOCL denied the allegation of

forgery but also the transport authority of Nagaland, which issued the

relevant certificates. As such, it is argued that the writ petition ought

to be dismissed.

17. It is further argued that the judicial review sought to be invoked by

the petitioner is not maintainable, since there is no public interest

element involved.

18. Heard learned counsel. The tender document indicates that the bid

submission was to start from November 21, 2022 and end on

November 30, 2022. One of the pre-qualification criteria stipulated in

the bid document was that RC Book copy was to be submitted for

Tank Truck. It was also provided that failure to meet the pre-

qualification criteria would render the bid to be summarily rejected.

19. Thus, there is no doubt on the requirements as per the tender

document.

20. The petitioner has relied on certain documents opted from the Vahan

portal of the Government, where the documents pertaining to the

present tender were uploaded. The said documents, insofar as those

pertained to respondent nos.9 and 10, indicate that the RC

Print/Smart Card status was shown to be „not available‟. It is

submitted that the said situation prevailed till after the conclusion of

the bid submission date.

21. However, from the same document, it is also seen that, with regard to

the application numbers of the respondent nos.9 and 10, the current

status of the new registration of the vehicles of the said respondents

were shown to be completed/approved on November 24, 2022. Again,

the Certificates of Registration produced by respondent nos.9 and 10

indicate that the date of issuance of those was November 28, 2022,

which is also prior to the conclusion of the bid submission period.

The registration date, as indicated therein, is November 24, 2022 and

the date when the copy thereof was issued was November 28, 2022.

22. The petitioners also seek to rely on a document which is purportedly a

"Tender Summary Report". In the said document, as against the

name of the respondent nos.9 and 10, the submission dates of the

documents are shown to be November 29 and November 30, 2022

respectively. The authenticity of the said documents, at least prima

facie, is also corroborated by a communication dated May 10, 2023 by

the Regional Transport Officer, Kohima, Nagaland. In the said

document, at the behest of the writ petitioner, the registration

authorities had furnished certain documents with regard to

respondent nos.9 and 10, where the date of alteration in RC as per

Parivahan portal was shown to be November 29, 2022, and the date of

print of altered RC as per Parivahan portal was shown to be „not

available‟ for one of the said respondents, and December 8, 2022 for

the other.

23. However, it has to be noted that the said dates relate to "alteration in

RC" and not to the original Registration Certificates. Hence, the

possibility cannot be ruled out of the said entries having been made in

respect of subsequent alterations of the Registration Certificates on

certain technical aspects, due to which such entries do not

conclusively throw any light on the veracity or otherwise of the

Registration Certificate on the date of issuance of the original.

24. Mere non-availability of RC Print/Smart Card cannot be an indicator

that the documents were actually not issued or were forged.

25. That apart, the entries in the Vahan portal are maintained by the

Government authorities. Neither the IOCL nor the respondent nos.9

and/or 10 is responsible for the same. As such, even if any

discrepancy was seen in the documents obtained by the petitioner

regarding the respondent nos.9 and 10 from the said portal, the same

could not, per se, vitiate the acceptance of the bids of the said

respondents as valid.

26. What is to be seen is whether the respondent nos.9 and 10 uploaded

genuine documents on the website of the IOCL, for the purpose of

tender process and whether the IOCL independently verified the same

to be correct.

27. The relevant communications annexed at pages 35 and 37 of the

affidavit-in-opposition of the IOCL speak for themselves. Vide the first

communication dated April 4, 2023, the Transport Commissioner,

Motor Vehicles Department, Government of Nagaland, sought a

verification of the Registration Certificate at the behest of the IOCL,

for re-verification of the authenticity of the allegation made by the

petitioner. In reply, the RTO, Kohima, Nagaland, by his

communication dated April 17, 2023 clearly responded that the copy

of the 15 Registration Certificates received for verification were indeed

registered in the Officer of the RTO, Kohima and found to be genuine.

28. Hence, two crucial steps were passed by the respondent nos.9 and 10

with flying colours. First, the documents (Registration Certificates)

submitted online by the respondent nos.9 and 10 were prima facie

genuine. Secondly, on an independent enquiry, the IOCL

subsequently was informed by the registering authority itself that

those documents were genuine. Hence, there cannot be any further

question regarding the genuineness of the documents offered by the

respondent nos.9 and 10, who are successful bidders.

29. Insofar as the challenge of the petitioner is concerned, the same is

also tainted by insufficient particulars of fraud/forgery having been

furnished in the pleadings, following the principle of Order VI Rule 4

of the Code of Civil Procedure.

30. No specific particulars as to how and when the forgery was committed,

has been established by the petitioner.

31. That apart, such an enquiry is beyond the scope of the writ

jurisdiction, which has a short window of interference in judicial

review.

32. In the present case, nothing on record shows beyond doubt or even

substantially that the respondent nos.9 and 10 committed any forgery

or fraud in uploading invalid and/or manufactured documents and/or

the IOCL acted without authority in accepting those.

33. The IOCL, thus, did not commit any error in acting in terms of the

tender document to accept the bids of the respondent nos.9 and 10.

34. Hence, it cannot be said that the petitioners‟ allegation of

fraud/forgery has been substantiated in any manner.

35. Even taking into consideration the judgments cited by the parties, the

scope of interference in judicial review is limited. Unless specifically

pleaded and proved on every particular, there is no scope of fraud

having been substantiated, for it to vitiate any action of the

respondents.

36. Hence, the judgments cited on fraud by the petitioner are not germane

in the present context at all.

37. Rather, it is well-settled that participants in a tender process, after

becoming unsuccessful, ought not to be permitted to turn back and

challenge the tender process.

38. The petitioner, in the present case, participated fully in the tender

process and after becoming unsuccessful, has challenged the

documents furnished by the respondents as forged.

39. Such act on the part of the petitioner appears to be inspired not by

bona fides but as an afterthought, to gain an unfair advantage by

creating a cloud on the success of the respondent nos.9 and 10 in the

very tender process where the petitioners participated, but turned out

to be unsuccessful. Such endeavour on the part of the writ petitioners

ought to be deprecated.

40. Accordingly, there is no scope of interference in the present writ

petition. Hence, WPA No.4640 of 2023 is dismissed on contest,

without any order as to costs.

41. Urgent certified server copies, if applied for, be issued to the parties

upon compliance of due formalities.

( Sabyasachi Bhattacharyya, J. )