Ashok Tyagi vs Union Of India & Ors
2017 Latest Caselaw 635 Del

                     IN THE HIGH COURT OF DELHI AT NEW DELHI

                                               Judgment reserved on: November 22 , 2016
                                               Judgment delivered on: February 03, 2017

+       W.P.(C) 1027/2016

        ASHOK TYAGI                                                        ..... Petitioner
                                          Through:   Ms.Anshul Gupta with Mr.M.K.
                                                     Mehta and Mr.Anirudh Shukla, Advs.

                                 versus

        UNION OF INDIA & ORS                                                   ..... Respondents
                           Through:                  Mr.Manish Mohan, CGSC with
                                                     Mr.Kavinder Gill, Ms.Manisha Saroha, Advs.
                                                     for R-1.
                                                     Mr.Sachin Datta, Sr.Adv. with Ms.Kanupriya,
                                                     Adv. for R-3.

CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR JUSTICE V. KAMESWAR RAO

                                              JUDGMENT

V. KAMESWAR RAO, J

1. The present petition has been filed by the petitioner with the following prayers:

(i) issue a writ, order or direction in the nature of mandamus / certiorari or any other writ, order or direction directing the respondents to seize and desist from such activities which hinders the natural justice and biasness,

(ii) direct the respondent no.1 to issue tenders under the appropriate heading specifying the scope and nature of services required in the said tender,

(iii) direct the respondents to cancel and dissolve the tender bearing ID

No. 2015_DGT_50673_1 and Ref No. MSDE-18021/4/2015-TTC issued by Directorate General of Training, Ministry of Skill Development and Entrepreneurship, Govt. of India and issue fresh tender for the same giving reasonable opportunity to the people to participate in tender as per law,

(iv) any other further order or directions which this Hon'ble Court may deem fit and appropriate for the furtherance of cause of justice and in favour of the Petitioner may kindly be also passed.

2. It is the case of the petitioner that the present petition is in the nature of Public

Interest Litigation without any self-gain or for gain of any other person, institution / body

and further, the petitioner has no motive other than public interest. It is averred that the

petitioner is involved in the business of printing. Respondent nos. 2 and 3 are also engaged

in the business of printing, packaging and other printing related activities. Respondent no.2

is a proprietorship concern in the name of Chandra Prabhu Offset Printing Works under the

proprietorship of one Mr. Abhishek Jain and the respondent no.3 is a Private Limited

Company in the name of Chandra Prabhu Offset Printing Works Private Limited having Mr.

Abhishek Jain as one of its Director. It is averred that both are having same offices and

printing press at the same address. It is averred that respondent nos. 2 and 3 have been

illegally obtaining tenders of the Central Government for the last 5 years. Respondent no.1

Ministry of Skill Development and Entrepreneurship, Govt. of India had invited bids vide

its letter dated 14th October, 2015 for printing, packaging, dispatch, collection and

evaluation of secret and confidential documents on PAN India basis, but the said tender was

under the heading "Engaging of an Agency for assisting Directorate General of Training

under the Ministry of Skill Development and Entrepreneurship in conducing All-India

Trade Test under the aegis of NCVT / CAC". Therefore not clarifying the purpose of the

said tender as the heading is not disclosing any job work relating to printing / packaging or

translation, binding or any work relating to printing. As the heading of the tender was not

disclosing its true purpose, only six companies participated in the bid and out of them

respondent no.2 was one of the participant. As per the rules of allotment of bids, certain

technical criteria had to be fulfilled. The first criterion was that the company should be

registered under the Companies Act. It is averred that the respondent no.2 submitted its bid

and for the purpose of scrutiny and eligibility, respondent no.2 in connivance with

respondent no.1 submitted the profile of respondent no.3 / company to fulfill the criteria.

Even thereafter, respondent no.2 was declared as the lowest bidder. When the respondent

no.1 was in the process of allotting the tender to respondent no.2, the petitioner preferred a

writ petition being no. W.P.(C) 11456/2015 before this Court, but due to some technical

reasons, the same was dismissed as withdrawn. It is averred that the petitioner had sent a

letter / representation dated 14th December, 2015 to the respondent no.1 requesting to

dissolve the said tender, but no action has been taken. Reference has been made that the

complaints have also been given to CBI and Anti-Corruption Bureau, Delhi Government,

but no action has been taken. The entire process of allotment of tender is void.

3. The case of the respondent no.1 in its counter-affidavit being that the title of the

tender is correct and only six firms have participated in the process and they all were well

versed with the purpose / work of tender. The tender document was notified properly and

correctly as per GFR Rules and the tender was uploaded on Central Public Procurement

Portal on 14th October, 2015 as per the procedure of E-procurement system, Government of

India. It is averred that the Tender advertisement was published in Times of India

Newspaper from sixteen different locations in the country and the same was available on

the DGT website. Respondent no.1 has referred to the letter addressed by the petitioner to

Director TTC dated 14th December, 2015 and the objection raised by the petitioner has been

apprised to the Hon'ble Minister vide note dated 22 nd December, 2015. As the application

was submitted through e-mail as general letter known as "public grievance", the reply was

not necessary to be sent to the person who is not a part of the activity concern". It is

averred that the petitioner is habitual for submitting various RTIs and applications to

various officers from time to time. Six tenders were received and bids were opened on 5th

November, 2015 and scrutinized by a Committee of 5 members and out of six only 3 firms

were qualified for technical evaluation. These three firms were re-evaluated technically by

a Committee of 5 members and all the three obtained above 60% marks and were declared

eligible for opening of financial bids. After scrutiny, summary was uploaded on 19th

November, 2015 and M/s. Chandraprabhu Offset Printing Works Pvt. Limited, respondent

no.3 was selected as L-1. It is averred that there is no manipulation at any level.

4. Respondent no.2 has filed its counter-affidavit. Respondent no.2 in its counter-

affidavit challenged the maintainability of the petition as a Public Interest Litigation

inasmuch as the petition has been filed to serve personal interest and in support of its

contention, it is averred that certain reliefs have been sought by the petitioner with regard to

the tender itself issued by the respondent no.1. It is also averred that the petitioner is

involved in a similar business of printing and has not applied and participated in the bidding

process. The case of the respondent no.2 is that the letter of invitation reflects the purpose

for which the tenders were called for. It is averred that the Chandra Prabhu Offset Printing

Works is a Proprietorship concern under Ms. Kalpana Jain and on 1 st day of April, 2015, a

Succession Agreement has been executed between M/s. Chandra Prabhu Offset Printing

Works and Chandra Prabhu Printing Works Pvt. Limited whereby the Company has taken

over w.e.f. 1st day of April, 2015, as going concern, with all its assets and liabilities along

with its Rights and Privileges of the predecessor. The respondent no.2 would also contest

the petition on the ground that as the petitioner has withdrawn the earlier writ petition and

the present petition having been filed on the same grounds in the guise of Public Interest

Litigation, is a an abuse of process of the Court. Respondent no.2 has denied the

allegations made by the petitioner that Mr. Abhishek Jain has vitiated the bidding process in

any manner. Respondent No.2 also denied that the Director of the Respondent no.3 and

Respondent No. 2 are different entities. It is averred that the entities have been merged as

one Company on 1st April, 2015. It is averred that respondent no.3 was declared as lowest

bidder and it is the documents of respondent no.3 which were produced for scrutiny and

evaluation process and the respondent no.2 seeks the dismissal of the writ petition.

5. It is the contention of the learned counsel for the petitioner that the impugned tender

has not been published as per the Rules laid down by CVC or the judgment of the Supreme

Court and it has been published secretly in connivance with all the respondents to benefit

respondent nos. 2 and 3. It is stated that the heading of the tender does not disclose any

purpose. The tender was also not published in e-procurement website. The tender was

found on e-procurement website under the heading of Ministry of Shipping. That as per the

eligibility, it is a Company registered under the Companies Act which could have applied

and therefore respondent no.2 should have been disqualified as it is a proprietorship

concern. The technical scrutiny was of respondent no.3, who did not apply in the said

tender. On the basis of technical scrutiny of respondent no.3, respondent no.2 was declared

L-1 and given the tender. Even in the past, respondent nos. 2 and 3 have also cheated and

obtained the tenders in the same manner. He would also state that from Annexure-R5 at

page 20 of the counter-affidavit filed by respondent no.1, it is clear that it is the respondent

no.2, which was declared L-1 and not respondent no.3 / Company. He would further state

that the case of the respondent nos. 2 and 3 is that the respondent no.2 was succeeded by

respondent no.3. At the top most Para of page 15 (Succession Agreement), it is clearly

stated that from 1st April, 2015, the predecessor firm was ceased to carry on business,

whereas respondent no.2 submitted its bid in November, 2015 in the present tender. He

would also state that it is the respondent no.2, which is receiving payments from respondent

no.1. Learned counsel for the petitioner would rely upon the following judgments of the

Supreme Court:-

(i) Nagar Nigam Meerut v. Al Faheem Meat Exports (P) Ltd. and Ors. 2006 (13) SCC 382; and

(ii) Jagadish Mandal v. State of Orissa and Ors. 2007 (14) SCC 517.

6. On the other hand Mr. Manish Mohan, learned counsel for respondent no.1 would

rely upon the counter-affidavit filed by the respondent no.1 in the petition. Similarly,

Mr. Sachin Datta, learned Sr. Counsel who appears for respondent nos. 2 and 3 would

submit that the present petition is nothing but an abuse of process of law and the petitioner

being himself in the printing business, the petition cannot be construed as a petition in

public interest. That apart it is his submission that the tender has been issued properly in

accordance with the relevant rules and the stand of the petitioner that it is in violation of the

CVC Rules and the judgment of the Supreme Court is totally untenable. He seeks the

dismissal of the writ petition.

7. Having heard the learned counsel for the parties, first and foremost it must be held

that from the perusal of the Annexure-R3 filed by respondent no.1, three Companies which

were qualified for Technical evaluation included Chandra Prabhu Offset Printing Works

Pvt. Ltd., i.e., respondent no.3. In other words, respondent no.2 had not applied for the

tender. This is in view of Annexure R3 and Annexure R4 of the counter affidavit of

respondent No.1 (pages 17 & 18). The plea of the learned counsel for the petitioner that the

heading of the tender document does not prescribe the purpose for which the bids are

invited is concerned, page 34 of the writ petition, i.e., bid data sheet prescribe the scope of

work; and the assignment, which is sufficient for a bidder to understand and bid for the

same. Surely, the petitioner has no locus to urge, this issue. It is for the Company who was

eligible but could not apply for lack of clarity (if any). The plea of the learned counsel for

the petitioner that the tender was not published in e-procurement website of the Government

of India under the Ministry of Skill Development and Entrepreneurship is concerned,

suffice to state Annexure-2 to the writ petition filed by the petitioner does reveal that the

tender was published on the e-procurement System, Government of India and the name of

the organization has been given as Director General of Training and the said position can be

seen from Page 30 of the petition. The plea that the tender was found on e-procurement

website in the heading of Ministry of Shipping is concerned, the same is without any basis

and moreover such was not the stand of the petitioner in the writ petition. That apart even

in reply to the CM No. 38859/2016, the respondent no.1 has stated that the tender document

was available on DGT website. That apart it is also stated that, publishing the tender on

Central Procurement Portal is not under the control of the respondent no.1. In any case, no

prejudice has been caused to any Company, as no such Company has filed petition on that

ground. In so far as the plea of the learned counsel for the petitioner, the first and foremost

rule of the tender is that only the Companies registered under the Companies Act could

have applied, therefore, respondent no.2 should have been disqualified as it is a

proprietorship concern is concerned, suffice to state the record reveals that Chandra Prabhu

Printing Works Pvt. Ltd. which had applied for the tender and not Respondent No.2. The

petitioner primarily relied upon page 20, Annexure-R5 of the counter-affidavit filed by

respondent no.1 to submit that it is respondent no.2 which was declared as L-1.

Regrettably, the same is overlooking page 17 and 18 of the counter-affidavit which clearly

reveals that it is the Chandra Prabhu Offset Printing Works Pvt. Ltd. which had bid for the

tender. That apart the date of submission of bids being 4 th November, 2015, which date

was much after the respondent no.3 had taken over the rights and liabilities of the

proprietorship firm Respondent no.2. The plea of the learned counsel for the petitioner that

it is the respondent no.2 which is receiving the payments from the respondent no.1 is

concerned, the same also is untenable in view of the Sanction order, placed by the

respondent no.1 in its reply to CM. No. 38859/2016 (page 8). That apart the petitioner

except filing the statement of A/c of the Respondent No.3, has not made any averments in

the application to substantiate the stand that the payments are being made in the name of

Respondent no.2. That apart it is important to note that the petitioner also being in the same

nature of business, it cannot be said that the present petition is bonafide and in public

interest. We refrain from saying anything further.

8. In so far as the Judgments, relied upon by the Ld. Counsel for the petitioner in Nagar

Nigam Meerut (supra), the Ld. Counsel has referred to Para 13, 14 and 18, to contend that

the tender which has not been put up for public viewing is illegal, is concerned, suffice to

state, in view of the fact, tender Advertisement was issued in the Times of India Newspaper

from 16 different locations and the tender was also uploaded on e-procurement system of

Government of India, the Judgment on facts has no application. Similarly, in the case of

Jagdish Mandal (supra) and connected Appeal would not have any applicability as this

Court does not find any illegality to interfere with, issuance of Tender and a ward of the

same to the respondent no.3.

9. In view of our above discussion, we do not see any merit in the petition. The petition

is dismissed. No costs.

CM Nos.4493, 11554, 38859/2016 In view of our above conclusion, the applications are dismissed as infructuous.

V. KAMESWAR RAO, J

CHIEF JUSTICE

FEBRUARY 03, 2017 jg