Jammu & Kashmir High Court

Bge Mfb Jv vs Union Of India And Others on 9 May, 2022

     HIGH COURT OF JAMMU AND KASHMIR AND LADAKH
                      AT JAMMU

                                                          Reserved on 20.04.2022
                                                          Pronounced on 09.05.2022


                                                       WP(C) No. 463/2022(O&M)


BGE MFB JV                                       .....Appellant(s)/Petitioner(s)


                     Through: Mr. Abhinav Sharma, Sr.Advocate with
                              Mr. Abhimanyu Sharma, Advocate
                vs
Union of India and others                                         ..... Respondent(s)
                     Through: Mr. P. S. Chandel, CGSC

Coram: HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE
                                   JUDGMENT

1. Dispute in the present petition is with regard to the project of national as

well as strategic importance regarding prestigious Udhampur-Srinagar-

Baramulla Rail Link project, as such, taking into consideration the

urgency involved, the matter was taken up for final consideration, with the

consent of both the sides.

2. In the present petition, the petitioner has prayed for following reliefs:

"(a) To direct the respondent to permit the petitioner to participate and bid

in the tender for „SLOPE STABILIZATION AT KATRA END OF ANJI

KHAD BRIDGE ON KATRA-DHARAM SECTION OF UDHAMPUR-

SRINGAR-BARAMULLA RAIL LINK PORJECT‟, by extending the

date of submission of e-bid;

(b) To direct the respondents not to proceed ahead with e-tender for

„SLOPE STABILIZATION AT KATRA END OF ANJI KHAD BRIDGE

ON KATARA-DHARAM SECTION OF UDHAMPUR-SRINAGAR-

BARAMULLA RAIL LINK PROJECT‟ till the date for submission of e-

bid is extended and the petitioner is permitted to participate for

submission of the e-bid and not to finalize the tendering process till such

time the date for submission of e-bid be extended;

(d) Direction against respondents directing them not to open the financial

bid of the tender till such time the petitioner makes its bid and the

technical bid of the petitioner is opened;

3. It is stated that the petitioner is a joint venture between M/s MFB Geotech

Pvt. Ltd. and M/s Bumi Geo Engineering LLC with MFB Geotech Pvt.

Ltd being the lead partner of the joint venture. The petitioner claims to

have executed successfully various projects including the projects of the

railway construction works of the respondents.

4. It is stated that the tender was floated by the respondent No. 3 for the

aforesaid project on 08.02.2022. The project cost was estimated to be a

sum of Rs. 58,17,89,503/- and the project required urgent execution of the

works within a period of five months. The tender also required the deposit

of earnest money of Rs. 30,59,000/- by the bidder. The bidding process

was to be conducted on and through the Indian Railways E-Procurement

System or the IREPS portal and the earnest money was to be deposited

only through the IREPS. The bidding process was to close on 04.03.2022

at 3.00 PM. The petitioner accordingly executed the transfer of earnest

money deposit of Rs. 30,59,000/- on 03.02.2022 by transferring the

amount from IDBI Bank to the SBIepay facility. The sum was deducted

from the account of the petitioner from IDBI Bank and transfer was

confirmed to be a „Success‟. Even after the successful transfer, on the

IREPS portal the status of the payment for earnest money deposit did not

go through and as a result thereof, the petitioner was unable to go through

with the process of submitting its bid. The IREPS portal was reflecting the

bank status as „failed‟ and the transaction status as „pending for

authorization‟. The petitioner addressed an email to respondent No. 3 at

3.41 am in night of 03.03.2022 and in the early morning 04.03.2022

pointing out that while its bank indicated the transfer to be a "Success",

the IREPS portal was not reflecting the correct payment status. A request

was also made that in view of this technical error at the end of the

respondents, the time for making the bid ought to be extended. The

petitioner received a response to its email from the respondents at 11.47

am on 04.03.2022 wherein the petitioner was advised to get in touch with

the IREPS Help Desk and the petitioner was also intimated by the

respondents that there is no change in tender conditions. The petitioner

accordingly, telephonically contacted the IREPS Help Desk in the

morning of 04.03.2022 but the IREPS instead of resolving the issue,

directed the petitioner to consult the SBIepay facility to address the

technical glitch. It is further stated that in the meantime, the petitioner

effected a second transfer of the earnest money deposit of Rs. 30,59,000/-

in the morning of 04.03.2022. This amount was also deducted from the

account of the IDBI Bank account of the petitioner and the transfer receipt

indicated the transfer to be successful but this time also, the payment did

not go through and the IREPS portal continued to reflect that the payment

of earnest money deposit is pending. The transaction tracking report

indicated that the transaction is pending authorization at the end of

SBIepay. The petitioner wrote another email to the respondent No. 3 at

1.59 PM on 04.03.2022 reporting that even the second transfer of the

earnest money deposit is not being successfully recorded and reflected in

the IREPS portal. Considering the situation another request was made to

extend the time for making the bid which was now to expire within an

hour. The respondent No. 3 failed to resolve the issue or extend the time

for making the bid. The petitioner also wrote a letter to the respondent No.

3 on 04.03.2022 narrating the circumstances and in view of the

importance of the project, it was again requested that the timeline for

making the bid ought to be extended to enable the petitioner to put in its

bid. However, the respondents failed to consider the request of the

petitioner. Narrating these facts, the petitioner has approached this Court

for extension of the time for making bid on the grounds that the petitioner

has been unable to participate and bid for the project for none of its fault,

lapse or negligence but a glitch and/or lapse at the end of the respondents

and/or its payment facilitator. It is further submitted that the project is

being executed using public funds and resources and it is vital that it be

executed in the most cost effective and efficient manner, which in turn

would require the participation of maximum number of entities in bidding

process and make available their expertise and competence for the project.

It is further averred that the denial to participate in the bid is not only a

loss for the petitioner as it violates the right and legitimate expectation of

the petitioner but also is a loss for the State which is deprived of the true

and fair competition to ensure the best possible execution of the project. It

is further stated that the State is enjoined to not only ensure that there is

parity and fairness in the treatment of all participating bidders, but also

that the right to participate in a bid and particularly a project of public

importance is not unfairly curtailed. The petitioner has placed on record

the tender documents, the receipts regarding the payment made by the

petitioner and the various communications to demonstrate that the

petitioner had been making efforts for participating in the bid well before

the close of bidding process.

5. Response stands filed by the contesting respondent Nos. 2 and 3, in which

it has been stated that as per clause 5.3, the bidder was required to register

himself with IREPS and the detailed IREPS manual and procedure for e-

tendering was available on Indian Railway website. For participating in

the tendering process, the bidder as per clause 11.0 was required to

furnish earnest money deposit of Rs. 30,59,000/- to be submitted through

online payment mode available on IREPS Portal only and the petitioner

failed to deposit the earnest money at the time of submission of the bid as

such the petitioner cannot be considered for participation in the tendering

process by extension of time. It is also stated that the bidding process was

to start from 08.02.2022 and last date for submission of the bid was fixed

as 04.03.2022 up to 15:00 hours and clause 9.0 provides for time for

opening of the bid(Technical bid) on 04.03.2022 at 15:30 hours and clause

11.0 provides that the earnest money to the tune of Rs. 30,59,000/- has to

be submitted through online payment modes on IREPS portal only. It is

also stated that the IREPS (Indian Railways E-Procurement System)

portal belongs to the Indian Railways and as per the Ministry of Railway

guidelines all the tenders for execution of works are to be invited through

IREPS portal only. It is further stated that just like the petitioners, the

answering respondents are also users of the IREPS portal. It is also

averred that the petitioner did not deposit the earnest money from

18.02.2022 till 02.03.2022 and waited till the fag end. The amount so

transferred by the petitioner through its bank has not been credited into

the account of answering respondents till date which is substantiated by

the statement of the accounts maintained by the answering respondents

which is linked with the IREPS portal. It is also stated that the emails

written by the petitioner were duly replied by the answering respondents

and the petitioner was informed that the issue with respect to payment

failure is related to its bank account and same may be dealt with by its

bank and the petitioner was further requested to contact the IREPS help

desk. The respondents have further stated that other successful bidders

also made the payments on 02.02.2022 at 12:12 hours, on 03.03.2022 at

17:07 hours and on 04.03.2022 at 12:58 hours which would substantiate

the fact that the failure in making payment is not on the part of the IREPS

or its bank but on the part of the petitioner‟s bank. The respondents have

also stated that the petitioner right from the very beginning had every

intention to stall the smooth functioning of the tendering process as

number of times requests were made by the petitioner to extend the date

of submission of the bids,so as to enable the petitioner to participate in the

tendering process.

6. Precisely the stand of the respondent Nos.2-3 is that there was no fault on

the IREPS portal and the fault, if any, was with the petitioner and it‟s

bank and further the petitioner right from the very beginning intended to

stall the implementation of the project by making requests for extension of

time for making bid.

7. The petitioner in response to the objections filed by the respondents filed

a supplementary affidavit, in which besides reiterating the submissions

made in the main writ petition, stated that the respondents through one Sh.

Girish from IT department provided „any desk‟ screen sharing facility to

facilitate the transaction and despite the efforts on the part of the

petitioner, the petitioner could not participate in the tendering process.

The petitioner has also mentioned about the emails addressed to the

respondents and the email on 04.03.2022 addressed by the SBI Branch

Gurgaon to Delhi Branch. In a supplementary affidavit, the petitioner has

pleaded about the efforts made by him to participate in the tendering

process and further that the fault was with the respondents, IREPS portal

and SBIepay service provider/associate channel partner.

8. The respondents in response to the supplementary affidavit besides

reiterating their earlier stand, pleaded that the first part of the tender

pocket system namely technical bid was opened on 04.03.2022 at 3.49

hours and now the petitioner cannot be granted any second chance for

participating in the tendering process particularly when the other bidders

successfully placed their bids on 02.03.2022, 03.03.2022 and 04.03.2022

and also that because of the interim direction dated 09.03.2022, the

execution of national project Udhampur-Srinagar-Baramulla Rail Link

Project has been badly affected. It is also stated that the respondents have

been paying annual service fee of Rs. 31,33,080/- per annum for

maintenance of IREPS and using IREPS portal since 2016 and till date

more than 1800 tenders have been floated through IREPS portal but no

complaint has ever been received and rather the earnest money deposit

was credited into the account of IREPS portal by the other bidders on

03.03.2022 and 04.03.2022 speaks the volume that there was no error on

the IREPS portal as alleged by the petitioner.

9. The respondents have also placed on record the various emails as also the

communication dated 18.02.20221 and 22.02.2022 addressed by the

petitioner to the respondents and also the Refund Policy of SBIepay as

annexure-VI.

10. Mr. Abhinav Sharma, learned senior counsel appearing for the petitioner

has vehemently argued that the petitioner had paid the earnest money

deposit of Rs. 30,59,000/- twice but because none of the fault of the

petitioner, the petitioner has been deprived of its right to participate in the

tendering process and rather the fault was lying with the IREPS portal or

with SBIepay that the petitioner could not participate in the bidding

process because of non-payment of EMD. He further argued that the

public interest would be served if there is wide participation of the bidders

in the tendering process.

11. Per contra, Mr. P. S. Chandel, learned Central Government Standing

Counsel has vehemently argued that the respondents 2 and 3 did not

receive any amount from the petitioner as is evident from the account

statement placed on record by the respondents and further once the

petitioner did not deposit the earnest money deposit, it has no right to

participate in the tendering process and further because of the project

being of national importance, the time limit of the tender cannot be

extended, so as to enable the petitioner to participate in the same more

particularly when the technical bid stands already opened on 04.03.2022

at 3.49 PM.

12. Heard and perused the record.

13. The respondent Nos. 1 to 3 had floated the tender No. KR-PD-JK-SST-

ANGI-02-2022 for Slope Stabilization at Katra end of Anji Khad Bride on

Katra-Dharam section of Udhampur-Srinagar-Baramulla Rail Link

Project, Jammu and Kashmir on 08.02.2022. The bidding system was two

pocket system. The date and time of uploading the tender was fixed as

08.02.2022 and tendering closing time was fixed as 04.03.2022 at 1500

hours. The period of the completion of the tender was fixed as 05 months

and further the estimated value of the project was Rs. 58,17,89,503/- and

the bidders were required pay an earnest money deposit of Rs. 30,59,000/-

for participation in the tendering process.

14. As per condition No. 17 of the instructions of the tender, the tenderer was

required to deposit Rs. 30,59,000/- towards earnest money with the tender

and further condition No. 17.03 of the tender provides that the tender

received without earnest money in the prescribed format and value as

specified in the tender document shall be summarily rejected. As per

condition No. 17.7 payment of earnest money deposit in respect of e-

tendering should be submitted through online payment modes available on

IREPS portal only and Fixed Deposit Receipt/Demand Draft etc, were not

to be accepted as earned money deposit for tenders invited on IREPS (e-

tender portal). As per the NIT, the bids were to be submitted online on

IREPS portal. As per condition No. 17.8 proof of the transaction towards

payment of earnest money through online payment mode was required to

be scanned in PDF format and uploaded during the online submission of

the e-bid not later than the prescribed date and time or e-bid submission.

Thus, the payment of earnest money was sine qua non so as to enable the

bidders to participate in the bidding process. The contention of the

petitioner is that the petitioner twice transferred the amount i.e. on

03.03.2022 and 04.03.2022 but these transactions were shown as pending

for authorization on the IREPS portal. So far as the receipt regarding the

transfer of earnest money placed on record by the petitioner are

concerned, the same are the screenshots of „IDBI e-banking: view

approval queue‟, as is evident from page No. 227(Annexure-V). It is also

evident that the respondent Nos. 1 to 3 provided all possible help to the

petitioner,so as to enable the petitioner to participate in the tendering

process as is evident from the admission made by the petitioner that any

desk facility was provided to the petitioner but still the petitioner could

not participate in the tendering process.

15. Further e-mail dated 04.03.2022(Page-241) reveals that the SBIepay has

already confirmed that this is a failed transaction and the funds pertaining

to the said transaction will be credited back to the originator account by

the end of the day i.e. on 07.03.2022. The failed transactions are not

unknown in banking business as is evident from Refund Policy of

SBIepay (annexure-VI).A perusal of the Annexure IV (Page-54) placed

on record by the respondents along with their objections, regarding

earnest money deposit report reveals that three bidders have successfully

made the payment of earnest money deposit on 02.03.2022 at 12:12:59

hours, on 03.03.2022 at 17:07:38 and on 04.03.2022 at 12:58:43 hours.

16. The petitioner too claims to have transferred the amount on 03.03.2022

and 04.03.2022 i.e. the dates on which the other bidders have already

made the payment. Besides the petitioner, there is no complaint by anyone

with regard to the inability in making the payment of earnest money

deposit. Had there been any technical glitch either on the portal of IREPS

or SBIepay, that was the channel partner of the IREPS, then certainly

there would have been other complaints as well and it seems that the

glitch/lapse, if any, was either on the part of the petitioner or on the part of

its bank. The petitioner has not been able to demonstrate that the fault was

on the part of IREPS portal or with SBIepay, that prevented the petitioner

from participating in the tendering process.In MHADA v. Shapoorji

Pallonji & Co. (P) Ltd., reported in (2018) 3 SCC 13,the Apex Court has

observed that the generation of acknowledgments in respect of other

bidders and the absence of any glitch in the technology would strongly

indicate that the bid submitted by the first respondent was not a valid bid.

17. It requires to be noted that the timeline fixed for submission of bids is

very crucial for the timely completion of any project and the project in

question is a project of national as well as strategic importance and

permitting the petitioner to participate in the tender process by extending

the time would mean the retendering of the project by the Court

particularly when the technical bids stand already opened on 04.03.2022

and it would amount to giving second opportunity to the petitioner which

is not permissible. In MHADA v. Shapoorji Pallonji & Co. (P) Ltd.,

reported in (2018) 3 SCC 13,the Apex Court has further observed that the

directions issued by the High Court in favour of the first respondent

virtually confer on the said respondent a second opportunity, which

cannot be countenanced.

18. It is not the case where the petitioner has not been treated equally along

with other bidders and also there are no allegations of mala fide or

arbitrariness on the part of the respondent Nos. 2-3 and rather there is

admission on the part of the petitioner that the officials of the respondent

Nos. 2-3 rendered assistance to the petitioner so as to enable the petitioner

to participate in the tendering process. The petitioner was provided equal

opportunity to participate in the tendering process but the petitioner could

not successfully pay the EMD, that was a pre-requisite for participation in

the tendering process for one reason or another but not attributable to the

respondents. In National High Speed Rail Corpn. Ltd. v. Montecarlo

Ltd., 2022 SCC OnLine SC 111, the Supreme Court has observed as

under:

95. Even while entertaining the writ petition and/or granting the stay which ultimately may delay the execution of the Mega projects, it must be remembered that it may seriously impede the execution of the projects of public importance and disables the State and/or its agencies/instrumentalities from discharging the constitutional and legal obligation towards the citizens. Therefore, the High Courts should be extremely careful and circumspect in exercise of its discretion while entertaining such petitions and/or while granting stay in such matters. Even in a case where the High Court is of the prima facie opinion that the decision is as such perverse and/or arbitrary and/or suffers from mala fides and/or favouritism, while entertaining such writ petition and/or pass any appropriate interim order, High Court may put to the writ petitioner's notice that in case the petitioner loses and there is a delay in execution of the project due to such proceedings initiated by him/it, he/they may be saddled with the damages caused for delay in execution of such projects, which may be due to such frivolous litigations initiated by him/it. With these words of caution and advise, we rest the matter there and leave it to the wisdom of the concerned Court(s), which ultimately may look to the larger public interest and the national interest involved.

19. It requires to be noted that the petitioner on 22.02.2022 wrote to the

respondent Nos. 2 to 3 for extending the date for submission of bids by at

least three weeks i.e. up to 25.03.2022 so as to enable the petitioner to

participate in the tender and in the said e-mail, it has been mentioned by

the petitioner that the petitioner needs some more time (pandemic

situation due to Omicron) for joint venture formalities and compliance

like apostille etc. The petitioner has not denied the said communication

which further gives credence to the contention of the respondent Nos.2 to

3 that the petitioner right from the very beginning wanted the extension of

time for participation in tendering process.

20. As such, this Court does not find any illegality, arbitrariness and mala fide

on the part of respondent Nos. 2 and 3 in continuing with the tendering