Rishabh Swadeshi (Jv) vs Jharia Rehabilitation & ...
2022 Latest Caselaw 4638 Jhar

             IN THE HIGH COURT OF JHARKHAND AT RANCHI
                                      L.P.A. No. 13 of 2021

        Rishabh Swadeshi (JV)                                        ---     ---   Appellant
                                            Versus
        1.      Jharia Rehabilitation & Development Authority
                Through its Managing Director, Dhanbad.
        2.      Chief Manager (Civil), Jharia Rehabilitation &
                Development Authority, Dhanbad.
        3.      General Manager (Civil), Jharia Rehabilitation &
                Development Authority, Dhanbad.
        4.      Kamla Adityya Constructions Private Limited through
                Its Managing Director, Bokaro.
        5.      Tribeni Constructions Limited through its
                Managing Director, Kolkata.                 ---     --- Respondents
                                                 ---

CORAM: Hon'ble Mr. Justice Aparesh Kumar Singh Hon'ble Mr. Justice Deepak Roshan

---

For the Appellant : Mr. Indrajit Sinha, Advocate For the Resp.No.1 to 3: Mr. Ashok Kr. Yadav, Sr.S.C.-I For the Resp.No.4 : Mr. Mukesh Kumar, Advocate For the Resp.No.5 : Mr. Rohitashya Roy, Advocate

---

13/21.11.2022 The grounds of challenge are now confined to one serious infirmity stated to be in the award of work to respondent no.4 by splitting the total work amongst respondent nos. 4 and 5. The bidder was required to submit an affidavit of disclosure, the format of which is at page-113 and is extracted hereunder :-

"1. I ............................., Partner/Legal Attorney/ Accredited Representative of M/s. ....................., solemnly declare that: all the statements made in the required attachments are true and correct.

2. The undersigned also hereby certifies that neither our firm M/s .......................... CPWD, MES, RITES, State PWD or any other Central/State Government/Undertaking, Municipal body, Autonomous body or Public Ltd. Co. or any contract awarded to us for such work have been rescinded, during last five years prior to the date of this bid.

3. The undersigned hereby authorize(s) and request(s) any bank, person, firm or corporation to furnish pertinent information deemed necessary and requested by the Department to verify this statement or regarding my (our) competence and general reputation.

4. The undersigned understand and agrees that further qualifying information may be requested, and agrees to furnish any such information at the request of the Department/Project implementing agency.

5. All document/credentials submitted along with this tender are genuine, authentic, true and valid.

6. If any information and document submitted along with this tender is found to be false/incorrect any time, department may cancel my tender and action as deemed fit may be taken against us, including termination of the contract. Forfeiture of all dues including earnest money and banning/delisting of our firm and all partners of the firm atc.

7. None of the partner of firm is relative of employee of JRDA.

__________________________________ (Signed by an authorized Officer of the firm) ________________ Title of officer _________________ Name of Firm _________________ Date"

2. The work allotted under an agreement to the respondent no.4 by the State of Bihar was rescinded on 14th March 2019 vide letter no.352 which the respondent no.4 did not disclose in the affidavit. The affidavit required disclosure of any work which had been rescinded during last five years prior to the date of this bid. This fact was in the knowledge of the respondent no.4 on the cut-off date of submission of bid under the instant tender i.e. 29th April 2019. Being aggrieved by the award of work split up between the respondent no.4 and 5, writ petitioner approached this Court on 28th June 2019. The fact that the respondent no.4 had not disclosed the recession of his agreement by the State of Bihar while submitting its bid, was for the first time brought to the notice of the Writ Court by way of an affidavit filed on 23rd May 2020.

3. Respondent no.4 filed a supplementary counter affidavit in reply thereto in which at paragraph-8 the following statement was made :

"8. That, in reply to the statements made in paras-2 & 3 of the Petitioner's Supplementary Affidavit dt. 23.05.2020, it is stated and submitted that answering respondent preferred a writ application being CWJC No.6949/2019 before the Hon'ble Patna High Court challenging the letter 352 dt. 14.03.2019 of the Chief Engineer, Water Resources Dept., Govt. of Bihar whereby agreement was cancelled and security amount was forfeited. That, vide order dt. 18.04.2019, the Hon'ble Patna High Court was pleased to direct the respondents to maintain status quo till the final disposal of the present writ petition. That, it is pertinent to mention here that vide letter 352 dt. 14.03.2019, the answering respondent was neither blacklisted nor debarred, and the said writ petition is still pending for final adjudication before the Hon'ble Patna High Court. So, the no-disclosure of this solitary case having neither blacklisted nor debarred, cannot be said to be concealment of a material fact."

4. This contention of the petitioner has been dealt with by learned Single Judge at para-37 of the impugned judgment which is extracted hereunder :

"37. Learned counsel for the petitioner has contended that the respondent no.4 did not disclose or suppress material facts regarding blacklisting/debarment/rescission of contract during last five years which was the mandatory requirements to be followed by the bidders. In course of argument, learned counsel has put emphasis on one instance that the respondent no.4 suppressed the filing of the writ petition being CWJC No.6949 of 2019 before the Patna High Court, which, according to him, would have revealed that its contract was terminated and the order of status quo granted by the Patna High Court did not have the effect of staying such order at that point of time. The said concealment was an active concealment of fact and was intended to deceive the concerned authorities and hence amounted to practising fraud. Learned counsel for the petitioner has put reliance on the judgment of the Hon'ble Supreme Court rendered in the case of Nidhi Kaim Vs. State of Madhya Pradesh, reported in (2017) 4 SCC 1, wherein the Hon'ble Supreme Court has held that the trivialest act of wrongdoing based on a singular act of fraud cannot be countenanced in the name of justice. Even if the said argument is accepted for a while and the respondent no.4 is said to have suppressed the pendency of CWJC No.6949 of 2019, the same by itself does not vitiate the tender process undertaken by the respondent authorities since there is no such infirmity found in the decision making process. The petitioner has not been able to show any cogent evidence that the said fact of pendency of CWJC No.6949 of 2019 was within the knowledge of the respondent authorities which was ignored by them so as to give benefit to the respondent no.4 which might have proved the malafide or favouritism on the part of the respondent authorities. Although the petitioner has pleaded the malafide against the respondent authorities while awarding the contract in favour of the respondent nos.4 and 5, it has failed to prove the same by bringing on record sufficient evidence in support of the same."

5. The respondent nos. 1, 2 and 3 employer were asked in the present appeal to state on affidavit as to extent of execution of the work. By way of the affidavit dated 29th June 2022 it has been stated that the respondent no.4 has executed about 80% of the work by June 2022 and payment to the extent of Rs.69,88,10,186/- has been made to him. Respondent no.5 has executed about 98.50% of the work by June 2022 and payment of Rs.96,39,71,462/- has been made to him. By way of a further affidavit dated 06.08.2022, it has also been stated by the employer that the time limit for execution of work by the respondent no.4 has been extended up to 22nd December 2022. The work order was issued in favour of respondent

no.4 and 5 both on 21st September 2019 with a reduced stipulated period of 24 months from the original stipulated period of 36 months as the work had been split-up. It therefore indicates that there is one more month to go for the stipulated completion by respondent no.4. The work apparently may have been almost completed by now. However, the fact remains that the work was allotted to the respondent no.4 as the respondent employer was not informed about the recession of the contract of respondent no.4 by the State of Bihar as required to be submitted under the disclosure affidavit quoted herein above.

6. Para-6 of the same affidavit is an undertaking by the bidder/respondent no.4 as to the consequence which would follow in case of any information or document submitted by him is found to be false/incorrect any time. The consequences include cancellation of tender, termination of contract, forfeiture of all dues including earnest money and banning/delisting of the firm and all partners of the firm.

7. It is not the case of the petitioner that the work could have been allotted to him. The financial bids of the petitioner were not opened. As such, the only question which requires to be determined is as to what is the consequence which should befall the respondent no.4 in view of non- disclosure of recession of contract by the State of Bihar by him in its affidavit filed with the tender document by the cut-off date 29th April 2019.

8. Learned counsel for the respondent no. 4 submits that petitioner does not have the locus-standi to agitate the instant grievances, if any, as he has not been able to show that his bid was rejected on any arbitrary or illegal grounds or that the work ought to have been allotted to him in place of respondent no.4. He submits that the supplementary counter affidavit filed by him on 19.06.2020 also states that the respondent no.4 had got an interim order of status-quo dated 18th April 2019 passed by Patna High Court. The writ petition is still pending adjudication. As such, non-disclosure of the pendency of the writ petition did not vitiate the disclosure affidavit made by respondent no.4 The instant issue has been duly considered by the learned Single Judge in the impugned judgment which does not suffer from any infirmity.

9. Having regard to the nature of the controversy reflected herein above and also borne from the order dated 20th September 2021, we deem it proper to ask the respondent employer to state as to what consequences are they contemplating for such non-disclosure of vital fact at the time of

submission of bid by respondent no.4. Let the matter appear on 24 th November 2022 so that learned counsel for the respondent nos. 1 to 3 employer shall apprise the Court about the stand of the employer in this regard.

(Aparesh Kumar Singh, J)

(Deepak Roshan, J) Shamim/