U.P. State Bridge Corporation ... vs The State Of Madhya Pradesh
2021 Latest Caselaw 6246 MP

        THE HIGH COURT OF MADHYA PRADESH

                                W.P No. 6507/2020
      (U.P State Bridge Corporation Limited Vs. The State of M.P &others)

JABALPUR, DATED: 30.09.2021

      Shri Anshuman Singh, learned counsel for the petitioner.

      Shri Purushaindra Kaurav, learned Advocate General with Shri Swapnil

Ganguly, learned Deputy Advocate General for the respondent/State.

Shri Shekhar Sharma, learned counsel for the respondent no.3.

This petition has been filed by petitioner-U.P State Bridge Corporation

Limited, a public sector undertaking challenging the communication dated

06/03/2020 and tender summary report dated 11/03/2020, with the prayer that

the respondent no.1 and 2 be directed to consider the financial bid of the

petitioner and not to treat the petitioner as disqualified.

2. Shri Anshuman Singh, learned counsel for the petitioner submitted that

an accident happened during the construction of bridge by the petitioner at

Varansi on 15th May, 2018 and FIR was registered under sections, 304, 308,

427, read with section 34 of the I.P.C and section 3/4 of Prevention of Damage

to Public Property Act, 1984 was lodged against some of the employees of the

petitioner and the contractor undertaking the said construction. The

investigation in that was ordered to be stayed by Allahabad High Court vide

order dated 30th July, 2019. Sometime thereafter, an NIT was issued by the

respondents on 30th November, 2019 for construction of elevated corridor

(flyover) from Damoh Naka to Ranital Chowk Madan Mahal Chowk (upto

medical Road) in Jabalpur city in Madhya Pradesh, with 16/01/2020 as last date of submission of the tenders. The respondent no.1 and 2 issued a letter dated

25/02/2020 stating that petitioner did not qualify threshold technical capacity as

per Clause 2.2.2(i) and 2.2.6(ii). The petitioner gave response to that on

26/02/2020 stating that all necessary details are present in the bid submitted by

the petitioner, therefore he is fully qualified. The General Manager of the

petitioner personally attended the office of respondent no.2 on 27/02/2020 and

explained all the details already submitted with the bid. The respondent no.2

issued letter dated 04/03/2020 alleging that the information required to be given

by the petitioner in Clause 7(a) and (b) of Annexure 1 of Appendix 1A was

incorrect as it did not disclose about the above criminal case. The petitioner on

the same day itself refuted the aforesaid allegation. Yet the respondent no.2

issued impugned communication dated 06/03/2021 declaring bid of the

petitioner as non responsive. The petitioner in response to the aforesaid letter

issued letter dated 07/03/2021 wrote back that the communication dated

06/03/2021 was completely arbitrary and illegal and the petitioner's bid cannot

be said to be non-responsive and he cannot be disqualified. Thereafter, in the

meantime the respondent no.1 and 2 uploaded a tender summery report on

11/03/2020 on the official website of the Government of Madhya Pradesh, in

which the petitioner has been shown to be technically disqualified and

respondent no.3 and 4 are shown to be technically qualified.

3. Learned counsel for the petitioner submitted that eventually the work was

awarded to respondent no.3. The petitioner had to thereafter amend the writ

petition. He filed two IA. 5593/2020 and 6354/2020 alleging that as many as 6

FIR have been lodged against the respondent no.3, with far more severe

allegations. It is contended that while in the case of the petitioner, the

respondents on similar ground have taken the view that the petitioner was

disqualified in some other contract of the respondent department. The petitioner

filed W.P No. 6681/2020 challenging the same which was allowed vide order

dated 15/06/2020 holding that the petitioner cannot be taken as disqualified. The

aforesaid judgment of the Indore Bench of this Court was challenged before the

Supreme Court in Civil Appeal No. 4002/2020. The Hon'ble Supreme Court has

reversed the judgment of this Court vide order dated 08/12/2020, upholding the

decision of the respondents to treat the petitioner disqualified.

4. Argument of learned counsel for the petitioner is that while in the case of

the petitioner there was one FIR and against the respondent no.3 as many as 6

FIR which have been brought on record vide IA No. 5593/2020 and IA no.

6354/2020, with regard to different cases with allegations of execution of sub

standard quality of work, offence under Prevention of Corruption Act and

collapse of bridge etc. Therefore the respondents ought to have not awarded

work to the respondent no.3. Action of the respondents is discriminatory being

violative of Article 14 of the Constitution. The respondent no.3 having

concealed all material from the respondent no.1 and 2 also ought not to have

been awarded the work. It is contended that in the agreement executed between

the parties as there is clause that even during the execution of the work, if it transpires that the bidder, who was awarded work, concealed some vital

information, the employer can take decision to terminate the work.

5. Shri Shekhar Sharma, learned counsel for the respondent no.3 submitted

that petitioner has not formally amended the writ petition to bring on record all

these alleged FIR said to be registered against the respondent no.3. It is

contended that not only letter of intent has been issued to the respondent no.3

but agreement was executed in favour of the respondent no.3 by respondent no.1

and 2 and he has started executing the work. The work has progressed.

6. Shri Purushaindra Kaurav, learned Advocate General for the

respondent/State submitted that as per his instructions, the total work of 183.4

crores, which constitute 16% of the total value, has been executed by the

petitioner. In the present facts of the case, because at the time of evaluation of

bid neither these allegations were brought to the notice of the respondents either

by the petitioner nor were disclosed in the tender documents even by the

respondent no.3, therefore, at this stage it is difficult to accept that they are

factually correct. But he submitted that the respondents are open to consider the

objections of the petitioner only after they have verified it's correctness.

7. Having heard learned counsel for the parties and material available on

record and considering the fact that work has already been awarded and

executed thereafter to some extent, we do not wish to interfere in the matter.

However at the same time, we set the petitioner at liberty to approach the

respondent no.2 Chief Engineer, Public Works Department (Bridge

Construction), Bhopal, Government of Madhya Pradesh by means of

comprehensive complaint to place before him all the material he wants to cite in support of his arguments that the judgment of the Supreme Court, shall equally

apply to the respondent no.3, who (the respondent no.2) after giving opportunity

of hearing to both the petitioner and the respondent no.3 shall take final view in

the matter considering the relevant clause of the agreement executed between

the parties, within a period of 6 weeks from the date of receipt of such

complaint. It is made clear that we have not expressed any opinion on the merit

of the case.

With the aforesaid direction, the petition is disposed of.

                    (MOHAMMAD RAFIQ)                          (VIJAY KUMAR SHUKLA)
                      CHIEF JUSTICE                                   JUDGE
Digitally signed
by tarun
   TARUN
KUMAR SALUNKE
Date: 2021.10.01
10:38:51 +05'30'