Madhya Pradesh High Court
Maha Mineral Mining And Benefication ... vs Madhya Pradesh Power Generating ... on 6 January, 2025
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NEUTRAL CITATION NO. 2024:MPHC-JBP:63271
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IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SURESH KUMAR KAIT,
CHIEF JUSTICE
&
HON'BLE SHRI JUSTICE VIVEK JAIN
WRIT PETITION No. 18286 of 2024
MAHA MINERAL MINING AND BENEFICATION PRIVATE LIMITED
Versus
MADHYA PRADESH POWER GENERATING COMPANY LIMITED AND
AND ANOTHER
Appearance:
Shri Devendra Chauhan - Senior Advocate with Shri Satish Agrawal, Shri
Yashwardhan Agrawal, Shri Santosh Ghate, Shri Chaitanya Dhurv and Shri
Nishchay Jadhav- Advocates for the petitioner.
Shri Arpan J. Pawar - Advocate for respondent No.1.
Shri Nikhil A. Nasre and Shri Sarabvir Singh Oberoi - Advocates for the
respondent No.2.
Reserved on - 04.12.2024
Pronounced on - 06.01.2025
ORDER
Per: Hon'ble Shri Justice Suresh Kumar Kait, Chief Justice:
1. Petitioner has filed the instant petition seeking the following
reliefs:-
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"(a). Hold and declare that the impugned decision of the
respondent dated 04.07.2024 (Annexure
(Annexure-P/1)
P/1) disqualifying the
petitioner from Tender ID No.2024_MPPGC_341576_1, is
arbitrary, capricious, and in violation of Article 14 and 19(1)(g)
of the Constitution of India.
(b) Hold and declare that the petitioner is technically
qualified to participate in Tender ID
No.2024_MPPGC_341576_1, as per the criteria
criteria set out in the
Notice Inviting Tender;
(c) Issue a writ of mandamus or any other appropriate writ,
order, or direction quashing and setting aside the impugned
decision of the respondent dated 04.07.2024, disqualifying the
petitioner from Tender ID No.2024_MPPGC_341576_1;
No
(d) Issue a writ of mandamus or any other appropriate writ,
order, or direction directing the respondent to re
re-evaluate
evaluate the
petitioner's technical bid in accordance with the tender criteria
and in a fair and transparent manner;
(e) Grant
ant any other relief that this Hon'ble Court may deem
just and proper in the facts and circumstances of the present
matter.
(f) Quash and set aside the impugned technical summary
report, in as much as it disqualifies the petitioner from Tender id
No.2024_MPPGC_341576_1."
PPGC_341576_1."
2. It is the case of the petitioner that in pursuance of the Notice
Inviting Tender (ID 2024_MPPGC_341576_1) dated 17.05.2024
issued by the respondent No.1-
No.1 M.P. Power Generating Company Ltd.
for the purpose of RoM Coal Beneficiation and Ma
Managing
naging Associated
Logistics from WCL (Nagpur area) sources for SSTPP, Khandwa
(M.P.), the petitioner submitted its bid online on 02.07.2024 after
downloading the tender documents from the website of the respondent
respondent-
company and fulfilled all the requirements as per the NIT. The
technical bids were opened on 03.07.2024. However, petitioner's
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technical bid was rejected stating that the petitioner was disqualified
due to non-submission
submission of credentials as per clause 5(D) of the NIT.
3. Learned counsel for the petitioner
petitioner contends that the respondent
No.1 rejected the bid of the petitioner arbitrarily without providing any
justification, while rejecting, it was only mentioned that the petitioner
is disqualified for non-submission
non submission of credentials in terms of clause
5(D)
D) of the NIT. He further submits that whatever documents which
were specified and explicit in the NIT, the petitioner had uploaded
those documents and even if the respondent No.1 wanted some more
documents to be uploaded, they should have called upon the petitioner
and the petitioner would have surely done the needful.
4. Drawing attention of this Court at page 68 of the written
synopsis, he further submits that under clause (6) "Techno-Commercial
"Techno Commercial
Bid" which specifies that bidders must positively complete e-tendering
procedure at the website and the bidders shall have to submit the
documents as mentioned in sub-clause
sub clause (1) and (2) online on the
website. The main submission of the petitioner is that whatever
documents which were to be uploaded, the respondent No.1 should
have specified in this clause. So far as submission of Joint Venture
agreement is concerned, the NIT was silent on this point. He further
submits that clause 8(1) of the NIT shows instructions regarding
shortfall of documents and clause 8(1)(ii)
8(1)(ii) shows that accordingly,
clause No.1.15 (VIII) "Verification of credentials/PQR" of the
Standard Bid Document, so far as it relates to shortfall of document,
window shall not be available. Even the petitioner was not allowed to
complete these documents. At page 69 in clause 10, it is mentioned
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that if the bidder deliberately gives any wrong information in his tender
to create circumstances for the acceptance of his bid, MPPGCL
reserves the right to reject such tender and to take action for banning
the business
siness with MPPGCL.
5. He further submits that the rejection of bid of the petitioner
would show that there were only three bidders who had participated in
the tender. Two bidders have been outrightly disqualified and only one
has been declared qualified. Therefore, no competition was there and
no public interest had been taken care of. Moreover, the bidder who
has been declared successful had not even uploaded the documents as
per terms and conditions of NIT.
6. The clause of the tender document does not ccontemplate
uploading of the documents specifically regarding past experience. If
the required experience was to be of 45 metric tonnes then, petitioner
should have been given the opportunity to furnish the same. The clause
of the NIT also does not stipulate
stipulate to upload this document and if the
tender document required that such document should be uploaded, the
petitioner would have definitely uploaded the same.
7. He further contended that the petitioner should have been given
opportunity of participation in
in the tender fairly and there should be
competition in the tendering process.
8. In support of his contentions, learned counsel for the petitioner
has relied upon the judgments of the Supreme Court in the cases of
Engineerin Works (1991) 3 SCC
Poddar Steel Corpn. Vs. Ganesh Engineering
273, B.S.N.Joshi & Sons Ltd. Vs. Nair Coal Services Ltd. (2006) 11
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SCC 548, Monarch Infrastructure (P) Ltd. Vs. Ulhasnagar
Municipal Corporation (2000) 5 SCC 287, Nagar Nigam Vs. AI
Faheem Meat Exports (P) Ltd., (2006) 13 SCC 382, NHAI Vs.
Gwalior - Jhansi Expressway Ltd. (2018) 8 SCC 243 and Subodh
Kumar Singh Rathour Vs. Chief Executive Officer 2024 SCC OnLine
SC 1682 and submits that the respondent No.1 arbitrarily and illegally
declared the petitioner as disqualified affecting the fairness of the
process and public finances.
9. To the contrary, learned counsel appearing for the respondent
No.1 M.P. Power Generating Company Ltd., opposed the contentions
of the petitioner and submitted that there was a technical evaluation
committee which evaluated the bids. The minutes of the committee
have been placed on record.
10. Respondent No.1 further submits
submits that so far as argument of the
petitioner is concerned, due to his disqualification and acceptance of
the bid of private bidder, competition has been narrowed down. This
was the third call and not the first call as argued by the learned counsel
for thee petitioner. As per the note-sheet
note sheet of the Technical Evaluation
Committee, the petitioner did not place any document to fulfil the
requirements as contained in clause (5)D of the tender document. He
further submits that the petitioner is not a novice but hhee is a contractor
who knows everything about the tender documents and he understands
what documents are to be placed and what are to be hidden.
11. Drawing attention of this Court to clause 5(D) of the NIT with
regard to past experience, he further submits
submits that the bidder is allowed
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to use past experience of the previous consortium or joint venture,
proportionate to its share in that consortium if defined in the
consortium agreement. In the consortium agreement, it would be
clearly defined what would be the
the share of A and that of B. If the
consortium agreement is not produced, then it will be presumed that
the entire experience goes to the lead partner and it would be presumed
that the petitioner was not the main partner for which he is claiming
experience.
12. Importantly, the petitioner has placed a certificate Annexure P/2
issued by the Maharashtra State Mining Corporation Ltd., for the work
of lifting and beneficiation of RoM coal and supply of beneficiated
coal to some places at Maharashtra State, the contract
contract of which was
awarded to the joint venture headed by M/s Hind Energy and Coal
Beneficiation India Ltd. in which the petitioner was the 45% joint
venture/consortium partner of the said lead partner. On the basis of this
document alone, the committee was unable to find what is the share of
the petitioner in the joint venture. The joint venture agreement as a
direct evidence ought to have been placed by the petitioner along with
the bid.
13. The further submission of the respondent No.1 is that the note
sheet at page 16 to 19 of the reply dated 23.07.2024 clearly shows the
manner in which the evaluation committee had evaluated the bids and
reached to a conclusion declaring the petitioner to be disqualified. He
further submits that this tender was for supply
supply of coal to the thermal
power stations and the demand of electricity is on higher side. Due to
pendency of this case, the respondent No.1 was unable to execute work
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for long time. As such, there was urgency in the matter, especially for
the agriculture purposes.
14. Learned counsel appearing for the respondent No.2 contends that
the petitioner consciously had not filed the document in respect of his
past experience and suppressed the material fact. The respondent No.2
has rightly been declared as qualified
qualified as he has fulfilled all
requirements as per the NIT. Once the petitioner has been declared
disqualified, he has no locus to file this petition. It was the discretion of
the respondent No.1 to consider the bids. He further submits that once
the proportion
on in the joint venture agreement and existence of the lead
partner are crucial information required under the tender document,
there was no need to specify that the JV agreement requires to be filed.
So far as fair competition is concerned, there were cer
certain
tain eligibility
criteria prescribed in the NIT. Certain bidders came who fulfilled
certain eligibility and some did not fulfil eligibility criteria. There is no
rule for saying that single bidder cannot be contracted until and unless
there is anything contrary
contrary in the NIT. The respondent No.2 has denied
the allegation of the petitioner that the respondent No.1 and 2 were
hand in gloves and the other bidder namely N.N. Global Mercantile
Pvt. Ltd., was a dummy bidder and the respondent No.2 colluded with
N.N. Global who was also declared as disqualified in the present
tender. If the petitioner is making allegations against respondent No.2
and N.N. Global Mercantile Pvt. Ltd., he would have made them party
at the initial stage. However, consciously petitioner hhas
as not made them
as party to make their case feeble. The respondent No.2 contends that
the present petition is bereft of merit and is liable to be dismissed.
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15. Heard learned counsels for the parties and perused the record.
16. It is not in dispute that the
the Tender Evaluation Committee had
considered the bids of three bidders namely the petitioner, one
N.N.Global Mercantile Pvt. Ltd. Chandrapur and respondent No.2
Rukhmai Infrastructure Pvt. Ltd. The bids of petitioner and N.N.Global
Mercantile Pvt. Ltd. Chandrapur
Chandrapur were rejected and they have been
declared as disqualified. The bid of respondent No.2 has been accepted
and he has been declared as qualified. The main reason for rejection of
petitioner's technical bid as reflected from impugned order dated
04.07.2024
.2024 (Annexure P/1) and the report of the Tender Evaluation
Committee (Annexure P/5) is that the petitioner is disqualified due to
non-submission
submission of his credentials as per clause No.(5)D of the NIT.
Clause (5)D of the NIT dated 17.05.2024 (Annexure P/3) rreads as
under:-
5. Credential and PQR:
*** *** ***
(D) Past Experience:-
Experience
Copies of successfully executed orders (including part
executed) in the name of bidder for same or similar work
{similar work means coal lifting from mines of CIL
subsidiaries or SCCL area, coal beneficiation (through wet
process), movement of washed coal by road from washery to
railway siding and movement of washed coal through
Railways with experience in liaisoning with Railways/ CIL
subsidiaries or SCCL area i.'e., arranging rakes, dispatches
coal from own or leased Private siding or Goods shed
Railways siding by loading of washed coal into railway
wagons through own arrangement with monitoring the rake
movement etc. up to the destination Power house}. Bidder is
allowed to use past experience of their previous Consortium
or JV (proportionate to its share in that consortium if defined
in the Consortium Agreement, otherwise, lead partner if not
defined in the Consortium) to meet out the past experience
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criteria of the tender. The order copies should indicate the
above work for 4 Lakh MT {4,00,000 MT) quant
quantity
ity or more in
state Owned Power Generating Companies or Other Captive
Power Utilities of PSU or NTPC or Govt. Industries /
Departments or Semi Govt. industries / Departments or PSUs
or Nodal Agency of any PSUs in India executed in last five
years ending
ending with initial date of opening of bid are to be
uploaded. This order execution should be within a period of
twelve (12) months. It may be through single or multiple
orders (in parallel), but in case of multiple orders; these
should be within a single span
span of time period of twelve (12)
months.
1. The work execution certificate by the customers along-
along
with self-attested
attested un-priced
un priced copies of aforesaid work order(s)
should be submitted.
2. For Past performance certificates - If worked with
MPEB/ MPSEB/ MPPG MPPGCL CL in past for similar work, then it is
mandatory to provide Satisfactory Performance Certificate
for the same. Failing this, the offer shall not be considered."
17. The respondent No.1 along with its reply filed a certificate dated
06.03.2024 (Annexure R/1/A)
R/1/A) issued by the Maharashtra State Mining
Corporation Ltd. uploaded by the respondent No.2 - M/s. Rukhmai
Infrastructure Private Ltd with regard to its past experience in
execution of similar tender, which is as follows:
":TO WHOMSOEVER IT MAY CONCERN:
This is to certify that Maharashtra State Mining Corporation
Limited (MSMC) has appointed M/s. Rukhmai Infrastructure
Private Ltd, as 'Contractor' for lifting and beneficiation of
raw coal from the mines of Western Coalfields Limited (WCL)
and to supply be beneficiated
neficiated coal to various Thermal Power
Stations of M/s. Maharashtra State Power Generation
Company Ltd. (Mahagenco), vide Letter of Award (LOA)
bearing No.: MSMC/RIPL/2021/950, Dated 21/05/2021 and
Contract Agreement executed on dated 22.06.2021.
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"M/s.Rukhmai
khmai Infrastructure Private Ltd.' has executed the
work as follows:
S. Financial Year / Source Quantity of Coal (in M.T.)
No Period of Work of Total Qty. of Raw Coal Wash Coal
. Coal Sales Orders Lifted from dispatched to
Released Mines TPSs of
Mahagenco
1 FY: 2021-2022 Western 7,82,464.56 4,20,862.23 3,01,125.95
(Sept-21 to March-22 Coalfields
2 F.Y: 2022-23 Limited 16,49,962.42 1,66,1178.20 13,08,604.02
(April-22 to March--
23)
3 FY.: 2023-24 11,02,641.13 12,07,51 l.97 10,62,503.62
April-23 to Janu.-24)
Total Quantity in 35,35,068.11 32,89,552.40 26,72,233.59
M.T.
This certificate is being issued on the request of M/s.
Rukhmai Infrastructure Private Ltd. for participating in
tender purpose only."
18. The Tender Evaluation Committee of the respondent No.1
considered the certificate dated 14.06.2024 submitted by the petitioner
which was issued by the Maharashtra State Mining Corporation Ltd.
(A Government of Maharashtra Undertaking) to show the past
experience of the petitioner, which is as follows:-
" TO WHOMSOEVER IT MAY CONCERN:
With reference to Tender specification No.:
MSMC/MINING/2019/07 published for the work of lifting &
beneficiation of RoM coal and supply of beneficiated coal to
Chandrapur, Koradi, Khaperkheda, Nasik, Bhusawal, Parli &
Paras TPSs of MAHAGENCO, Maharashtra State Mining
Corporation Limited has awarded the said work to 'M/s. Hind
Maha Mineral LLP' a Joint Venture Consortium vide Letter of
Intent bearing No. MSMC/MAHAGENCO/2019/835 dated:
05.11.2019 and executed a C
Contract
ontract Agreement with M/s. Hind
Maha Mineral LLP on dated. 17.12.2020. The Consortium
Members of M/s. Hind Maha Mineral LLP are as follows:
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(a) M/s. Hind Energy and Coal Beneficiation (India)
Limited (HECBIL)
(b) M/s. Clean Coal Enterprises Private Limited
Limited (CCEPL)
and
(c) M/s. Maha Mineral Mining and Beneficiation Private
Limited (MMMBPL)
That in this regard, this is to certify that as part of
aforementioned Contract Agreement, M/s. Maha Mineral
Mining & Beneficiation Private Limited being the 45% Joint
Venture/Consortium Partner of M/s. Hind Maha Mineral LLP
vide the JV agreement dated: 02.12.2019, (submitted to this
office by M/s. Hind Maha Mineral LLP) has executed the said
work in respect of WCL command for the period 05.03.2021 to
05.03.2024. The details
det are as follows:
a) Quantity of RoM Coal Lifted : 1,41,55,130.40 M.T.
b) Quantity of RoM coal washed : 1,17,95,440.46 M.T.
c) Quantity of washed coal supplied : 1,17,47,501.99 M.T.
to Mahagenco TPSs
d) Approximate value of the work executed : Rs. 465.00 Crores
The aforementioned quantity of work has been
successfully executed by M/s. Maha Mineral Mining and
Beneficiation Private Limited, fulfilling its obligations and
demonstrating its operational capabilities and commitment to
the project.
That, this certificate is being issued at the specific request
for tender participation."
19. A perusal of note sheet (Annexure R-1/D
R 1/D to reply of respondent
No.1) reveals that while scrutinizing the bids, the Tender Evaluation
Committee of respondent No.1 considered
considered the case of the petitioner
and arrived at a conclusion, which is as under:-
under:
"(i) For meeting out the past experience criteria, firm
has submitted Contract Agreement signed by M/s Hind-Maha
Hind
mineral LLP with M/s MSMC (Maharashtra State Mining
Corporation)
ion) for similar work from WCL, SECL, MCL
sources for Mahagenco against MSMC LOA dtd. 05 05-11
11-2019.
In the contract agreement, it is mentioned that M/s Hind
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Energy & Coal Benefication Ltd. is Lead Member and M/s
Maha-Mineral
Mineral Mining and Benefication Private Limited
Limited &
M/s Clean Coal Enterprises Pvt. Ltd. are other 2 members.
(ii) In case when any bidder utilizes the past experience of
previous consortium, the tender specifies the term as under:
Clause No.(5) D "Past experience"criteria of NIT
Bidder is allowed to use past experience of their previous
Consortium or JV (proportionate to its share in that
consortium if defined in the Consortium Agreement, Agreement
otherwise, lead partner (if not defined in the Consortium) to
meet out the past experience criteria of the tender/
(iii) The firm has not submitted the Consortium Agreement of
M/s Hind--Maha-Mineral
Mineral LLP, which is necessary to
substantiate the share of the bidder in that consortium. In its
absence, the credit of 100% experience will go to Lead
Member i.e. M/s Hin
Hindd Energy & Coal Benefication Ltd and
not to M/s Maha Mineral Mining and Benefication Private
Limited. Thus, the firm cannot be considered as qualified.
(iv) However, the firm has submitted execution certificate of
117.95 LMT (in three year) coal beneficiat
beneficiation
ion issued by M/s
MSMC on dtd. 14 14-06-2024
2024 wherein share of M/s Maha
Mineral in M/s Hind
Hind-Maha
Maha Mineral LLP wherein share of
M/s Maha Mineral in M/s Hind Maha Mineral LLP is
mentioned as 45% (52.65 LMT in three year 17.50 LMT per
year) which is well above the qualifying quantity (4.00 LMT
in one year).
(v) As per tender condition no documents other than
Consortium/JY Agreement can be permitted to meet out the
above criteria as per the NIT. Thus, the certificate submitted
by M/s Maha Mineral Mining and Benefica Benefication
tion Private
Limited cannot be considered as valid document for the same.
(vi) Further as per tender Clause No. (8) 1. "Important
Instruction regarding shortfall documents". bidder not
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submitting all the desired documents as per NIT/Tender
Document at the time of submitting bids shall not be allowed
to submit subsequently and their bids shall be rejected on
account of in-complete
in documents.
(vii) In view of above, M/s Maha Mineral Mining and
Benefication Private Limited, Mumbai appears to be
disqualified."
20. The Government of Madhya Pradesh, Energy Department,
Bhopal vide letter dated 29.11.2023 (Annexure R-A/C
R A/C to reply of
respondent No.1) issued certain instructions to the power companies
regarding shortfall of documents in bids, which reads as under:
"Itt has come to the notice of the department that
bidders are being allowed to participate in the bid process
with incomplete documents. Bidders are allowed to submit the
balance documents in due course of time and meanwhile some
of the bidders back out of tthe
he bidding process, allowing a few
number of bidders to participate in the bidding process and
quote non-competitive
competitive rates which results in financial loss to
the Power Companies. It has therefore been decided that
bidders not submitting all the desired doc
documents
uments as per NIT /
Tender document at the time of submitting bids, should not be
allowed to submit documents subsequently and their bids
should be rejected on account of incomplete documents. If
required, even fresh bid can be called to get competitive rates.
ra
As directed, it is requested to please ensure the bidding
process to make it more transparent and fair."
21. First of all, it would be pertinent to mention here that the
petitioner at time of bidding had not filed the joint-venture/consortium
joint venture/consortium
agreement
nt so as to ascertain the share of partner in such
JV/Consortium. Clause (5) D of the NIT clearly specifies that if the
share of the partner is not defined in the JV/consortium agreement, the
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past experience would be counted in favour of the lead partner. As per
Certificate dated 14.06.2024, there were three consortium members
amongst which the lead partner was M/s Hind Maha Mineral LLP and
Maharashtra State Mining Corporation Ltd., had awarded the contract
to M/s Hind Maha Mineral LLP on 17.12.2020 for execution
execution of work
of lifting and beneficiation of RoM coal and supply of beneficiated coal to
Chandrapur, Koradi, Khaperkheda, Nasik, Bhusawal, Parli and Paras
Thermal Power Stations of MAHAGENCO. Though, as claimed the
petitioner was the 45% Joint Venture/Co
Venture/Consortium
nsortium Partner of M/s. Hind
Maha Mineral LLP, but the said certificate does not specifically reflect the
shares of the petitioner and other partners. It is pertinent to mention here
that the petitioner could not submit the agreement dated 02.12.2019 at
the
he time of bidding which could show the actual share of the petitioner
and the work executed by the petitioner in joint venture and the
certificate issued by the Maharashtra State Mining Corporation Ltd.
shows that the contract for the said work was awarded
awarded to M/s Hind
Maha Mineral LLP, who was the lead partner.
22. Due to non-filing
filing of Joint Venture agreement by the Petitioner,
the Impugned Order rejecting the bid of the petitioner has to be seen
wherein at the outset it has been stated that "You are infor
informed that
your bid for the above tender has been rejected during Technical
evaluation by the duly constituted committee for the reason Bidder is
disqualified due to non submission of credentials as per Clause No.
(5)D of the NIT." It is evident that the Petitioner has not filed the Joint
Venture agreement. The Petitioner is disqualified for the reason of non
non-
compliance with the requirements in terms of Clause (5)D. The reason
is also assigned by the Respondent No.1 in their reply aass to why the
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petitioner was disqualified. If the petitioner is relying on the Joint
Venture Agreement dated 02.12.2019 then it was the duty of Petitioner
to file the same while submitting the bid. The NIT condition no. (8)1(i)
and (8)(1)(iii), specifically prohibit the submission of the
document/shortfall document at a later stage. As per the NIT
conditions, a bidder is supposed to upload all the requisite documents
at the time of submission of the bid. It is evident that the earlier
practice of allowing bidders
bidders to fulfil the shortfall in documents left a
scope for unfair practices in the bidding process and therefore, the said
practice of allowing documents at a later stage has been discontinued
in view of the past experience, as is evident from the letter dated
29.11.2023 of the GoMP, Energy Department. The Petitioner in the
present case relied on the experience certificate issued by the
Maharashtra State Mining Corporation dated 14.06.2024 wherein date
of the Joint Venture agreement is mentioned as 02.12.2019.
02.12.2019. However,
surprisingly the Petitioner neither filed the said document of JV on
record at the time of submission of bid nor at the time of filing of the
petition. Even the document of JV agreement, which the Petitioner has
filed along with the Email sent
sent to Respondent No.1, is dated
September, 2019 and not 02.12.2019. The Petitioner has not filed the
said JV Agreement from its own. It is apparent that there is a
suppression of the JV Agreement dated 02.12.2019 by the Petitioner
and hence, on this count of
of concealment of JV agreement dated
02.12.2019 the instant petition fails. The Petitioner has not given any
satisfactory response in the petition or even otherwise for not
submitting the document in alternate. Thus, the Petitioner cannot put
forward its claim
aim before demonstrating its bonafides that could have
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been done by duly submitting all the documents and by not engaging in
active suppression and concealment. The Hon'ble Supreme Court in
the matter of K.D. Sharma vs. Steel Authority of India Limited &
others:: (2008) 12 SCC 48I has clarified that if the Petitioner makes
false statement or conceals material facts or misleads the court, in such
circumstances, the court may dismiss the petition at the very threshold
even without considering the merits of the claim. The relevant extracts
from the judgment are reproduced as under:
"34. The jurisdiction of the Supreme Court under Article
32 and of the High Court under Article 226 of the
Constitution is extraordinary, equitable and discretionary.
Prerogative writs mentioned therein are issued for doing
substantial justice. It is, therefore, of utmost necessity that
the petitioner approaching the writ court must co come
me with
clean hands, put forward all the facts before the court
without concealing or suppressing anything and seek an
appropriate relief. If there is no candid disclosure of
relevant and material facts or the petitioner is guilty of
misleading the court, his petition may be dismissed at the
threshold without considering the merits of the claim.
*** *** ***
36. A prerogative remedy is not a matter of course.
While exercising extraordinary power a writ court would
certainly bear in mind the conduct of the party who invokes
the jurisdiction of the court. lf the applicant makes a false
statement or suppresses material fact or attempts to
mislead the court, the court may dismiss the action on that
ground alone and may refuse to enter into the merits of th the
case by stating, "We will not listen to your application
because of what you have done." The rule has been evolved
in the larger public interest to deter unscrupulous litigants
from abusing the process of court by deceiving it."
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23. The merit of the joint
joint venture agreement dated 02.12.2019
which was not filed by the petitioner is a matter of larger debate and is
eventually brought on record, incidental submissions are brought on
record by Respondent No.2 wherein certain clauses are stressed on the
written
n submissions as below:
Recital E:
"That Maharashtra State Mining Corporation Limited has
floated a tender, bearing tender specification no.
MSMC/MINING/2019/07, as may be modified, supplemented
from time to time ("Tender") for Beneficiation of RoM Coal and
a
Supply of Beneficiated Coal to various TPS of Maharashtra
State Power Generation Co. Ltd. ("MAHAGENCO"). The
Tender inter alia requires the bidders to have coal beneficiation
plants in each of 3 (three) areas, namely, South Eastern
Coalfields Limited ("SECL"),
("SECL"), Mahanadi Coalfields Limited
("MCL") and Western Coalfields Limited ("WCL")."
Recital G:
"HECB, CCEPL and MMMBPL having applied for a Tender as
co-bidders,
bidders, have received a Letter of Intent dated 5th November
2019 bearing, reference number MSMC/Mahagenco/2019/835
MSMC/Mahagenco/2019/835
from Maharashtra State Mining Corporation Limited ("LOI").
Pursuant to the Tender, HECB, CCEPL and MMMBPL shall
supply washed Coal to MAHAGENCO and are therefore,
desirous of entering into a joint venture with each other to
discharge the obligations
obligations set out in the Tender (hereinafter
referred to as the"Project")."
Clause 3.12:
"Each Party agrees, undertakes and ensures that the
plants/washeries provided by the Parties to the LLP for the
purposes of the Tender shall be in working condition at
at all times
to execute the works of the LLP."
Clause 3.13:
"MMMBPL agrees that the plants/washeries provided by
MMMBPL shall be kept free at all times and no other works
shall be carried on by MMMBPL at such plants/washeries
assigned specifically for the Tender.'
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Clause 8.5:
"MMMBPL and each of the Promoters represent and warrant
that the plants/washeries provided by MMMBPL.to the LLP for
the purposes of the Tender shall be kept free at all times to
execute the works of the LLP only; and no other Works shall
sh be
carried on by MMMBPL at such plants/washeries assigned
specifically for the Tender."
24. The additional submissions of the Respondent No.2 have force
and it is evident that in any case, even if the above
above-mentioned
documents were provided by the Petitioner
Petitioner to the Respondent No.1, it
would have been disqualified as its washeries had been committed to
Maharashtra State Mining Corporation Ltd. alone in terms with the
Joint Venture Agreement dated 02.12.2019. Even the experience
Certificate issued by Maharashtra
Maharashtra State Mining Corporation Ltd. to the
Petitioner categorically mentions the Joint Venture Agreement dated
02.12.2019.
25. So far as the allegation with regard to fairness of competition in
the tender process is concerned, as per the report of the Tender
Evaluation Committee, this was not the first call but that was the third
call extending the due dates for submission/opening of bids. A reading
of minutes of the tender evaluation committee (Annexure R/1/D to
reply to respondent No.1), shows that it is clearly mentioned that
present tender was published on 17.04.2024 with due date of
submission/opening as 08.06.2024/10.06.2024 which were extended
thrice on account of review of some of the clauses of tender after
receipt of representations from prospective bidders as well as to ensure
sufficient participation in the tender. However, only three bidders had
applied whose technical bids were evaluated by the Tender Evaluation
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Committee, according to which, technical bids of petitioner and other
company namely N.N.Global Mercantile Pvt. Ltd. were rejected and
they have been found as disqualified, whereas the technical bid of the
respondent No.2 - Rukhmai Infrastructure Pvt. Ltd. was found eligible
and it has been declared as qualified. In the above facts and
circumstances, it cannot be said that there was no fair competition as
there were certain conditions which should be fulfilled by the bidders
mentioned in the NIT, only those bidders who fulfilled those
conditions were eligible to apply for the tender. Thus in our considered
view it cannot be said that there was no competition in the tender
process.
26. The allegation with regard to collusion has to be tested on the
anvil of the judgment of the Supreme Court in the case of UFLEX
Limited. V. Government of Tamil Nadu & ors. : (2022) 1 SCC 165,.
"51. A lot of emphasis has been placed by the courts below in
seeking to go into the financial
financial linkages between the two
companies i.e. Uflex and Montage. The correct way of
examining this issue should have been that whether under the
terms of the NIT, any of the aspects which were examined by
the courts could be said to be a disqualification. In our view,
the answer to the same was in the negative. One company had
invested in another through certain preference shares without
having any controlling interest, this cannot be the basis of
judicial scrutiny. The present case is not one of an
intercorporate
orate battle or of minority shareholders claiming the
rights or any debts due, where the principle of lifting the
corporate veil should be applied. What one may have said in
some income tax proceedings, whether a small percentage of
the funds of one company
company have been utilised as investment in
the other are hardly the principles which should come into
play in such a tender matter."
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27. The Hon'ble Apex Court has settled that investment by one
company without there being any controlling interest cannot be a basis
of judicial review. Petitioner has made allegations of certain
shareholders being common in the L1 bidder company and some other
entities, however, it has been unable to substantiate the same. It
appears that there is clearly no nexus, control or investment
investment between
Respondent No. 2 i.e. Rukhmai Infrastructure Pvt. Ltd and N.N.Global
Mercantile Pvt. Ltd. There is even no commonality of directors and the
other company which is Rukhmai LLP has not even participated in the
tender. Thus, it cannot be said that N.N.Global Mercantile Pvt. Ltd. is
having controlling power for Rukhmai Infrastructure Pvt. Ltd, the
Respondent No. 2. Additionally, the Petitioner has not demonstrated its
locus to question the credibility of other bidders as Petitioner itself is
not qualified in this tender. Even otherwise, the said are distinct entities
as per relevant law such as Companies Act, Income Tax Act, etc.
Moreover, the petition suffers from non-joinder
non joinder of parties, since, the
other entities and shareholders are not even ma
made
de party to refute the
said allegations and even on this ground the petition is unsustainable.
28. Now we may consider the scope of judicial review in tender
matters. The decision of the Hon'ble Apex Court in AFCONS
infrastructure Ltd. vs. Nagpur Metro Rail
Rail Corporation Limited and
818, is on the point that the
Anr.: AIR 2016 SC 4305= (2016) 16 SCC 818,
interference is permissible only if the decision-making
decision making process of the
employer or owner of the project in accepting or rejecting the bid of a
tenderer is mala fide,
fide arbitrary, irrational or is intended to favour
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someone. The relevant extract from the above stated judgment is
reproduced as under:
"11. Recently, in Central Coalfields Consortium) [Central
Coalfields Lid. v. SLL-SML
SLL SML (Joint Venture Consortium), (2016)
(201
8 SCC 622:(2016) 4 SCC (Civ) 106: (2016) 8 Scale 99] it was
held by this Court, relying on a host of decisions that the
decision-making
making process of the employer or owner of the project
in accepting or rejecting the bid of a tenderer should not be
interfered
red with. Interference is permissible only if the decision-
decision
making process is mala fide or is intended to favour someone.
Similarly, the decision should not be interfered with unless the
decision is so arbitrary or irrational that the Court could say
that the
he decision is one which no responsible authority acting
reasonably and in accordance with law could have reached. In
other words, the decision-making
decision making process or the decision should
be perverse and not merely faulty or incorrect or erroneous. No
such extreme
me case was made out by GYT-TPL
GYT TPL JV in the High
Court or before us."
29. With the present case, the decision making process of the
respondent No.1 is fair and reasonable, and every reason has been
assigned. Further, in the case of Municipal Corporation Ujj
Ujjain &n
others (20I8) 5 SCC 462,, it was observed
anr. vs. BVG India Ltd. & others:
by the Apex Court that it is not open to the court to independently
evaluate the technical bids and financial bids of the parties as an
appellate authority for coming to its conclusion
conclusion inasmuch as unless the
thresholds of mala fides, intention to favour someone or bias,
arbitrariness, irrationality or perversity are met
met.. However
However, where a
decision is taken purely on public interest, the court ordinarily should
exercise judicial restraint.
restraint. The relevant extract from the judgment is
reproduced as under:
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"64.1. Under the scope of judicial review, the High Court could
not ordinarily interfere with the judgment of the expert
consultant on the issues of technical qualifications of a bidder
when the consultant takes into consideration various factors
including the basis of non
non-performance of the bidder;
64.2. A bidder who submits a bid expressly declaring that it is
submitting the same independently and without any partners,
consortium or joint venture, cannot rely upon the technical
qualifications of any third
thi party for its qualification.
64.3. It is not open to the court to independently evaluate the
technical bids and financial bids of the parties as an appellate
authority for coming to its conclusion inasmuch as unless the
thresholds of mala fides, intention
intention to favour someone or bias,
arbitrariness, irrationality or perversity are met, where a
decision is taken purely on public interest, the court ordinarily
should exercise judicial restraint."
30. In view of above discussion and settled position of law, we are
of the considered view that there is no merit in the present petition, the
same is hereby dismissed.
(SURESH KUMAR KAIT) (VIVEK JAIN)
CHIEF JUSTICE JUDGE
C.
