Orissa High Court
M/S. Sakrobotix Lab vs State Of Odisha And Others on 31 August, 2023
ORISSA HIGH COURT: CUTTACK
AFR
W.P(C) NO. 26720 OF 2023
In the matter of an application under Article 226 of the
Constitution of India.
---------------
M/s. SakRobotix Lab ..... Petitioner
Private Limited
-Versus-
State of Odisha and others ..... Opp. Parties
For petitioner : Mr. Pitambar Acharya,
Sr. Advocate along with
Mr. S. S. Tripathy, Advocate
For opp. parties : Mr. L. Samantaray,
Addl. Government Advocate
[O.P.1]
Mr. Ashok Kumar Parija,
Sr. Advocate along with
Mr. Tarun Patnaik, Advocate
[O.Ps. 2 and 3]
Mrs. Pami Rath, Sr. Advocate
along with Mr. Abhishek Dash,
Advocate [O.P. 4]
P R E S E N T:
THE HONOURABLE DR. JUSTICE B.R.SARANGI
AND
THE HONOURABLE MR JUSTICE MURAHARI SRI RAMAN
Date of Hearing : 24.08.2023 :: Date of Judgment : 31.08.2023
DR. B.R. SARANGI, J. M/s. SakRobotix Lab Private Limited, a
company incorporated under the Companies Act, 1956, has
filed this writ petition seeking following reliefs:-
"A. Why the Opp. Parties shall not be directed to
reject the bid and participation of Opp. Party
no 4 herein, i.e. EDICIL (India) Limited, in the
tender process bearing RFP No.-OCAC-SEGP-
INFRA-0025-2023-23028, dated 24-04-2023
vide Annexure-2;
B. Why the Opp. Parties shall not be directed to
settle the bid with the Petitioner being the
lowest bidder in the financial bid;
C. Why the Opp. Parties shall not be directed to
initiate necessary action against the EDICIL
India Limited for deliberately providing
misleading information in its RFP;
D. Why such other order/orders as this Hon'ble
Court may deem fit and proper shall not be
passed;
If the opposite parties fail to show cause or
show insufficient cause the Hon'ble Court
may be pleased to make the rule absolute in
granting the relief's prayed for in the facts
and circumstances of the case;"
2. The factual matrix of the case, in brief, is that
Odisha Computer Application Centre (OCAC)-opposite party
no. 2 invited bids vide RFP No. OCAC-SEGP-INFRA-0025-
2023-23028 dated 24.04.2023, for procurement, supply,
installation and commissioning of five hundred (500)
numbers of Robotics Labs in Secondary Schools of the
State of Odisha, for School & Mass Education Department
(S&ME), Government of Odisha for a period of five (05)
years, including three (03) years warranty support period
and two (02) years comprehensive annual maintenance
support period as per the "Scope of Work" described in the
Request For Proposal (RFP). Under clause-10 of the RFP at
sl.no.8, it was specified that the bidder must attach
manufactures authorization certificate specific to the tender
& back-to-back support letter from OEMs for providing
comprehensive on-site support and services covered under
the RFP, as per the format specified in Annexure-6 to the
RFP. The petitioner, being the OEM (Original Equipment
Manufacturer), provided the manufactures authorization
certificate to the Telecommunication Consultants India
Limited (TCIL) to submit the bid.
2.1 The schedule for submission of bid in terms of
the RFP was as under:-
Sl. Particulars Date and
No. Time
1 Availability of Bid Document 24-04-2023
in the website (www.ocac.in/ To 22-05-
www.odisha.gov.in 2023 at
03:00 PM
2. Last date for receiving queries 22-05-2023
by 04:00 PM
3. Date and Time of Pre-bid 01-052023
Conference at 12:30 PM
4. Last Date and Time for 22-05-2023
Submission of Bid document by 03:00 PM
through
https://enivida.odisha.gov.in.
5. Date and Time of opening of 22-05-2023
Pre-Qualification Bids (PQ) at 04:30 PM
6. Date and Time of opening of To be
Technical Bids (TB)/ informed
Financial Bid later
2.2 As per the guidelines prescribed above and after
completion of the bidding process there were two successful
bidders, namely, Telecommunication Consultants India
Limited (TCIL) and EDICIL India Limited remained for
consideration as per RFP.
2.3 Clause-10 of the RFP provides the pre-
qualification/ eligibility criteria, which a bidder
participating in the bidding process shall possess. Any
bidder failing to meet the stated criteria in clause-10 shall
be summarily rejected and will not be considered for
technical evaluation. At serial no. 7 of the table provided in
clause-10, it has been clearly stated that the bidder should
not be under a declaration of ineligibility for corrupt and
fraudulent practices issued by any Government or PSU in
India. The RFP also requires to make such a declaration in
the format as provided in Annexure-4 to the RFP. The
petitioner, being the OEM for Telecommunication
Consultants India Limited, submitted its declaration in the
form as provided under Annexure-4 to the RFP.
2.4 The petitioner, in the meantime, came across the
information that the other qualified participant in the
bidding process, i.e., EDCIL India Limited-opposite party
no. 4 has been blacklisted by Bihar Skill Development
Mission, Department of Labour Resources, Government of
Bihar, vide letter no BSDM/ Knowledge Partner-228/2022-
712 dated 26.05.2023, for a period of three years. The
petitioner brought the same into the notice of opposite
party no.3, but the same was not taken into consideration.
As a result, a blacklisted entity like opposite party no.4 was
allowed to participate in the tender process. Therefore,
action of the opposite parties no.2 and 3 in allowing the
blacklisted entity to participate in the tender process is
tented with mala fide and also resulted in arbitrary decision
making process in order to show undue favour to an
ineligible bidder. Hence, the petitioner, by filing this writ
petition, seeks aforementioned reliefs.
3. Mr. Pitambar Acharya, learned Senior Counsel
appearing along with Mr. S.S. Tripathy, learned counsel for
the petitioner vehemently contended that opposite party
no.4 incurred a disqualification because it was blacklisted
by Bihar Skill Development Mission, Department of Labour
Resources, Government of Bihar. Clause-10 of the RFP
prescribed the pre-qualification/ eligibility criteria. The said
clause indicates that the bidder participating in the bidding
process shall possess the minimum pre-qualification/
eligibility criteria as mentioned therein and any bidder
failing to meet the stated criteria shall be summarily
rejected and will not be considered for technical evaluation.
Under clause-10 of the RFP, at sl. no.7, blacklisting has
been prescribed. According to said criteria, the bidder
should not be under a declaration of ineligibility for corrupt
and fraudulent practice issued by any Government or PSU
in India. To that extent, a self declaration as per Annexure-
4 was to be submitted. He further contended that even
though opposite party no.4 had been blacklisted by Bihar
Skill Development Mission, Department of Labour
Resources, Government of Bihar, but the same has not
been disclosed by making self declaration, as provided
under Annexure-4 to the RFP. It is therefore, contended
that opposite party no.4 had incurred a disqualification, as
suppression of the said fact before the authority amounts to
playing fraud on the authority and adhering to corrupt
practice. As such, the application submitted by opposite
party no.4 to the tendering authority, being void ab initio,
should have been rejected outright. Therefore, he seeks for
interference of this Court at this stage. In support of his
contention, he has placed reliance on the judgments of the
apex Court in Tata Cellular v. Union of India, (1994) 6
SCC 651; Jagdish Mandal v State of Orissa, (2007) 14
SCC 517; and Nova Ads v. Metropolitan Transport
Corpn., (2015) 13 SCC 257.
4. Mr. L. Samantaray, learned Addl. Government
Advocate appearing for the State-opposite party no.1
contended that, in the instant case, the tender has been
issued by opposite party no.2, therefore, the State has no
role to play, even though it is the beneficiary of the tender,
as the work is for procurement, supply, installation and
commissioning of five hundred (500) numbers of Robotics
Labs in Secondary Schools of the State of Odisha, for
School & Mass Education Department (S&ME), Government
of Odisha, which is to be done for opposite party nos. 2 and
3 and the ultimate result of the tender process may have
some impact on opposite party no.1.
5. Mr. Ashok Kumar Parija, learned Senior
Advocate appearing along with Mr. Tarun Patnaik, learned
counsel for opposite party nos. 2 and 3, at the outset,
raised objection with regard to the maintainability of the
writ petition at the instance of the present petitioner,
contending that the petitioner is not a participant to the
tender process initiated, vide RFP No. OCAC-SEGP-INFRA-
0025-2023-23028 dated 24.04.2023 issued by opposite
party no.2, as it has not submitted its bid pursuant thereto.
The petitioner may be OEM (Original Equipment
Manufacturer) of Telecommunication Consultants India
Limited, who is one of the participants in the bid. It is
further contended that the petitioner is also otherwise not
eligible to participate in the bid, in view of the eligibility
criteria fixed in the RFP. According to him, six entities
including opposite party no.4 and Telecommunication
Consultants India Limited purchased the tender papers,
but bids were submitted by opposite party no.4 and
Telecommunication Consultants India Limited on
02.06.2023. The bids consisted of pre-qualification
proposal, technical proposal and financial proposal to be
submitted by the bidders in separate covers. As per the
tender schedule, the last date for submission of bids was
fixed to 22.05.2023, but the said date was extended up to
02.06.2023 by virtue of a corrigendum issued by opposite
party no.2. Thereafter, on 03.07.2023, the technical and
financial bids of both the bidders were opened. The tender
committee evaluated the bids of opposite party no.4 and
Telecommunications Consultants India Limited (TCIL) and
the opposite party no.4 was found to be the lowest bidder.
Therefore, opposite party no.4 was called upon by opposite
party no.2, vide its e-mail dated 20.07.2023, for
negotiation, in order to reduce the price, on 25.07.2023.
After negotiation, opposite party no.4 offered to execute the
project at Rs 57,09,02,370/- vide its letter dated
01.08.2023. Consequentially, on 09.08.2023, the tender
committee of opposite party no.2 decided to award the
contract in favour of opposite party no.4 at the negotiated
amount of Rs 57,09,02,370/- and followed thereby a letter
of intent (LOI) was issued on 14.08.2023 in favour of
opposite party no.4. But, in view of interim order passed by
this Court on 18.08.2023, no further action could be taken.
5.1 He further contended that the present petitioner
communicated opposite party no.3 regarding debarment/
blacklisting of opposite party no.4 on 06.07.2023, i.e., three
days after the final price bid of the tender was opened, and
opposite party no.4 was found to be the L1 bidder. The
letter submitted by the petitioner was brought to the notice
of the representative of opposite party no.4 in the
negotiation meeting and on being confronted with the letter
dated 26.05.2023 issued by Bihar Skill Development
Mission, the representative of opposite party no.4
submitted the letter dated 15.07.2023 issued by Bihar Skill
Development Mission wherein it was stated that the
debarment of opposite party no.4, vide letter dated
26.05.2023, has been withdrawn. Therefore, it is
contended that opposite party no.4 was not aware of the
fact of blacklisting on the date of submission of the tender
document. This fact only been brought to the notice, when
the petitioner submitted the document on 06.07.2023. By
that time, opposite party no.4 had already been selected,
but he was called to have the negotiation with regard to the
price. Therefore, the contention raised, that as per clause-
10(7) of the RFP the bidder should be under a declaration of
ineligibility for corrupt and fraudulent practices issued by
any Government or PSU in India, cannot be sustained. It is
further contended that the pre-condition for clause-10 (7) of
the RFP to be applicable is that the ineligibility should have
arisen from an act of corrupt and fraudulent practice by the
bidder. However, assuming but without admitting, if the
letter dated 26.05.2023 issued by Bihar Skill Development
Mission is looked into, it would be seen that opposite party
no.4, being a consortium member, had been debarred to
participate in the future tenders for a period of three years
on account of non-submission of performance guarantee
and consequential act of non-execution of the contract.
Therefore, such act of non-submission of performance
guarantee and consequential action of non-execution of the
contract with Bihar Skill Development Mission regarding
debarment/blacklisting of opposite party no.4 for three
years, cannot be termed as "corrupt and fraudulent
practices" and, therefore, it does not satisfy the requirement
of clause-10(7) of the RFP to debar opposite party no.4 to
participate in the present tender process. In view of such
position, no illegality or irregularity can be said to have
been committed by opposite party nos. 2 and 3 in accepting
the bid of opposite party no.4 and making its selection with
the price, which has already been negotiated to perform.
6. Mrs. Pami Rath, learned Senior Advocate
appearing along with Mr. Abhisek Dash, learned counsel for
opposite party no.4 accepted the argument advanced by Mr.
Ashok Kumar Parija, learned Senior Advocate appearing for
opposite party nos. 2 and 3; and also contended that the so
called blacklisting of the petitioner, vide letter dated
26.05.2023, by Bihar Skill Development Mission was never
communicated to opposite party no.4 and, as such, for the
first time, this letter was produced by the petitioner on
06.07.2023, i.e., three days after the final price bid of the
tender was opened. By that time, two stages of the bid had
already been over, i.e., pre-qualification evaluation and
technical evaluation and at no point of time the petitioner
had ever brought to the notice of the tendering authority
with regard to such disqualification. Even after the financial
bid was opened, when opposite party no.4 was selected and
called for negotiation, three days after, the petitioner
brought to the notice of the tendering authority, on
06.07.2023, with regard to debarment/blacklisting of the
petitioner dated 26.05.2023. The said letter was confronted
to opposite party no.4 by opposite party nos. 2 and 3
during negotiation meeting. The representative of opposite
party no.4 submitted the letter dated 15.07.2023 issued by
Bihar Skill Development Mission wherein it was stated that
the debarment of opposite party no.4 vide letter dated
26.05.2023 has been withdrawn. Therefore, the question of
any corrupt and fraudulent practice alleged to have been
adopted by opposite party no.4 does not arise at all. The bid
of opposite party no.4 can be found to be ineligible if
opposite party no.4 would have played corrupt and
fraudulent practice in tendering the bid. In absence of such
materials, it cannot be construed that the bid submitted by
opposite party no.4 has incurred disqualification under
clause-10 (7) of the RFP.
6.1 It is further contended that assuming but
without admitting the fact that there is a debarment/
blacklisting order in favour of opposite party no.4, but on
perusal of the letter dated 26.05.2023, it is made clear that
Bihar Skill Development Mission had issued such letter to
opposite party no.4, being a consortium member and
debarred it to participate in the future tenders for a period
of three years on account of non-submission of
performance guarantee and consequential act of non-
execution of the contract. Therefore, such act of non-
submission of performance guarantee and consequential
action of non-execution of the contract with Bihar Skill
Development Mission cannot be termed as corrupt and
fraudulent practice so as to cover the ineligibility condition
prescribed under clause-10(7) of RFP and disqualify
opposite party no.4 from participating in the bid itself.
Thereby, it is contended that the writ petition is liable to be
dismissed.
6.2 It is further contended that since there is no
candid disclosure of relevant and material facts, the
petitioner is guilty of misleading the Court, therefore, its
petition should be dismissed at the threshold without
considering the merits of the claim. It is also contended
that 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. Therefore, seeks for dismissal of
the writ petition. To substantiate her contention, she has
relied on the decision of the apex Court in the case of K.D.
Sharma v. Steel Authority of India Limited, (2008) 12
SCC 481.
7. This Court heard Mr. Pitambar Acharya, learned
Senior Advocate appearing along with Mr. S.S. Tripathy,
learned counsel for the petitioner; Mr. L. Samantaray,
learned Addl. Government Advocate appearing for the
State-opposite party no.1; Mr. Ashok Kumar Parija, learned
Senior Advocate appearing along with Mr. Tarun Patnaik,
learned counsel for opposite party nos. 2 and 3; and Mrs.
Pami Rath, learned Senior Advocate appearing along with
Mr. Abhisek Dash, learned counsel appearing for opposite
party no.4 in hybrid mode and perused the records. In view
of the counter affidavit filed on behalf of opposite parties
no. 1 to 3, Mrs. Pami Rath, learned Senior Advocate
appearing for opposite party no.4 states that opposite party
no.4 steps into the shoes of opposite party nos. 1 to 3 and
relies upon such counter affidavit and does not require to
file a separate counter affidavit. She further contended that
since the interim order is operating, the matter may be
heard and disposed of expeditiously in the interest of
justice, equity and fair play. Therefore, on the consent of
learned counsel for the parties, the writ petition is being
disposed of finally at the stage of admission.
8. On the basis of factual matrix and the
arguments advanced by the learned counsel appearing for
the respective parties, as enumerated above, the following
issues are framed for a just and proper adjudication of the
case in hand.
(i) Whether the petitioner has the locus
standi to seek the above noted reliefs in
the writ petition?
(ii) Whether opposite party no.4 incurs a
disqualification, in view of clause-10 (7) of
the RFP?
(iii) Whether the petitioner has approached
this Court with clean hands?
9. Issue No. (i):
Whether the petitioner has the locus standi to
seek the above noted reliefs in the writ
petition?
To effectively answer this issue, it is of relevance
to refer Clause-10 of the RFP, which prescribes the pre-
qualification/eligibility criteria:-
"Following table describe the pre-qualification
criteria. A bidder participating in the bidding
process shall possess the following minimum pre-
qualification/ eligibility criteria. Any bidder failing
to meet the stated criteria shall be summarily
rejected and will not be considered for Technical
Evaluation."
Sl. No. 1 of Clause-10 reads as follows:-
Pre-Qualification Evaluation Criteria
Sl. PQ Description of the Criteria Documents to
No Criteria be submitted
1. Legal As specified under GFR a. Valid copy of
Entity 2017, the bidder must be certificate of
a Public Sector incorporation
Undertaking set up by and
the Centre or State Govt. registration
to carryout I.T. related certificates.
activities or any b. Copy of GST
Central/State Govt. registration.
Organization/PSU which c. Copies of
may be notified by the relevant
MeitY/MoE/ or any other Certificates of
Ministry in the field of IT registration
for such purpose. Income Tax /
Relevant supporting PAN Number
documents may be from the
furnished. respective
Note: - Consortium of any Government
kind shall not be Department.
acceptable for this d. Documents
project. Any deviation of local bidder
would lead to to be submitted
disqualification or as per formats
termination of the same. attached on
However, as per the State 8.1.3 FORM
IT Policy 2022, Clause PQ-4. Along
8.18, to ensure with Work
mandatory local Order + Project
participation. The bidder completion/
needs to make Completion
collaborative certificate /
arrangement with local Partial
enterprises with completion
minimum 25% for Certificate
deployment and (Milestone
maintenance components completion
for implementation Certificate)
having adequate
experience. The local
enterprise should have
developed and
implemented software
projects in the state
preferably in
Government/PSU sector.
The minimum worth of
tile software projects
execute by the local
enterprise in last five
financial years should be
Rs. 5.00 crores.
9.1. On perusal of the aforementioned clause it is
made clear that bidder must be a Public Sector
Undertaking set up by the Centre or State Govt. to carryout
I.T. related activities or any Central/State Govt.
Organization/PSU which may be notified by the
MeitY/MoE/ or any other Ministry in the field of IT for such
purpose and to furnish the relevant supporting documents
to that effect. Thereby, the petitioner is neither a Public
Sector Undertaking set up by the Centre or State Govt. to
carryout I.T. related activities or any Central/State Govt.
Organization/PSU which may be notified by the
MeitY/MoE/ or any other Ministry in the field of IT, as the
petitioner has not furnished any documents in support
thereof. In course of hearing, when this question was
confronted, Mr. Pitambar Acharya, learned Senior Advocate
appearing for the petitioner candidly admitted such position
and contended that the petitioner is an OEM as per clause-
10 (8) of the pre-qualification evaluation criteria, which
reads as follows:-
Pre-Qualification Evaluation Criteria
Sl. PQ Description of the Documents to
No Criteria Criteria be submitted
8. OEM The bidder must OEM MAF
Authori Attach Manufactures Annexure-6
zation Authorization certificate
specific to this tender &
Back-to- back support
letter from OEMs for
providing Comprehensive
on-site support and
services covered under
this RFP. OR The
Authorized Partner of
OEM in India in case the
OEM has no registered
office in India
This is a condition required for the bidder to
meet the pre-qualification evaluation criteria. Meaning
thereby, the bidder, who satisfies the criteria, as per clause
10(1), as mentioned above, must attach Manufactures
Authorization Certificate specific to the tender and back-to-
back support letter from OEMs for providing comprehensive
on-site support and services covered under the RFP or the
Authorized Partner of OEM in India in case the OEM has no
registered office in India.
9.2 In paragraph-4 of the writ petition, the petitioner
itself has pleaded as follows:-
4. That the Petitioner participated in the tender
process and submitted the Request for Proposal
along with Telecommunication Consultants India
Limited, a Government of India enterprise, as an
Original Equipment Manufacturer ("OEM") for
supply and installation of Robotics Lab in
secondary schools on Odisha and submitted the
lowest financial bid. The Petitioner is an Indian
research and educational Startup founded in
the year 2012, which helps to establish Centre of
Excellence on future technologies in k12 & Higher
educational institutions. The Petitioner has trained
more than I lakhs students on robotics & is a state
partner of Govt of Odisha, DTET-SDTE Department
to offer robotics training in all Government ITI &
Polytechnic institution since the year 2020."
In view of such pleading available on record, it is made
clear that the petitioner, being an OEM, has been
authorised to give the certificate to the tenderer and back-
to-back support which is covered under RFP. Therefore, the
petitioner cannot be construed to be a participant in the
tender process. It might have discharged the responsibility
of OEM on behalf of Telecommunication Consultants India
Limited, a Government of India Enterprises, which is a
bidder in terms of clause-10(1) of pre-qualification
evaluation criteria and it might have some credentials in its
favour, but cannot be a bidder in terms of clause-10(1), as
mentioned above. It may be OEM authorisation on behalf of
the bidder-Telecommunication Consultants India Limited, a
Government of India Enterprise. Therefore, the petitioner
cannot be considered to have participated in the tender
process, as per the RFP. Rather, such pleading of the
petitioner is absolutely misleading and cannot be sustained
in the eye of law. More particularly, the petitioner has no
locus standi to file this writ petition. Locus standi means, a
place of standing; a right of appearance in a court of
justice; right to bring an action and to be heard.
9.3 In de Smith's Judicial Review of
Administrative Action, (Fourth Edition), page 416, "locus
standi is understood to mean legal capacity to challenge an
act on decision".
9.4 Gamer and Jones in their Administrative Law,
(Sixth Edition), page 175 are of the view that locus standi is
a threshold question in the simplest or clearest cases of
lack of standing".
In view of the above, it could be deduced that a
person must have a sufficiency of interest to sustain his
standing to sue.
9.5 Taking into consideration Article 226 of the
Constitution of India, at best a "person aggrieved" can
invoke the jurisdiction claiming the relief. Broadly speaking
a party or person is aggrieved by a decision when, it only
operates directly and injuriously upon his personal,
pecuniary and proprietary rights.
9.6 In Babua Ram v. State of UP., (1995) 2 SCC
689, while considering Section 28-A of Land Acquisition Act
1894, the apex Court observed that the person aggrieved, in
this context, would mean a person who had suffered legal
injury or one who has been unjustly deprived or denied of
something, which he would be interested to obtain in the
usual course or similar benefits or advantage or results in
wrongful affectation of his title to compensation.
9.7 In Gopabandhu Biswal v. Krishna Chandra
Mohanty and others, (1998) 4 SCC 447, the apex Court
observed that words mean a person directly affected by the
impugned action or order. Only persons who are directly
and immediately affected by the impugned order can be
considered as "parties aggrieved" under Section 22(3)(f) of
the Administrative Tribunal Act, 1985 read with Order 47
Rule 1 of Civil Procedure Code.
9.8 In Adi Pherozshah v. H.M. Seervai, 1970 (2)
SCC 484: AIR 1971 SC 385, the apex Court was seized
with the question as to whether the Advocate Genera of a
State or Bar Council of a State can be regarded as a
"person aggrieved" to maintain an appeal under section 37
or 38 of the Advocates Act, 1961. The majority of the apex
Court held that the Advocate General could not be regarded
as a "person aggrieved".
9.9 It was because of the above decision of the apex
Court, amendments were made in the Advocates Act, 1961
by specifically mentioning that the Advocate General of the
State can prefer appeal under sections 37 and 38 of the
Act. The very same question had again came up for
examination by the apex Court in Bar Council of
Maharashtra v. M.V. Dabholkar, 1975 (2) SCC 702 : AIR
1975 SC 2092, where the question was whether the Bar
Council of the State could be a "person aggrieved". The
Constitution Bench presided by Hon'ble Chief Justice Ray
delivered the judgment for himself and four other learned
Judges held that the meaning of the expression "person
aggrieved" will have to be ascertained with reference to the
purpose and the provisions of the statute; and may thus
vary according to the context of the statute. Normally, one
is required to establish that one has been denied or
deprived of something to which one is legally entitled in
order to make one "a person aggrieved". Again a person is
aggrieved if a legal burden is imposed on him. The test was
said to be whether "a person has a genuine grievance
because an order has been made which prejudicially affects
his interests". The Bar Council was ultimately regarded as a
"person aggrieved" by all the learned Judges constituting
the Bench.
9.10 In Jasbhai Motibhai Desai v Roshan Kumar,
1976 (1) SCC 671 : AIR 1976 SC 578, the apex Court held
in paragraphs 36, 37 and 38 to the following effect:-
"36 It will be seen that in the context of locus
standi to apply for a writ of certiorari, an applicant
may ordinarily fall in any of these categories: (i)
'person aggrieved'; (ii) 'stranger'; (iii) busybody or
meddlesome interloper. Persons in the last category
are easily distinguishable from those coming under
the first two categories. Such persons interfere in
things which do not concern them. They
masquerade as crusaders for justice. They pretend
to act in the name of Pro Bono Publico, though they
have no interest of the public or even of their own
to protect. They indulge in the pastime of meddling
with the judicial process either by force of habit or
from improper motives. Often, they are actuated by
a desire to win notoriety or cheap popularity; while
the ulterior intent of some applicants in this
category, may be no more than spoking the wheels
of administration. The High Court should do well to
reject the applications of such busybodies at the
threshold.
37. The distinction between the first and second
categories of applicants, though real, is not always
well-demarcated. The first category has, as it were,
two concentric zones; a solid central zone of
certainty, and a grey outer circle of lessening
certainty in a sliding centrifugal scale, with an
outermost nebulous fringe of uncertainty.
Applicants falling within the central zone are those
whose legal rights have been infringed. Such
applicants undoubtedly stand in the category of
'persons aggrieved'. In the grey outer-circle the.
bounds which separate the first category from the
second, intermix, interfuse and overlap
increasingly in a centrifugal direction. All persons
in this outerzone may not be "persons aggrieved".
38. To distinguish such applicants from
'strangers', among them, some broad tests may be
deduced from the conspectus made above. These
tests are not absolute and ultimate. Their efficacy
varies according to the circumstances of the case,
including the statutory context in which the matter
falls to be considered. These are: Whether the
applicant is a person whose legal right has been
infringed ? Has he suffered a legal wrong or injury,
in the sense that his interest, recognised by law.
has been prejudicially and directly affected by the
act or omission of the authority, complained of ? Is
he a person who has suffered a legal grievance, a
person "against whom a decision has been
pronounced which has wrongfully deprived him of
something or wrongfully refused him something, or
wrongfully affected his title to something" ? Has he
a special and substantial grievance of his own
beyond some grievance or inconvenience suffered
by him in common with the rest of the public ? Was
he entitled to object and be heard by the authority
before it took the impugned action? If so, was he
prejudicially affected in the exercise of that right by
the act of usurpation of jurisdiction on the part of
the authority ? Is the statute, in the context of
which the scope of-the words "person aggrieved" is
being considered. a social welfare measure
designed to lay down ethical or professional
standards of conduct for the community ? or is it a
statute dealing with private rights of particular
individuals ?
9.11 The conception of expression "person aggrieved"
has undergone a change. At one point of time it was
thought that for a person to be regarded as aggrieved he
must have suffered a "legal grievance". This expression was
of wide import and included a person who had a "genuine
grievance" in that an order had been made which
prejudicially affected his interest.
9.12 In Attorney General of Gambia v. N' Jie,
(1961) 2 ALL ER 504, Lord Denning stated as follows:-
".........the words 'person aggrieved' are of wide
import and should not be subject to a restrictive
interpretation. They do not include of course • a
mere busybody who is interfering in things which
do not concern him; but they do include a person
who has a genuine grievance because an order has
been made which prejudicially affects his
interests".
9.13 Therefore, the scope and meaning of the person
aggrieved depends on diverse and variable factors, such as,
the content and intent of the statute, the specific
circumstances of the case, the nature and extent of
petitioner's interest, injury and prejudice.
9.14 If this analogy is applied to the present context,
in view of the conditions stipulated in the pre-qualification
evaluation criteria, it cannot be construed that the
petitioner can be elucidated as the person aggrieved. If at
all a person aggrieved can be construed, it can only be
TCIL, which is the bidder in terms of clause-10 (1) of the
pre-qualification evaluation criteria of the RFP.
9.15 Mr. Pitambar Acharya, learned Senior Advocate
appearing on behalf of the petitioner relied upon the
document under Annexure-3 to the writ petition, i.e., the
undertaking furnished by the General Manager (IT & T-III)
TCIL, wherein it has been indicated that "this is to certify
that TCIL has submitted bid on 02.06.23 for the RFP
"Selection of CPSU/SPSU for Supply and Installation of
Robotic Lab in Secondary Schools in Odisha" RFP No:
OCAC-SEGP-INFRA-0025-2023-23028, dated 24.04.2023.
M/s SakRobotics Lab Private Limited, Bhubaneswar,
Odisha is their OEM for Robotics Lab in above mentioned
bid. He also relied on the document under Annexure-4 to
the writ petition, which is in respect of OEM authorisation
letter and the petitioner was required to submit in
compliance to Annexure-6 of the RFP. As such, the same
has been submitted, wherein it has been stated as follows:-
"We, SAKROBOTIX LAB PRIVATE LIMITED who is
an established and reputable manufacturer of
Complete solutions for Robotic Lab, ATL Lab, AI/ML
LAB, 3D Printing, Electronics LAB, Drone Lab, and
other STEM DIY (Do it Yourself) Kits, etc. having
factories/ development facilities at CTEF-
LNNOVEX, CIPET-IPT, Patia Bhubaneswar Odisha -
751013 do hereby authorize M/s
TELECOMMUNICATIONS CONSULTANTS INDIA
LIMITED Address TCIL Bhawan, Greater Kailash-I
New Delhi-110048, India to submit a Bid, and
accept the Purchase Order against the above Bid
Invitation."
9.16 Both the above referred letters clearly indicate
that the petitioner is not a bidder in terms of clause-10 (1)
of the pre-qualification evaluation criteria of RFP, rather it
acts as an OEM on behalf of the TCIL, which has been
given authorisation in terms of clause-18.6 vide Annexure-6
of the RFP. Clause-18 of the RFP deals with the annexures,
which are to be submitted along with the bid.
9.17 Therefore, this Court is of the considered view
that neither the petitioner has any locus standi nor it is a
person aggrieved to maintain this writ petition. Accordingly,
issue no.1 is answered against the petitioner.
10. Issue No. (ii)
Whether opposite party no.4 incurs a
disqualification, in view of clause-10 (7) of the
RFP?
In order to answer this issue, it is worthwhile to
refer to Clause-10 (7) of the pre-qualification evaluation
criteria, which reads as follows:-
Pre-Qualification Evaluation Criteria
Sl. PQ Description of the Criteria Documents to
No Criteria be submitted
7. Blackli The bidder should not be Self declaration
sting under a declaration of Annexure-4
Ineligibility for corrupt
and fraudulent practices
issued by any
Government or PSU in
India.
10.1 In terms of the aforementioned clause, a bidder
has to make a self declaration in the form prescribed in
Annexure-4 to the RFP, which reads as follows:-
"18.4 Annexure 4: Self-Declaration
(Non-blacklisted in company Letter I lead)
To,
The General Manager (Admn.)
Odisha Computer Application Centre (OCAC)
OCAC Building, Plot No.-N-1/7-D,
Acharya Vihar Square, RRL Post
Office, Bhubaneswar-751013 (INDIA)
Dear Sir,
In response to the RFP Ref. No: OCAC-SEGP-INFRA-
0025- 2023/23028 dated 24-04-2023, for RFP
titled "Request for Proposal (RFP) for Selection of
CPSU/ SPSU for Supply and Installation of Robotic
Lab in Secondary Schools in Odisha", as an
owner/ partner/ Director of (organization name)
I/We hereby declare that presently our
Company/firm is not under declaration of ineligible
for corrupt & fraudulent practices, blacklisted either
indefinitely or for a particular period of time, or had
work withdrawn, by any State/ Central
government/ PSU.
I/We further declare that there is no past/ ongoing
legal trial in name of any of the Owner / Partner /
Director of the bidding company as on the tender
submission date.
If this declaration is found to be incurred then
without prejudice to any other action that may be
taken, my/our security may be forfeited in full and
the tender If any to the extent accepted may be
cancelled.
Thanking you,
Name of the Bidder:......................
Authorized Signatory:......................
Signature:
Seal:
Date:
Place:"
10.2 Clause-10 (7) of the RFP states specifically that
the bidder shall be ineligible on the ground of "corrupt and
fraudulent practices", if a declaration is issued by any
Government or PSU in India to that effect. Accordingly, a
self declaration by the bidder has to be made, as provided
under Annexure-4 to the RFP. The bidder has to make a
declaration that their company/firm is not under
declaration of ineligible for corrupt & fraudulent practices,
blacklisted either indefinitely or for a particular period of
time, or had work withdrawn, by any State/ Central
Government/PSU. Therefore, the provision, as
contemplated under clasue-10(7) showing the ineligibility of
bidder for corrupt & fraudulent practices, is being more
clarified by giving a detailed explanation to make a self
declaration under Annexure-4 finding it ineligible for
corrupt and fraudulent practice, blacklisted either
indefinitely or for a particular period of time. Thereby, the
contention is raised by Mr. Ashok Kumar Parija, learned
Senior Advocate appearing for opposite parties no. 2 and 3
and clarified by Mrs. Pami Rath, learned Senior Advocate
appearing for opposite party no.4 that blacklisting should
be referred to in respect of bidder to become ineligible for
corrupt & fraudulent practice cannot be the sole ground,
rather it is one of the grounds which has been qualified by
making a self declaration in Annexure-4. It includes
"corrupt & fraudulent practices", "blacklisted either
indefinitely or for a particular period of time" or had work
withdrawn, by any State/Central Government/ PSU.
Therefore, the words "corrupt & fraudulent practices" are
being segregated with the words "blacklisted either
indefinitely or for a particular period of time" with a
punctuation mark 'comma'.
10.3 Use of punctuation mark 'comma' in Annexure-4
is the smallest division of a sentence in language. The
'comma' and 'semicolon' are both used for the same
purpose in punctuation, namely, to divide sentences and
parts of sentences; the only difference being that the
'semicolon' makes the division a little more prolonged than
the 'comma'.
10.4 The 'comma' is a matter of sense and experience.
The only rule is that if it makes the meaning clearer put in
a 'comma'; if not, leave it out. A 'comma' is used to mark off
a phrase or a clause when it is thought that it makes the
sense clearer to do so. It is also used to mark a series of
words, phrases, or clauses. Another use of the 'comma' is
when a word is placed out of its natural order for the sake
of stress. This use is however unlikely to occur in legislative
drafting.
10.5 In Sree Durga Distributors v. State of
Karnataka, (2007) 4 SCC 476, the apex Court held that
the expressly use of punctuation mark 'comma' after the
words animal feed and feed supplements indicates that the
legislature intended to classify these two items as one class
or category and not two separate categories.
10.6 Thereby, by using 'comma' in between the words
"corrupt & fraudulent practices" and "blacklisted either
indefinitely or for a particular period of time", it qualifies
that blacklisting should be referred to corrupt and
fraudulent practice done by the bidder to become ineligible
to participate in the bid. Nothing has been placed on record
to indicate that so called blacklisting of the opposite party
no.4 has been referred to satisfy the ineligibility criteria for
corruption and fraudulent practice. Rather, the letter dated
26.05.2023 issued by the Bihar Skill Development Mission
shows that opposite party no.4, being a consortium
member, has been debarred to participate in the future
tenders for a period of three years on account of non-
submission of performance guarantee and consequential
act of non-execution of the contract. Therefore, such act of
non-submission of performance guarantee and
consequential act of non-execution of the contract with
Bihar Skill Development Mission cannot be termed as
corrupt and fraudulent practice so as to make it ineligible
to participate in the bid itself. More particularly, it is
specifically urged by Mrs. Pami Rath, learned Senior
Advocate appearing on behalf of opposite party no.4 that
the letter dated 26.05.2023 was not served on opposite
party no.4 till the same was produced by the petitioner on
06.07.2023, which was confronted by the opposite party
nos. 2 and 3, and consequentially the representative of
opposite party no.4 submitted the letter dated 15.07.2023
issued by Bihar Skill Development Mission wherein it has
been stated that the debarment of opposite party no.4 vide
letter dated 26.05.2023 has been withdrawn.
10.7 As to the reliance placed on Tata Cellular
(supra), the principle decided therein is not in dispute that
the principles of judicial review would apply to the exercise
of contractual powers by Government bodies in order to
prevent arbitrariness or favoritism, as to find the right
balance between the administrative discretion to decide
matters whether contractual or political in nature or issues
of social policy; thus they are not essentially justifiable and
the need to remedy any unfairness, and that such an
unfairness is set right by judicial review. However, no case
is made out by the present petitioner with regard to
applicability of the said principle, as has been decided by
the apex Court in the aforementioned judgment.
Similarly, in Jagdish Mandal (supra), the apex
Court has laid down the criteria for interference in tender
on contractual matters in exercise of powers of judicial
review. The same has also been taken into consideration
and in the opinion of this Court it has no application to the
present case.
So far as Nova Ads (supra) is concerned, wherein
the apex Court held that transparency and fair method is
the criteria to award the tender, it has also been taken care
of by this Court.
Thereby, the judgments relied upon by Mr.
Pitambar Acharya, learned Senior Advocate appearing for
the petitioner and principle decided therein, having been
tested on the touchstone of reasonableness, arbitrariness,
this Court comes to a conclusion that none of such
conditions are being satisfied so as to exercise the
discretion of judicial review to interfere with the decision
making process of opposite party nos. 2 and 3.
10.8 In view of such position, this Court is of the
considered view that opposite party no.4 has not incurred a
disqualification in terms of clause-10 (7) of the RFP and
thereby, issue no. (ii) is answered against the petitioner.
11. Issue No. (iii)
Whether the petitioner has approached this
Court with clean hands?
So far as this issue is concerned, the petitioner
itself in paragraph-4 of the writ petition, which has already
been quoted above, has contended "the petitioner
participated in the tender process and submitted the Request
for Proposal along with Telecommunication Consultants India
Limited, a Government of India enterprise, as an Original
Equipment Manufacturer ("OEM") for supply and installation
of Robotics Lab in secondary schools on Odisha and
submitted the lowest financial bid." In view of clause-10 (1),
the petitioner could not have participated in the bid
process, rather it only confines to Public Sector
Undertaking set up by the Centre or State Govt. to carryout
I.T. related activities or any Central/State Govt.
Organization/PSU. The petitioner neither comes within the
purview of the legal entity mentioned under clause-10 (1) of
the pre-qualification evaluation criteria of the RFP.
Therefore, it has no occasion to participate in the bid.
Rather, it may come under clause-10(8), being OEM
Authorisation, which means it has only given authorisation
to TCIL in the prescribed Form 18(6) of the RFP, which it
has done and the same has been placed on record under
Annexure-4. Therefore, the authorisation given by the OEM
cannot be construed that it has participated in the bid,
which is one of the criteria to be fulfilled by the bidder to
participate in the bid itself.
11.1 In course of hearing, it is fairly admitted that the
petitioner is the OEM for TCIL. The jurisdiction of this
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 come 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.
11.2 In R. v. Kensington Income Tax
Commissioners, (1917) 1 KB 486 Scrutton, L.J., held as
follows:-
".......it has been for many years the rule of the
Court, and one which it is of the greatest
importance to maintain, that when an applicant
comes to the Court to obtain relief on an ex parte
statement he should make a full and fair
disclosure of all the material facts- it says facts,
not law. He must not misstate the law if he can
help it; the Court is supposed to know the law. But
it knows nothing about the facts, and the applicant
must state fully and fairly the facts; and the
penalty by which the Court enforces that obligation
is that if it finds out that the facts have not been
fully and fairly stated to it the Court will set aside
any action which it has taken on the faith of the
imperfect statement". (emphasis supplied)
In the said judgment, Viscount Reading, C.J. observed as
follows:-
"Where an ex parte application has been made to
this Court for a rule nisi or other process, if the
Court comes to the conclusion that the affidavit in
support of the applicant was not candid and did
not fairly state the facts, the Court ought, for its
own protection and to prevent an abuse of its
process, to refuse to proceed any further with the
examination of the merits. This is a power inherent
in the Court, but one which should only be used in
cases which bring conviction to the mind of the
Court that it has been deceived. Before coming to
this conclusion a careful examination will be made
of the facts as they are and as they have been
stated in the applicant's affidavit, and everything
will be heard that can be urged to influence the
view of the Court when it reads the affidavit and
knows the true facts. But if the result of this
examination and hearing is to leave no doubt that
this Court has been deceived, then it will refuse to
hear anything further from the applicant in a
proceeding which has only been set in motion by
means of a misleading affidavit". (emphasis
supplied)
11.3 In K.D. Sharma (supra), the apex Court at
paragraphs 36, 38 and 39 observed as follows:-
"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.
If 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 the case by stating "We will not listen to
your application because of what you have done".
The rule has been evolved in larger public interest
to deter unscrupulous litigants from abusing the
process of Court by deceiving it.
38. The above principles have been accepted in
our legal system also. As per settled law, the party
who invokes the extraordinary jurisdiction of this
Court under Article 32 or of a High Court
under Article 226 of the Constitution is supposed to
be truthful, frank and open. He must disclose all
material facts without any reservation even if they
are against him. He cannot be allowed to play `hide
and seek' or to `pick and choose' the facts he likes
to disclose and to suppress (keep back) or not to
disclose (conceal) other facts. The very basis of the
writ jurisdiction rests in disclosure of true and
complete (correct) facts. If material facts are
suppressed or distorted, the very functioning of
Writ Courts and exercise would become impossible.
The petitioner must disclose all the facts having a
bearing on the relief sought without any
qualification. This is because, "the Court knows law
but not facts".
39. If the primary object as highlighted in
Kensington Income Tax Commissioners is kept in
mind, an applicant who does not come with candid
facts and `clean breast' cannot hold a writ of the
Court with `soiled hands'. Suppression or
concealment of material facts is not an advocacy. It
is a jugglery, manipulation, maneuvering or
misrepresentation, which has no place in equitable
and prerogative jurisdiction. If the applicant does
not disclose all the material facts fairly and truly
but states them in a distorted manner and
misleads the Court, the Court has inherent power
in order to protect itself and to prevent an abuse of
its process to discharge the rule nisi and refuse to
proceed further with the examination of the case on
merits. If the Court does not reject the petition on
that ground, the Court would be failing in its duty.
In fact, such an applicant requires to be dealt with
for contempt of Court for abusing the process of the
Court."
To buttress this view, the apex Court had also
taken into consideration the decision in the case of State
of Haryana v. Karnal Distillery, (1977) 2 SCC 431, Vijay
Kumar v. State of Haryana, (1983) 3 SCC 333, Welcom
Hotel v. State of A.P., (1983) 4 SCC 575, Agricultural &
Process Food Products v. Oswal Agro Furnae, (1996) 4
SCC 297, State of Punjab v. Sarav Preet, (2002) 9 SCC
601, Union of India v. Muneesh Suneja, (2001) 3 SCC
92, All India Sate Bank Officers Federation v. Union of
India, 1990 Supp SCC 336.
11.4 In Vijay Syal & Anr. v. State of Punjab & Ors.,
(2003) 9 SCC 401, the apex Court at paragraph-24
observed as follows:-
"In order to sustain and maintain sanctity and
solemnity of the proceedings in law courts it is
necessary that parties should not make false or
knowingly, inaccurate statements or
misrepresentation and/or should not conceal
material facts with a design to gain some
advantage or benefit at the hands of the court,
when a court is considered as a place where truth
and justice are the solemn pursuits. If any party
attempts to pollute such a place by adopting
recourse to make misrepresentation and is
concealing material facts it does so at its risk and
cost. Such party must be ready to take
consequences that follow on account of its own
making. At times lenient or liberal or generous
treatment by courts in dealing with such matters
are either mistaken or lightly taken instead of
learning proper lesson. Hence there is a compelling
need to take serious view in such matters to ensure
expected purity and grace in the administration of
justice".
11.5 It may be noted that in the prayer 'A' made in the
writ petition the petitioner has prayed for rejection of the
bid and participation of opposite party no.4 in the tender
and in prayer 'B' seeks direction to settle the bid in its
favour being the lowest bidder in the financial bid. The
petitioner is not capable of being a bidder, in view of the
eligibility criteria prescribed under clause-10 (1) of the pre-
qualification evaluation criteria of RFP and, as such, cannot
be said to be a lowest bidder and the same cannot be stated
to be settled in its favour. Therefore, the petitioner wants to
get the benefit, which it is not otherwise entitled to get in
terms of the RFP. Thereby, the petitioner has tried to get
undue advantage of seeking the relief from this Court by
suppression of the fact and, as such, has not come to the
court with clean hands.
11.6 Taking into consideration the contention raised
by the petitioner, this Court, vide order dated 18.08.2023,
had called upon the Chief Executive Officer, OCAC to
apprise this Court with regard to factum of receipt of the
letter dated 15.07.2023, by which the blacklisting order
issued in favour of opposite party no.4, was revoked by the
Bihar Skill Development Mission. In compliance to the
same the said officer appeared in Court and explained the
position by filing an affidavit. Therefore, the correct fact
having been revealed, it clearly indicates that the petitioner
has not come to the Court with clean hands and
suppressed certain material facts. Therefore, issue no. (iii)
is answered against the petitioner.
12. In view of the fact and law, as discussed above,
this Court does not find any merit in the writ petition,
which is accordingly dismissed. However, there shall be no
order as to costs.
(DR. B.R. SARANGI)
JUDGE
M.S. RAMAN, J. I agree.
(M.S. RAMAN)
JUDGE
Orissa High Court, Cuttack
The 31st August, 2023, Arun
Signature Not Verified
Digitally Signed
Signed by: ARUN KUMAR MISHRA
Designation: ADR-cum-Addl. Principal Secretary
Reason: Authentication
Location: Orissa High Court
Date: 31-Aug-2023 16:48:26
