Uttarakhand High Court
Khushal Singh Adhikari vs State Of Uttarakhand & Others on 24 March, 2022
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
Writ Petition (M/S) No.1847 of 2021
Khushal Singh Adhikari ...Petitioner
Vs.
State of Uttarakhand & others .....Respondents
With
Writ Petition (M/S) No.1848 of 2021
Khushal Singh Adhikari ...Petitioner
Vs.
State of Uttarakhand & others .....Respondents
With
Writ Petition (M/S) No.1849 of 2021
Khushal Singh Adhikari ...Petitioner
Vs.
State of Uttarakhand & others .....Respondents
With
Writ Petition (M/S) No.1850 of 2021
Khushal Singh Adhikari ...Petitioner
Vs.
State of Uttarakhand & others .....Respondents
With
Writ Petition (M/S) No.2041 of 2021
Khushal Singh Adhikari ...Petitioner
Vs.
State of Uttarakhand & others .....Respondents
Mr. Shobhit Saharia, Advocate, for the petitioner.
Mr. S.S. Chauhan, Advocate, for the respondent/2 to 5.
Mr. M.S. Bisht, Brief Holder, for the State of Uttarakhand/1.
Hon'ble Sharad Kumar Sharma, J (Oral)
The petitioner, which is a proprietorship firm, and a
registered "A" class contractor with the Public Works Department,
has agitated his grievances, as against the impugned order dated 23rd
August 2021, which has been passed by respondent no.4, which was
uploaded online by Respondent No.4 on 23rd August 2021. As a
consequence of which, the petitioner contends, that he would be
deprived of submitting his tenders to participate in the bidding
process, which has been resorted to or would be resorted to in future
by the respondents. Owing to the attraction of the implications, as it
has been referred to in the impugned communication, debarring the
petitioner's entitlement to participate due to the set of allegations
mentioned in second column of Clause 6.8, which is extracted
hereunder:-
"6.8 The Procurement Evaluation Committee checked the experience
and qualifications of the responsive bidders as per details provided in
Attachment 6-B. The following bidders were found not to be
technically qualified.
S.N. Name of Bidder Brief reasons for
rejection
1. M/s Panch Ghati construction 1.Slow progress in
ongoing work. As per
CE Letter
no.1004/URRDA/2021,
21.07.2021
2. M/s Khushal Singh Adhikari 1.Not maintaining road
during DLP as per SBD
as per CE Letter
no.1004/URRDA/2021,
27.07.2021
3. M/s GDS Infrastructure 1.Slow progress in
ongoing work. As per
CE letter
no.1004/URRDA/2021,
21.07.2021
2. There are two fold arguments, which would be primarily
required to be considered, at this stage, in order to summarize the
controversy without barging into the merits of the matter, the
petitioner contends that the very foundation of the passing of the
impugned order happens to be the letter of the Chief Engineer
No.1004/URRDA/2021, Dated 27th July 2021, which was already
earlier the subject matter of consideration in the writ petition, which
was decided by this Court, vide its judgment dated 13.08.2021,
rendered by this Court in a Writ Petition being WPMS No.1600 of
2021, "M/s Doon Associates, Suraj Kund Bageshwar, District
Bageshwar Vs. State of Uttarakhand & others", wherein, this
Court while harmoniously construing the effect of the correspondence
of the Chief Engineer dated 27th July 2021, along with the
implications of Clause 47(ii) as observed and considered in paragraph
Nos.5 and 6, of the said judgment, the Writ Petition, which was
preferred by the M/s Doon Associates, Suraj Kund, District
Bageshwar was dismissed. The relevant paragraph Nos.5 and 6, of the
said judgment, is extracted hereunder:-
"5. In fact, the intention which has been
expressed therein are that on an establishment
of a fact, as directed by the order dated
27.07.2021, if it stands established after
undergoing the process of scrutinization of
records as contemplated under Clause 4.7 (II)
infact it is an act, which is yet to be resorted to
by the respondents and no positive or adverse
direction is contained, as such to disqualify
the petitioner from participating in his future
contracts. In fact, if the said observation made
in the list too is taken into consideration, the
action of disqualifying the petitioner, would
only be based upon the proceedings, which
were contemplated to be held in pursuance to
the operative portion of the office
memorandum dated 27.07.2021, which has
been extracted above.
6. I am of the view that if both the documents
are read harmoniously infact, there is no
positive order which has been passed, as such
by the respondents till now, whereby the
petitioner has been held to be rejected or
disqualify to participate in the future tendering
process, there cannot be a writ petition under a
premonition, that an action may or is likely to
be taken, which can give a cause of action to
the petitioner, to file a writ. Filing of a writ
petition and that too by invoking an extra
ordinary jurisdiction of the Court under
Article 226 of the Constitution of India, would
only accrue to the petitioner when there is an
actual action taken, against the petitioner and
not under an anticipated action."
3. It has been argued by the learned counsel for the
petitioner that once the High Court has already ventured into a judicial
scrutiny of the order dated 27th July 2021, and its correlated
implications to Clause 4.7(ii). In that eventuality, without putting a
challenge to the judgment dated 13th August 2021, before any superior
forum, the implications of the order dated 27th July 2021, could not
have been borrowed by the respondents, for the purposes of holding
the petitioner to be incapable to participate in the bidding process, due
to the alleged, allegations of non completion of the work, as it has
been mentioned in the second column, as extracted above, against
petitioners name.
4. It is an admitted position, which is not being disputed by
any of the Counsel for the parties, that the judgment rendered by this
Court earlier on 13.08.2021 in Writ Petition No.1600 of 2021, had
attained its finality, and is still intact nor has been set aside or
quashed, by any competent court, and once the said order of
27.07.2021, itself has been construed by the Court by its judicial
dictum, it could not have been extracted to create any impediment
against the petitioner, in participating in the tendering process by
attracting the implications of Clause 4.7(ii), because drawing an
inference from a letter when it has been considered by the Court i.e.
the letter of 27th July 2021, it would amount to as if the decision
which has been taken by the respondent No.4, later on herein, on 23rd
August 2021, would amount to be sitting over the judgment rendered
by the High Court. Hence, on this prima facie view the decision of the
Chief Engineer dated 23rd August 2021, is faulted of.
5. By way of retaliation of the arguments, the learned
counsel for the respondent had submitted and has opposed the motion
of the petitioner on two grounds (1) That due to inaction on the part of
the petitioner to complete the projects already assigned to him under
the terms of the contract, he had been issued with the notices,
cautioning him to complete the work projects assigned to him under
the contract, and hence the learned counsel for the respondent submits
that since the notices for the completion of work, to the assigned
projects, were already issued to the petitioner, it would be deemed that
the petitioner was noticed by the respondents for an action which were
contemplated under Clause 4.7(ii).
6. This contention of the respondents counsel, is not
acceptable by this Court, for the reason being that a notice, which was
issued to the petitioner for the purposes of completion of the work for
which the, concluded contract was already subsisting in favour of the
petitioner, cannot be extracted to be read, as if to be a notice for the
purposes of passing of the impugned order of withholding the
petitioner's right to participate in the tendering process by way of the
implications of Clause 4.7(ii) and that too particularly in the light of
the order dated 27th July 2021. Hence, this argument is not accepted,
that the notices issued for completion of the work assigned to the
petitioner is to be treated as to be a notices for the purposes of the
impugned action of debarment of the petitioner in the tendering
process.
7. Learned counsel for the respondent has submitted, that
the action, which has been taken by the Chief Engineer by passing the
impugned order is not alien to the terms of the Standard Bidding
Document because the employee had reserved its rights to disqualify
the bidder from participating in the tendering process by attracting the
implications of Clause 4.7(ii). The relevant clause 4.7(ii), is extracted
hereunder:-
"4.7 Even though the bidders meet the above qualifying criteria,
they are subject to be disqualified if they have:
(i) made misleading or false representations in the forms,
statements, affidavits and attachments submitted in proof
of the qualification requirements; and/or
(ii) record of poor performance such as abandoning
the works, not properly completing the contract,
inordinate delays in completion, litigation history, or
financial failures etc; and/or
(iii) participated in the previous bidding for the same
work and had quoted unreasonably high or low bid prices
and could not furnish rational justification for it to the
Employer."
8. In fact this Court is of the view that Clause 4.7(ii), where
it confers a right to the employer, to debar a prospective bidder, to
participate in the future or present tendering process, due to his
previous poor performance or due to the abandoning of the work, and
various other parameters, which has been given, therein. In case, if it
is isolatedly and unilaterally attracted by the employer, this Court is of
the view that it would be obviously having a direct nexus of an
infringement of a legal right envisaged with the contractor, as
protected under Article 19 (g) of the Constitution of India, to be read
with Article 14, of the Constitution of India, because the
consequential action taken under Clause 4.7( ii), would obviously be
an act of infringement of civil right, and which as per opinion of this
Court, it could have been resorted by the respondents only after
hearing the bidder; in order to enable him to justify as to whether any
of the covenants of Clause 4.7( ii), would at all be attracted to be
applied in the set of circumstances, herein, for the passing of the
impugned order.
9. Since having apparently not resorted to the said process,
of providing an opportunity of hearing I am of the view that attraction
of Clause 4.7(ii), by a unilateral decision taken by the Executive
Engineer, would be contrary to the common constitutional mandate,
that is a deprivation of a civil right, which could only be resorted to
after giving an opportunity of hearing.
10. Exclusively for the aforesaid two reasons, this Court is
inclined to allow the writ petition, set aside the impugned orders, but
obviously, it would be without prejudice to the rights of the
respondents, that if at all they intend to attract Clause 4.7(ii), they
would take a decision only after providing an opportunity of hearing
to the petitioner, and particularly also after considering the impact of
the earlier judgment rendered by this Court qua the order of the Chief
Engineer dated 27th July 2021, for the purposes of taking the
impugned action, if it is at all required.
11. The learned Counsel for the respondent had referred to
the judgment rendered by the Hon'ble Apex Court in Civil Appeal
No.1846 of 2022, "M/s N.G. Projects Limited Vs. M/s Vinod Kumar
Jain & others", which was emanating from a Division Bench
judgment of Jharkhand High Court, in relation to a contracting issue
between the two rival parties, and the scope of judicial interference by
writ courts under Article 226 of the Constitution of India.
12. The wider principles, which has been sought to be
advocated by the learned Counsel for the respondent is that the writ
courts under Article 226 of the Constitution of India, should be slow
in venturing into the vitalities of the contractual matters, because it is
always the work exigencies, which plays a pre-dominant role, which
is to be ensured to be completed within the specified time in the wider
public interest. There cannot be any iota of doubt to the said
principles, but this Court is of the view that the wider phenomena
which has been considered by the Hon'ble Apex Court in the said
matter, is slightly distinguishable, in order to be made applicable in
the circumstances of the present case, where a clever device has been
crafted by the respondents to overcome the affect of the judgment,
particularly when, which has taken away the foundation of the
impugned order by comparatively scrutinizing of the affect of Clause
4.7(ii), as well as the order dated 27th July 2021, which has been
referred to in the impugned order of 23rd August 2021.
13. Hence, for the reasons aforesaid, the writ petitions are
allowed subject to the liberty already reserved above for the
respondents. However, this order would not create any impediment
for the respondents to proceed with the opening of the technical bids,
as per the terms of the standard bidding documents, as applicable in
the present controversy.
(Sharad Kumar Sharma, J.)
24.03.2022
NR/
