Uttarakhand High Court
WPMS/336/2023 on 2 March, 2023
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
HON'BLE THE CHIEF JUSTICE SRI VIPIN SANGHI
AND
HON'BLE SRI JUSTICE ALOK KUMAR VERMA
WRIT PETITION (M/S) NO. 336 OF 2023
02ND MARCH, 2023
BETWEEN:
M/s Super Construction Associates through its Partner
.....Petitioner.
And
State of Uttarakhand & others ....Respondents.
Counsel for the Petitioner : Mr. Shashank Pandey and Mr.
Akshay Pradhan, learned
counsels.
Counsel for the Respondent No.1 : Mr. K.N. Joshi, learned Deputy
Advocate General.
Counsel for the Respondent Nos.2 & 3 : Mr. S.S. Chauhan, learned
counsel.
The Court made the following:
JUDGMENT:(per Hon'ble The Chief Justice Sri Vipin Sanghi)
The petitioner has preferred the present writ
petition to seek the following reliefs:-
"I. Issue a writ, order or direction in the nature of Certiorari
setting aside the impugned Resolution of the Chief Engineer
PMGSY (Kumaon Zone) PWD, Almora dated 04.02.2023, whereby
the complaints made by the Petitioner were dismissed (Annexure
No.1).
II. To issue writ, order or direction in the nature of
mandamus directing the respondent no.2 to permit the petitioner
to restart the work.
Or in alternative
Issue a writ, order or direction in the nature of Mandamus
directing the Respondents to clear the dues of the Petitioner for
the work already done by the Petitioner on the site.
III. Graciously be pleased to pass any such other relief(s) as
this Hon'ble Court may deem just and proper in the circumstances
of this case."
2. In response to the tender floated by the
respondent-authorities, being execution of Padampuri
Harakhan Road Km.54 to Syura-Kaunta-Kakor-Harishtal
(Hatyarital) Motor Road State-II. Package No.UT-07-04,
length- 36.950 Kms. and the maintenance work for five
years, the contract was awarded to the petitioner by the
respondent, which, this Court found to be completely illegal at
the instance of respondent no.4 herein in Writ Petition (M/S)
No.894 of 2020, which was affirmed by the Division Bench in
Special Appeal No.335 of 2020. The disqualification of
respondent no.4 was held to be bad, and in the Special
Appeal, decided on 29.09.2022, it was directed that the
financial bid of respondent no.4 should be opened, and if the
petitioner's financial bid is found to be the lower, the
petitioner would continue to work, while, on the other hand, if
the financial bid of respondent no.4 is found the lower, the
work would be awarded to respondent no.4. In Paragraph
Nos.20 and 21 of its judgment, the Division Bench observed:-
"20. We direct the respondent authorities to forthwith
proceed to open the financial bid of respondent No. 1 and,
thereafter, proceed in the matter. In case the financial bid of the
appellant is found to be the lowest, the appellant shall forthwith
commence execution of the contract. However, in case the
financial bid of respondent No. 1 is found to be the lowest, the
respondent authorities are directed to proceed in accordance with
law, without any further delay.
21. The pendency of these proceedings has delayed the
execution of the contract by two years and in public interest, the
work should be undertaken with expedition. We also direct the
Secretary, Public Works Department in the Government of
Uttarakhand to have the conduct of the Executive Engineer and
the Superintending Engineer concerned examined from the point
of view, whether they have acted in accordance with the rules
and, if not, the action that needs to be taken against them for
causing disruption of public works, which may also have adverse
financial implications for the State."
3. Pertinently, we had dealt with the submissions of
the present petitioner that the petitioner would be prejudiced,
since it was claimed by the petitioner that the petitioner had
done substantial amount of work. In Paragraph No.19 of our
judgment, rendered in Special Appeal No.335 of 2020, "M/s
Super Construction Associates vs. M/s Dalip Singh Adhikari &
others", decided on 29.09.2022, we had observed as follows:-
"19. We have considered the submissions of the learned
counsels, and we are of the view that the impugned order passed
by the learned Single Judge does not call for any interference. The
sequence of facts and events taken note of hereinabove shows a
clear pattern emerging, and leave no manner of doubt in our mind
that the respondent authorities, in particular, the Executive
Engineer and the Superintending Engineer concerned repeatedly
attempted to placate respondent No. 1 to somehow trip the said
respondent out of race, so as to favour the appellant. After having
declared the technical bid of respondent No. 1 as responsive on
08.05.2020, on the basis of the complaint of the appellant,
respondent No.1's technical bid was declared non-responsive on
26.05.2020 very secretively without putting respondent No. 1 to
any notice much less granting a hearing to it. Even this decision
was uploaded on the website of the Department only on
10.06.2020, just one day before the date fixed for financial bid
opening, i.e. 11.06.2020. The respondent authorities opened the
financial bids of other two bidders, including the appellant on
11.06.2020. Respondent No. 1 did not give up the race, and
preferred Writ Petition (M/S) No. 894 of 2020, which was allowed
on 23.06.2020, and the declaration of the technical bid of
respondent No. 1 as non-responsive was quashed. The
respondent authorities were directed to re-examine the issue with
regard to the technical bid of respondent No. 1 being responsive,
or otherwise, after granting an opportunity to it to represent. In
breach of the said direction, the technical bid of respondent No. 1
was again declared as non-responsive on 03.07.2020 without any
notice or hearing to respondent No. 1. Only when respondent No.
1 made inquiries on 15.07.2020, the Executive Engineer sought
the comments of respondent No. 1 on 27.07.2020. Once again on
31.07.2020, the respondent authorities reiterated their decision to
declare the technical bid of respondent No. 1 as non-responsive
without assigning any reason. Even this decision was not uploaded
till 05.08.2020. Once again, the respondent-writ petitioner
preferred Writ Petition (M/S) No. 1254 of 2020, advance copies
whereof were served on the appellant and the official
respondents. Despite being aware of the filing of the said writ
petition by respondent No. 1, the respondent authorities
proceeded to issue the work-order in favour of the appellant on
10.08.2020. Thus, the respondent authorities were hell-bent on
awarding the contract to the appellant. It is also pertinent to note
that despite the pointed direction issued to the respondent
authorities to state whether the appellant had carried out any
work under the contract awarded to it, no categorical stand was
taken by the respondent authorities. Respondent No. 1 has,
however, established on record that, in fact, the appellant had not
started the work and, in fact, could not have started the work.
Thus, the submission of the appellant that it would be prejudice
has absolutely no merit. Even otherwise, the collusion between
the appellant and the respondent authorities is writ large, and a
party, which has acted in a collusive manner, cannot be heard in
equity to claim that it would suffer adverse financial
consequences, if the financial bid of respondent No. 1 is directed
to be opened. So far as respondent No. 1 is concerned, it is clear
that it has acted with utmost dispatch, and it cannot be accused
of causing any delay or laches in pursuing its judicial remedies. To
deny the relief to respondent No. 1, as granted by the learned
Single Judge, would cause travesty of justice as the machination
of the appellant and the respondent authorities to somehow oust
respondent No. 1 would then succeed. We cannot permit this to
happen."
4. The Special Leave to Appeal (C) No(s).23563-
23564/2022, preferred by the petitioner, before the Supreme
Court was dismissed on 05.01.2023. Thereafter, this petition
has been preferred by the petitioner, once again, seeking to
raise the issues of disqualification of respondent no.4. The
submission of learned counsel for the petitioner is that
respondent no.4 did not have the financial bid capacity to bid
further work in question.
5. The aspects of disqualification have been gone into
in the earlier round of litigation, and we are not inclined to
once again examine the same. We had observed even in the
earlier round of litigation that due to pendency of litigation,
the public had suffered and, we are, therefore, not inclined to
entertain any submission founded upon the lack of financial
bid capacity of respondent no.4 in these proceedings. Learned
counsels for the respondents dispute the submission of the
petitioner with regard to lack of financial bid capacity of
respondent no.4. The work has been awarded to respondent
no.4 in terms of our judgment in Special Appeal No.335 of
2020, dated 29.09.2022 since, admittedly, the financial bid of
respondent no.4 has been found to be the lower than that of
the petitioner.
6. The submission of learned counsel for the petitioner
is that the petitioner has worked in a stretch of 12 Kms. He
submits that the works of the petitioner have not been
measured, and handing over of the work to respondent no.4
would lead the petitioner being denied payment for the works
he has already done.
7. We do not find any merit in this submission. It is
open to the petitioner to raise his claims in Arbitration since
an arbitration agreement exists between the petitioner and
respondent no.2- Uttarakhand Rural Roads Development
Authority.
8. Learned counsel for respondent no.2, after taking
instructions, states that respondent no.4 has started working
the contract from 10.02.2023, and complete videography of
the work done by the petitioner, was done before the start of
work by respondent no.4.
9. We accordingly dismiss this writ petition, leaving it
open to the petitioner to pursue all its remedies in Arbitration.
10. Pending application, if any, also stands disposed of.
(VIPIN SANGHI, C.J.)
(ALOK KUMAR VERMA, J.)
Dated: 02nd March, 2023
NISHANT
