Jharkhand High Court
Amr Dev Prabha Through Its Power Of ... vs The Union Of India Through The Secretary ... on 4 November, 2015
Author: Shree Chandrashekhar
Bench: Shree Chandrashekhar
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(C) No. 3685 of 2015
AMR - DEV PRABHA, Hyderabad through its power of attorney
holder Mithilesh Kumar Singh, Dhanbad ... ... Petitioner
Versus
The Union of India through the Secretary, Ministry of Coal, New
Delhi & Ors. ... ... Respondents
CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
For the Petitioner : Mr. Ajit Kumar Sinha, Sr. Advocate
Mr. Ajit Kumar, Sr. Advocate
Mrs. Aprajita Bhardwaj, Advocate
For RespondentBCCL : Mr. P.S. Narasimha, ASGI
Mr. Amit Sharma, Advocate
Mr. A.K. Mehta, Advocate
For Respondent 6 & 7 : Mr. Bineet Kumar, Advocate
For Respondent No. 8 : Mr. Ratan Kumar Singh, Advocate
Mr. J.K. Choudhary, Advocate
12/04.11.2015Mr. P.S. Narasimha, the learned Additional Solicitor General of India submitted that the reverse bidding concluded on 05.05.2015 and the respondent no. 8 was declared L1 however, the petitioner did not even made a protest rather, it participated in the eauction and, after resumption, it submitted as many as 12 bids. Having not taken a single step objecting to the alleged technical failure and having waited for more than 3 months, the petitioner's writ petition is nothing but an abuse of the process of the Court. In the writ petition, the petitioner has not given a truthful narration of the facts and, after resumption of the eauction it voluntarily participated even without prejudice to its right and therefore, no indulgence should be granted in the present proceeding. The learned Additional Solicitor General of India refers to Section 8 of the bid document which deals with appointment of Independent External Monitor/Monitors and submits that the report submitted by the Monitor would be a 2 nonbinding recommendation. Referring to Clause 9(xii) and Clause 9(xiii) of the bid document, the learned ASGI submits that a complete freedom is given to the service provider to ensure smooth and uninterrupted system at its end.
2. In the counteraffidavit, the respondentM/s BCCL has averred that the reverse bidding was paused at 13.03 hrs. on 05.05.2015 due to a system failure with the service provider. A copy of the email sent by the service provider has been annexed with the counteraffidavit vide AnnexureA. The email dated 05.05.2015 would disclose that it was sent at 15.02 p.m. whereas, the eauction had already resumed at 2:30 p.m. The information given to M/s BCCL was that auction got interrupted at 1:03 p.m. and "got closed". It further records that the service provider was in consultation with the CMD office. The counteraffidavit filed on behalf of respondent no. 8 is at variance with the stand taken by the respondentM/s BCCL in its counteraffidavit. The Independent External Monitor namely, Sri Naresh Chaturvedi, I.A.S. Retd. has also recorded as under:
"The complainant also drew our attention to the letter dated 05.05.2015 of M/s R.K. Transport Co. sent through email at 13.36 hours stating that the auction suddenly stopped at 1.00 P.M. From this letter it also appears that M/s R.K. Transport Company was not always logged in. The statement of M/s R.K. Transport Company regarding stopping of the auction at 1.00 P.M. is at variance with the time shown in the snapshots annexed by the complainant which shows that the system worked till 13.03.58 hrs on 05.05.2015. The claim of M/s R.K. Transport Company is therefore not correct."
3. The Independent External Monitor has noticed that inspite of direction given a copy of the report was not submitted by the respondentM/s BCCL in the present proceeding and that was the reason he provided a copy of the report to the petitioner.
3The respondentM/s BCCL has filed a copy of the report of another Independent External Monitor namely, Dr. L.C. Sanghi, I.A.S. Retd. The said Independent External Monitor has also recorded a finding in paragraph no. 31 of his report that the screenshots, copies of which were produced by the petitioner, are certainly not fabricated however, he has indicated that these screenshots do not prove that there was no interruption in the auction process at the service provider's end.
4. Initially, the application filed on behalf of the petitionercompany being I.A. No. 5185 of 2015 seeking an independent enquiry in the matter was dismissed vide order dated 09.09.2015 on the ground that the petitioner has already approached Independent External Monitor. Thereafter, the petitioner filed another I.A. No. 5748 of 2015 to challenge the decision taken by the respondentM/s BCCL approving the delayed submission of Bank Guarantee by the respondent no. 8. The said application was also dismissed vide order dated 06.10.2015. The said order was challenged by the petitioner in L.P.A. No. 603 of 2015 which was disposed of recording as under:
"During course of arguments, Mr. P.S. Narsimha, learned Senior Advocate, on instructions of Mr. Anoop Kumar Mehta, learned Advocate, makes a statement at the Bar, that he will instruct respondent No. 4 to keep the order dated 22 nd September, 2015, whereby the delayed bank guarantee submitted by respondent No.8 in whose favour the letter of allotment (LOA) is awarded, in abeyance till the final disposal of the main writ petition being W.P.(C) No. 3685/2015. Mr. Narsimha, the learned Senior Advocate, submits that even otherwise, it has no reference to the merits of the main writ petition."
5. The aforesaid proceeding taken in the present writ petition would disclose that the application filed by the petitioner was dismissed mainly on the ground that there is no sufficient 4 assertion by the petitioner in the writ petition. However, subsequently, both the parties themselves have relied on and have filed report of two Independent External Monitors, one of which has categorically held that the procedure adopted was not transparent. The another Monitor has also found that the copies of screenshots produced by the petitioner are not fabricated. Though, the subsequent events may not be of much relevance at this stage however, the same require to be noticed. The Letter of Intent (LoI) to respondent no. 8 was issued on 30.05.2015 however, Bank Guarantee was furnished by respondent no. 8 only on 25.08.2015 though, one of the conditions of the LoI dated 30.05.2015 was submission of security deposit within 28 days. Before the Independent External Monitor, the General Manager (CMC), BCCL stated that the respondent no. 8 has started work. In the proceeding before this Court dated 16.10.2015, the said General Manager (CMC), BCCL made a statement that the respondent no. 8 was provided site for preparation of site office, camp office, workshop etc. Though the respondentM/s BCCL has filed as many as two supplementary counteraffidavits, it has not been disclosed by it the exact reason of the system failure. There is no definite assertion when communication between Tata Telecommunication, the service provider-respondent no. 6 and the respondent nos. 4 and 5, took place. The copy of email sent by respondent no. 6 to M/s BCCL disclosed that the email was forwarded on 15.02 p.m. however, in the meantime, reverse bid has already commenced at 2.30 p.m. In "Maria Margarida Sequeira Fernandes Vs. Erasmo Jack de Sequeira"
(2012) 5 SCC 370 the Hon'ble Supreme has observed as under:
38. "Certainly, the above is not true of the Indian judicial system. A Judge in the Indian system has to be regarded as failing to exercise its jurisdiction and thereby discharging its judicial duty, if in the guise of remaining neutral, he opts to remain passive to the 5 proceedings before him. He has to always keep in mind that "every trial is a voyage of discovery in which truth is the quest". In order to bring on record the relevant fact, he has to play an active role; no doubt within the bounds of the statutorily defined procedural law."
6. The respondent nos. 6 and 7 have already appeared in the present proceeding. The learned counsel for the respondent nos. 6 and 7 seeks time for filing response to the writ petition. The learned ASGI also indicates that the respondent no. 6 should file its affidavit.
7. Considering the aforesaid facts, I am of the opinion that the respondentM/s BCCL should produce all communications and disclose the method adopted for eauction to primafacie satisfy this Court on the issues of fair and transparent procedure adopted for eauction. The affidavit filed on behalf of respondentM/s BCCL should also disclose whether after interruption at 13:03 p.m., any officer of M/s BCCL had granted permission for resumption of eauction and whether M/s BCCL alone can start the system after it "got stopped". In the aforesaid facts, I am inclined to grant one opportunity to respondentM/s BCCL to produce all relevant documents disclosing all relevant facts.
8. At the request of the learned counsel appearing for the parties, three weeks' time is granted for filing response and requisite documents.
9. Post the matter on 01.12.2015.
(Shree Chandrashekhar, J.) Manish/N.A.F.R.