Patna High Court - Orders
M/S Madras Securities Printers Pvt. ... vs The State Of Bihar & Ors on 10 October, 2012
Author: R.M. Doshit
Bench: Chief Justice, Ahsanuddin Amanullah
IN THE HIGH COURT OF JUDICATURE AT PATNA
Letters Patent Appeal No. 378 of 2012
In
Civil Writ Jurisdiction Case No. 824 of 2012
With
Interlocutory Application No. 2354 of 2012
In
Letters Patent Appeal No. 378 of 2012.
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M/S Madras Securities Printers Pvt. Ltd. No. 72, T.H. Road Tondiarpet - Chennai - 600081, Represented through Sunil Kumar, S/o Sri Raman Singh, R/O R. Block, Road No.2, Quarter No. 21, Near Orthodox Chamber, Patna- 800001, Bihar .... .... Appellant / Writ Petitioner Versus
1. The State of Bihar through the Chief Secretary, Government of Bihar, Patna
2. The State Transport Commission, 2nd Floor, Vishweshwaraiya Bhawan, Bailey Road, Patna
3. The Deputy Transport Commissioner, Bihar, 2nd Floor, Vishweshwaraiya Bhawan, Bailey Road, Patna
4. M/S Sreevan Inforcom Ltd., 201-A 2nd Floor, Om Vihar Complex, Near Uma Cinema Hall, Above Gyan Ganga Book Store, Pirmohani, Kadam Kuan, Patna - 80003 through its Director Sanjay Kumar Srivastava .... .... Respondents / Respondents.
====================================================== Appearance:
For the Appellant : Mr. Vinod Kumar Kanth, Sr. Advocate and Mr. Kumar Kaushik, Advocate.
For the Respondent-State: Mr. Siddhartha Prasad, AC to AAG 4.
For the Respondent no. 4: Mr. Jitendra Singh, Sr. Advocate, Mr. Saket Tiwary and Mr. Sanjeev Kumar Dubey, Advocates.
====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH CAV Judgment.2 Patna High Court LPA No.378 of 2012 (14) dt. 10-10-2012 2/9
The 10th October 2012.
(Per: HONOURABLE THE CHIEF JUSTICE) Feeling aggrieved by the order dated 7th February 2012 made by the learned single Judge in CWJC No. 824 of 2012, the writ petitioner has preferred this Appeal under Clause 10 of the Letters Patent.
In answer to the tender notice dated 9th November 2011, the appellant, a Company incorporated, submitted its offer for supply of computer consumables (Smart Card and other equipments) to the Government of Bihar. The appellant submitted its offer in two parts; namely, technical bid and financial bid, as required. The technical bids were opened on 26th December 2011. The appellant was non-suited on the ground that the UIDAI (Unique Identification Authority of India) had debarred it. The information to that effect was sent to the appellant on 26th December 2011.
Feeling aggrieved, the appellant approached this Court under Article 226 of the Constitution in above CWJC No. 824 of 2012. According to the appellant, it was neither debarred nor blacklisted by the Central Government or the State Government or any Government Organization. The appellant was wrongly non-suited on the basis of the information supplied by the rival bidders. The appellant submitted a declaration issued by the Deputy Director, UIDAI on 29th December 2011 which reads as under:
"It is to state that M/s Madras Security Printers Pvt. Ltd. # 72, T.H. Road, Chennai-600081 was empanelled as one of the enrolling agencies (EAs) of UIDAI for undertaking Biometric & Demographic 3 Patna High Court LPA No.378 of 2012 (14) dt. 10-10-2012 3/9 enrolment during 2010-11. But, the request for renewal of this company has not been accepted by UIDAI as EA during year 2011-12.
However, M/s Madras Security Printers Pvt. Ltd. has not been black listed by UIDAI."
The petition was contested by the State Government. According to the State Government, the non- renewal of the empanelment of the appellant as an enrolling agency by the UIDAI amounts to a ban on the appellant. Thus, the appellant having been banned by the UIDAI, it was rightly non-suited in consonance with the terms of the tender notice. The State Government maintained that the information received by it had been verified by the State Government from the official website of the UIDAI. The said information was thus authentic and was rightly relied upon by the State Government.
In answer to the said reply, the appellant brought one more declaration issued by the Government of Puducherry, Department of Civil Supplies and Consumer Affairs which reads as under:
"This is to certify that Madras Security Printers Private Limited has been selected as System Integrator for "Implementation of Smart Card based Public Distribution System (PDS) in Puducherry. They successfully initiated the process of implementing the project. The enrollment process started in January 2011 and issue of Smart Card is in process.
Their sincerity and work efficiency is appreciable. Wish them all the success in their future 4 Patna High Court LPA No.378 of 2012 (14) dt. 10-10-2012 4/9 endeavors."
The learned single Judge has held that the empanelment of the appellant with the UIDAI had ended for violation of the prescribed terms and conditions. Hence, it amounts to a „ban‟ by the UIDAI. In view of the said finding, the learned single Judge has dismissed the writ petition. Therefore, this Appeal.
Learned counsel Mr. Vinod Kumar Kanth has appeared for the appellant. He has assailed the finding recorded by the learned single Judge. He has taken us through the record; particularly, the terms and conditions of the tender notice and the above referred two declarations. He has submitted that mere non- renewal of empanelment does not amount to „ban‟ or „blacklisting‟ as envisaged by the tender notice. The appellant, therefore, could not have been non-suited on the ground of non- renewal. He has further submitted that the materials under consideration were produced by the rival bidders; obviously, with oblique motive and ulterior intention. Such materials gathered by the State Government without information to the appellant could not have been relied upon against the appellant. He has further submitted that any information collected through Internet is not admissible in evidence. Such information could not have been used against the appellant. In support thereof, he has relied upon the judgment of the Hon‟ble Supreme Court in the matter of T.V. Venugopal Vs. Ushodaya Enterprises Ltd & Anr. [(2011) 4 SCC 85].
Learned advocate Mr. Siddhartha Prasad has appeared for the State Government. He has contested the Appeal. Pending the Appeal, the State Government made further enquiry 5 Patna High Court LPA No.378 of 2012 (14) dt. 10-10-2012 5/9 with the UIDAI. In answer to the said enquiry, under communication dated 19th September 2012, the Deputy Director, UIDAI has, in respect of the appellant, informed the State Government "their request for empanelment was not accepted as an EA during 2011-12 vide letter dated 23.08.2011 for violation of Terms & Conditions of empanelment." The accompanying information reads, "It is a matter of serious concern that inspite of clear prohibition of sub-contracting by UIDAI, & acceptance of the terms and conditions of empanelment by you, it has come on record that you have violated the said clause and have indulged in sub-contracting of enrolment work under the Aadhaar Project. Your clarification/justification has not been found satisfactory at all."
Mr. Siddhartha Prasad has submitted that although the appellant may not have been debarred or blacklisted; certainly, its conduct proves it to be an unreliable agency. He has submitted that in a matter of contract, interference by the High Court in exercise of power of judicial review under Article 226 of the Constitution should be minimal. He has submitted that the Court should not grant indulgence unless the same is in public interest. In the present case, even the public interest would not call for indulgence by the Court. In support thereof, he has relied upon the judgment of the Hon‟ble Supreme Court in the matter of Jagdish Mandal Vs. State of Orissa & Ors. [(2007) 14 SCC 517].
Pending the writ petition, the contract has been awarded to M/S Sreevan Infocom Ltd. (hereinafter referred to as "the Firm"). The Firm has been impleaded in the present Appeal 6 Patna High Court LPA No.378 of 2012 (14) dt. 10-10-2012 6/9 as respondent no. 4. The Firm has contested the Appeal.
Learned counsel Mr. Jitendra Singh has appeared for the Firm. He has alleged that the appellant was aware of the decision dated 26th December 2011. The appellant procured the above referred declaration on 29th December 2011. Nevertheless, it is the case of the appellant that until 4th January 2012 it was not aware of the decision of the State Government. He has submitted that ex facie the statement is not believable. He has further submitted that the Firm has been awarded contract on 15th February 2012. Since then the Firm has been supplying the materials as agreed. A considerable supply has been made by the Firm. In support of his submission, Mr. Singh has relied upon the judgment of the Hon‟ble Supreme Court in the matters of K.D. Sharma Vs. Steel Authority of India Ltd. & Ors. [(2008) 12 SCC 481] and of B.S.N. Joshi & Sons Ltd. Vs. Nair Coal Services Ltd. & Ors. [(2006) 11 SCC 548].
In the matter of T.V. Venugopal (Supra), the Hon‟ble Court has recorded, "It is the submission of the appellant that it is now an established position internationally in law that Wikipedia does not have any evidentiary value in the court proceedings. The same has been held by the US Court of Federal Claims in Campbell v. Secy. of Health and Human Services [69 Fed Cl 775 (2006)] and by the US Court of Appeals in Lamilem Badasa v. Michael B. Mukasey [540 F 3d 909 (8th Cir 2008)]."
In the matter of Jagdish Mandal (Supra), while considering the scope of judicial review of award of contracts, the Hon‟ble Court relied upon the judgment in the matter of Air India Ltd. Vs. Cochin International Airport Ltd. [(2000) 2 SCC 7 Patna High Court LPA No.378 of 2012 (14) dt. 10-10-2012 7/9 617] and quoted with approval, "Even when some defect is found in the decision-making process the court must exercise its discretionary power under Article 226 with great caution and should exercise it only in furtherance of public interest and not merely on the making out of a legal point. The court should always keep the larger public interest in mind in order to decide whether its intervention is called for or not. Only when it comes to a conclusion that overwhelming public interest requires interference, the court should intervene."
In the matter of K.D. Sharma (Supra), the Hon‟ble Court held, "If the applicant makes a false statement or suppresses any 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 ...."
In the matter of B.S.N. Joshi & Sons Ltd. (Supra), the Hon‟ble Court reproduced the decision in the matter of Air India Ltd. Vs. Cochin International Airport Ltd. [(2000) 2 SCC 617] with approval. It has held "that the award of a contract, whether by a private party or by a State, is essentially a commercial transaction. It can choose its own method to arrive at a decision and it is free to grant any relaxation for bona fide reasons, if the tender conditions permit such a relaxation. ..... the State, its corporations, instrumentalities and agencies have the public duty to be fair to all concerned. Even when some defect is found in the decision-making process, the court must exercise its discretionary powers under Article 226 with great caution and should exercise it only in furtherance of public interest and not merely on the making out a legal point. The court should always keep the 8 Patna High Court LPA No.378 of 2012 (14) dt. 10-10-2012 8/9 larger public interest in mind in order to decide whether its intervention is called for or not. Only when it comes to a conclusion that overwhelming public interest requires interference, the court should interfere."
Before we proceed further, let us examine the terms and conditions of the tender notice. So far as it is relevant for the present matter, the tender notice required the offerer to give an undertaking to submit technical and financial proposals and to submit with technical proposal "self attested undertaking that company has not been debarred / blacklisted by any Government or Government Organization." It is not in dispute that the UIDAI is a Government Organization. Although the UIDAI did not consider it expedient or desirable to continue the appellant on its panel of enrolled agencies, it neither debarred nor blacklisted the appellant. We do agree with Mr. Vinod Kumar Kanth that mere non-renewal of empanelment of the appellant by the UIDAI as an enrolled agency would not amount to debarment or blacklisting. We are also of the opinion that it was not sufficient for the State Government to rely upon the materials available on the official website of the UIDAI without making proper enquiry about such materials; more particularly, when such materials were brought to the notice of the State Government by the rival bidders. We are, therefore, of the view that the State Government ought to have made further enquiry with the UIDAI or to have sought clarification from the appellant in respect of such materials. Mere non-renewal of its empanelment as an enrolled agency would not non-suit the appellant from competing in the selection process.
Nevertheless, we are not inclined to interfere in the 9 Patna High Court LPA No.378 of 2012 (14) dt. 10-10-2012 9/9 present proceedings. As recorded hereinabove, the contract has already been awarded to the Firm and the Firm has been supplying the materials as agreed. The non-selection of the appellant or non-consideration of the appellant on comparative merits has no relevance to the public interest. On the contrary, the public interest demands that the process of issuance of the Unique Identification Number to the citizens is completed at the earliest without any interruption. In view of the materials before us; particularly, the above referred clarification dated 12 th September 2012 submitted by the UIDAI, nobody can give any certificate of good conduct to the appellant. No prejudice can be said to have been caused to the people at large because the appellant was not allowed to participate in the selection process. Further, in view of the above referred information contained in the letter dated 19th September 2012 and considering the credibility of the appellant, no fruitful purpose shall be served by allowing the appellant to participate in the selection process at this stage. The Court exercising power of judicial review under Article 226 of the Constitution will refrain from issuing such futile directions.
For the aforesaid reason, the Appeal is dismissed. Interlocutory Application stands disposed of.
Sd/-
(R.M. Doshit, CJ) I agree.
Ahsanuddin Amanullah, J.-
Sd/-
(Ahsanuddin Amanullah, J) NAFR Dilip.