Himachal Pradesh High Court
Dalip Singh Rathore vs Himachal Pradesh Housing And Urban ... on 25 November, 2020
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CWP Nos. 3021 of 2018 & 363 of 2019
Decided on: November 25, 2020
.
________________________________________________________________
1. CWP No. 3021 of 2018
Dalip Singh Rathore .. Petitioner
Versus
Himachal Pradesh Housing and Urban Development Authority
and others
..........Respondents
2. CWP No. 363 of 2019
M/s Level 9 Biz Pvt. Ltd. .. Petitioner
Versus
Himachal Pradesh Housing and Urban Development Authority
and others
..........Respondents
________________________________________________________________
Coram:
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? 1 yes.
________________________________________________________________
CWP No. 3021 of 2018
For the petitioner : Mr. K.D. Shreedhar, Senior
Advocate with Mr. Sameer
Thakur, Advocate.
For the respondents : Mr. Ajay Vaidya, Advocate, for
respondent No.1.
Mr. Ramakant Sharma, Senior
Advocate with Ms. Devyani
Sharma, Advocate, for respondent
No.2.
None for respondent No.3.
CWP No. 363 of 2019
1
Whether the reporters of the local papers may be allowed to see the judgment?
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2
For the petitioner : Mr. K.D. Shreedhar, Senior
Advocate with Mr. Sameer
Thakur, Advocate.
.
For the respondents : Mr. Ajay Vaidya, Advocate, for
respondents Nos. 1 and 2.
Mr. Ramakant Sharma, Senior
Advocate with Ms. Devyani
Sharma, Advocate, for respondent
No.3.
Mr. Anoop Rattan, Advocate, for
Mr. Sandeep Sen, Executive
Engineer, in both the petitions.
________________________________________________________________
Sandeep Sharma, Judge:
O R D E R Both the above captioned petitions arise out of same tender process, as such, same were tagged and are being heard together.
2. For having bird's eye view of the matter, certain undisputed facts as emerge from the pleadings adduced on record are that the H.P. Housing and Urban Development Authority (hereinafter, 'HIMUDA') in the year 2017, floated tenders vide Notice Inviting Tender (hereinafter, 'NIT') dated 5.8.2017 (Page 344 of CWP No. 363 of 2019) for the work namely, "Construction of proposed Commercial Complex at Vikas Nagar (near Petrol Pump) Shimla HP (SH:- Construction of 102 Nos Shops, 7 Nos Kiosk, Food Court, Offices, Coffee Shop, Stores, Multiplex halls, Parking floors for 217 Nos.
Vehicles, development of land Scaping area, Boundary wall ::: Downloaded on - 01/12/2020 20:16:57 :::HCHP 3 including internal & external services, fire fighting works (internal & external), Electrical works (internal & external), .
HVAC work (air Conditioning), BMS (Building Management System) and Lifts & escalator etc. (Eleven storied Pre-
fabricated building using E.P.S. Technology)". The estimated cost of tender was Rs.85,30,43,091/-. However, for the reasons best known to HIMUDA, aforesaid NIT was not taken to its logical end, rather HIMUDA, vide NIT dated 4.10.2018 (page 17 of CWP No. 363 of 2019), invited e-tender for the aforesaid work, putting the estimated cost of Rs.45,44,66,273/- only. As per the terms and conditions contained in the NIT, contractors enlisted with the Government of Himachal Pradesh and its agencies as well as neighbourng States of Punjab and Haryana and Chandigarh (UT) could participate in the aforesaid tendering process of HIMUDA, but, subsequently, the successful bidder was required to get itself registered with HIMUDA under appropriate class before signing the contract. Provisions of NIT dated 4.10.2018, which may be relevant at this stage are as under:
"4.3 v) Contractor/firm would be considered pre-qualified who have successfully executed (without Liquidated Damage or compensation) Three similar works of 40% of the estimated cost put ::: Downloaded on - 01/12/2020 20:16:57 :::HCHP 4 to tender, Or Two similar works of 50% of the estimated cost put to tender, Or One similar work of 80% of the estimated cost put to tender."
.
As per para d) of CWP No. 3021 of 2018, there was yet another condition that the tender or any of the company which form a JV/Consortium should to have any type of dispute with the bank from the last five years such as NPA (Non Performing Assets) etc."
3. Respondent HIMUDA once again did not take any action pursuant to aforesaid NIT dated 4.10.2018, rather issued another NIT (page-41 of CWP No. 3021 of 2018) for the same work but the eligibility condition for participation in tender came to be changed/modified as under:
"36. Eligibility criteria:
36. The Tender/Bid shall be submitted in Two parts:
(i) Part-I Technical bid
(ii) Part-II Financial Bid.
Technical Eligibility: The Financial Bids of only those bidders will be opened who qualify the eligibility criteria given below: -
(a) The intending tenderer shall have successfully executed the civil engineering works and either of the firm in JV/Consortium should have executed atleast one similar nature of work i.e. Pre-Feb structure with EPS walls technology having certification from Council of Council of Scientific & Industrial Research (CSIR-SERC), India or equivalent authorized agency in this regard (without Liquidated Damage or compensation) 36.2 (This eligibility condition shall be applicable to those works of amount put to tender is more than Rs.50.00 lacs) ::: Downloaded on - 01/12/2020 20:16:57 :::HCHP 5
a) Work Done Detail. In last five years with base year indicated in proforma below:
Addition ............... Deletion .......... Correction ......
.
Overwriting Contractor ........ ) (EE.......................) Sr. Name of Name Amount of work completed Remarks No. HP Govt. of indicate in % division work of completion or Sttae of awarded or component(s).
Central PSU's where work is executed Awarded Completion Penalty if amount amount any and amount paid r thereafter
(b) Work in hand detail:
S. name of the amount of work completed position of stipulated remarks No. HP Govt. work in date of Division or progress completion State or (indicate in % Central Awarded Amount of Penalty of of completion PSU' where amount work done any and of awarded work is upto last amount components executed running paid bill thereafter
1. 2. 3.
These statements should be countersigned by the Engineer in charge, not below the rank of an Executive Engineer or equivalent in State/ Central Govt. PSU's with his seal.
(c) Bidding Capacity: Bidders who meet the minimum qualification criteria will be qualified only if their assessed available bid capacity for construction works is equal to or more than the total bid value. The available bid capacity will be calculed as under:
::: Downloaded on - 01/12/2020 20:16:57 :::HCHP 6(d) Assessed Available Bid capacity = (Ax NxM-b) Where A= Maximum value of similar caviling engineering .
works with EPS Technology executed in any one year during the least five years (updated to the price level of the financial year in which bid revised at the rate of 8 percent a year taking into account the completed as well as works in progress.
Last Five year Amount of
(excluding work done
current year) in each
financial
year
Total annual volume of (Rs. In lakhs)
civil engineering
Year-
construction work
executed and Year-
payments received in
Year-
the last five years
preceding the year in Year-
which bids are
Year-
invited/(attach/upload
certificate from
Charated Accountant)
N-Number of years prescribed for completion of the works for which bids rae Invited (period upto 6 months to be taken as half-year and more than 6 months as one year).
M=2 B= Value, at the current price level, of existing commitments and on-going works to be completed during the period of completion of the works for which bids are invited. The details should be on the formats indicated in condition No. 36.
(d): Deleted.
::: Downloaded on - 01/12/2020 20:16:57 :::HCHP 7(d) 1(i) . Minimum work done condition: - Minimum one similar nature of work done of amount not less than 40% (forty percent) of the estimated .
cost (without Liquidated Damage or compensation) in last five years."
4. If subsequent tender issued in November, 2018 is perused juxtaposing the NIT issued in October, 2018, it clearly suggests that most relevant conditions of having executed three similar works of 40% of the estimated cost or two similar works of 50% of the estimated cost or one similar work of 80% of the estimated cost of the tender were changed/eased to just one work of 40% of the estimated cost and other alternative conditions of having carried out two similar works of 50% or one similar work of 80% of the estimated cost were deleted/removed. Most importantly, in the subsequent tender, which is subject matter of the petitions at hand, HIMUDA removed the mandatory condition of having not disputes with the Banks/NPA.
5. Pursuant to aforesaid tender issued in November, 2018, petitioners namely Dalip Singh Rathore, M/s Level 9 Biz Pvt. Ltd. and M/s Vasu Construction Company participated in the tender process alongwith other eligible contractors.
Technical bid submitted by the petitioner Dalip Singh Rathore ::: Downloaded on - 01/12/2020 20:16:57 :::HCHP 8 primarily came to be rejected on the ground that he has only submitted work done certificate qua civil engineering work and .
not qua the works executed by him, if any, under E.P.S. technology. Besides above, the Technical Bid of above named contractor was rejected on the ground that he has not attached JV/Consortium agreement. Technical Bids submitted by the petitioner M/s Level 9 Biz Pvt. Ltd. and the respondent, M/s Vasu Construction Company were accepted on 14.12.2018, whereafter r on 15.12.2018, Financial Bids submitted by aforesaid parties were opened by the Technical Evaluation Committee (hereinafter, 'TEC'). Since the respondent M/s Vasu Construction Company was found to be lowest bidder, it became entitled for award of the work in question. Record reveals that on 15.12.2018 itself, successful bidder i.e. M/s Vasu Construction Company requested HIMUDA to issue award letter to it. Vide communication dated 17.12.2018, Executive Engineer, HIMUDA, Shimla apprised the successful bidder M/s Vasu Construction Company that on 15.12.2018, in the tender through e-tendering system for the work in question, the bid submitted by it has been found to be the lowest. In the aforesaid communication, authority concerned, apprised the successful bidder that there are ::: Downloaded on - 01/12/2020 20:16:57 :::HCHP 9 higher rates for some items, for which it would be requested to attend the office of the authority to assess reasonable rates .
and to qualify higher rates, however, interestingly, vide aforesaid communication, authority concerned, without finalization of rates and conclusion of contract agreement inter se parties, requested the successful bidder to start the work immediately by arranging requisite resources required for the work. While issuing aforesaid direction, authority concerned made it clear that this Letter of Intent and the undertaking would form part and parcel of the contract agreement and contract would commence only after signing of the agreement by both the parties. Aforesaid Letter of Intent dated 17.12.2018 was subsequently withdrawn vide communication dated 2.1.2019 issued by the Executive Engineer, HIMUDA, Division Shimla, on the ground that the matter is pending adjudication before this Court, but even in this communication, authority concerned, reminded the successful bidder that till date it has not taken over the site, meaning thereby that though the Letter of Intent issued vide communication dated 17.12.2018 was withdrawn but still the successful bidder i.e. M/s Vasu Construction Company was ::: Downloaded on - 01/12/2020 20:16:57 :::HCHP 10 asked by the authority concerned to proceed with the work in question.
.
6. Being aggrieved and dissatisfied with the rejection of Technical Bid, the petitioner-Dalip Singh Rathore approached this Court by way of CWP No. 3021 of 2018, praying therein for the following main reliefs:
"i) Quashing the Notice Inviting Tender issued by the respondent no. 1 at annexure P-5.
ii) Quashing the decisions of the respondent taken pursuant to the NIT at annexure P-5.
iii) For holding that condition of having carried out construction work in past using EPS technology and similar such conditions cannot be incorporated as an essential eligibility condition of bidding for the work involved in annexure P-5, in view of submissions made in the writ petition.
iv) For holding that condition of having carried out 1 work of 80%, 2 works of 50% and 3 works of 40% of the estimated value of tender work could not be diluted to just 1 work of 40% of estimated value of tender work in question.
v) For holding that the respondents cannot remove the general required condition from the tender that a bidder should not have Non Performing Assets or disputes with banks, which was also there in the original tender at annexure P-1.
vi) For directing the respondent to produce the entire record of tender in question and bids made by the tenderers in the Hon'ble Court and to see the compliance of conditions by those who have been declared as qualified as to the knowledge of the petitioners even those who are declared as qualified do not satisfy the eligibility conditions and had not submitted the required documents including the Joint Venture documents at the time of submission of the bids."::: Downloaded on - 01/12/2020 20:16:57 :::HCHP 11
7. Similarly, L-2, M/s Level 9 Biz Pvt. Ltd. also .
approached this Court by way of CWP No. 363 of 2019, praying therein to set aside the impugned decision dated 15.12.2018 of the respondent HIMUDA to the extent of accepting the Financial Bid of respondent No.3 M/s Vasu Construction Company. Aforesaid petitioner in the petition also prayed that after rejection of the Technical and Financial Bids of M/s Vasu Construction Company, it (petitioner) may be awarded work in question being successful bidder. On 24.12.2018, Hon'ble Division Bench of this Court, while issuing notice in CWP No. 3021 of 2018, having been filed by Dalip Singh Rathore, directed HIMUDA to make available records of M/s Vasu Construction Company as well as M/s Level 9 Biz Pvt. Ltd. alongwith their applications. On 1.1.2019, Hon'ble Division Bench, having perused the record, observed that the nature of bilateral agreement between M/s Vasu Construction Company and M/s Beardsell Limited, to which HIMUDA is not a party, there is no commitment by Beardsell Limited by way of agreement with HIMUDA. In the aforesaid background learned Counsel appearing for HIMUDA sought time to have fresh instructions in the matter:
::: Downloaded on - 01/12/2020 20:16:57 :::HCHP 128. On 9.1.2019, learned Counsel appearing for HIMUDA made available order dated 1.1.2019 issued by .
HIMUDA intimating Hon'ble Division Bench that a Committee comprising of three officers of HIMUDA has been constituted to review the tender process.
9. On 9.4.2018, both the petitions were clubbed and admitted for hearing. Vide aforesaid order, court also ordered that the allotment of tender shall remain stayed till the next date of hearing. After admission, both the matters came to be listed before this Court for hearing and since then, same are being heard together.
10. Petitioner, Dalip Singh Rathore in his writ petition i.e. CWP No. 3021 of 2018, has laid challenge to the action of the respondent-HIMUDA on the following grounds:
1. Relevant condition of having carried out three works of 40% of the estimated value or two similar works of 50% of the estimated value or one similar work of 80% of the cost of tender was eased out just to just one similar work of 40% of the estimated value, with a view to award tender to its favourite contractor.
2. Respondent HIMUDA could not have removed the condition of having no dispute with the banks/Non Performing Assets but the same has been also done with a view to ensure entry of those persons/firms, whose accounts have been declared as NPA.
3. Condition of having done work using EPS Technology has been incorporated solely with a view to oust local contractors who ::: Downloaded on - 01/12/2020 20:16:57 :::HCHP 13 otherwise have sufficient experience in the construction of buildings.
.
11. Writ petitioner in CWP No. 363 of 2019 has sought rejection of Technical and Financial Bids of the successful bidder i.e. M/s Vasu Construction Company on the following grounds:
1. Experience of M/s Vasu Construction Company for similar nature of work of pre-fabricated structure with EPS technology as per Clause 36(i)a) of technical eligibility criteria was sought to be shown through expereicne of one M/s Beardsell Limited but in this regard M/s Vasu Construction Company has submitted only joint agreement of M/s Beardsell Limited and not an agreement/Joint Venture as mandated vide clause 36.2(d)1(i) of the NIT. Besides above, petitioner M/s Level 9 Biz Pvt. Ltd. has alleged that the Technical Bid document of M/s Vasu Construction Company shows experience of Porta Cabin Huts through M/s Beardsell Limited, hence, it amounts to admission on the part of successful bidder as to having no experience of pre-fabricated steel structures with EPS wall panels with shotcrete. Besides above, petitioner M/s Level 9 Biz Pvt. Ltd. has alleged that Beardsell Limited with whom M/s Vasu Construction Company has collaborated is not a contractor, rather a supplier and as such, Technical Bid furnished by M/s Vasu Construction Company ought to have been rejected.
12. This Court with a view to ascertain the correctness of the aforesaid allegations/grievances as raised by the ::: Downloaded on - 01/12/2020 20:16:57 :::HCHP 14 petitioners vis-à-vis reasoning assigned by the respondent HIMUDA while accepting the Technical and Financial Bids of .
the successful bidders M/s Vasu Construction Company, besides perusing original record also afforded reasonable opportunity to Learned Senior Counsel appearing for the parties to address their arguments.
13. On 22.9.2020, this Court perused the original record with regard to tender in question and found that certain complaints were received in the office of HIMUDA with regard to illegalities and irregularities committed by TEC, while assessing tender in question. Record further reveals that the complaints with regard to illegalities and irregularities committed by TEC, while evaluating tenders submitted by the contractors were made to Hon'ble Chief Minister and the Director-General, Vigilance. It appears that pursuant to aforesaid complaints, the Chief Executive Officer-cum-
Secretary HIMUDA, vide order dated 1.1.2019, constituted a Committee comprising of following three officers of HIMUDA, to review the tender process:
1. Ms. Anjori Kapoor, Superintending Engineer (South), HIMUDA
2. Ar. Ashok Gupta, Senior Architect, HIMUDA, and
3. Shri Chander Shekhar Sewal, Chief Accounts Officer, HIMUDA ::: Downloaded on - 01/12/2020 20:16:57 :::HCHP 15
14. Aforesaid Committee in its meeting held on .
5.1.2019, reviewed the tender process and arrived at following conclusion(s):
"Conclusion:-
As elaborated above, the committee is of the considered opinion that there are many lapses on the part of the Technical Evaluation Committee as has been discussed in the foregoing paragraphs above. The Committee therefore, unanimously opens:-
1. In accordance with the provisions contained in the tender documents and in the consideration of the whole process of tender in the interest of HIMUDA, either the tender document of M/S Vasu Construction can be considered for awarding the work subject to clarification as suggested by the committee in bid capacity, work done & J.V agreement or the entire bid process may be cancelled & fresh bids be called.
2. In order to ensure that such lapses are not repeated in future, in the evaluation of tenders, the warranted action may be initiated against the erring officers/officials."
15. However, interestingly, aforesaid report submitted by the Committee, as referred to above, was never brought to the notice of the Court in pending matter, rather, HIMUDA, in its reply to the petition, placed another Committee report under the signatures of Chief Executive Officer-cum-Secretary HIMUDA (Annexure R-1/C annexed with the reply filed in CWP No. 3021 of 2018). In the aforesaid report, documents submitted by two contractors namely Dalip Singh Rathore and ::: Downloaded on - 01/12/2020 20:16:57 :::HCHP 16 M/s Vasu Construction Company came to be evaluated by the Committee constituted vide order dated 1.1.2019, comprising .
of three officers to review the entire tender process. Similarly, this Court having perused the record especially the reply of respondent No.3 found that HIMUDA, for the reasons best know to it, withheld some material documents from the court, especially with regard to the work done certificate and experience of having done work with E.P.S. technology.
Besides above, this Court found from the reply of the respondent HIMUDA that award letter issued by the Executive Engineer, Patna Paschhim Building Division, Danapur, Patna, came to be considered as experience certificate of having done work with E.P.S. technology (Annexure R-3/K annexed with the reply filed in CWP No. 363 of 2019). Similarly, this Court found from the record that no documents ever came to be submitted by the successful bidder alongwith its bid/tender, suggestive of the fact that M/s Beardsell Limited, with whom successful bidder M/s Vasu Construction Company formed Joint Venture, is a qualified contractor to construct the building with E.P.S. technology, rather, the record reveals that "Beardsell Ltd." is the manufacturer and service provider of EPS Core Technology India with five factories and nine ::: Downloaded on - 01/12/2020 20:16:57 :::HCHP 17 marketing offices. Record also reveals that aforesaid company manufactures and supplies EPS Core Panels and thereafter .
provides its engineers for technical assistance.
16. Agreement dated 10.12.2018 executed inter se M/s Vasu Construction Company and M/s Beardsell Limited, which subsequently came to form part of the tender documents submitted by M/s Vasu Construction Company reveals that M/s Beardsell Limited has been shown to be contractor of pre-fabricated building/steel structures with E.P.S. technology but to support aforesaid claim, no document worth credence ever came has been placed on record by the successful bidder. All the documents adduced on record by the successful bidder are suggestive of the fact that M/s Beardsell Limited is a manufacturer of EPS Core Panels and not a contractor.
17. Clause 36 a) of NIT clearly provides that the intending tenderer shall have successfully executed civil engineering works of either form. The Joint Venture should have executed at least one similar nature of work of E.P.S. with wall technology having certification from Council of Scientific & Industrial Research (CSIR-SERC).
::: Downloaded on - 01/12/2020 20:16:57 :::HCHP 1818. Having heard Learned Counsel appearing for the parties and perused the material available on record, vis-à-vis .
allegations of illegalities and irregularities committed by the authorities, while evaluating tender in question, this Court deemed it necessary to cause presence of Chief Executive Officer-cum-Secretary HIMUDA and Superintending Engineer concerned in the court. Pursuant to order dated 22.9.2020, Mr. Akshey Sood, Chief Executive Officer-cum-Secretary HIMUDA came r present alongwith Ms. Anjori Kapoor, Superintending Engineer (South), HIMUDA in the court. This Court again perused the record in the presence of aforesaid officers but they were unable to justify the alleged illegalities and irregularities committed by the authorities while evaluating tender in question, however, on that day, Mr. Ajay Vaidya, learned Counsel appearing for HIMUDA sought an adjournment enabling Chief Executive Officer-cum-Secretary, HIMUDA to peruse the record and take an appropriate decision.
19. It is pertinent to take note of the fact that during proceedings of the case, this Court besides summoning Ms. Anjori Kapoor, Superintending Engineer (South), HIMUDA, also summoned Mr. Sandeep Sen, Executive Engineer, ::: Downloaded on - 01/12/2020 20:16:57 :::HCHP 19 HIMUDA, especially with a view to ascertain that under what authority and under whose instructions, he had issued .
communication dated 17.12.2018, whereby M/s Vasu Construction Company was given Letter of Intent to commence the work in question. Both the officers, as referred to above, made startling revelations before this Court. Ms. Anjori Kapoor, Superintending Engineer stated before this Court that the report of the preliminary enquiry placed on record alongwith reply of HIMUDA is not the report submitted by the Committee constituted under her chairmanship. Similarly, Mr. Sandeep Sen, Executive Engineer stated before this Court that the communication dated 17.12.2018 was issued to M/s Vasu Construction Company after having obtained necessary permission from the then Chief Executive Officer-cum-
Secretary HIMUDA. In the aforesaid background, on 25.9.2020, this Court after having heard submissions made in detail by Mr. Ramakant Sharma, learned Senior Advocate appearing for M/s Level 9 Biz Pvt. Ltd., passed following order:
"Mr. Ramakant Sharma, learned Senior Counsel representing respondent No.2 i.e. Vasu Constructions Co., have completed his arguments, but before matter could be heard further, Mr. Ajay Vaidya, learned counsel for HIMUDA made available communication dated 24.9.2020, addressed ::: Downloaded on - 01/12/2020 20:16:57 :::HCHP 20 to him by CEO-cumSecretary, HIMUDA, perusal whereof reveals that HIMUDA has reviewed the matter after going through the records of the case and has proposed to cancel .
the tender in question. Though aforesaid communication is taken on record, but before considering aforesaid proposal made on behalf of HIMUDA, this Court deems it necessary to peruse the record so that responsibility of erring officials, if any, is fixed and it is ascertained whether matter needs to be investigated by an independent agency and as such, learned counsel representing HIMUDA is directed to make available complete records of the case on the next date of hearing.
Mr. Sandeep Sain, Executive Engineer, HIMUDA, who is present in the Court categorically states before this court that letter dated 17.12.2018, whereby M/s Vasu Construction Company was given letter of intent to commence the work in question, was issued after having obtained necessary permission from CEO-cum-Secretary HIMUDA. He further states that letter dated 2.1.2019, whereby letter of intent issued in favour of the Vasu Construction Co., was withdrawn, was also issued by him under the instructions of CEO-cumSecretary HIMUDA. Since CEO cum Secretary, HIMUDA, who had authorized Mr. Sandeep Sain, Executive Engineer, HIMUDA to write aforesaid communication has retired, let Mr. Sandeep Sain place aforesaid facts on record by way of an affidavit on or before the next date of hearing.
Ms. Anjoori Kapoor, Superintending Engineer (South), HIMUDA, who is also present in the Court states that report of preliminary inquiry placed on record along with reply filed by the HIMUDA (Annexure R1-C) is not the report, which was submitted by the committee constituted under her chairmanship, rather she by way of her report had informed the CEO cum Secretary HIMUDA that either tender of M/s Vasu constructions can be considered for awarding the work subject to clarification as suggested by the Committee in bid ::: Downloaded on - 01/12/2020 20:16:57 :::HCHP 21 capacity, work done & J.V. agreement or the entire bid process may be cancelled and fresh bids be called. Let aforesaid facts be also placed on record by Ms. Anjoori .
Kapoor, Superintending Engineer (South), HIMUDA, by way of an affidavit, on or before the next date of hearing. While filing affidavit, as referred herein above, officer concerned may also place on record report submitted by her to the CEO cum Secretary, HIMUDA, copy whereof was made available to this Court during the proceedings of the case.
List on 12.10.2020."
20. Pursuant to aforesaid direction issued by this Court, both the officers as named above, filed their respective affidavits. Ms. Anjori Kapoor, Superintending Engineer (South) HIMUDA filed two affidavits, one is dated 4.10.2020, stating therein that she was the Chairman of the Committee which conducted the preliminary enquiry and after conclusion of the enquiry, report was forwarded to Chief Executive Officer-cum-
Secretary HIMUDA, vide letter dated 11.1.2019. Alongwith aforesaid affidavit, aforesaid officer also submitted report of the meeting of the Committee held on 7.1.2019.
21. In her second affidavit dated 29.10.2020, Ms. Anjori Kapoor, Superintending Engineer placed on record minutes of enquiry committee held on 7.1.2019 and stated that the Chief Executive Officer-cum-Secretary HIMUDA vide letter dated 16.2.2019, requested, to submit separate report of ::: Downloaded on - 01/12/2020 20:16:57 :::HCHP 22 the contractors, who are petitioners only and accordingly, report was submitted by stating that report submitted by the .
Committee dated 11.1.2019 has detail of both the contractors namely, Dalip Singh Rathore and M/s Vasu Construction Company. She also deposed in the aforesaid affidavit that the report was submitted to Chief Executive Officer-cum-Secretary HIMUDA on 14.8.2019 with regard to letter of M/s Level 9 Biz Pvt. Ltd., dated 2.1.2019, addressed to Hon'ble Chief Minister, Himachal Pradesh. She deposed in her second affidavit that two complaints were received against Mr. Sandeep Sen, Executive Engineer, on 10.12.2018 and 10.1.2019 and enquiry reports of these complaints were submitted to the Chief Executive Officer-cum-Secretary HIMUDA on 21.8.2019. She has stated in the affidavit that in the conclusion part of the enquiry report, annexed as Annexure D, only one finding was given by the committee that "the Committee is of the considered opinion that there are lapses on the part of TEC, as has been discussed in the foregoing paragraphs, as such, responsibility for those lapses through suitable action as deemed fit may be taken against TEC. ' Above named Superintending Engineer has stated in the affidavit that ::: Downloaded on - 01/12/2020 20:16:57 :::HCHP 23 intimation with regard to withdrawal of Letter of Intent by Executive Engineer was received by her on 2.1.2019.
.
22. Mr. Sandeep Sen, Executive Engineer, in his affidavit has categorically stated that the Letter of Intent dated 17.12.2018 and letter of withdrawal dated 2.1.2019 to M/s Vasu Construction Company were issued under the instructions and on the approval of the then Chief Executive Officer-cum-Secretary, HIMUDA.
23. During proceedings of the case, serious allegations of favouritism and nepotism came to be levelled against the officers named herein above as well as other authorities manning higher posts in HIMUDA. Parties to the lis, with a view to demonstrate bias and personal interest of the Executive Engineer, Mr. Sandeep Sen, alleged that aforesaid officer, during his posting as Executive Engineer, Dharamshala Division, awarded maximum and major projects to one party. It also transpired during the proceedings of the case that one CWP No. 2291 of 2017 titled Naresh Kumar Tuli vs. H.P. Housing and Urban Development Authority was filed before this Court in the year 2017, laying therein challenge to the action of HIMUDA in awarding construction work of Civil Hospital building at Bharmour to the petitioner, M/s Level 9 ::: Downloaded on - 01/12/2020 20:16:57 :::HCHP 24 Biz Pvt. Ltd. On 12.10.2017. This Court directed the parties to maintain status quo as of that day, in the aforesaid .
proceedings. Aforesaid matter remained pending adjudication before Hon'ble Division Bench of this Court for quite a considerable time but on 21.12.2019, petitioner in that case, handed over a communication dated 18.11.2018, addressed to the Chief Executive Officer-cum-Secretary, HIMUDA pointing out that in the PAC meeting held on 29.10.2018, it has been decided that the construction of new hospital building will be executed by HPPWD at the existing hospital premises, abandoning the pre-fabricated technology and earlier proposed site. Having taken note of the aforesaid communication, Hon'ble Division Bench of this Court, vide judgment dated 28.12.2018, disposed of CWP No. 2291 of 2017 as having been rendered infructuous, reserving liberty to the petitioner to approach the court again, if required.
However, during proceedings of the present case(s), it came to the notice of the Court that the respondent HIMUDA despite having communicated aforesaid decision of PAC to get the hospital building constructed at Bharmour by HPPWD, of its own, without seeking permission from the Court, permitted M/s Level 9 Biz Pvt. Ltd. (respondent in CWP No. 2291 of ::: Downloaded on - 01/12/2020 20:16:57 :::HCHP 25 2017) to raise construction of hospital building at Bharmour on the same site, that too, on the basis of tender which was .
subject matter of CWP No. 2291 of 2017. It is not understood that how the respondent HIMUDA, which had informed this Court that PAC in its meeting held on 29.11.2018 has decided to get the building of new hospital constructed through HPPWD abandoning pre-fabricated technology, could permit M/s Level 9 Biz Pvt. Ltd. to construct the building at Bharmour on the basis of earlier contract, which was not only the subject matter of CWP No. 2291 of 2017, but that was abandoned by the respondents, enabling HPPWD to construct the building at new site.
24. In the aforesaid background, vide order dated 27.10.2020, this Court directed Mr. Umesh Sharma, Chief Executive Officer-cum-Secretary, HIMUDA as well as Mr. Surender Vashisht, Superintending Engineer, North to come present in the court alongwith records. Mr. Umesh Sharma, Chief Executive Officer-cum-Secretary, HIMUDA, specifically denied the claim of Mr. Sandeep Sen, Executive Engineer that Letter of Intent dated 17.12.2018 and letter of award dated 2.1.2019 were issued under his instructions and approval. He ::: Downloaded on - 01/12/2020 20:16:57 :::HCHP 26 claimed that rather, he, after having received complaints had constituted a enquiry committee.
.
25. Mr. Surender Vashishta, Superintending Engineer North, HIMUDA, under whose jurisdiction, Bharmour falls, stated before this Court that the building of hospital at Bharmour was got constructed through M/s Level 9 Biz Pvt.
Ltd., after passing of order dated 28.12.2018 in CWP No. 2291 of 217 on the instructions and directions of the then Chief Executive Officer-cum-Secretary, r HIMUDA, Mr. Umesh Sharma.
26. In the aforesaid background, this Court passed following order on 5.11.2020:
"Pursuant to orders dated 25.09.2020 and 16.10.2020, Ms. Ajoori Kapoor, Superintending Engineer, South, HIMUDA, has filed her affidavit. On 16.10.2020, Ms. Ajoori Kapoor, Superintending Engineer, South, HIMUDA, informed this Court that pursuant to order dated 25.09.2020, she has already filed her affidavit annexing therewith report of inquiry submitted by her, but since, same was not on record, she was directed to re-file the same after removing objections, if any. Thereafter, matter came to be listed on 27.10.2020, when this Court found that though affidavit filed by Sh. Sandeep Sen, Executive Engineer, HIMUDA, in terms of order dated 25.9.2020, was on record, but affidavit of Ms. Ajoori Kapoor, Superintending Engineer, South, HIMUDA was not on record and accordingly, directed the aforesaid officer to do the needful on or before the next ::: Downloaded on - 01/12/2020 20:16:57 :::HCHP 27 date of hearing. However, it appears that after passing of order dated 27.102020, above named Superintending Engineer, has filed fresh affidavit, which is definitely .
different from the affidavit which she had filed earlier prior to passing of order dated 16.10.2020 and 27.10.2020 as is evident from the copy of affidavit dated 4.10.2020, made available by learned Senior Counsel representing the respondents. Since, copy of aforesaid affidavit stands filed in the Registry of this court, but same is not on record, registry is directed to place the same on record, if in order, forthwith without insisting upon the deponent to remove the objection.
Pursuant to order dated 27.10.2020, Sh. Umesh Sharma, CEO-cum-Secretary, HIMUDA as well as Sh. Surinder Vashist, Superintending Engineer (North) have come present. Sh. Umesh Sharma, states before this Court that at no point of time, he had issued any verbal directions to Sh.
Sandeep Sen, Executive Engineer, HIMUDA, to issue communication dated 17.12.2018, whereby letter of content was issued to Ms. Vasu Construction Company. He further states that communication dated 22.12.2018 whereby letter of intent, issued pursuant to communication dated 17.12.2018, was withdrawn, was also not issued on his verbal directions and same was received in his office on 4.1.2019, by which time, he had already constituted an inquiry. Since, contradictory stand has been taken by the aforesaid officer, this Court deems it fit to direct Sh. Umesh Sharma, the then CEO-cum-Secretary, HIMUDA to file his personal affidavit stating the facts as have been revealed to this Court during the proceeding of the case. Needful shall be done by the aforesaid officer within a period of 10 days. Sh. Surinder Vashist, Superintending Engineer (North) fairly states that vide communication dated 15.11.2018, addressed to CEO-cum-Secretary, HIMUDA , it was informed that PAC in its meeting held on 29.10.2018, has decided to get the new hospital constructed at Bharmour by HPPWD ::: Downloaded on - 01/12/2020 20:16:57 :::HCHP 28 abandoning the prefabricated technology and in this background, CWP bearing No. 2291 of 2017 titled Naresh Kumar Tuli vs. H.P. Housing and Urban Development .
Authority & others, was dismissed having rendered infructuous. Mr. Vashist further states that however, subsequently, hospital building at Bharmour, was got constructed by builder/contractor, whose tender was earlier accepted and work was awarded vide award dated 9.10.2017. In an answer to the query raised by this Court that once statement was made before this court by the department that building at Bharmour now shall be got constructed by HPPWD, how it again came to be awarded to a contractor, that too, on the basis of tender submitted by him which was subject matter of CWP bearing No. 2291 of 2017, above-named officer apprised this court that the then CEO-cum-Secretary, HIMUDA vide communication dated 5.3.2019 had informed that tender qua the aforesaid work in question, stands already approved vide award date 9.10.2017 and as such, building was allowed to be constructed by Level-9 Biz Private Limited, i.e. petitioner in CWP No. 363 of 2019. Sh. Vashist, to place on record these facts on his affidavit so that same are formed part of the record before passing further orders. Sh. Umesh Sharma, CEO-cum-Secretary, HIMUDA may also clarify the aforesaid aspect of the matter with regard to construction of hospital at Bharmour, in his affidavit.
List on 23.11.2020."
27. Pursuant to aforesaid orders, Mr. Umesh Sharma, the then Chief Executive Officer-cum-Secretary, HIMUDA and Mr. Surender Vashisht, Superintending Engineer North, have filed their respective affidavits. Mr. Umesh Sharma, the then Chief Executive Officer-cum-Secretary, HIMUDA has reiterated ::: Downloaded on - 01/12/2020 20:16:57 :::HCHP 29 by way of affidavit that at no point of time, he had instructed/approved issue of Letter of Intent dated 17.12.2018 .
and letter of withdrawal dated 2.1.2019.
28. Affidavit of Mr. Surender Vashisht, Superintending Engineer, filed in terms of direction issued by this Court, also reveals that after passing of judgment dated 28.12.2018 in CWP No. 2291 of 2017, the then Chief Executive Officer-cum-
Secretary, HIMUDA, Umesh Sharma, for the reasons best known to him, permitted M/s Level 9 Biz Pvt. Ltd. to carry out construction of Hospital building at Bharmour.
29. Having heard Learned Counsel appearing for the parties and perused the pleadings adduced on record by respective parties, this Court is prima facie of the view that some of the officers manning high positions in HIMUDA have not acted responsibly and in the interest of the organisation, rather have attempted, directly or indirectly, to give undue benefit to some of the contractors. Having seen the record, this Court is compelled to draw a conclusion that the officers responsible for evaluation of the tender in question, did not scrutinize the documents submitted by the tenderers alongwith their bids properly and, with a view to ensure ouster of some eligible contractors and awarding the same to their ::: Downloaded on - 01/12/2020 20:16:57 :::HCHP 30 favourites, have made an attempt to justify their action by giving totally implausible reasoning.
.
30. Apart from above, action of the authorities to show undue haste in issuing Letter of Intent in favour of the successful bidder that too before conclusion of the contract agreement and negotiations of rates, raises doubt with regard to fairness and impartial attitude of the authorities in the helm of the affairs. Aforesaid aspect of the matter has gained significance in view of the affidavits, counter-affidavits filed by the authorities dealing with the tender process, directly or indirectly. Mr. Sandeep Sen, Executive Engineer, responsible for issuing Letter of Intent dated 17.12.2018 and letter of withdrawal dated 2.1.2019 has stated before this Court by way of affidavit that these communications were issued by him under verbal directions of the then Chief Executive Officer-
cum-Secretary, HIMUDA, but said assertion has been specifically denied by the then Chief Executive Officer-cum-
Secretary, HIMUDA, by way of affidavit. Besides above, this court finds from record that as many as five enquiry reports were submitted by the enquiry committee(s) constituted by the then Chief Executive Officer-cum-Secretary, HIMUDA, after having received complaints with regard to illegalities and ::: Downloaded on - 01/12/2020 20:16:57 :::HCHP 31 irregularities committed by the TEC, but, interestingly, only one report came to be placed on record by the respondent .
HIMUDA before this Court alongwith its reply, which is also under clout because of the affidavits sworn by Ms. Anjori Kapoor, Superintending Engineer South, stating that enquiry report submitted by her was never placed on record before the Court. Enquiry report placed before the Court suggests that the enquiry committee constituted by the then Chief Executive Officer-cum-Secretary, HIMUDA to review tender of two bidders i.e. Dalip Singh Rathore and M/s Vasu Construction Company, opined that, as per new criteria/conditions of the approved DNIT, Dalip Singh Rathore does not qualify for the Technical Bid, whereas, M/s Vasu Construction Company qualifies for the Technical Bid. If aforesaid report is perused/analyzed juxtaposing other four reports submitted by Ms. Anjori Kapoor, Superintending Engineer, it can be safely inferred/concluded that at every step, HIMUDA not only kept this court in the dark but also made an attempt to twist the facts to justify its action. In the first report, dated 7.1.2019, Superintending Engineer alongwith other members had specifically concluded that there are many lapses on the part of TEC and as such, it unanimously opined as under:
::: Downloaded on - 01/12/2020 20:16:57 :::HCHP 32"1. In accordance with the provisions contained in the tender documents and in the consideration of the whole process of tender in the interest of HIMUDA, either the tender document of M/S Vasu Construction can be considered for awarding the work subject to clarification as suggested by .
the committee in bid capacity, work done & J.V agreement or the entire bid process may be cancelled & fresh bids be called.
2. In order to ensure that such lapses are not repeated in future, in the evaluation of tenders, the warranted action may be initiated against the erring officers/officials."
31. But, for the reasons, best known to the authority, it still proceeded to award the tender in favour of M/s Vasu Construction Company.
32. It is not understood that once the Committee had found many lapses on the part of TEC, as has been discussed in the report, where was the occasion for the Committee to recommend that tender document of M/s Vasu Construction Company can be considered for awarding work, subject to qualification. Besides above, other reports submitted by aforesaid officer suggest that the Committee having noticed serious violations, had recommended suitable action against the erring officials but till date nothing has been placed on record to demonstrate that any action has been taken against the erring officers/officials.
33. This court is fully conscious of the fact that it is the exclusive domain of the tender inviting authority to prescribe terms and conditions of the tender and definitely, Court cannot question the terms and conditions incorporated in the tender document, unless the same are totally ::: Downloaded on - 01/12/2020 20:16:57 :::HCHP 33 unreasonable and unexecutable. But, definitely, this Court, while exercising power under Art. 226 of the Constitution of .
India, is within its power to ascertain whether the TEC has evaluated the tender in question in light of the terms and conditions contained in the tender document or not? Similarly, this Court cannot substitute its wisdom/opinion, while interpreting terms and conditions contained in the tender document, but if it appears to it that the terms and conditions have been wrongly interpreted, solely with a view to benefit some one, it can also look into that aspect of the matter.
34. As has been taken note herein above, having noticed illegalities and irregularities committed by the authorities, while processing the tender in question, it had summoned Chief Executive Officer-cum-Secretary, HIMUDA, who though having perused record has already apprised intention of the Department to recall the tender but now the question which stares at this Court is, "whether it can shut its eyes and permit officers of HIMUDA to commit such illegalities and irregularities in future, especially when this Court is convinced and satisfied, prima facie, that the officers responsible for awarding contract have not acted fairly, rather have attempted to apply the terms and conditions contained in ::: Downloaded on - 01/12/2020 20:16:57 :::HCHP 34 the NIT according to their whims and fancies, with a view to extend undue benefit to their favourites."
.
35. Similarly, perusal of record made available by Superintending Engineer (North) has made it clear that the officers responsible for issuing Letter of Intent in the case at hand, awarded major projects in Dharamshala Division to one particular contractor/company. Mr. Umesh Sharma, the then Chief Executive Officer-cum-Secretary, HIMUDA has not been able to explain that under what circumstances, he, of his own, without having taken permission from the Curt, proceeded to permit M/s Level 9 Biz Pvt. Ltd. to carry out construction of new hospital building, that too, on the basis of tender, which was subject matter of CWP No. 2291 of 2017.
36. Also, it is not understood that once the condition of having no dispute with the banks/Non Performing Assets was incorporated in earlier tender, which otherwise is mandatory as per the guidelines issued by the Central Vigilance Commission, Government of India, why such condition was removed/deleted in the later NIT. Obviously the respondent HIMUDA would not want to work with the firms, which have a bad financial condition and as such, allowing ::: Downloaded on - 01/12/2020 20:16:57 :::HCHP 35 such spurious players to enter the arena, raises doubt on the working of the respondent-HIMUDA.
.
37. In view of the detailed discussion made herein above, this Court is of the view that great injustice to the public at large and loss to the public exchequer would be done, in case illegalities and irregularities, if any, committed by the officers manning high posts in HIMUDA are not brought to the fore and they are not held accountable for the same.
Mere cancellation or recalling of tender at this stage, may not be proper solution to the problem, because, if persons responsible for the illegalities and irregularities are not held accountable, there is every likelihood of repetition of such illegalities and irregularities in future also and, otherwise also, it is duty cast upon all of us to correct and purify the system, which has rotten on account of highly irresponsible, callous and indifferent attitude of the officers responsible for running public organizations.
38. During proceedings of the case, Mr. Ajay Vaidya, learned Counsel appearing for HIMUDA filed an application (yet to be registered) seeking permission of this Court to start fresh tender process for the project in issue, subject to final outcome of the proceedings. It has been averred in the ::: Downloaded on - 01/12/2020 20:16:57 :::HCHP 36 application that HIMUDA proposes to re-tender the work by inviting tenders for construction of work and it will conduct an .
in-depth enquiry into the construction of commercial complex Kasumpti, in view of lapses in tendering process as brought forth in the enquiries and also in the court proceedings and also with regard to tender condition relating to use of E.P.S. technology. Respondent HIMUDA has further averred in the application that the enquiry would not only look into lapses but would also suggest remedial steps to prevent such lapses in future and steps to improve supervisory process of high-
value tenders. In the aforesaid application, HIMUDA has proposed a Committee headed by Chief Executive Officer-cum-
Secretary, HIMUDA alongwith its members as (1) Engineer-in-
Chief, HPPWD or his representative not less than the rank of Superintending Engineer (2) Chief Accounts Officer, HIMUDA and (3) Executive Engineer (Design), HIMUDA.
39. Since the respondent HIMUDA having realized the sensitivity of the matter and its ramifications, has itself proposed to constitute a committee under the chairmanship of the Chief Executive Officer-cum-Secretary, HIMUDA, this Court need not go into the question of its competence to order enquiry by an independent agency, while exercising ::: Downloaded on - 01/12/2020 20:16:57 :::HCHP 37 power under Art. 226 of the Constitution of India. But otherwise also, by now it is well settled that keeping in view .
the seriousness of the allegations, enormity and extent of crime and prima facie coming to the conclusion that there is some truth in the allegations based on cogent material, Constitutional courts, exercising power under Art. 226 of the Constitution of India, can always refer the matter to independent investigating agencies be it, the CBI, police or any other investigating agency. Reliance is placed upon judgment dated 16.5.2017 passed by Hon'ble Division Bench of this Court in CWPIL No. 169 of 2017 titled M/s Paonta HP Centre vs. Union of India, wherein this Court having taken note of various judgments passed by Hon'ble Apex Court has categorically held that where larger public interest is involved, it is responsibility of Constitutional Courts to ensure judicial legitimacy and accountability. This court in M/s Paonta HP Centre (supra) has held as under:
"16. When larger public interest is involved, it is the responsibility of the Constitutional Court, to assure judicial legitimacy and accountability. (See: Sahid Balwa vs. Union of India and others, (2014) 2 SCC 687.
17. Their Lordships of the Hon'ble Supreme Court in Central Bureau of Investigation through S.P. Jaipur vs. State of Rajasthan and another, (2001) 3 SCC 333 have held that the powers of the High Court under Article 226 of the ::: Downloaded on - 01/12/2020 20:16:57 :::HCHP 38 Constitution of India or the Supreme Court under Article 32 or Article 142 (1) of the Constitution can be invoked, though sparingly, for giving such direction to Central Bureau .
of Investigation in certain cases. Their Lordships have held as under:
"14. True, powers of the High Court under Article 226 of the Constitution and of the Supreme Court under Article 32 or Article 142(1) of the Constitution can be invoked, though sparingly, for giving such direction to the CBI to investigate in certain cases, [videKashmeri Devi vs. Delhi Administration and anr. {1988 (Supple.) SCC 482} and Maniyeri Madhavan vs. Sub-Inspector of Police and ors. {1994 (1) SCC 536}]. A two Judge Bench of this Court has by an order dated 10.3.1989, referred the question whether the High Court can order the CBI to investigate a cognizable offence committed within a State without the consent of that State Government or without any notification or order having been issued in that behalf r under Section 6 of the Delhi Act.
15. In Mohammed Anis vs. Union of India and ors. {1994 Supple (1) SCC 145} Ahmadi, J. (as his Lordship then was) has observed thus (SCC pp. 148- 49, para 6):.
"6. True it is , that a Division Bench of this Court made an order on March 10, 1989 referring the question whether a court can order the CBI, an establishment under the Delhi Special Police Establishment Act, to investigate a cognizable offence committed within a State without the consent of that State Government or without any notification or order having been issued in that behalf. In our view, merely because the issue is referred to a larger Bench everything does not grind to a halt. The reference to the expression court in that order cannot in the context mean the r Apex Court for the reason that the Apex Court has been conferred extraordinary powers by Article 142(1) of the Constitution so that it can do complete justice in any cause or matter pending before it."
18. Their Lordships of the Hon'ble Supreme Court in Bhavesh Jayanti Lakhani vs. State of Maharashtra and others, (2009) 9 SCC 551 have reiterated that superior courts have power to issue direction to Central Bureau of Investigation to investigate a matter. Their Lordships have held as under:
"99. We are not concerned, as it is not necessary for us to determine, whether a direction for making investigation by CBI by the superior courts of the country is permissible. As the law stands, we place on ::: Downloaded on - 01/12/2020 20:16:57 :::HCHP 39 record such directions by the superior courts are permissible."
19. Their Lordships of the Hon'ble Supreme court in State of .
West Bengal and others vs. Committee for Protection of Democratic Rights, West Bengal and others, (2010) 3 SCC 571 have held as under:-.
"70. Before parting with the case, we deem it necessary to emphasise that despite wide powers conferred by Articles 32 and 226 of the Constitution, while passing any order, the Courts must bear in mind certain self-imposed limitations on the exercise of these Constitutional powers. The very plenitude of the power under the said Articles requires great caution in its exercise. In so far as the question of issuing a direction to the CBI to r conduct investigation in a case is concerned, although no inflexible guidelines can be laid down to decide whether or not such power should be exercised but time and again it has been reiterated that such an r order is not to be assed as a matter of routine or merely because a party has levelled some allegations against the local police. This extra-ordinary power must be exercised sparingly, cautiously and in exceptional situations where it becomes necessary to provide credibility and instill confidence in investigations or where the incident may have national and international ramifications or where such an order may be necessary for doing complete justice and enforcing the fundamental rights. Otherwise the CBI would be flooded with a large number of cases and with limited resources, may find it difficult to properly investigate even serious cases and in the process lose its credibility and purpose with unsatisfactory investigations."
.
40. Similarly, a Constitution Bench (Five-Judges) of the Hon'ble Apex Court in State of West Bengal and others vs. Committee for Protection of Democratic Rights, West Bengal, (2010) 3 SCC 571, has held as under:
::: Downloaded on - 01/12/2020 20:16:57 :::HCHP 40"68. Thus, having examined the rival contentions in the context of the Constitutional Scheme, we conclude as follows:
.
(i) to (vi) x x x x x
(vii) When the Special Police Act itself provides that subject to the consent by the State, the CBI can take up investigation in relation to the crime which was otherwise within the jurisdiction of the State Police, the court can also exercise its constitutional power of judicial review and direct the CBI to take up the investigation within the jurisdiction of the State. The power of the High Court under Article 226 of the Constitution cannot be taken away, curtailed or diluted by Section 6 of the Special Police r Act. Irrespective of there being any statutory provision acting as a restriction on the powers of the Courts, the restriction imposed by Section 6 of the Special Police Act on the powers of the Union, cannot be read as restriction on the powers of the Constitutional Courts. Therefore, exercise of power of judicial review by the High Court, in our opinion, would not amount to infringement of either the doctrine of separation of power or the federal structure.
69. In the final analysis, our answer to the question referred is that a direction by the High Court, in exercise of its jurisdiction under Article 226 of the Constitution, to the CBI to investigate a cognizable offence alleged to have been committed within the territory of a State without the consent of that State will neither impinge upon the federal structure of the Constitution nor violate the doctrine of separation of power and shall be valid ::: Downloaded on - 01/12/2020 20:16:57 :::HCHP 41 in law. Being the protectors of civil liberties of the citizens, this Court and the High Courts have not only the power and jurisdiction but also an .
obligation to protect the fundamental rights, guaranteed by Part III in general and under Article 21 of the Constitution in particular, zealously and vigilantly."
41. In Zahira Habibulla H. Sheikh and another vs State of Gujarat and others (2004) 4 SCC 158, while dealing with a case where the complainant came knocking doors of the court, alleging mistrial for whatever reason, the Court directed investigation and retrial, observing that Courts have always been considered to have an overriding duty to maintain public confidence in the administration of justice, often referred to as the duty to vindicate and uphold the "majesty of law". Due administration of justice has always been viewed as a continuous process, not confined to determination of a particular case, protecting its ability to function as a Court of law in the future, as in the case before it.
42. Note may also be taken of observations made by Hon'ble Apex Court in Sudipta Lenka vs. State of Odisha and others, (2014) 11 SCC 527, wherein it has been held as under:
::: Downloaded on - 01/12/2020 20:16:57 :::HCHP 42"14. Rubabbuddin Sheikh vs. State of Gujarat[7], really, carries forward the law laid down in Gudalure M.J. Cherian and Punjab & Haryana High Court Bar .
Association (supra) which position finds reflection in para 60 of the report which is in the following terms :
".......Therefore, it can safely be concluded that in an appropriate case when the court feels that the investigation by the police authorities is not in the proper direction and in order to do complete justice in the case and as the high police officials are involved in the said crime, it was always open to the court to hand over the investigation to the independent agency like CBI. It cannot be r said that after the charge-sheet is submitted, the court is not empowered, in an appropriate case, to hand over the investigation to an independent agency like CBI."
9. The position has also been succinctly summed up in Disha (supra) to which one of us (the learned Chief Justice) was a party by holding that transfer of the investigation to the Central Bureau of Investigation or any other specialised agency, notwithstanding the filing of the chargesheet, would be justified only when the Court is satisfied that on account of the accused being powerful and influential the investigation has not proceeded in a proper direction or it has been biased. Further investigation of a criminal case after the chargesheet has been filed in a competent court may affect the jurisdiction of the said Court under Section 173 (8) of the Code of Criminal ::: Downloaded on - 01/12/2020 20:16:57 :::HCHP 43 Procedure. Hence it is imperative that the said power, which, though, will always vest in a Constitutional Court, should be exercised only in .
situations befitting, judged on the touchstone of high public interest and the need to maintain the Rule of Law."
43. It is quite appreciable that the HIMUDA, at its own level has decided to constitute an internal Committee, as has been averred in the application, as referred to supra, but this Court, with a view to instill confidence in the general public and to ensure transparency in the system, deems it fit to Constitute an independent Committee to enquire into the tender process in question. Since this court lacks technical expertise in tender matters of higher magnitude as well as crimes related thereto, following committee is hereby constituted:
1. Chief Executive Officer-cum-Secretary, HIMUDA as Chairman
2. Inspector-General rank officeR of State Vigilance and Anti Corruption Bureau to be nominated by Director-General, State Vigilance and Anti Corruption Bureau as Member
3. Engineer-in-Chief, Himachal Pradesh Public Works Department, as Member ::: Downloaded on - 01/12/2020 20:16:57 :::HCHP 44
4. Engineer-in-Chief, Irrigation and Public Health, Himachal Pradesh as Member .
44. Aforesaid Committee, while working under the Chairmanship of the Chief Executive Officer-cum-Secretary, HIMUDA, would conduct an in-depth enquiry in the tender process of commercial complex, Kasumpti as well as other aspects of the matter, as have been discussed in the instant order, within a period of four weeks from the date of receipt of this order. Committee, while fixing responsibility of officers found responsible for the lapses, would also suggest remedial measures/steps to prevent such lapses in tender/bidding evaluation in future, so that the system is improved for the times to come and no loss is caused to the public exchequer.
The Committee, after conclusion of the enquiry, would submit its report in a sealed cover to this Court, enabling it to pass appropriate orders on the next date of hearing. Needless to say, the Committee, while conducting enquiry in terms of instant order, would not be influenced by the observations/findings, if any, made by this Court, in the instant order, with regard to illegalities and irregularities and conduct of any officer, rather, it would conduct enquiry on the basis of record available with HIMUDA as well as affidavits and ::: Downloaded on - 01/12/2020 20:16:57 :::HCHP 45 counter affidavits filed by the officers in the case at hand, pursuant to directions issued by this Court. Decision, if any, .
with regard to recalling of tender, shall be taken after receipt of enquiry report from the Committee on the next date of hearing.
45. Chairman of the Committee would coordinate with all the members of the Committee, so that needful is done well within the stipulated time.
46. Registry of this court to supply copies of this order to the Chief Secretary to the Government of Himachal Pradesh, Director-General of Police and the Chairman/members of the Committee constituted by this Court, immediately, enabling the Committee to take further action. Needless to say, the Committee may apply to this court for the documents, especially the affidavits filed by the officers/officials of HIMUDA, which are on record of the present writ petitions and Registry shall supply the same to the Committee, expeditiously.
List on 29.12.2020.
(Sandeep Sharma) Judge November 25, 2020 (vikrant) ::: Downloaded on - 01/12/2020 20:16:57 :::HCHP