Jharkhand High Court
Ms Ramiya Construction Pvt Ltd Through ... vs Road Construction on 8 November, 2017
Author: Rajesh Shankar
Bench: Rajesh Shankar
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (C) No. 5846 of 2017
M/s Ramiya Construction Pvt. Ltd. a duly registered company under the
Company Act, having its registered office at 51, A.P. Colony, P.O. and
P.S. Rampur, District-Gaya (Bihar), through one of its director namely
Vineet Yadav son of Bindeshwari Prasad Yadav, R/o 51, A.P. Colony,
P.O. and P.S. Rampur, District-Gaya (Bihar)
... ... Petitioner
Versus
1.The State of Jharkhand
2.The Principal Secretary, Road Construction Department, Govt. of
Jharkhand, Project Bhawan, at + P.O. + P.S. Dhurwa, Dist. Ranchi
3.The Chief Engineer (NH Wing) Road Construction Department, Govt.
of Jharkhand, Ranchi
4.The Superintending Engineer, National Highways Circle at + P.O. + P.S.
+ Dist. Dhanbad
5.The Executive Engineer, National Highways Division, at + P.O.+ P.S. +
District- Dhanbad ... ... Respondents
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CORAM : HON'BLE MR. JUSTICE RAJESH SHANKAR
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For the Petitioner : Mr. Anil Kumar Sinha, Sr. Advocate
Mr. Krishna Murari, Advocate
For the Respondents : Mrs. Aprajita Bhardwaj, J.C. to A.G.
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3/08.11.2017The present writ petition has been filed primarily for quashing the notice dated 18.09.2017 (Annexure-6 to the writ petition) along with corrigendum dated 20.09.2017 uploaded e-procurement portal (Annexure-6/1 to the writ petition) whereby the tender for the work of widening to 2-Lane with paved shoulder and geometric improvements of NH-114A from Km 184.00 to Km 216.00 under NH Division, Dhanbad (in respect of Tender Reference No. NH/DHANBAD/2017-18/EPC-03 dated 24.05.2017 under tender ID:2017_MoRTH_206792_1) has been cancelled purportedly as per the decision taken by the State Evaluation Committee. Further prayer has been made for quashing the subsequent e- procurement Tender Notice published for the same work vide Tender Reference no. NH/DHANBAD/2017-18/EPC-08 dated 26.09.2017 under tender ID:017_MoRTH_249534_1 (Annexure-7).
2. Learned senior counsel for the petitioner submits that petitioner-company participated in the tender process of Tender Reference No. NH/DHANBAD/2017-18/EPC-03 dated 24.05.2017. The financial bid of the said tender was opened by the respondent authorities 2 on 04.09.2017 and the petitioner was declared as L-1. Subsequently taking note of a newspaper report that two of the directors of the petitioner- company namely Rakesh Ranjan Yadav and Bindeshwari Prasad Yadav have been convicted in Sessions Trial Nos. 292 of 2016/57 of 2017 by the court of Additional District and Sessions Judge, Gaya (Bihar) vide judgment dated 31.08.2017, the said tender itself was cancelled vide impugned notice dated 18.09.2017 and corrigendum uploaded in the e- procurement portal on 20.09.2017. Learned senior counsel further submits that the petitioner-company is a separate legal entity, and its existence has not come to an end by the conviction of two of its directors for which they are individually concerned. Otherwise also, after conviction of the aforesaid two directors of the company, the Board of Directors has already been reconstituted by removing the aforesaid two persons from the Board of Directors of the petitioner-company vide its minutes of meeting dated 01.09.2017 (Annexure-8 to the writ petition).
3. Learned senior counsel while referring to the "Integrity Pact"
entered into between the government and petitioner-company on 12.07.2017 (Annexure-B to the counter-affidavit filed on behalf of the respondents) submits that Clause C of Article 2 of the said "Integrity Pact" has been misconstrued by the respondent authorities. The purpose of the said clause is to prevent the bidder(s)/ contractor(s)/ concessionaire(s)/consultant(s) participating in the tender process from getting indulged in any corrupt practice. Clause-C of Article 2 clearly specifies that the bidder(s)/ contractor(s)/concessionaire(s)/consultant(s) will not commit any offence under the relevant penal provisions of IPC/Prevention of Corruption Act and other statutes. The said provision has been made for the specific purpose that the participants in the tender would be bound by the said agreement for not committing any offence relating to corruption in future and the same has not been meant for the situation where any criminal case against the tenderer has been pending and he gets convicted in the case which is not related to any corruption charge or embezzlement of funds. So far as Sessions Trial Nos. 292 of 2016/57 of 2017 is concerned, the aforesaid two of the directors were facing trial in the court of Additional District and Sessions Judge, Gaya (Bihar) from much earlier for the offence under Sections 341/323/307/302/427/34 of the Indian Penal Code and Section 27 of the 3 Arms Act in which they have been convicted. The said conviction is not relevant so as to make the petitioner-company ineligible for awarding the contract despite being L-1. Moreover, the Integrity Pact dated 12th July 2017 does not empower the respondent authorities to cancel the entire tender process. The impugned notice dated 18.09.2017 has been issued by the Executive Engineer, National Highways Division, Dhanbad without giving any opportunity to the petitioner-company to explain the aforesaid position. The respondent authorities have arbitrarily cancelled the entire tender process in haste that too without assigning any reason for the same.
4. J.C. to learned A.G. appearing for the respondents submits that there is limited scope of judicial review under Article 226 of the Constitution of India and the same can only be exercised in a contractual matter in the cases of arbitrariness, malafide or in the situation where public element is involved. The petitioner being declared as L-1 has no vested right to challenge the cancellation of the tender by the respondent authorities.
5. Having heard learned counsel for the parties and going through the relevant documents placed on record, I find that the petitioner has a prima-facie case to be adjudicated by this Court. Accordingly the respondents are directed not to finalise the Tender Reference no. NH/DHANBAD/2017-18/EPC-08 dated 26.09.2017 under tender ID:017_MoRTH_249534_1(Annexure-7 to the writ petition) till the next date fixed.
6. Put up this case for Admission on 06.12.2017.
(Rajesh Shankar, J.) Binit/