Allahabad High Court
M/S Shiv Shakti Constructions Thru. ... vs State Of U.P. Thru. Prin. Secy. ... on 17 March, 2021
Author: Pankaj Naqvi
Bench: Devendra Kumar Upadhyaya, Manish Kumar, Pankaj Naqvi
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH RESEREVED Court No. - 2 Case :- MISC. BENCH No. - 5334 of 2021 Petitioner :- M/S Shiv Shakti Constructions Thru. Partner Ms. Kirti Singh Respondent :- State Of U.P. Thru. Prin. Secy. Irrigation,Lko.& Ors. Counsel for Petitioner :- Vivek Kumar Singh,Shalendra,Viplav Sharma Counsel for Respondent :- C.S.C. Hon'ble Devendra Kumar Upadhyaya,J.
Hon'ble Manish Kumar,J.
These proceedings have been instituted under Article 226 of the Constitution of India challenging the decision of the respondents, dated 22.01.2021 whereby the technical bit of the petitioner submitted pursuant to the tender notice dated 20.11.2020 for construction of Rohin Barrage-3 on River Rohin in District-Maharajganj has been rejected.
Heard Shri Viplav Sharma, learned counsel appearing for the petitioner and learned Additional Chief Standing Counsel, who appeared for State-respondents.
Challenge to the impugned decision rejecting the technical bid has been made by the petitioner-firm inter alia on the ground that the decision is arbitrary, illegal and whimsical and further that the same suffers from vice of non-observance of principles of natural justice.
Further submission of the learned counsel for the petitioner impeaching the impugned decision is that the reason indicated for rejection of technical bid is not tenable as the petitioner-firm while submitting its bid did not conceal any fact in the affidavit which was required to be filed with the bid documents. It has further been argued that if the financial bid submitted by the petitioner is taken into consideration, the petitioner shall quality as L-1 as the rate quoted by the petitioner is the lowest and as such the impugned decision has resulted in huge financial loss to the State exchequer.
On the other hand, learned Additional Chief Standing Counsel representing the State-respondents has categorically stated that the petitioner in fact had concealed pendency of a criminal case against one of its partners, namely, Mukesh Kumar in the affidavit filed along with bid documents and as such its technical bid has rightly been rejected for furnishing wrong information and not disclosing the correct facts. It has further been argued by the learned State Counsel that the petitioner even while filing this writ petition has concealed material facts inasmuch as the petitioner has not made any disclosure about filing of Criminal Miscellaneous Writ Petition No.15469 of 2020 whereby a challenge to the First Information Report lodged against one of its partner, namely, Mukesh Kumar was made. It has further been stated that in the instant writ petition disclosure of filing of Criminal Misc. Anticipatory Bail Application Under Section 438 Cr.P.C. before this Court by one of the partners of the petitioner-firm, namely, Mukesh Kumar has also not been made. Learned State Counsel has also submitted that pursuant to the tender notice dated 20.11.2020 though the petitioner-firm had submitted its bid on 24.11.2020, however, in the affidavit filed along with the bid documents no disclosure of the First Information Report lodged on 16.11.2020 was made inspite of the fact that the said F.I.R. was well within the knowledge of Mukesh Kumar, the partner of the petitioner-firm through whom the bid documents were submitted pursuant to the tender notice.
In the light of the aforesaid facts, it has vehemently been argued by the learned State Counsel that the petitioner is not only guilty of suppressing the material facts before this Court while filing the instant writ petition but it has also clearly concealed the factum of the First Information Report lodged against its partner, Mukesh Kumar while submitting the bid pursuant to the tender notice, as such no fault can be found with the State-respondents in rejecting the technical bid submitted by the petitioner-firm.
We have considered the rival submissions made by the learned counsel appearing for the respective parties and have also perused the record available on this writ petition.
The facts which are relevant for the purposes of appropriate adjudication of the controversies and issues involved in this writ petition are that on 23.09.2020 a tender notice was issued by the Executive Engineer, Gandak Irrigation Works Division-First, Gorakhpur inviting bids to be submitted through the process of E-Tendering in respect of work related to construction of Rohin Barrage-3 on River Rohin in District-Maharajganj. It has been stated by the learned counsel for the petitioner that the petitioner-firm intended to participate in the bid process pursuant to the aforesaid tender notice and accordingly prepared the bid documents. The said bid documents have been enclosed with the writ petition as annexure-5 which contain an affidavit (IDT-3) sworn in by Mukesh Kumar, one of the partners of the firm stating therein that no criminal case is registered against him in the district or in the State of Uttar Pradesh. The said assertion has been made by Mukesh Kumar in paragraph 7 of the affidavit which is shown to have been sworn in on 12.10.2020.
From the averments made in the writ petition it does not appear that the petitioner submitted its bid within the time prescribed in the tender notice dated 23.09.2020. However, on 20.11.2020 notice for Re-Tender was issued by the Superintending Engineer concerned stating the reason that on evaluation of technical bid pursuant to the tender notice dated 23.09.2020, none of the bidders qualified accordingly Re-Tender notice is issued to be submitted between 10.00 A.M. on 21.11.2020 to 2.00 P.M. on 01.12.2020. The petitioner has stated that pursuant to the Re-Tender Notice issued on 20.11.2020, it submitted its bid on 24.11.2020 and the said bid documents submitted by the petitioner included the same affidavit dated 12.10.2020 sworn in by one of the partners of the petitioner-firm, Mukesh Kumar wherein a disclosure in para 7 of the said affidavit was made to the effect that no criminal case was registered against the said partner in the district or in the State of Uttar Pradesh.
It is worthwhile to notice at this juncture itself that the bid by the petitioner firm was submitted on 24.11.2020 through its partner, Mukesh Kumar himself.
Learned counsel for the petitioner has drawn our attention to the Tender Summary Report dated 07.01.2021 which has been annexed as annexure-8 to the writ petition and which appears to have been uploaded on e-Procurement System of the Government of Uttar Pradesh at 1.13 P.M. on 07.01.2021. The said Summary Report dated 07.01.2021 shows that the Pre Qualifying Technical Bid of the petitioner-firm was accepted. Our attention has also been drawn to a document annexed as annexure-9 to the writ petition which gives Bid List Details and appears to have been uploaded on the portal on 22.01.2021 at 11.28 A.M. The said document reveals the status of the petitioner-firm as "Accepted Fee". There is another document which has been annexed as annexure-10 to the writ petition which is Tender Summary Report dated 22.01.2021 uploaded on the portal at 1.54 P.M. which reflects that the Pre Qualifying Technical Bid of the petitioner stood rejected. Thus, the Pre Qualifying Technical Bid of the petitioner was rejected on 22.01.2021. In an order dated 22.01.2021 passed by the Superintending Engineer concerned which is described as "Tender Revocation" the reasons for rejection of the Technical Bid of the petitioner-firm has also been indicated, according to which a complaint was received against the petitioner-firm that it had concealed material fact in paragraph 7 of the affidavit (IDT-3) filed along with the bid documents and for the said reason the tender submitted by the petitioner was revoked and it was further provided that Revised Technical Bid Evaluation shall be uploaded online accordingly.
Revised Technical Bid Evaluation is also available at page 135 of the writ petition which clearly reveals that the petitioner's bid was rejected for the reason that a complaint was received against the petitioner-firm that it had concealed in paragraph 7 of the affidavit that a criminal case was registered at Police Station-Kotwali Shahar, District-Bulandshahar and the said complaint on enquiry was found to be correct. Accordingly, for the said reason the technical bid of the petitioner was accordingly declared unresponsive in terms of Clause 24 of the terms and conditions of the Tender Notice. Clause 24 of the Terms and Conditions of the Tender Notice is quoted herein below:
"bZ&iksVZy ij izkIr lHkh fufonk izi=ksa dk igys ;g fujh{k.k fd;k tk;sxk fd fufonknkrk }kjk IDT-1, IDT-2, IDT-3, fu/kkZfjr izfrHkwfr] /kujkf'k] vuqHko izek.k i= ,oa I.D. Form-112 ¼fu/kZkfjr LFkku gLrk{kj lfgr½ Bhd&Bhd LdSu dj viyksM fd;s x;s gS ;k ugha] buesa fdlh izdkj dh deh ;k vlUrks"ktud gksus dh fLFkfr esa fufonknkrk dh fcM dks Unresponsive ekurs gq, dksbZ fopkj ugha fd;k tk;sxkA"
From the aforementioned facts, what we notice is that the petitioner's bid was found unresponsive for the reason that while filing the affidavit along with the bid documents the petitioner-firm did not make disclosure of lodging of an F.I.R. against one of its partner and accordingly for suppressing the said information its bid was declared unresponsive as per the provisions contained in clause 24 of the terms and conditions of the Tender Notice.
Impeaching the said reason for declaring the petitioner's bid to be unresponsive, learned counsel for the petitioner has submitted that (I) there is no F.I.R. against the petitioner-firm; rather the F.I.R. has been lodged against one of its partners (ii) the petitioner firm cannot be said to have any information about the First Information Report which was lodged on 16.11.2020 hence question of concealment of the fact relating to lodging of F.I.R. does not arise (iii) tender documents submitted pursuant to the tender notice dated 20.11.2020 contained an affidavit sworn in by one of the partners of the petitioner-firm, namely, Mukesh Kumar which was sworn in on 12.10.2020 and by the said date the F.I.R. was not lodged, as such the petitioner cannot be said to be guilty of concealing the fact relating to lodging of the First Information Report (iv) the petitioner was not provided with a copy of complaint on the basis of which verification of lodging of the First Information Report is said to have been made by the respondents; neither was the petitioner provided any opportunity of hearing or making a representation before the impugned decision declaring the petitioner's bid to be unresponsive was taken as such the impugned action on the part of the respondents suffers from vice of principles of natural justice.
As already observed above, the aforesaid facts and grounds submitted by the learned counsel for the petitioner have vehemently been refuted by the learned State Counsel.
The question,which arises in this case for our consideration is as to whether the petitioner can be said to have concealed the fact relating to lodging of the First Information Report dated 16.11.2020 while filing the bid documents. It is not in dispute that pursuant to the notice for re-tender dated 20.11.2020 the petitioner-firm submitted its bid on 24.11.2020 through one of its partners, namely, Mukesh Kumar. It is also not in dispute that the First Information Report was lodged on 16.11.2020, FIR No.1477 of 2020, under sections 420, 467, 468 & 471 of I.P.C at police station-Kotwali Shahar, District-Bulandshahar wherein one of the partners of the petitioner-firm, Mukesh Kumar, has been arrayed as accused no.1.
Learned State Counsel has brought to the notice of the Court two orders passed by this Hon'ble Court at Allahabad, the one dated 16.12.2020 whereby Criminal Misc. Writ Petition No.15469 of 2020 filed by Mukesh Kumar and four others challenging the First Information Report dated 16.11.2020 was dismissed as withdrawn without any liberty and the other dated 16.12.2020 passed by this Hon'ble Court at Allahabad in Criminal Misc. Anticipatory Bail Application Under Section 438 Cr.P.C. bearing no.9406 of 2020 whereby the said application was dismissed on the ground of non-disclosure of relevant facts. In the said order dated 16.12.2020 whereby the anticipatory bail application moved by Mukesh Kumar was rejected it has been observed that while filing the said application the factum of filing of Writ Petition No.15469 of 2020 was concealed. The order dated 16.12.2020 passed in Criminal Misc. Anticipatory Bail Application makes a recital that the learned counsel for the first informant had submitted before the Court that the application under section 438 of Cr.P.C. was filed on 06.12.2020, whereas the writ petition was filed on 23.11.2020 and further that while filing the anticipatory bail application necessary disclosures about filing of the writ petition was not made. The order dated 16.12.2020 passed in Criminal Misc. Anticipatory Bail Application Under Section 438 bearing No.9406 of 2020 is extracted herein below:
"Court No. - 1Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 9406 of 2020 Applicant :- Mukesh Kumar Opposite Party :- State of U.P. Counsel for Applicant :- Gaurav Singh Chauhan,Prem Narayan Singh,Ravi Yadav Counsel for Opposite Party :- G.A. Hon'ble Samit Gopal,J.
Heard Sri Anil Srivastava, learned Senior Advocate assisted by Sri Gaurav Singh Chauhan, learned counsel for the applicant, Sri Anurag Khanna, learned Senior Counsel assisted by Sri Vimlendu Tripathi, Sri Kartikeya Saran and Sri Rajesh Kumar Mishra, learned counsels for the informant and Sri Gaurav Pratap Singh, learned brief holder for the State, are present. Learned counsel for the first informant is permitted to file their vakalatnama in the office by tomorrow for which, the office is directed to place the same on record. The instant application has been moved by Mukesh Kumar seeking anticipatory bail in light of apprehension of the arrest of the applicant in Case Crime No. 1447 of 2020, under Sections 420, 467, 468, 471 I.P.C., P.S.- Kotwali Nagar, District-Bulandshahr. Learned Senior Counsel appearing on behalf of the first informant has informed the Court that the applicant has filed Crl. Misc. Writ Petition No. 15469 of 2020 Mukesh Kumar and 4 others Vs. State of U.P. and 2 Ors. before this Court for quashing the first information report and stay of arrest of the said petitioners. In the same case crime number, the present application under Section 438 Cr.P.C., has been filed. Learned Senior Counsel appearing for the applicant states that he has no information about the same. Even, the cause list of fresh cases shows that the said writ petition is pending and has been filed before this Court. Learned counsel for the first informant states that he had appeared in the said writ petition and the said writ petition has been dismissed as withdrawn by a Division Bench of this Court today i.e. 16.12.2020 without granting any liberty to the petitioners therein. Be that as it may, the applicant has chosen both the remedies simultaneously. From paragraph 4 of the affidavit, it is apparent that the applicant has stated that he has not filed any previous application under Section 438 Cr.P.C. before this Court or Lucknow Bench, or before any other Court with regard to the same subject matter but has concealed the fact of filing a writ petition simultaneously. It is further informed by learned counsel for the first informant that the present application under Section 438 Cr.P.C. has been filed on 6.12.2020, whereas the writ petition has been filed on 23.11.2020 and the filing of the present application is subsequent to the writ petition which in all fairness should have had the necessary disclosures about the filing of the writ petition with the prayer for quashing of the first information report and stay of arrest of the applicant. The applicant has, thus, not come to Court with clean hands and concealed the relevant and important facts and was trying to pursue two remedies simultaneously for the stay of his arrest and grant of anticipatory bail. The Apex Court in the case of Bhaskar Laxman Jadhav & Ors. versus Karamveer Kakasaheb Wagh Education Society & Ors. : (2013) 11 SCC 531 has held in the said judgment that even passing reference of facts is not a disclosure. In the present case even that is not there. The present application under Section 438 Cr.P.C. is, thus, dismissed on the ground of non disclosure of relevant facts of pursuing an efficacious remedy before this Court available under Article 226 of the Constitution of India. The applicant is directed to produce a copy of this order before the S.S.P./S.P. concerned within ten days from today, who shall ensure the compliance of present order. The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad, self attested by the applicant(s) along with a self attested identity proof of the said person(s) (preferably Aadhar Card) mentioning the mobile number(s) to which the said Aadhar Card is linked. The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.
(Samit Gopal,J.) Order Date :- 16.12.2020 CS "
The order passed by this Court in Criminal Misc. Writ Petition No.15469 of 2020 is also quoted hereunder: "Court No. - 43 Case :- CRIMINAL MISC. WRIT PETITION No. - 15469 of 2020 Petitioner :- Mukesh Kumar And 4 Others Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Narendra Kumar Singh Counsel for Respondent :- G.A. Hon'ble Pankaj Naqvi,J.
Hon'ble Vivek Agarwal,J.
Sri Narendra Kumar Singh, learned counsel for the petitioners and Sri Anurag Khanna, learned Senior Advocate assisted by Sri Vimlendu Tripathi, Sri Kartikeya Saran and Sri Rajesh Mishra appearing for the informant. Sri Narendra Kumar Singh, learned counsel for the petitioners states that this petition be dismissed as withdrawn. The writ petition is dismissed as withdrawn but with no liberty. Order Date :- 16.12.2020 Vikram/- "
When we confronted the learned counsel for the petitioner with the aforesaid facts relating to the orders passed by this Court at Allahabad on 16.12.2020 in the aforementioned Writ Petition as also in the Criminal Misc. Anticipatory Bail Application, it has been stated by him that in fact the writ petition challenging the First Information Report dated 16.11.2020 was filed on 05.12.2020 and as such on the date of submission of the bid documents i.e. on 24.11.2020 the petitioner did not have any information about the First Information Report and accordingly it cannot be said that the petitioner was guilty of concealing the fact while furnishing the affidavit along with the bid documents. He has relied upon a case status report downloaded from the website of this Court at Allahabad in relation to Criminal Misc. Writ Petition No.15469 of 2020 and has submitted that the said case status clearly reveals the filing date to be 05.12.2020. In this view, the submission is that the petitioner did not have any knowledge of the First Information Report dated 16.11.2020 which was lodged against one of its partners, namely, Mukesh Kumar and others on the date of submission of bid documents i.e. 24.11.2020.
The said submission made by the learned counsel for the petitioner is factually incorrect. The case status report of Criminal Misc. Writ Petition No.15469 of 2020 as downloaded from the website of this Court at Allahabad is extracted hereunder:-
"High Court of Judicature at Allahabad e-Filed Case Case Status-CRIMINAL MISC. WRIT PETITION ( CRLP ) - [ 15469/2020 ] e-filed with Diary No. 23168_2020 on 24-11-2020 Filing No. CRLP/107922/2020 Filing Date : 05-12-2020 CNR UPHC011681182020 Date of Registration : 12-12-2020 Case Status First Hearing Date Date of Decision 16th December 2020 Case Status Case Disposed Nature of Disposal Dismissed on merits Stage of Case Fresh Coram ( Hon'ble Mr./Ms./Dr. Justice ) PANKAJ NAQVI , VIVEK AGARWAL ( 6115 ) Bench Type Division Bench Judicial Branch WRITS Criminal Causelist Type
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State UTTARPRADESH District BULANDSHAHR Petitioner/Respondent and their Advocate(s) Petitioner Respondent MUKESH KUMAR AND 4 OTHERS Advocate - NARENDRA KUMAR SINGH State of U.P. AND 2 OTHERS Advocate - G.A. , RAJESH KUMAR MISHRA , KARTIKEYA SARAN , VIMLENDU TRIPATHI Category Details Category QUASHING OF FIR ( 150300 ) Sub Category Miscellaneous ( 90 ) IA Details Application(s) Number Party Date of Filing Next / Disposal Date IA Status IA/1/2020 Classification : Stay Application MUKESH KUMAR AND 4 OTHERS Vs State of U.P. AND 2 OTHERS 12-12-2020 Pending IA/2/2020 Classification : Vakalatnama Bench : 6115 MUKESH KUMAR AND 4 OTHERS Vs State of U.P. AND 2 OTHERS 17-12-2020 18-12-2020 Pending Last Listing Detail Cause List Type Hon'ble Mr./Ms./Dr. Justice Last Listing Date Stage of Listing Last Short Order Fresh List PANKAJ NAQVI , VIVEK AGARWAL ( Bench: 6115 ) 16-12-2020 Fresh "
The aforequoted case status report unambiguously reveals that the petition was e-filed on 24.11.2020 with Diary No.23168-2020. The case status report further mentions filing date 05.12.2020 and date of registration of the writ petition as 12.12.2020. However, it is beyond any ambiguity that the writ petition was e-filed on 24.11.2020 which generated Diary No.23168-2020 on 24.11.2020 itself. Once the petitions in this Court are filed through e-mode, a diary number is given/generated and subsequently the petitions are scrutinized in passing section and accordingly date of filing and date of registration is also given. Once the writ petition was e-filed on 24.11.2020 which generated Diary No.23168-2020 on 24.11.2020 itself it cannot, by any stretch of imagination, be said that atleast on 24.11.2020 the petitioner-firm was unaware of the First Information Report dated 16.11.2020 for the reason that the bid was submitted by the petitioner on 24.11.2020 itself and preparation of the writ petition before being e-filed would have taken some time prior to it being e-filed. In this factual scenario, the submission of the learned counsel for the petitioner is incorrect that the petitioner-firm did not have any knowledge of lodging of the First Information Report dated 16.11.2020 against Mukesh Kumar. The shelter being sought to be taken by the petitioner to the filing date as 05.12.2020 in the case status report is not available to him for the reason that the said document itself shows that the petition was e-filed with Diary Number generated on 24.11.2020 itself.
From the analysis of the aforesaid facts, it is abundantly clear that on the date the petitioner-firm submitted its bid it had the knowledge of the First Information Report dated 16.11.2020 lodged at at police station-Kotwali Shahar, District-Bulandshahar, under sections 420, 467, 468 & 471 of I.P.C . It is also relevant to notice at this juncture itself that the writ petition challenging the First Information Report was filed by five individuals and Mukesh Kumar, the partner of the petitioner-firm through whom the bid documents were submitted, was one of the petitioners. It is also worthwhile to notice that even the instant writ petition has been filed through one of the partners of the petitioner-firm Ms. Kirti Singh,who is the wife of Mukesh Kumar. The affidavit in support of the assertions made in this writ petition has also been sworn in by the wife of Mukesh Kumar and the address of the deponent as shown in the affidavit filed in support of this petition is the same as that of Mukesh Kumar as shown in the First Information Report dated 16.11.2020. The address of Mukesh Kumar shown in the First Information Report is House No.803, Crescent Court 3, Jaypee Greens, Greater Noida, U.P. and the deponent of the affidavit filed in support of this petition has been shown to reside at the same address. We have also notice that the petitioner while filing the instant writ petition has not disclosed that earlier, the writ petition as aforesaid and the anticipatory bail application were also filed by Mukesh Kumar, though the petition has been filed through his wife Ms. Kirti Singh. This Court while rejecting the prayer for anticipatory bail vide its order dated 16.12.2020 has also noticed non-disclosure by Mukesh Kumar of filing of Criminal Misc. Writ Petition No.15469 of 2020. Thus, it is apparent that Mukesh Kumar has not only furnished incorrect information in the affidavit submitted along with bid documents regarding lodging of the First Information Report against him dated 16.11.2020 but the petitioner has even been attempting to conceal the material facts frequently before this Court while seeking relief while filing the aforesaid writ petition and anticipatory bail application.
In the final analysis of the facts as narrated hereinabove, there cannot be any escape from conclusion that the reason assigned by the respondents while rejecting pre-qualifying technical bid submitted by the petitioner does not suffer from any illegality. So far as the submission of the learned counsel for the petitioner that before taking the impugned decision rejecting its bid no opportunity of hearing was provided, it may only be observed that since the factum of lodging of First Information Report dated 16.11.2020 is indisputable and from the above facts it is also clear that before furnishing the bid documents on 24.11.2020 it was well within the knowledge of the partners of the petitioner-firm that an F.I.R. was already lodged on 16.11.2020 against Mukesh Kumar, as such the said submission also merits rejection.
Learned counsel for the petitioner has relied upon the judgments of Hon'ble Supreme Court in the case of New Horizons Limited and another vs. Union of India and others, reported in [(1995) 1 SCC 478], Triveni Engicons Pvt. Ltd. & another vs. Rites Ltd. & ors., reported in [(2016) SCC Online Cal 4010], Sterling Computers Ltd. vs. M/s M & N Publications Ltd. And others, reported in [(1993) 1 SCC 445], Raunaq International Ltd. vs. I.V.R. Construction Ltd. And others, reported in [(1999) 1 SCC 492] and Union of India and others vs. Hindustan Development Corporation and others, reported in [(1993) 3 SCC 499]. The aforecited judgments relied upon by the learned counsel for the petitioner do not come to rescue of the petitioner-firm in the light of the the factual aspects of the matter as discussed above.
For the reasons disclosed above, we find that the writ petition is highly misconceived which deserves to be dismissed.
Resultantly, the writ petition is hereby dismissed.
However, there will be no order as to costs.
Order Date :- 17.3.2021 akhilesh/ [Manish Kumar, J.] [D. K. Upadhyaya, J.]