Madhya Pradesh High Court
M/S Hargovind Purvaiya vs The State Of Madhya Pradesh on 25 September, 2020
Author: Sanjay Yadav
Bench: Sanjay Yadav, B.K. Shrivastava
1
WP-6769-2020
THE HIGH COURT OF MADHYA PRADESH : JABALPUR
(Division Bench)
Heard through Video Conferencing
Writ Petition No.6769/2020
M/S Hargovind Purvaiya ...Petitioner
versus
The State of Madhya Pradesh & others ... Respondents
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Appearance:
Shri Rohit Jain, learned counsel for the petitioner.
Shri Purushaindra Kaurav, learned Advocate General for the
respondents No.1, 2 and 3/State and M.P. State Mining Corp. Ltd.
Shri Samdarshi Tiwari, learned counsel for respondent No.4.
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CORAM :
Hon'ble Shri Justice Sanjay Yadav, Judge
Hon'ble Shri Justice B.K. Shrivastava, Judge
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Date of decision : 25.09.2020
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ORDER
Per Sanjay Yadav, J :-
Challenge in this Writ Petition under Article 226 of the Constitution is to an award of contract of sand mining in District Raisen in favour of the respondent No.4 on the allegation of his not fulfilling the essential condition stipulated in Clause 5([k) and Clause 6(v)(d)(ii) of the Notice Inviting Tender (referred as 'NIT').2
WP-6769-2020
2. That, Madhya Pradesh State Mining Corporation Limited, an enterprise under the Department of Mineral Resources, State of Madhya Pradesh issued NIT on 07.10.2019 inviting E-tender for sand mining in District Raisen on or before 26.11.2019. The NIT stipulated certain essential conditions to be adhered to by prospective bidder for successful participation. One such essential conditions, around which centers the controversy, are contained in Clause 5([k) and Clause 6(v)(d)(ii), stipulating therein that if the initial base price (upset price) of the group is more than Rs.10 crores, then as on 31.03.2019, the tenderer's net worth is required to be not less than 50% of the group's initial price. And that, it will be mandatory for the tenderer to provide the Net Worth Certificate issued by the Chartered Accountant on the basis of audited accounts (stand-alone basis) for the year 2018-19 as on 31.03.2019. It further stipulates that in case the accounts of 2018-19 is not finalized, then in such a situation, the certificate of net worth as on 31.03.2018 on the basis of audited account for the year 2017-18 will be valid. For ready reference, these clauses are reproduced below :
5- vkWuykbZu fufonk izLrqr djuk & ¼d½ ----
¼[k½ foRrh; vgZrk %& 3 WP-6769-2020 ;fn lewg dk izkjafHkd vk/kkj ewY; ¼vilsV izkbZt½ :- nl djksM+ ls vf/kd gS] rks fnukad 31-03-2019 dh fLFkfr esa fufonkdkj dh Networth, lewg ds izkjafHkd vk/kkj ewY; ¼vilsV izkbZt½ ds U;wure 50% ds lerqY; gksuh vfuok;Z gSA bl gsrq fufonkdkj dks lunh ys[kkdkj ¼pkVZMZ ,dkmUVsaV½ }kjk] Ok"kZ 2018&19 ds vadsf{kr ys[kksa ¼Standalone basis½ ds vk/kkj ij] fnukad 31-03-2019 dh fLFkfr esa] tkjh Certificate miyC/k djkuk vfuok;Z gksxkA *** 6- bZ&fufonk dh izfØ;k ,oa lQy fufonkdkj dh ?kks"k.kk & ¼v½ nLrkost tks fd viyksM fd;s tkus gS & ¼d½ rduhdh nLrkost %& ¼i½ ---
¼ii½ ;fn lewg dk izkjafHkd vk/kkj ewY; ¼vilsV izkbZt½ :- nl djksM+ ls vf/kd gS] rks fnukad 31-03-2019 dh fLFkfr esa fufonkdkj dh Networth, lewg ds izkjafHkd vk/kkj ewY; ¼vilsV izkbZt½ ds U;wure 50% ds lerqY; gksuh vfuok;Z gSA bl gsrq fufonkdkj dks lunh ys[kkdkj ¼pkVZMZ ,dkmUVsaV½ }kjk] o"kZ 2018&19 ds vadsf{kr ys[kksa (Standalone basis) ds vk/kkj ij] fnukad 31-03-2019 dh fLFkfr esa] tkjh Certificate miyC/k djkuk vfuok;Z gksxkA ;fn o"kZ 2018&19 ds ys[ks Final u gq, gksa] rks ,slh fLFkfr esa o"kZ 2017&18 ds vadsf{kr ys[kksa ds vk/kkj ij] fnukad 31-03-2018 dh fLFkfr esa Networth dk mijksDrkuqlkj tkjh izek.k i= ekU; gksxkA
3. In response to the NIT, 5 bids were received, viz, from (i) Ambey Suppliers Pvt. Ltd. (ii) Shri Hargovind Purvaiya (iii) Shri 4 WP-6769-2020 Rajendra Raghuvanshi (iv) Shri Roopendra Mishra and (v) M/s S.A. Infra Developers Pvt. Ltd. That, Technical bids of these five bidders was accepted and were held qualified for financial opening.
4. After acceptance of Technical Bids, one of the participants, viz, M/S S.A. Infradevelopers Private Limited filed a Writ Petition No.27699/2019 against the order dated 05.12.2019; whereby, the petitioner, respondent No.4 and one Mr. Roopendra Mishra were held qualified for the financial bids, alleging that the Net Worth Certificate submitted by these persons, viz., the petitioner- M/S Hargovind Purvaiya, respondent No.4-Shri Rajendra Raghuvanshi and Shri Roopendra Mishra were defective.
5. The objections raised by the petitioner in Writ Petition No.27699/2019 against Rajendra Raghuwanshi (respondent No.4), M/S Hargovind Purvaiya (the present petitioner) and Shri Roopendra Mishra, respectively were :
"1. Mr. Rajendra Raghuwanshi This bidder has relied upon the Net Worth Certificate dated 22.11.2019 issued by Ali Jain and Sharma, Chartered Accountant wherein his net worth is quantified as Rs.10.6 crores as on 31.03.2019 on the basis of the following properties/assets:5
WP-6769-2020
(i) Loan and Advances of Rs.4.25 crores to various persons/entities, based on balance confirmation received from these persons/entities and not on the basis of audited financial statements.
(ii) Capital contribution of Rs.0.82 crores in a proprietorship firm;
(iii) Vehicles of Rs.0.04 crores;
(iv) Jewellery of Rs.0.19 crores;
(v) Cash and Bank Balance of Rs.0.26 crores, based on 'Self-Certification' of the Bidder and not on the basis of audited financial statement; and
(vi) Immovable Properties valued at Rs.5.05 crores, based on the certificate of Omen Assessors, Chartered Engineers and Approved Valuers and Design Mart and not on the basis of audited financial statement. Issues/Deficiency in Net Worth Certificate:
(i) This Certificate is wrong and cannot be relied upon due to apparent errors and mistakes therein. It has included immovable property (Property at Sr. No.7) valued at Rs.0.71 crores which is registered in the name of wife of this Bidder which is not permissible.
It has also included separately Rs.0.38 crores as value of renovation and reconstruction work of some immovable properties (including property registered in the name of wife of the Bidder) which must be automatically considered while computing current market value of the immovable properties. Therefore, value of renovation and 6 WP-6769-2020 reconstruction work should not have been included separately while computing the net worth of this Bidder.
(ii) Chartered Accountant must have taken book value off the immovable properties/assets for computing net worth of this Bidder instead of current market value. Moreover, copy of the certificate of Omen Assessors, Chartered Engineers and Approved Valuers, based on which this Net Worth Certificate is issued, is not even annexed with this Certificate.
(iii) Valuation of loans and advances, vehicles, jewellery, cash and bank balances, etc. must be derived from the audited financial statement of this Bidder. Self certification for cash and bank balance, or balance confirmation from the third parties for loans and advances cannot be relied upon.
To the best of our knowledge, this Bidder is already have sand mines in the State of Madhya Pradesh which must be covered under the tax audit due to turnover of the existing sand mines. Therefore, this Bidder must be having audited financial statements as on 31.03.2019 and consequently, the Net Worth Certificate issued on the basis of third party confirmation or self-certification has no meaning.
(iv) This Bidder has combined value of capital investment in his firm which is not permissible as per the Tender condition because the Net Worth has to be computed on standalone basis. Even otherwise, instead of considering capital contribution in the firm, net-worth of such firm should have been considered.
7
WP-6769-2020 Considering so many observations, this Net Worth Certificate must be verified from the ownership documents of the immovable properties/other assets of this Bidder as well as his audited financial statements as on 31.03.2019 so as to ensure that there is double counting for any property/asset.
2. Mr. Hargovind Purviya This bidder has relied upon the Net Worth Certificate dated 22.10.2019 issued by Husain Shabbir and Co., Chartered Accountant wherein his net worth is quantified as Rs.10.00 crores as on 31.03.2019 on the basis of the following properties/assets:
(i) Immovable Properties and Assets valued at Rs.5.17 crores, based on the certificate of Omen Assessors, Chartered Engineers and Approved Valuers and not on the basis of audited financial statements; and
(ii) Net Capital Investment in firm M/s Hargovid Purviya, valued at Rs.4.83 crores.
Issues/Deficiency in Net Worth Certificate
(i) This Net Worth Certificate is vague and generic in nature. Details of the immovable properties and assets owned by the bidder are not even mentioned in this Certificate. Ownership proof of these properties/assets must be verified from the title documents and the audited financial statement of this Bidder.
(ii) Chartered Accountant should have taken book value of the immovable properties and assets while computing 8 WP-6769-2020 Net Worth of this Bidder instead of current market value thereof. Moreover, copy of the certificate of Omen Assessors, Chartered Engineers and Approved Valuers, based on which this Net Worth Certificate is issued, is not even annexed with this Certificate.
(iii) This Bidder has combined value of his capital investment in his firm which is not permitted as per the Tender condition because the Net Worth has to be computed on standalone basis.
Considering these observations, the Net Worth Certificate should be verified from the list of immovable properties, assets of this Bidder as well as the audited financial statements of his firm as on 31.03.2019 so as to ensure that there is double counting for any property/asset.
3. Mr. Roopendra Mishra This bidder has relied upon the Net Worth Certificate dated 21.11.2019 issued by Suresh Wadhwani and Associates, Chartered Accountant wherein his net worth is quantified as Rs.9.2 crores as on 31.03.2019 on the following basis:
(i) Immovable properties having value of Rs.5.44 crores; and
(ii) Capital investment in some entities having value of Rs.3.76 crores.
Issues/Deficiency in Net Worth Certificate 9 WP-6769-2020
(i) This Certificate is wrong and cannot be relied upon due to apparent errors and mistakes therein. Details of immovable properties are not even correctly stated.
(ii) From the certificate, it is not clear whether book value or market value of the properties has been considered for computation of net-worth.
(iii) This Bidder has combined value of his capital investment in his firms which is not permissible as per the Tender condition because the Net Worth has to be computed on standalone basis. Even otherwise, instead of considering capital contribution in the firm, net worth of such firms should be considered.
Considering these defects, the Net Worth Certificate should be verified from the ownership documents of the immovable properties of this Bidder as well as his audited financial statements as on 31.03.2019 so as to ensure that there is double counting for any property/asset."
6. The Writ Petition was disposed of on 17.01.2020 with the direction to the competent authority to consider and decide the objections after affording opportunity to all concerned. Respective parties were heard on 06.02.2020 and the decision was taken and communicated on 18.02.2020, recording following findings and conclusions in respect of Rajendra Raghuwanshi (respondent No.4), Hargovind Purvaiya (present petitioner) & Shri Roopendra Mishra. 10
WP-6769-2020
7. As to Shri Rajendra Raghuwanshi, the findings and conclusion recorded were :
usVoFkZ izek.k&i= vadsf{kr ys[ks 31-03-2019 ds vk/kkj ij fn;s x;s gSA Jh jktsUnz j?kqoa'kh ds O;olk; dk vads{k.k dk;Z djk;k x;k gSA usVoFkZ izek.k&i= esa Jh j?kqoa'kh }kjk fn;s x;s yksu@vfxze dh jkf'k :0 4-25 djksM+ okLrfod gS vkSj og 'kiFk&i= Hkh ns ldrs gSA Gold Ornament ewY; jkf'k :0 18-90 yk[k jftLVMZ osY;woj dh fjiksVZ ij vk/kkfjr gS] ds'k ,oa cSad cSysal en esa nf'kZr jkf'k 25-55 yk[k ds'k dh gS tks fd Lo;a izekf.kr vk/kkj ij gS] lHkh vpy laifRr;ksa dk ewY;kadu esllZ Omen, Assessors, Bhopal tks fd vf/kÑr Chartered Engineer ,oa Approved Valuer gSa] ds }kjk izekf.kr dj tkjh fd;k x;k gS] tks orZeku ewY;ksa ij gSA Renovation & Reconstruction dh jkf'k :0 38-00 yk[k n'kkZbZ xbZ gS] lEifRr dk ewY;kadu ,oa Renovation dk ewY;kadu dh i``Fkd&i``Fkd fd;k x;k gS ;|fi budh fjiksVZ~l ,d gh frfFk dh gSA usVoFkZ dh x.kuk esa ifRu dh laifRr dks rduhdh lfefr }kjk x.kuk i=d ls i``Fkd dj fn;k x;k gSA
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mijksDr ls Li"V gS fd fufonk izi= esa usVoFkZ lVhZfQdsV dk izk:Ik fu/kkZfjr ugha Fkk] fufonk 'krksZ esa dgha Hkh vadsf{kr ys[kksa dks layXu fd;s tkus dk mYys[k ugha gS] uk gh lh0,0 ls bl laca/k esa Li"V mYys[k djuk visf{kr FkkA usVoFkZ izek.k&i=ksa laifRr;kssa@nkf;Roksa dk foLr`r fooj.k ,oa nLrkost Hkh layXu fd;k tkuk visf{kr ugha Fkk] lkFk gh rduhdh lfefr dh vuq'kalk dk voyksdu fd;k x;k] ftlesa Li"V :Ik ls ys[k gS fd ^^pwafd Individual ds ekeyksa esa usVoFkZ x.kuk dk dksbZ oS/kkfud QkewZyk fu/kkZfjr ugha gS vr% lunh 11 WP-6769-2020 ys[kkdkj ¼pkVZMZ ,dkmUVsaV½ }kjk izpfyr vk/kkj ij rS;kj] lR;kfir izek.k&i= ¼31-03-2019 dh fLFkfr esa½ dks vk/kkj ekuk x;k gSA** lkFk gh lquokbZ ds nkSjku Jh j?kqoa'kh }kjk izLrqr nLrkostksa dk voyksdu fd;k x;k] ftlls Li"V gS fd izLrqr usVoFkZ lfVZfQdsV UDIN iathÑr pkVZMZ ,dkmUVsaV }kjk tkjh gSa rFkk laifRr;ksa ,oa xksYM dk ewY;kadu pkVZMZ bathfu;j@Approved Valuer dh fjiksVZ ij vk/kkfjr gSA Renovation & Reconstruction dh jkf'k :0 38- 00 yk[k laifRr dk ewY;kadu ,oa Renovation dk ewY;kadu dh i``Fkd&i``Fkd fd;k x;k gS] ;|fi budh fjiksVZl ,d gh frfFk dh gSA laifRRk ds ewY;kadu esa Renovation ds ewY; dk lekos'k ugha fd;k x;k gS] vpy laifRr esa yh xbZ jkf'k vU; uke ls yh xbZ gS] rduhdh lfefr }kjk vius izfrosnu esa jkf'k :- 0-71 djksM+ dks iwoZ esa gh gVk fn;k x;k Fkk] lkFk gh Jh j?kqoa'kh }kjk fn;s x;s lHkh nLrkost fufonk [kqyus ls iwoZ frfFk ds gS ,oa ;kfpdkdrkZ }kjk viuh f'kdk;rksa ds laca/k esa dksbZ uohu lek/kkudkjd nLrkost miyC/k ugha djk;s x;sA
8. As to Shri Hargovind Parviya, the findings and conclusions thereon are :
fufonk esa usVoFkZ izek.k&i= pkVMZ ,dkmUVsaV dk ekaxk x;k Fkk] tks fd izLrqr fd;s x;s gSa vkSj ;g izek.k i= vadsf{kr ys[kksa ij vk/kkfjr gSa] pkVMZ ,dkmUVsaV }kjk ;w-Mh-vkbZ-,u- ua0 tujsV fd;k x;k gS] gekjs }kjk lHkh vads{k.k dk;Z iw.kZ gS fufonk ds lkFk ugha ekaxs tkus dkj.k ugha fn;s x;s] vpy laifRr dk ewY;kadu vf/kÑr pkVZMZ bathfu;j }kjk fd;k x;k gSA fdlh Hkh vpy laifRr dk ewY;kadu nksckjk ugha fy;k x;k gS] lHkh vpy lEifRr;ksa Clear Title gS tks izekf.kr gSA
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WP-6769-2020 mijksDr ls Li"V gS fd fufonk izi= esa usVoFkZ lVhZfQdsV dk izk:Ik fu/kkZfjr ugha Fkk] fufonk 'krksZ esa dgha Hkh vadsf{kr ys[kksa dks layXu fd;s tkus dk mYys[k ugha gS] uk gh lh0,0 ls bl laca/k esa Li"V mYys[k djuk visf{kr Fkk] usVoFkZ izek.k&i= esa laifRr;ksa@nkf;Roksa dk foLr``r fooj.k ,oa nLrkost layXu fd;k tkuk visf{kr ugha Fkk] lkFk gh rduhdh lfefr dh vuq'kalk dk voyksdu fd;k x;k] ftlesa Li"V :Ik ls ys[k gS fd ^^pwafd Individual ds ekeyksa esa usVoFkZ x.kuk dk dksbZ oS/kkfud QkeZwyk fu/kkZfjr ugha gS vr% lunh ys[kkdkj ¼pkVZMZ ,dkmUVsaV½ }kjk izpfyr vk/kkj ij rS;kj] lR;kfir izek.k&i= ¼31-03-2019 dh fLFkfr esa½ dks vk/kkj ekuk x;k gSA ^^lkFk gh lquokbZ ds nkSjku Jh gjxksfoan iqjokbZ;k }kjk }kjk nLrkostksa dk voyksdu fd;k x;k] ftlls Li"V gS fd laifRr;ksa dk ewY;kadu pkVZMZ bathfu;j@Approved Valuer esllZ Omen Assessors dh fjiksVZ ij vk/kkfjr gSA
9. As to Shri Roopendra Mishra, the findings and conclusions thereon are :
fufonk ds izko/kku vuqlkj nLrkost layXu fd;k tkuk okafNr ugha Fkk] muds ikl leLr nLrkost ;Fkk VkbZVy ,oa vuqca/k vkfn miyC/k gS] muds }kjk pkVMZ bathfu;j ls izek.k&i= izkIr fd;s x;s gS] vads{k.k gsrq leLr nLrkost pkVZMZ ,dkmUVsaV dks miyC/k djk;s x;s Fks] ,oa mudk vads{k.k v|ru gS] pkgs tkus tkus ij nLrkost fuxe dks Hkh miyC/k djk;s tk ldrs gSA
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mijksDr ls Li"V gS fd fufonk izi= esa usVoFkZ lVhZfQdsV dk izk:Ik fu/kkZfjr ugha Fkk] fufonk 'krksZ esa dgha Hkh vadsf{kr ys[kksa dks layXu fd;s tkus dk mYys[k ugha gS] uk gh lh0,0 ls bl laca/k esa Li"V mYys[k djuk visf{kr Fkk] usVoFkZ izek.k&i= esa laifRr;ksa@nkf;Roksa 13 WP-6769-2020 dk foLr``r fooj.k ,oa nLrkost layXu fd;k tkuk visf{kr ugha Fkk] lkFk gh rduhdh lfefr dh vuq'kalk dk voyksdu fd;k x;k ftlesa Li"V :Ik ls ys[k gS fd ^^pwafd Individual ds ekeyksa esa usVoFkZ x.kuk dk dksbZ oS/kkfud QkWewZyk fu/kkZfjr ugha gS vr% lunh ys[kkdkj ¼pkVZMZ ,dkmUVsaV½ }kjk izpfyr vk/kkj ij rS;kj] lR;kfir izek.k&i= ¼31-03-2019 dh fLFkfr esa½ dks vk/kkj ekuk x;k gSA**
10. These findings percolated in the decision that since the Net Worth Certificates by these three participants were based on Audited Account, Valid Document, Report of Registered Valuers, were found to be in consonance with Clause 5([k) and Clause 6(v)(d)(ii) of the NIT. Thereafter, considering the financial bid, respondent No.4 was found H-1, present petitioner H-2 and M/S S.A. Infradevelopers Private Limited H-3.
11. Though M/S S.A. Infradevelopers Private Limited, who was H-3, has not challenged the decision dated 18.02.2020, it is the petitioner who was H-2 and whose Net Worth Certificate was also under challenge has come up in challenge as to clearance given to the Net Worth Certificate filed by Respondent No.4.
12. Taking us through the Net Worth Certificate of Respondent No.4, it is urged that the Entry No.4 and 8 under the head 'ASSETS' are not as per Audit Account. It is urged that whereas entry of item 14 WP-6769-2020 which give the detail of advances to various parties were as per certification confirmed by the Chartered Accountant from respective parties and are not based on Audited Account. Similarly, Entry No.8 as to Cash and Bank Balance is also not on the basis of the Audited Account but on personnel certification by the individual. As regard to immovable property, it is urged that though Flat No.12, HIG, Second Floor, Khamdhenu Tower, Plot No.E 2/21, Scheme No.3, E- 2 Arera Colony, Bhopal (M.P.) was segregated from the Net Worth of respondent No.4; however, the amount spent on renovation and reconstruction thereof was not segregated. Similarly, the amount spent on renovation and reconstruction of property, viz, Flat No.4/D Mezzanine Floor, Kamdhenu Tower, Plot No.E 2/21, Scheme No.3, E-2 Arera Colony, Bhopal and Flat No.H-3, HIG, First Floor, Kamdhenu Tower, Plot No.E-2/21, Scheme No.3, E-2 Arera Colony, Bhopal, were also not segregated and were added to Net Worth, for the sole reason to show enhanced Net Worth. Referring to Section 7(1) of the Wealth Tax Act, 1957 and Schedule III which lays down the Rules for Determining the Value of Assets and Form 0-1 appended therewith, it is urged that Government Approved Valuer was under a statutory obligation to have included the valuation of 15 WP-6769-2020 improvement/ renovation/reconstruction in the valuation report/fair market report, non-inclusion thereof in the valuation report and showing the same separately, it is urged, vitiated the report, which was also un-audited. Furthermore, referring to sub-section (57) of Section 2 of the Companies Act, 2013, it is contended that the Net Worth has to be on the basis of audited balance sheet and the Net Worth Certificate issued by the Chartered Accountant being not wholly based on audited account, the Authorities erred in accepting the same to be genuine. On these contentions, the petitioner seeks quashment of award in favour of respondent No.4 and a direction that the petitioner being H-2, the subject lease be awarded to him.
13. Respondents No.1, 2 and 3 have justified their action. It is urged that in a proceeding under Article 226 of the Constitution, the interference can only be in the decision making process as to whether it is fair and is in accordance with law. In the case at hand, it is urged that, in furtherance to the order passed in Writ Petition No.27699/2019, respective parties were heard, wherein it was found that the objections raised by the objector as to the correctness of the Net Worth Certificate of three bidders were found baseless. It is contended that since the Net Worth Certificates by these three 16 WP-6769-2020 bidders were found to be proper, their financial bid was opened and since offer of respondent No.4 was found to be highest, he was granted the sand mine lease of District Raisen. In furtherance whereof, the agreement has been executed and the work order is issued. It is contended that there is no possibility that the Net Worth Certificate is not based on audited records, since the respondent No.4, for the confirmation and authentication of the same, had satisfied the concerned Authorities by presenting the statutory records and relevant documents before them; therefore, it is stated that, all the complaints raised in the hearings as well as in the present petition are baseless and lack material evidence. On these contentions, respondents No.1, 2 and 3 seek dismissal of petition.
14. Respondent No.4, on his turn, while raising an objection as to locus of the petitioner to file a petition challenging the grant of sand lease, submits that in the scrutiny which was undertaken in furtherance to the order dated 17.01.2020 passed in Writ Petition No.27699/2019, the Net Worth Certificate filed by the respondent No.4 as well as by the present petitioner were found to be in consonance with Clause 5([k) and Clause 6(v)(d)(ii) of the NIT and since there was an objective consideration and subjective 17 WP-6769-2020 satisfaction of the Authorities that there was no discrepancy in the Net Worth Certificate, the said decision cannot be subjected to judicial review; as the Court under Article 226 of the Constitution does not exercise appellate jurisdiction. It is further contended that the initial base price of Raisen Group was disclosed to be 17.50 crores and as per the tender conditions, Net Worth of 8.75 crores (50%) was required to be possessed to qualify technical bid by a bidder. In case of petitioner, as per valuation and certificate issued by the Chartered Accountant on the basis of audited accounts relating to year 2019-20 as on 31.03.2019, the net worth was assessed to be Rs.9,48,47,485/- (Rs. Nine Crore Forty Eight Lakh Forty Seven Thousand and Four Hundred Eighty Five), which was within the parameters. The respondent on receiving notice of hearing from the respondent No.1. submitted detailed explanation that the Net Worth Certificate is based on the audited account related to relevant period and valuation is done by the approved valuer. The amount of loan/advances of Rs.4.25 crores is authentic and valuation of gold jewelry, cash and bank balance is based on disclosed information. Renovation and reconstruction investment is authentic duly approved by the registered valuer. Valuation of 18 WP-6769-2020 immovable property and renovation is separately done. It is urged that the property in the name of his wife was already excluded by the Tender Evaluation Committee. It is further contended that the respondent No.1 after taking note of the explanation of respondent and after perusal of the records of tender evaluation, has found the net worth above the requisite cut-off value. And, that even after excluding the value of immovable property, which is in the name of his wife, the Net Worth of the respondent remains to be higher than cut off value. It is contended that the certificate issued by the UDIN registered CA has been believed as well as valuation done by the Approved Valuer is found to be authentic. It is submitted that no specific proforma of the Net Worth Certificate was prescribed nor any requirement of uploading any document/accounts in support was kept in the tender document which was duly acknowledged by Technical Committee which accepted the Net Worth Certificate being creditworthy.
15. It is further contended on behalf of respondent No.4 that pursuant to declaration of successful bidder, Letter of Intent was issued by the Corporation on 19.02.2020 under the endorsement of receiving EMD amount of Rs.4,37,50,000/- (Rs. Four Crore Thirty 19 WP-6769-2020 Seven Lakh Fifty Thousand), the respondent was directed to execute the agreement. The agreement with the Corporation has been executed on 11.06.2020, and the respondent has deposited 50% of the annual contract value after adjusting EMD, to the tune of Rs.31,48,35,576/-. It is contended that the agreement has also been registered as per the provisions of Stamp Act on paying the Stamp Duty of Rs.2,11,91,412/- on 10.06.2020. It is also contended that the respondent has already commenced mining operations under supervision of mining authorities. Presently huge sand stocks are being managed across the district as mining is stopped till 30.09.2020 due to rainy season. It is stated that the respondent has deployed heavy manpower and expensive machinery taking huge loans from the Bank. As the agreement has been executed which is statutory in nature and the parties have acted upon it thereafter, petitioner is not entitled for any enquiry under the writ jurisdiction. On these contentions, respondent No.4 seek dismissal of petition.
16. Considered rival submissions and perused the documents on record.
17. At the outset, we may mention that we are not oblivious of the principle applicable in judicial review under Article 226 of the 20 WP-6769-2020 Constitution in respect of matter relating to Govt. contracts that, it is the lawfulness of a decision and not its soundness which can be subjected to judicial review. In other words, unless there is malafide or perversity in the understanding or appreciation or in the application of the terms of the tender conditions, a judicial review of an administrative decision is impermissible. In this context reference can be had of the decision in Tata Cellular vs Union of India (1994) 6 SCC 651 wherein it is held :
"70. It cannot be denied that the principles of judicial review would apply to the exercise of contractual powers by Government bodies in order to prevent arbitrariness or favoritism. However, it must be clearly stated that there are inherent limitations in exercise of that power of judicial review. Government is the guardian of the finances of the State. It is expected to protect the financial interest of the State. The right to refuse the lowest or any other tender is always available to the Government. But, the principles laid down in Article 14 of the Constitution have to be kept in view while accepting or refusing a tender. There can be no question of infringement of Article 14 if the Government tries to get the best person or the best quotation. The right to choose cannot be considered to be an arbitrary power. Of course, if the said power is exercised for any collateral purpose the exercise of that power will be struck down.21
WP-6769-2020 ...
77. The duty of the court is to confine itself to the question of legality. Its concern should be :
1. Whether a decision-making authority exceeded its powers?
2. Committed an error of law,
3. committed a breach of the rules of natural justice,
4. reached a decision which no reasonable tribunal would have reached or,
5. abused its powers.
Therefore, it is not for the court to determine whether a particular policy or particular decision taken in the fulfillment of that policy is fair. It is only concerned with the manner in which those decisions have been taken. The extent of the duty to act fairly will vary from case to case. Shortly put, the grounds upon which an administrative action is subject to control by judicial review can be classified as under:
(i) Illegality : This means the decision- maker must understand correctly the law that regulates his decision- making power and must give effect to it.
(ii) Irrationality, namely, Wednesday unreasonableness.
(iii) Procedural impropriety.
The above are only the broad grounds but it does not rule out addition of further grounds in course of time. As a matter of fact, in R. v. Secretary of State for the Home Department, ex Brind (1991) 1 AC 696, Lord Diplock refers specifically to one development, namely, the 22 WP-6769-2020 possible recognition of the principle of proportionality. In all these cases the test to be adopted is that the court should, "consider whether something has gone wrong of a nature and degree which requires its intervention".
18. Further, in Jagdish Mandal vs State of Orissa (2007) 14 SCC 517, wherein it is held :
"22. Judicial review of administrative action is intended to prevent arbitrariness, irrationality, unreasonableness, bias and mala fides. Its purpose is to check whether choice or decision is made "lawfully" and not to check whether choice or decision is "sound". When the power of judicial review is invoked in matters relating to tenders or award of contracts, certain special features should be borne in mind. A contract is a commercial transaction. Evaluating tenders and awarding contracts are essentially commercial functions. Principles of equity and natural justice stay at a distance. If the decision relating to award of contract is bona fide and is in public interest, courts will not, in exercise of power of judicial review, interfere even if a procedural aberration or error in assessment or prejudice to a tenderer, is made out. The power of judicial review will not be permitted to be invoked to protect private interest at the cost of public interest, or to decide contractual disputes. The tenderer or contractor with a grievance can always seek damages in a civil court. Attempts by unsuccessful tenderers with imaginary 23 WP-6769-2020 grievances, wounded pride and business rivalry, to make mountains out of molehills of some technical/procedural violation or some prejudice to self, and persuade courts to interfere by exercising power of judicial review, should be resisted. Such interferences, either interim or final, may hold up public works for years, or delay relief and succour to thousands and millions and may increase the project cost manifold."
19. In Afcons Infrastructure Ltd. vs Nagpur Metro Rail Corpn. Ltd. (2016) 16 SCC 818, it is held :
"13. In other words, a mere disagreement with the decision-making process or the decision of the administrative authority is no reason for a constitutional court to interfere. The threshold of mala fides, intention to favour someone or arbitrariness, irrationality or perversity must be met before the constitutional court interferes with the decision-making process or the decision.
14. We must reiterate the words of caution that this Court has stated right from the time when Ramana Dayaram Shetty v. International Airport Authority of India [Ramana Dayaram Shetty v. International Airport Authority of India, (1979) 3 SCC 489] was decided almost 40 years ago, namely, that the words used in the tender documents cannot be ignored or treated as redundant or superfluous -- they must be given meaning and their necessary significance. In this context, the use of the word 24 WP-6769-2020 "metro" in Clause 4.2(a) of Section III of the bid documents and its connotation in ordinary parlance cannot be overlooked."
20. The principle of law laid down in Afcons Infrastructure Ltd (supra) is further reiterated recently in Caretel Infotech Ltd. vs Hindustan Petroleum Corpn. Ltd. (2019) 14 SCC 81, wherein it is held :
"38. ..... Interference is permissible only if the decision- making process is arbitrary or irrational to an extent that no responsible authority, acting reasonably and in accordance with law, could have reached such a decision. ..."
21. In view whereof, it is to be seen whether the impugned order dated 18.02.2020 stand the test laid down in Afcons Infrastructure Ltd (supra) and Caretel Infotech Ltd. vs Hindustan Petroleum Corpn. Ltd. (2019) 14 SCC 81 (supra), i.e., whether it suffers the vice of arbitrariness, malafide and/or is perverse.
22. The expression "Arbitrariness" as observed in Shrilekha Vidyarthi (Kumari) v. State of U.P., (1991) 1 SCC 212 : AIR 1991 SC 537 is more easily visualized than precisely stated or defined. The question, whether an impugned act is arbitrary or not, 25 WP-6769-2020 is ultimately to be answered on the facts and in the circumstances of a given case. An obvious test to apply is to see whether there is any discernible principle emerging from the impugned act and if so, does it satisfy the test of reasonableness?
23. Similar view has been expressed in Bannari Amman Sugars Ltd. vs CTO (2005) 1 SCC 625, wherein it is held :
"9. While the discretion to change the policy in exercise of the executive power, when not trammelled by any statute or rule is wide enough, what is imperative and implicit in terms of Article 14 is that a change in policy must be made fairly and should not give the impression that it was so done arbitrarily or by any ulterior criteria. The wide sweep of Article 14 and the requirement of every State action qualifying for its validity on this touchstone irrespective of the field of activity of the State is an accepted tenet. The basic requirement of Article 14 is fairness in action by the State, and non-arbitrariness in essence and substance is the heartbeat of fair play. Actions are amenable, in the panorama of judicial review only to the extent that the State must act validly for discernible reasons, not whimsically for any ulterior purpose. The meaning and true import and concept of arbitrariness is more easily visualised than precisely defined. A question whether the impugned action is arbitrary or not is to be ultimately answered on the facts and circumstances of a 26 WP-6769-2020 given case. A basic and obvious test to apply in such cases is to see whether there is any discernible principle emerging from the impugned action and if so, does it really satisfy the test of reasonableness."
(Emphasis supplied)
24. Thus, when a task is not seen in a meaningful context, it is experienced as being arbitrary.
25. Another tenet for a judicial review of the administrative action is malafide exercise of power which does not necessarily imply any moral turpitude and may only mean that the statutory power is exercised for purposes other than those for which the power was intended by law to be exercised.
26. In Suraj Pal Sahu vs State of Maharashtra (1986) 4 SCC 378, it is held :
"25. An order is mala fide when there is malice in law although there is no malice in fact. The malice in law is to be inferred when an order is made contrary to the objects and purposes of the Act. Whether in any particular case this is so or not must depend upon the facts and circumstances of the case. ..."
27. Further, the findings are said to be 'perverse', when no reasonable person in law or in facts, should have arrived at those findings.
27
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28. Reverting to the facts of the case at hand. Clause 5([k) and Clause 6(v)(d)(ii) of the NIT essentially required that the Net Worth to be more than 50% of the initial base price where base price is over Rs.10 crores. In the present case, the initial base price (upset price) of the group being Rs.17.50 crores, as on 31.03.2019, the tenderer's net worth was required to be atleast equal to 50% of the group's initial base price (upset price). It was also mandatory for the tenderer to provide the Net Worth Certificate issued by the Chartered Accountant on the basis of audited accounts (stand-alone basis) for the year 2018-19, as on 31.03.2019. In case if the accounts for the year 2018-19 are not furnished, then in such situation, the certificate of Net Worth as above on 31.03.2018 will be valid on the basis of audit accounts of the year 2017-18.
29. Thus, imperative it was for the participant bidders to have (i) Net Worth of 50% or more of the group's initial base price (upset price); (ii) such Net Worth must be reflected in Net Worth Certificate issued by the Chartered Accountant; and (iii) Certificate shall be on the basis of audited account (stand-alone basis) for the year 2018-19 as on 31.03.2019 or the year 2017-18 as on 31.03.2018, as the case may be.
28
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30. The expression 'Net Worth' as defined under sub-section (57) of Section 2 of the Companies Act, 2013 means :
"(57) "net worth" means the aggregate value of the paid-
up share capital and all reserves created out of the profits, securities premium account and debit or credit balance of profit and loss account, after deducting the aggregate value of the accumulated losses, deferred expenditure and miscellaneous expenditure not written off, as per the audited balance sheet, but does not include reserves created out of revaluation of assets, write-back of depreciation and amalgamation."
31. It thus needs no emphasis that the Net Worth is the excess of the value of assets over liabilities. In CIT vs Mahindra and Mahindra Ltd., AIR 1984 SC 1182 : (1983) 4 SCC 392 : -
"19. .... As regards the latter, according to well-settled principles and practice of commercial accountancy (vide Cost and Management Accounting by J. Batty) the concept of 'Net Worth' always denotes the excess of the book value of all assets over liabilities and market value of the assets is never taken into consideration; in fact the market value of assets which gives the "current worth" becomes a relevant factor when in liquidation the question has to be considered whether the company possesses assets which would be sufficient to meet all its creditors or not. Admittedly the "Net Worth" of ITCI as per the books of 29 WP-6769-2020 account was negative on the date of amalgamation and therefore when the Specified Authority and the Central Government took into consideration the market value of the assets of the ITCI as on the date of amalgamation for coming to the conclusion that the company was a viable unit, they were clearly influenced by irrelevant and extraneous material vitiating the impugned conclusion."
32. Thus, the certificate of Net Worth to be issued by the Chartered Accountant was mandatory to be on the basis of audited account. And, when it was essential condition, it was required to be scrupulously adhered to.
33. The importance and non-digression from such essential condition in the contract matters and its strict compliance has been noted in catena of decisions by the Courts. In Ram Gajadhar Nishad vs State of U.P. (1990) 2 SCC 486, it is held that the effect of non-compliance with a mandatory condition in a tender notice will be fatal. In W.B. SEB v. Patel Engg. Co. Ltd. (2001) 2 SCC 451, it is held :
"24. The controversy in this case has arisen at the threshold. It cannot be disputed that this is an international competitive bidding which postulates keen competition and high efficiency. The bidders have or should have assistance of technical experts. The degree of care required 30 WP-6769-2020 in such a bidding is greater than in ordinary local bids for small works. It is essential to maintain the sanctity and integrity of process of tender/bid and also award of a contract. The appellant, Respondents 1 to 4 and Respondents 10 and 11 are all bound by the ITB which should be complied with scrupulously. In a work of this nature and magnitude where bidders who fulfil prequalification alone are invited to bid, adherence to the instructions cannot be given a go-by by branding it as a pedantic approach, otherwise it will encourage and provide scope for discrimination, arbitrariness and favouritism which are totally opposed to the rule of law and our constitutional values. The very purpose of issuing rules/instructions is to ensure their enforcement lest the rule of law should be a casualty. Relaxation or waiver of a rule or condition, unless so provided under the ITB, by the State or its agencies (the appellant) in favour of one bidder would create justifiable doubts in the minds of other bidders, would impair the rule of transparency and fairness and provide room for manipulation to suit the whims of the State agencies in picking and choosing a bidder for awarding contracts as in the case of distributing bounty or charity. In our view such approach should always be avoided. Where power to relax or waive a rule or a condition exists under the rules, it has to be done strictly in compliance with the rules. We have, therefore, no hesitation in concluding that adherence to the ITB or rules 31 WP-6769-2020 is the best principle to be followed, which is also in the best public interest."
34. Now coming to the Net Worth Certificate filed by the respondent No.4 and the petitioner.
35. It is seen that in respect of the Net Worth Certificate by the petitioner, the objections were that it was vague and generic in nature and the details of the immovable properties and assets owned by the bidder were not mentioned in the certificate and were not verifiable from audited financial statement. And that, the Chartered Accountant instead of taking book value of the immovable properties and assets while computing Net Worth took current market value into consideration. Further objection was that the bidder has combined value of his capital investment in his firm which was contrary to tender condition of having Net Worth computed on stand-alone basis.
36. As regard to Net Worth Certificate filed by respondent No.4, the objections were that the loan and advances of Rs.4.25 crores to various persons/entities are not based on audit financial statements. Whereas, cash and bank balance of Rs.6.26 crores were based on Self Certification of the bidder and not on the basis of audited 32 WP-6769-2020 financial statements. Similarly, the immovable properties valued at Rs.5.05 crores based on certification of Omen Assessors, Chartered Engineers & Approved Valuers and Design Mart and not on the basis of audited financial statements.
37. That, the order passed by the Principal Secretary, Mineral Resources Department is filed by respondent No.1 and 2 records the following:
fo"k; %& ekuuh; mPp U;k;ky; tcyiqj ;kfpdk Øekad WP- 27699/2019 esa ikfjr fu.kZ; fnukad 17-01-2020 ¼esllZ ,l0,0 bUQzkMsoyilZ izk0fy0 fo:) e/;izns'k 'kklu ,oa vU;½ ekuuh; mPp U;k;ky; ds vkns'k vuqlkj ;kfpdkdrkZ fufonkdkj ,l0,0 bUQzk MsoyilZ izk0fy0 dh vksj ls vf/kÑr izfrfuf/k Jh fuf[ky tSu vkSj vU; rhu fufonkdkjksa ds usVoFkZ izek.ki= ds ckjs esa mBkbZ xbZ leLr vkifRr;ksa ij muds f'kdk;r fcUnqvksa dks xEHkhjrk ls lquk x;kA bUgha fcUnqvksa ij lacaf/kr fufonkdkjksa dks viuk i{k ,oa rdZ rFkk vfHkys[k izLrqr djus dk ekSdk fn;k x;k rFkk lHkh i{kdkjksa ds rdZ Jo.k fd;s x;sA ;g Li"V gS fd f'kdk;rdrkZ }kjk rhuksa vU; fufonkdkjksa ds usVoFkZ izek.k i= esa izeq[k eqnnk ;gh mBk;k x;k gS fd mlesa] lacaf/kr pkVZMZ ,dkmUVsaV }kjk fn;s x;s vkadM+ksa ds vk/kkj ij Ik;kZIr ugha gSA iwoZ esa dh xbZ foospuk vuqlkj foHkkx }kjk usVoFkZ izek.k i= dk dksbZ izk:i fu/kkZfjr ugha fd;k x;k Fkk vfirq ;g ys[k fd;k x;k Fkk fd leLr vkadM+s vadsf{kr vfHkys[kksa ds vk/kkj ij gksuk pkfg,A rhuksa mRrjnkrk fufonkdkjksa }kjk vius tokc esa ;g dgk x;k fd muds usVoFkZ izek.k i= esa leLr vkadM+s oS/kkfud 33 WP-6769-2020 vfHkys[k vadsf{kr ys[kksa rFkk vf/kÑr ewY;kadudrkZvks ds izfrosnuksa ds vk/kkj ij gh Hkjs x;s gSa] blds leFkZu esa mUgksaus vfHkys[k Hkh izLrqr fd;sA ;kfpdkdrkZ@f'kdk;rdrkZ us vius vfUre rdZ esa Hkh flQZ ;gh eqnnk mBk;k fd mDr vfHkys[kksa ds vk/kkj ij gksus dks usVoFkZ izek.k i= esa dksbZ mYys[k ugha gSA rnkuqlkj ;g Li"V gS fd foHkkx }kjk pkgk x;k usVoFkZ izek.k i= pkVZMZ ,dkmUVsaV }kjk ys[kk ds fl)kUrksa dk ikyu djrs gq;s pkgk x;k Fkk ftlds fo"k; esa mBk;h xbZ leLr vkifRr;kW vk/kkjghu ,oa izekf.kr ugha ik;h x;hA leLr f'kdk;rs ,oa vkifRr;kW dkYifud :i ls fopkj dj rS;kj dh xbZ Fkh] tSls fd vadsf{kr ugha gksus dh laHkkouk] ftldh iqf"V ,oa izek.khdj.k gsrq mRrjnkrk fufonkdkjksa us oS/kkfud vfHkys[k izLrqr dj larq"V fd;k gSA vr% ;kfpdkdrkZ }kjk izLrqr f'kdk;r vkosnu i= fnukad 03-12- 2019 esa mBk;s x;s leLr fcUnq izekf.kr ugha gksus] fujk/kkj gksus ,oa fufonk dh 'krksZ ds vuqlkj vkifRrtud ugha gksus ds dkj.k vekU; fd;k tkrk gS rFkk f'kdk;r fujLr dh tkrh gSA foHkkx }kjk iwoZ esa fufonk ijh{k.k ds nkSjku lHkh fufonkdkjksa ds usVoFkZ izek.k i= oS/kkfud ?kksf"kr fd;s Fks ftlesa dksbZ ifjorZu djus dh fLFkfr ugha ik;h xbZ rFkk mPpre cksyhnkj Jh jktsUnz j?kqoa'kh dh cksyh iwoZ vuqlkj mPpre ekU; dh tkrh gSA izdj.k esa lwpuk i= fnukad 15-01-2020 dks tkjh gqbZ Fkh ijUrq ekuuh; mPp U;k;ky; esa okn izpfyr gksus ls vkxkeh dk;Zokgh ugha gks ldhA pwafd izdj.k esa ekuuh; U;k;ky; ds ikfjr fu.kZ; ds ifjizs{; esa vkt bl vkns'k }kjk f'kdk;r vkosnu fujkÑr fd;k tk jgk gSA vr% lQy fufonkdkj dks fu;ekuqlkj 50 izfr'kr jkf'k lkr fnol esa tek djkus gsrq funsZf'kr fd;k tk jgk gSA foLr`r vkns'k izk:i layXuA 34 WP-6769-2020
38. Close reading of the order reveals that the order superfluously dwells upon the matter and records satisfaction without even adverting to respective Net Worth certificates, which apparently are not in consonance with Clause 5([k) and Clause 6(v)(d)(ii) of the NIT.
39. The impugned order dated 18.02.2020 is thus not only perverse but is arbitrary and suffers with the vice of malafides, which cannot be given the stamp of approval and deserves to be and is hereby quashed.
40. The contention on behalf of respondent No.4 that an agreement is also entered into after depositing the requisite amount and that the work has also commenced, in our considered opinion, will be of no help because the respondent since was not eligible to participate in the bid because his stand-alone Net Worth being less than 50% of the initial price (upset price), no right accrue in his favour. Furthermore, he is bound by Clause 24(d)(ii) of the NIT which stipulates :
24- ¼d½ bZ-,e-Mh-@lqj{kk jkf'k dh tIrh & bZ-,e-Mh-@lqj{kk fuEu dkj.kksa ls tIr djus dk vf/kdkj dysDVj dks gksxk %&
(i) ....35
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(ii) ;fn vuqca/k ds fu"iknu iwoZ vFkok i'pkr~ esa fdlh Hkh le; ;g vkyksd esa vkrk gS fd lQy fufonkdkj@Bsdsnkj ds ikl fufonk izLrqr djus gsrq okaNuh; vgZrk ugha gS rks mls v;ksX; ?kksf"kr dj fn;k tk,xkA ;fn Bsdsnkj }kjk xyr c;kuh ;k xyr tkudkjh ds vk/kkj ij Bsdk izkIr dj fy;k x;k gS rks mldk Bsdk fujLr gks tk,xkA ;fn lQy fufonkdkj ds i{k esa vk'k; i= tkjh fd;k tk pqdk gks ;k mlds }kjk vuqca/k fu"ikfnr dj fn;k x;k gks rks xyr c;kuh ;k xyr tkudkjh ds fy, fyf[kr esa lwpuk }kjk mldk LohÑfr i=@vuqca/k fujLr fd;k tk ldrkA bl izdkj fufonkdkjksa dks v;ksX; ?kksf"kr fd;s tkus vFkok Bsdsnkj ds vuqca/k fujLr fd;s tkus ds QyLo:i mldh izfrHkwfr jkf'k ,oa vU; jkf'k tIr dh tkosxh rFkk ykxw fof/k;ksa ;k izLrqr nLrkost ds vuqlkj dksbZ vU; dk;Zokgh djus dk vf/kdkj Hkh gksxkA fujLrhdj.k ds dkj.k lQy fufonkdkj@Bsdsnkj dks gqbZ fdlh Hkh gkfu ds fy, og Lo;a mRrjnk;h gksxkA ...."
41. As regard to the relief sought by the petitioner to give tender in his favour being H-2. In our considered opinion, what is true of respondent No.4 as regard to non-adherence to essential condition contained in Clause 5([k) and Clause 6(v)(d)(ii) of the NIT is equally applicable to the petitioner also who as analyzed supra was not eligible for consideration because the Net Worth Certificate did not disclose the Net Worth based on Audited Account. Therefore, the relief claimed by the petitioner is declined. 36
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42. Since we have set aside grant of sand mining lease in district Raisen issued to the respondent No.4, Respondents No.1, 2 and 3 are directed to take over the possession of mines. They are at liberty to either re-auction or operate the mines through Department.
43. The petition is disposed of finally in above terms. No costs.
(Sanjay Yadav) (B.K. Shrivastava)
JUDGE JUDGE
vinod
Digitally signed by
VINOD VISHWAKARMA
Date: 2020.09.25
16:05:48 +05'30'