Bombay High Court
M/S. Biswajeet Enterprises, Thr. Its ... vs Union Of India, Thr. Secretary, ... on 12 November, 2024
Author: Avinash G. Gharote
Bench: Avinash G. Gharote, M.S. Jawalkar
1 WP-4446.23+9-J.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR.
WRIT PETITION NO.4446/2023
PETITIONER : M/s. Biswajeet Enterprises,
Through its Partner,
Shri Shambhunath Dnyanendrachand
Chakravarty,
Off. At Ward No.1, At Post Ramtek,
Tq. Ramtek, Dist. Nagpur.
...VERSUS...
RESPONDENTS : 1. Union of India,
Through its Secretary,
Ministry of Steel, Udyog Bhawan,
Dr. Maulana Azad Road,
New Delhi 110011.
2. Moil Limited,
Through its General Manager (Production),
Beldongri Mines,
"MOIL BHAWAN",
1A, Katol Road,
NAGPUR 440 013.
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Mr. U.V. Chakravarty Advocate for petitioner.
Mr.C.J. Dhumne, Advocate for respondent no.1.
Mr. Masood Shareef, Advocate for respondent no.2.
--------------------------------------------------------------------------------
WITH
WRIT PETITION NO.4445/2023
PETITIONER : M/s. Biswajeet Enterprises,
Through its Partner,
Shri Shambhunath Dnyanendrachand
Chakravarty,
Off. At Ward No.1, At Post Ramtek,
Tq. Ramtek, Dist. Nagpur.
2 WP-4446.23+9-J.odt
...VERSUS...
RESPONDENTS : 1. Union of India,
Through its Secretary,
Ministry of Steel, Udyog Bhawan,
Dr. Maulana Azad Road,
New Delhi 110011.
2. Moil Limited,
Through its General Manager (Production),
Beldongri Mines,
"MOIL BHAWAN",
1A, Katol Road,
NAGPUR 440 013.
3. M/s. Darshanlal Bhutani,
Darshan Complex, Motar Stand,
Kamptee, Dist. Nagpur.
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Mr. U.V. Chakravarty Advocate for petitioner.
Mr.C.J. Dhumne, Advocate for respondent no.1.
Mr. Masood Shareef, Advocate for respondent no.2.
Mr. H.I. Kothari, Advocate for respondent no.3.
---------------------------------------------------------------------------------
WITH
WRIT PETITION NO.4474/2023
PETITIONER : M/s. Nizamsingh Chauhan,
Through its Partner,
Shri Anurag s/o Mahendrasingh Chauhan,
R/o 101, Radheay Apartment,
Giripeth, Nagpur - 440010.
...VERSUS...
RESPONDENTS : 1. Union of India,
Through its Secretary,
Ministry of Steel, Udyog Bhawan,
Dr. Maulana Azad Road,
New Delhi 110011.
3 WP-4446.23+9-J.odt
2. Moil Limited,
Through its General Manager (Production),
Sitapatore Mines, "MOIL BHAWAN",
1A, Katol Road, NAGPUR 440 013.
3. M/s. Altaf Ahmed,
Ward No.33, SBI Colony, Balaghat,
Dist. Balaghat, Madhya Pradesh, 481001.
---------------------------------------------------------------------------------
Mr. U.V. Chakravarty Advocate for petitioner.
Mr. C.S.Dhumne, Adv. for respondent no.1.
Mr. Masood Shareef, Advocate for respondent no.2.
None for respondent No.3.
---------------------------------------------------------------------------------
WITH
WRIT PETITION NO.4476/2023
PETITIONER : M/s. Nizamsingh Chauhan,
Through its Partner,
Shri Anurag s/o Mahendrasingh Chauhan,
R/o 101, Radheay Apartment,
Giripeth, Nagpur - 440010.
...VERSUS...
RESPONDENTS : 1. Union of India,
Through its Secretary,
Ministry of Steel, Udyog Bhawan,
Dr. Maulana Azad Road,
New Delhi 110011.
2. Moil Limited,
Through its General Manager (Production),
Sitapatore Mines, "MOIL BHAWAN",
1A, Katol Road, NAGPUR 440 013.
3. M/s. V.J.Trivedi, Mining Cont.Pvt.Ltd.,
18/19, Agrasen Marg, Giripeth,
Nagpur-440010.
4 WP-4446.23+9-J.odt
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Mr. U.V. Chakravarty Advocate for petitioner.
Mr. C.S.Dhumne, Adv. for respondent no.1.
Mr. Masood Shareef, Advocate for respondent no.2.
None for respondent No.3.
---------------------------------------------------------------------------------
WITH
WRIT PETITION NO.4473/2023
PETITIONER : M/s. Nizamsingh Chauhan,
Through its Partner,
Shri Anurag s/o Mahendrasingh Chauhan,
R/o 101, Radheay Apartment,
Giripeth, Nagpur - 440010.
...VERSUS...
RESPONDENTS : 1. Union of India,
Through its Secretary,
Ministry of Steel, Udyog Bhawan,
Dr. Maulana Azad Road,
New Delhi 110011.
2. Moil Limited,
Through its General Manager (Production),
Sitapatore Mines, "MOIL BHAWAN",
1A, Katol Road, NAGPUR 440 013.
3. M/s. Altaf Ahmed,
Ward No.33, SBI Colony, Balaghat,
Dist. Balaghat, Madhya Pradesh, 481001.
---------------------------------------------------------------------------------
Mr. U.V. Chakravarty Advocate for petitioner.
Mr. C.S.Dhumne, Adv. for respondent no.1.
Mr. Masood Shareef, Advocate for respondent no.2.
None for respondent No.3.
---------------------------------------------------------------------------------
WITH
5 WP-4446.23+9-J.odt
WRIT PETITION NO.4475/2023
PETITIONER : M/s. Nizamsingh Chauhan,
Through its Partner,
Shri Anurag s/o Mahendrasingh Chauhan,
R/o 101, Radheay Apartment,
Giripeth, Nagpur - 440010.
...VERSUS...
RESPONDENTS : 1. Union of India,
Through its Secretary,
Ministry of Steel, Udyog Bhawan,
Dr. Maulana Azad Road,
New Delhi 110011.
2. Moil Limited,
Through its General Manager (Production),
Sitapatore Mines, "MOIL BHAWAN",
1A, Katol Road, NAGPUR 440 013.
3. M/s. Shri Sai Mineral
At Post Chicholi, Tah.Tumsar,
Dist. Bhandara - 441912.
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Mr. U.V. Chakravarty Advocate for petitioner.
Mr. C.S.Dhumne, Adv. for respondent no.1.
Mr. Masood Shareef, Advocate for respondent no.2.
Mr. A.Z.Jibhkate, Advocate for respondent no.3.
---------------------------------------------------------------------------------
WITH
WRIT PETITION NO.4916/2023
PETITIONER : M/s. Biswajeet Enterprises,
Through its Partner,
Shri Shambhunath Dnyanendrachand
Chakravarty,
Off. At Ward No.1, At Post Ramtek,
Tq. Ramtek, Dist. Nagpur.
...VERSUS...
6 WP-4446.23+9-J.odt
RESPONDENTS : 1. Union of India,
Through its Secretary,
Ministry of Steel, Udyog Bhawan,
Dr. Maulana Azad Road,
New Delhi 110011.
2. Moil Limited,
Through its General Manager (Production),
Sitapatore Mines, "MOIL BHAWAN",
1A, Katol Road, NAGPUR 440 013.
3. M/s. Eastern Mining Cont. Pvt. Ltd.,
9, Giripeth, J.B. Thakkar Marg,
Nagpur - 440010.
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Mr. U.V. Chakravarty Advocate for petitioner.
Mr. C.S.Dhumne, Adv. for respondent no.1.
Mr. Masood Shareef, Advocate for respondent no.2.
None for respondent No.3.
---------------------------------------------------------------------------------
WITH
WRIT PETITION NO.4913/2023
PETITIONER : M/s. Nizamsingh Chauhan,
Through its Partner,
Shri Anurag s/o Mahendrasingh Chauhan,
R/o 101, Radheay Apartment,
Giripeth, Nagpur - 440010.
...VERSUS...
RESPONDENTS : 1. Union of India,
Through its Secretary,
Ministry of Steel, Udyog Bhawan,
Dr. Maulana Azad Road,
New Delhi 110011.
2. Moil Limited,
Through its General Manager (Production),
Sitapatore Mines, "MOIL BHAWAN",
1A, Katol Road, NAGPUR 440 013.
7 WP-4446.23+9-J.odt
3. M/s. V.J. Trivedi Mining Cont. Pvt. Ltd.,
18/19, Agrasen Marg, Giripeth,
Nagpur - 440010.
---------------------------------------------------------------------------------
Mr. U.V. Chakravarty Advocate for petitioner.
Mr. C.S.Dhumne, Adv. for respondent no.1.
Mr. Masood Shareef, Advocate for respondent no.2.
None for respondent No.3.
---------------------------------------------------------------------------------
WITH
WRIT PETITION NO.4915/2023
PETITIONER : M/s. Nizamsingh Chauhan,
Through its Partner,
Shri Anurag s/o Mahendrasingh Chauhan,
R/o 101, Radheay Apartment,
Giripeth, Nagpur - 440010.
...VERSUS...
RESPONDENTS : 1. Union of India,
Through its Secretary,
Ministry of Steel, Udyog Bhawan,
Dr. Maulana Azad Road,
New Delhi 110011.
2. Moil Limited,
Through its General Manager (Production),
Sitapatore Mines, "MOIL BHAWAN",
1A, Katol Road, NAGPUR 440 013.
3. M/s. Eastern Mining Cont. Pvt. Ltd.,
9, Giripeth, J.B. Thakkar Marg,
Nagpur - 440010.
---------------------------------------------------------------------------------
Mr. U.V. Chakravarty Advocate for petitioner
Mr. C.J. Dhumne, Adv. for respondent no.1
Mr. Masood Shareef, Advocate for respondent no.2
None for respondent No.3.
---------------------------------------------------------------------------------
8 WP-4446.23+9-J.odt
WITH
WRIT PETITION NO.4914/2023
PETITIONER : M/s. Biswajeet Enterprises,
Through its Partner,
Shri Shambhunath Dnyanendrachand
Chakravarty,
Off. At Ward No.1, At Post Ramtek,
Tq. Ramtek, Dist. Nagpur.
...VERSUS...
RESPONDENTS : 1. Union of India,
Through its Secretary,
Ministry of Steel, Udyog Bhawan,
Dr. Maulana Azad Road,
New Delhi 110011.
2. Moil Limited,
Through its General Manager (Production),
Sitapatore Mines, "MOIL BHAWAN",
1A, Katol Road, NAGPUR 440 013.
3. M/s. Darshanlal Bhutani,
Darshan Complex, Motor Stand,
Kamptee, Dist. Nagpur.
--------------------------------------------------------------------------------
Mr. U.V. Chakravarty Advocate for petitioner.
Mr. C. J. Dhomne, Adv. for respondent no.1.
Mr. Masood Shareef, Advocate for respondent no.2.
Mr. H.I. Kothari, Advocate respondent no.3.
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CORAM : AVINASH G. GHAROTE AND
SMT. M.S. JAWALKAR, JJ.
Date of reserving the judgment : 14/10/2024
Date of pronouncing the judgment : 12/11/2024
9 WP-4446.23+9-J.odt
JUDGMENT:(PER : AVINASH G. GHAROTE, J.)
1. Rule. Rule made returnable forthwith. The petitions are heard finally with the consent of the learned counsel for the parties.
2. All these petitions question the rejection of the offer of the petitioners, in the various tenders issued by the respondent No.1, for the work of "Handling and Transport on Lumpsum Basis - Handling & Transport Service, Truck loading by manual means Quantity 5000 MT, Handling and Transport on Lumpsum Basis - Handling & Transport Service, Truck loading by mechanical means Quantity 65000 MT, Handling and Transport on Lumpsum Basis - Handling & Transport Service, Rehandling and stacking on exigency Quantity 2000 MT". The quantities of work in the various NIT are different. The position in this regard can be depicted as under:
Sr. Writ Petn. Parties Tender No. & Date Date of Date of No. No. Names Submissi rejection on of Bid. of Bid.
1. 4446/2023 M/s. GEM/2023/B/346178, 07/06/23 12/07/23 Biswajeet Dt. 15/05/2023 Enterprises
-Vs. -
Union of India and others
2. 4445/2023 -"- GEM/2023/B/3488118, 07/06/23 13/07/23 Dt. 18/05/2023
3. 4916/2023 -"- GEM/2023/B/3488808, 13/06/23 24/07/23 10 WP-4446.23+9-J.odt Dt. 25/05/2023
4. 4914/2023 -"- GEM/2023/B/3483895, 12/06/23 24/07/23 Dt. 25/05/2023
5. 4475/2023 M/s. GEM/2023/B/3478868, 13/06/23 13/07/23 Nizamsingh Dt. 23/05/2023 Chauhan
-Vs. -
Union of India and others
6. 4473/2023 -"- GEM/2023/B/3492817, 16/06/23 13/07/23 Dt. 26/05/2023
7. 4476/2023 -"- GEM/2023/B/3474584, 12/06/23 13/07/23 Dt. 22/05/2023
8. 4913/2023 -"- GEM/2023/B/3483380, 14/06/23 24/07/23 Dt. 22/05/2023
9. 4474/2023 -"- GEM/2023/B/3493073, 13/06/23 13/07/23 Dt. 26/05/2023
10. 4915/2023 -"- GEM/2023/B/3483380, 14/06/23 24/07/23 Dt. 22/05/2023 2-A. On 08/04/2024, the following position was recorded.
"Heard.
2. These batch of petitions question the rejection of the bid of the petitioner/s, on the ground that on an earlier occasion when the petitioner/s in a JV named as Allied corporation had been granted a work order dated 28.03.2019 for the duration 28.03.2019 to 03.05.2019 for supply of sand, though the sand was supplied, the Transit Passes/Permits for this supply of sand are claimed to have been forged and fabricated, which is based upon two communications by the Revenue Department of the Seoni Division of the State of Madhya Pradesh both dated 06.01.2022. It is based upon this that an FIR came to be filed against the said Allied corporation and its constituents, which included the present petitioner/s, on 22.09.2022 . The
11 WP-4446.23+9-J.odt petitioner/s, has challenged the FIR in Criminal Application (APL) No. 29/2023 (page 331) in which by an order dated 09.01.2023, this Court has directed that the investigation may continue however charge-sheet shall not be filed until further orders.
3. It is thereafter, that in a tender floated on 18.05.2023, when the petitioner/s had submitted his bid, the same came to be rejected on 12.07.2023 (page 17) on the ground that M/s Allied Corporation, the JV of which the petitioner/s was the party in the earlier work order dated 20.08.2019 had committed a fraud regarding the transit passes/permits for supply of sand and the offer of the petitioner and therefore, cannot be processed (page 17A typed copy).
4. A representation was made by the petitioner/s against this (page 125) which again has been rejected on 15.07.2023 (page 18A) on the ground that the JV firm of the petitioner/s had submitted false royalty permits, and therefore, the representation cannot be considered (page 18A).
5. Mr. Chakravarty, learned counsel for the petitioner/s, challenges the rejection of the bid of the petitioner/s on the ground, that mere filing of an FIR, the consequent filing of charge-sheet of which has been stalled by this Court by its order dated 09.01.2023 cannot be said to be a ground for not opening the offer of the petitioner/s itself. He further contends, that there is no order of disqualification at all by the respondents, which ought to have been there in case, there was any truth in allegations of forgery and fraud levelled against the petitioner/s. It is further contended, that in respect of the non-payment of the value of the work order dated 28.03.2019, the petitioner had initiated arbitration proceedings in which a specific Issue No. B was famed as to whether the claimants/petitioners had defaulted the payment of royalty on sand supplied to the respondents, which issue has been answered in the negative (page 119), in which it has been observed that the Mining Officer, Balaghat has issued three letters dated 20.07.2019 and 30.11.2019 thereby confirming the payment of royalty on the quantities supplied by the JV to the respondents. It also records the Collector Nagpur having also confirmed about the payment of royalty, and therefore, the issue has 12 WP-4446.23+9-J.odt been answered in the negative and ultimately an award has been passed against the respondents to process and make payment of 70% of the bill amount of the petitioner/s within 30 days of the date of the order and the remaining 30% of the bill amount of the claimant was to become payable after payment of GST by the petitioner(s)/claimant(s). This award dated 21.09.2020, is under challenge by way of an Application under Section 34 of the Arbitration & Conciliation Act, 1996 which is stated to be pending. He also contends, that thereafter also the respondents had also issued work orders to the petitioner/s, for which he places reliance upon the work order dated 06.03.2023 (page
128). He also relied upon the work order dated 05.03.2024, a copy of which is tendered across the bar and marked as 'X' for the purpose of identification. Reliance is also placed upon work orders dated 20.08.2019 page 332 and onwards till page 338 and the fact that these work orders inspite of the fact that their scheduled dates for completion for sometime in the year 2022 were never cancelled.
6. He therefore contends, that a mere filing of an FIR would not entitle the respondents, in not even opening the offer of the petitioner/s on the ground that he was involved in a fraudulent activity while completing the work order dated 28.03.2019.
7. Mr. Shareef, learned counsel for the respondent No.2/, in this regard, relies upon the buyer aided bid specific terms and conditions in the tender document dated 18.05.2023 (page 32), which refers to the financial standing that the bidder should not be under liquidation, court receivership or similar proceedings, should not be bankrupt and an undertaking to be uploaded alongwith the bid. That in our considered opinion, does not have any bearing whatsoever on the matter in issue. He also refers to the Integrity Pact which is signed by the bidder. The format of Integrity Pact is at page 175. Section II relates to Commitment of Bidders and Section III relates to Violation and Penalties and reads as under:
"Commitment of Bidders (Section II) The Bidder/Contractor commits himself to take all necessary measures not to involve in any type of corrupt 13 WP-4446.23+9-J.odt practice during the Tender Process as well as Execution of the Contract including the following:-
A. The Bidder/Contractor will not offer or promise to offer to any of the MOIL's employee the gratification/benefit for which he/she is not legally entitled to get undue favour/advantage or information related to Tender Process or during Execution of the Contract.
B. The Bidder/Contractor will not enter into Agreement with other Contenders/Contractors to derail/disturb fair Tender Process like price fixing or other unethical understanding like Cartel Formation.
C. The Bidder/Contractor will not pass on to others the Confidential Information provided by MOIL as a part of Tender Documents/Contracts.
D. The Bidder/Contractor will not disclose about all the payments made to the Agents/intermediaries, wherever such arrangement is permissible, in connection with the award of Contract/Tender Process.
E. The Bidder/Contractor will immediately inform MOIL, if asked to pay any illegal gratification or bribe, in violation of this Integrity Pact, by any of MOIL's employee or comes to know any illegal payment made to any of the employee. The Bidder/Contractor will not do any Act, by way of commission or omission which may defeat the spirit behind the present Integrity Pact.
F. A person signing Integrity Pact (IP) shall not approach the Courts while representing the matters to IEMs and He/She will await their decision in the matter.
Violation and Penalties (Section-III) The Bidder/Contractor, if found to violate the clauses of the Integrity Pact, will be liable to the following penalties:-
14 WP-4446.23+9-J.odt
A. MOIL will be entitled to disqualify the
Bidder/Contractor from the tender process.
B. If after the award of contract, the bidder is found guilty of breach of the Integrity Pact, the MOIL will be entitled to terminate the contract.
C. The MOIL will have right to disqualify the default Bidder/Contractor for participation in future contracts of the Principal (MOIL) for a certain period or black list it permanently depending upon seriousness of offence. D. The MOIL, if the contract is terminated due to violation of the Integrity Pact on part of Bidder/Contractor, will be entitled for material damages as decided by the MOIL Management and will be binding to all. The Principal (MOIL) will also have right to forfeit the Security deposit. E. The CMD of the Principal (MOIL) will be the final authority in respect of the aforesaid clauses of Violation and Penalties. The decision taken by CMD of the Principal (MOIL) shall be final and acceptable and would not be amendable to any challenge."
8. He also relies upon clause 42 (i) of the NIT (page 64) which contemplates that the bidders who failed to perform satisfactorily during execution of earlier contracts of MOIL limited, shall not be qualified to participate in the present tender and offers of such bidders shall not be considered during a period of four years in case of Clause
(a) and two years in case of Clause (b), and therefore, contends there is an automatic disqualification for consideration of the bid of the petitioner/s. He also relies upon clause 9 (f) of Annexure 1 (page 69) which is an order by Senior Development Officer to contend that false declaration would be considered as a breach of the Integrity Code under Rule 175 (1)(i)(h) of the General Financial Rules for which a bidder or its successor can be debarred for up to two years as per Rule 151 (iii) of the General Financial Rules. He, however, seeks a day's time to place a copy of these rules on record, as according to him they would be relevant and germane in deciding the issue, considering which, list the matter on 10.04.2024."
15 WP-4446.23+9-J.odt
3. Mr. Chakravarty, learned counsel for the petitioners has placed reliance on :-
(1) Michigan Rubber (India) Ltd. v. The State of Karnataka, MANU/Sc/0662/2012: (2012) 8 SCC 216, (2) B.S.N. Joshi and Sons Ltd. v. Nair Coal Services Ltd, MANU/SC/8598/2006: (2006) 11 scc 548, (3) Shalby Limited v. The State of Goa, MANU/MH/1066/2011 : 2012 (1) Mh.L.J. 533 (4) Atlas Transport Company v. State of Maharashtra, MANU/MH/0333/2004 : 2004 (3) Mh.L.J. 809, (5) Baroda Surgical (India) Pvt.Ltd. v. State of Gujarat, MANU/GJ/0479/2020, (6) Centre for Development Communication v. Ahmedabad Municipal Corporation, MANU/GJ/0596/2017, (7) Balaji Surgical, Nashik v. State of Maharashtra, 2024 (3) Mh.L.J. 356 and (8) Banshidhar Construction Pvt. Ltd. v. Bharat Coking Coal Limited, 2024 SCC OnLine SC 2700.
4. Mr. Sharif, learned counsel appearing with Mr.Adil Mirza, learned counsel for the respondent No.2 has placed reliance upon :-
(1) Afcons Infrastructure Limited v. Nagpur Metro Rail Corporation Limited, (2016) 16 SCC 818, (2) Silppi Constructions Contractors v. Union of India, (2020) 16 SCC 489, (3) N.G.Projects Limited v. Vinod Kumar Jain, (2022) 6 SCC 127, 16 WP-4446.23+9-J.odt (4) M/s. R.K.Sancheti v. State of Maharashtra (Writ Petition No.6216 of 2023) and (5) Minakshi v. State of Maharashtra, 2024 (1) Mh.L.J. 171.
5. On 11/06/2024, upon a statement being made by the learned counsel for the respondent No.2, that the work orders had been issued, and the work was in progress which was undertaken by the respective successive bidders they were directed to be made parties to the proceedings and upon service have appeared being represented by learned Advocate A.Z.Jibhkate in Writ Petition No.4475 of 2023 and Advocate H.I.Kothari in Writ Petition Nos.4914 and 4445 of 2023. In rest of the petitions the respondent No.3 has been served, however, none appears for it.
6. The matter has thereafter been extensively heard. Mr.Uttam Chakravarty, learned Counsel for the petitioners, in all these petitions, has reiterated his arguments made earlier, as indicated above. Mr. Sharif, learned counsel for the respondent No.2 reiterates his contention regarding the integrity pact to contend, that since the petitioners were the constituents of the JV M/s. Allied Corporation in an earlier contract with the respondent No.2, against whom FIR has been registered for submitting forged Transit Pass, the same would indicate the violation of the terms and conditions of the integrity pact, as a result of which the disqualification of the petitioner was clearly justified. Mr. Jibhkate, (in Writ Petition No.4475 of 2023) and Mr. Kothari, (in 17 WP-4446.23+9-J.odt Writ Petition Nos.4914 and 4445 of 2023) learned counsels for the respondent no.3, submit that the work has progressed to a substantial degree under the contract awarded to their clients and therefore the same may not now be stalled by interfering in this petition.
7. The facts necessary for appreciating the controversy in issue can be summed up as under:
7.1. M/s. Allied Corporation, a Joint Venture, of which the petitioners in all these petitions were constituents had participated in a tender process floated by the respondent No.2 in 2019, which was for the purpose of filling up excavated space, created due to excavation of minerals, by sand at Munsar, Kandri and Beldongri Mines of the respondent No.2. M/s. Allied Corporation was awarded the contract and work order No.9100001277 dated 28/03/2019 was issued in its favour. The condition of payment was that the bills were to be accompanied by the royalty passes. The period of supply was three months from the date of the work order. In terms of this work order M/s. Allied Corporation had supplied sand at the aforesaid three mines of the respondent No.2. For the duration 09/04/2019 to 30/04/2019, out of the quantity of 3000 cubic meter to be supplied at Munsar Mine, M/s. Allied Corporation had supplied 2981.803 cubic meter of sand and a bill of Rs.35,78,158.35 was raised. For the duration 10/04/2019 to 03/05/2019 out of the quantity of 18 WP-4446.23+9-J.odt 6000 cubic meters to be supplied at Kandri Mine, M/s. Allied Corporation had supplied 4796.916 cubic meter of sand and the bill of Rs.57,56,242.84 was raised. For the duration 10/04/2019 to 24/04/2019 out of the quantity of 2500 cubic meters to be supplied at Beldongri Mine, M/s. Allied Corporation had supplied 2594.50 cubic meter of sand and the bill of Rs.28,49,999.50 was raised. All these bills were accompanied by total 483 transit passes issued by the Mining Departments, in the various districts of the State of Madhya Pradesh. Since these e-TP's upon verification with the online portal of the Mining Department of the State of Madhya Pradesh were found not to tally, the payments to be made by the respondent No.2 to M/s. Allied Corporation were stopped. Upon enquiry with M/s. Allied Corporation, it is claimed that 2 different sets of e-TP's one issued by the State of Madhya Pradesh and another issued by the State of Maharashtra were submitted, which added to the suspicion regarding the genuineness of the e-TP's submitted by M/s. Allied Corporation. Upon enquiries by the respondent No.2, with the Mining Offices of Mandla and Seoni Districts of the State of Madhya Pradesh, to their communications dated 06/01/2022, the respondent No.2 received replies from the Mining Officers therein, that the e-TP's submitted by M/s. Allied Corporation were indeed issued by their Offices, it was however stated that these e-TP's were not for MOIL/respondent No.2, on account of which on an apprehension that M/s. Allied Corporation had prepared false e-TP's, and therefore, defrauded the respondent No.2, FIR No.0388 of 2022 came to be 19 WP-4446.23+9-J.odt registered against the proprietors/partners of the constituents of JV -M/s.
Allied Corporation who are the present petitioners, on 27/09/2022, (Pg.107) under sections 420, 465, 466, 467, 468, 471 read with section 120-B of the Indian Penal Code.
7.2. In the meantime, since the respondent No.2 had failed to make payment for the sand supplied by M/s. Allied Corporation, it had instituted arbitration proceedings against the respondent No.2 in which an award came to be passed on 21/09/2020 by the Sole Arbitrator directing the respondent No.2 to process and make payment of 70% of the bill amount of the claimant within 30 days of the receipt of the award and balance 30% of the bill would become payable only after payment of GST by M/s. Allied Corporation (Pg.120). This award, is stated to be under challenge, in an application under section 34 of the Arbitration and Conciliation Act, 1996 filed by the respondent No.2 before the learned District Judge-2, Nagpur vide Civil MA No.711 of 2021. However, no statement is forthcoming as to whether there is any stay to the award.
7.3. In the meantime, one Mr. Anurag Singh Chauhan, who was one of the constituents of the JV M/s. Allied Corporation, had approached this Court vide Criminal Application (APL) No.29 of 2023 challenging the FIR, which came to be registered at the instance of the respondent No.2, in which by an 20 WP-4446.23+9-J.odt order dated 09/01/2023, though the investigation was permitted to be continued, however, it was also directed that charge-sheet shall not be filed against the applicant until further orders (Pg.331). 7.4. It is in the above background that the plea of the petitioners challenging the rejection of the bids submitted by them in respect of the NITs as indicated above has to be viewed.
8. It is not in dispute that under the work order dated 28/03/2019, M/s. Allied Corporation, has indeed made the supply of the sand in the quantities as indicated above, which supply of sand is not disputed by the respondent No.2. What is disputed, is the genuineness of the e-TP's submitted by the JV M/s. Allied Corporation in support of the bills raised by it upon the respondent No.2. It is equally a position on record that the Mining Officers, of the districts of Mandla and Seoni of the State of Madhya Pradesh have communicated to the respondent No.2 regarding issuance of the e-TP's by them, as is indicated in the FIR itself (Pg.111), though they have stated that the same was not for MOIL.
9. There is however, no provision pointed out by Mr. Sharif, learned counsel for the respondent No.2, that the purchaser of the sand has to be named in the e-TP's to be issued by the Mining Department. Though the e-TP 21 WP-4446.23+9-J.odt (sample at page 563) indicates that there is an entry to be made regarding the buyer's details, however, no statutory provision, rule, regulation, policy has been brought to our notice to indicate, that the supply and sale of the sand in the e-TP can only be, to the buyer named in the e-TP and not to any third person. This also cannot be true for the reason that the Mining Department which issues the e-TP is not concerned with the buyer, but only with the payment of royalty on the sand, which is the subject matter of the e-TP. On the contrary, any such restrictions, would clearly be unreasonable and arbitrary, considering the purpose for which the e-TP is to be used which is restricted to ensuring that the proper royalty upon the quantity of sand indicated therein is paid. In fact, there could also be multiple transactions in between the buyer named in the e-TP and third persons, to whom the buyer may agree to sell the sand, which is the subject matter of the e-TP. However, for the purpose of the present petition, we need not go into all these finer niceties as they are already subject matter of investigation and any further observation in this regard would affect the same.
10. It is also necessary to note, what the learned Arbitrator has stated in the arbitral award, dated 21/09/2020 passed by the learned Arbitrator in regard to Issue No.D, which was whether the certificates issued by the Mining Officer can be taken as proof of payment of royalty which has been answered in the affirmative, in the following manner.
22 WP-4446.23+9-J.odt "ISSUE D:
The Mining Officers have issued the certificate after the receipt of letters from the concerned mines and officers of respondent, referring to not only the work order issued to the claimant but also the quantity of sand received there under. The mining office is responsible for the royalty payments in the district and while issuing the said certificates the mining officer has referred to the particular quantity mentioned in the letter of respondent. Having particularly issued the certificates vis-a-vis the order in question and the quantity received by the respondent there under the certificates cannot be ignored. Moreover, since the quantity is duly referred in the letters of respondent as well as the certificates of Mining Officers, it can be positively inferred to be with respect to the sand supplied to the respondent only. A perusal of the tender document reveal that it was a tender for purchase of sand which was open to all and was not restricted to Ghat owners of sand. In such situation demand of royalty receipts is solely for the purpose of ensuring that the sand is legally procured and supplied. In the given set of facts and circumstances if the Ghat owner has supplied false royalty receipts the supplier cannot be penalised for no fault at his end. Having learnt about the false royalty payment receipts the claimant has made the payments online and the same is confirmed by the Mining Officer not at the behest of claimant but on request of respondent itself. The certificates issued at the request of respondent cannot be therefore doubted only for the reasons that the ETPs or TPs does not match the mine's entry register. The payments being made at a later date, the question as to whether the ETPs issued in such situation can match the actual date of supply is an altogether different issue and need not be got into in the present situation where the supply and delivery of the material is duly admitted by the parties and the royalty payment certified by the Mining Officer vis-a-vis the particular work order.
I therefore answer this issue in affirmative and hereby hold that the certificates issued by the mining officers can be taken as a good proof of payment of royalty by the claimants."
This would clearly indicate the existence of a finding inter-se
23 WP-4446.23+9-J.odt between the JV- M/s Allied Corporation and the respondent no.2, that the payment of royalty upon the sand supplied to the respondent no.2, by M/s Allied Corporation, has been held to be legal and proper, on account of which they have been considered and an award has been passed against the respondent no.2. Though the award is under challenge at the behest of the respondent no.2, by way of an application under sec.34 of the A & C Act, 1996, the finding remains binding upon the respondent no.2, till such time the same is set aside. Neither, as indicated above, it has been brought on record that the effect and operation of the award, has been stayed, on account of which the respondent no.2, is estopped from raising a plea, contrary to such finding, till such time it continues to hold the field.
11. Since much stress, has been placed by Mr.Shareef, learned Counsel for the respondent no.2, upon the integrity pact, the language of the Integrity Pact assumes significance. The same is reproduced as under :
"INTEGRITY PACT On this 31th day of August, 2019, at Nagpur, in presence of following two witnesses, this Integrity Pact is being executed between:
MOIL LIMITED hereinafter referred to as "The Principal/MOIL" and M/s. Allied Corporation (J.V.) hereinafter referred to as "The Bidder/Contractor" (which expression shall include all its partners/directors, agent, representative, servants, sub contractors, (whatever permitted/permissible) & successor in interest etc. 24 WP-4446.23+9-J.odt including all person claiming through it). Whereas, it has been directed by the Ministry of Steel, New Delhi and Central Vigilance Commission, New Delhi that Government of India undertakings shall execute Integrity Pact with the Contracting Parties/bidders in all the forthcoming Contracts/Tender Processes above prescribed/specified value of Rs.1.0 Crores, it is necessary to execute Integrity Pact between such parties. Pursuant thereto, the present Integrity Pact is being executed.
The terms and conditions of the Integrity Pact are as under:
COMMITMENT OF MOIL (SECTION-I) (not reproduced since they are not germane for the present discussion).
COMMITMENT OF BIDDERS (SECTION-II) The Bidder/Contractor commits himself to take all necessary measures not to involve in any type of corrupt practice during the Tender Process as well as Execution of the Contract including the following:-
A. The Bidder/Contractor will not offer or promise to offer to any of the MOIL's employee the gratification/benefit for which he/she is not legally entitled to get undue favour/advantage or information related to Tender Process or during Execution of the Contract.
B. The Bidder/Contractor will not enter into Agreement with other Contenders/Contractors to derail/disturb fair Tender Process like price fixing or other unethical understanding like Cartel Formation.
C. The Bidder/Contractor will not pass on to others Confidential Information provided by MOIL as a part of Tender Documents/Contracts.
D. The Bidder/Contractor will not disclose about all the payments made to the Agents/Intermediaries, wherever such arrangement 25 WP-4446.23+9-J.odt is permissible, in connection with the award of Contract/Tender Process.
E. The Bidder/Contractor will immediately inform MOIL, if asked to pay any illegal gratification or bribe, in violation of this Integrity Pact, b any of MOIL's employee or comes to know any illegal payment made to any of the employee. The Bidder/Contractor will not do any Act, by way of commission or omission which may defeat the spirit behind the present Integrity Pact. F. A person signing Integrity Pact (IP) shall not approach the Courts while representing the matters to IEMs and He/She will await their decision in the matter.
VIOLATION AND PENALTIES (SECTION-III) The Bidder/Contractor, if found to violate the clauses of the Integrity Pact, will be liable to the following penalties:-
A. MOIL will be entitled to disqualify the Bidder/Contractor from the tender process.
B. If after the award of contract, the bidder is found guilty of breach of the Integrity Pact, the MOIL will be entitled to terminate the contract.
C. The MOIL will have right to disqualify the default Bidder/Contractor for participation in future contracts of the Principal (MOIL) for a certain or black list it permanently depending upon seriousness of offence.
D. The MOIL, if the contract is terminated due to violation of the Integrity Pact on part of Bidder/Contractor, will be entitled for material damages as decided by the MOIL.
E. Management and will be binding to all. The Principal (MOIL) will also have right to forfeit the Security Deposit.
F. The CMD of the Principal (MOIL) will be the final authority in respect of the aforesaid clauses of Violation and Penalties. The decision taken by CMD of the Principal (MOIL) shall be final and acceptable and would not be amendable to any challenge.
26 WP-4446.23+9-J.odt INDEPENDENT MONITOR (SECTION-IV) A. (not reproduced since they are not germane for the present discussion).
GENERAL CONDITIONS (SECTION-V) A. ------.
B. ------.
C. The Bidders/Contractors, who do not sign the Integrity Pact, will not be entitled to participate in the Tender Process or continue with the contract.
D. ---------.
E. ---------.
F. ---------.
G. ---------."
Admittedly, the respondent no.2, has not taken any action against M/s Allied Corporation, of either to disqualify or black-list it, at any point of time, vis-a-vis, the contract with it or future contracts. It is also necessary to note in terms of Clause (A) of Sec.-III of the Integrity Pact, the disqualification is of the bidder/contractor from the tender process, which would indicate the tender process, in which the bidder is participating or the contract, which may have been entered thereupon. The disqualification/black-listing as contemplated by Clause (C) of Sec. III of the Integrity Pact, has to be after due notice to the bidder/contractor and upon consideration of its reply and grant of a hearing, to satisfy the requirement of the principles of natural justice. As 27 WP-4446.23+9-J.odt indicated above, no such action has been taken by the respondent no.2, as against the JV M/s Allied Corporation. In fact, Clause 7.3 (ii) of Appendix IV (pg.733) of the Purchase & Contract Manual (PCM-2023) of the respondent no.2, itself indicates the requirement of a show-cause notice to the agency by the concerned department and of considering its reply, before submitting any final recommendation to the concerned department for banning of business dealings with the Agency/contractor. Clause 7.4 & 7.7, also contemplates the indicating of the period for which the ban is proposed. No such procedure appears to have been adopted as against the petitioners, in this case, presuming that being the constituents of the JV- M/s Allied Corporation, they were liable for such an action.
Rather on the contrary, it has come on record that M/s Allied Corporation, has been awarded a contract of gardening by the respondent no.2, as is indicated by its submissions dt.13/9/2023 in para 16 (pg.146) thereof. The respondent no.2, cannot be permitted to approbate and reprobate, in as much if they claim a fraudulent action on part of the JV-M/s Allied Corporation, which according to them, is serious enough to permanently ban it and its constituents, they cannot then be permitted to say that such action would not come in its way to award of an contract to such an agency/contractor, for any activity/work whatsoever.
28 WP-4446.23+9-J.odt The action of disqualifying the petitioners, from the tender process of 2023, therefore cannot be sustained on this count alone.
12. The reasons for rejection of the bids of the petitioners on technical evaluation, are spelt out from the comments dated 12/07/2023 (Pg.17) and 20/09/2023, on the website of the respondent No.2 (Pg.127-AD). The same read as under :
Date Status Reason Comment 2023.07.12 Disqu- Other It is noted that M/s. Nizamsingh Chauhan 11:50:51 alified and M/s. Biswajeet Enterprises two parties are part of joint venture of M/s. Allied Corporation (JV) who has awarded the work order no.9100001499 dt. 20.08.2019 for purchase of sand for Munsar, Kandri and Beldongri mines for sand stowing purpose.
M/s. Allied Corporation (JV) has supplied the sand to these mines using fraud royalty. MOIL has filed the FIR case against M/s. Allied Corporation (JV) for this fraud at Sadar police station, Nagpur and the case is continuing. In view of above, Dy. G.M. (Legal) was requested to comment/advice, on aforesaid matter (copy enclosed). On scrutiny of all the documents, Dy.G.M.(Legal) has opined as under. "In the said tender M/s.
Nizamsingh Chauhan and M/s. Biswajeet Enterprises are informed to have applied individually and separately as two different partnership firms. It is further informed that these two firms (through their JV viz.M/s.
Allied Corporation) were allotted work order No.910001499 dated 20.08.2019 for purchase of sand. Admittedly in the said work order for supply of sand the two subject firms through their JV have given fraudulent 29 WP-4446.23+9-J.odt ETPs and have also defaulted in GST. A JV of two firms is not a separate legal entity and nothing different from the JV partners.
Therefore, the illegalities committed by M/s.
Allied Corporation in work order No.9100001499 will go to the root of JV partners individually. In such scenario these two firms individually will incur the illegalities committed through the JV. In my opinion therefore they may not be allowed to participate in the new tender (copy attached).
In view of above facts, TPC opines that the offer of the M/s.Biswajeet Enterprises cannot be processed for further evaluation & hence, disqualified.
and Date Status Reason Comment 2023-09- Disqua- Other During the technical recommendation, 20 lified details Chief (Survey) confirmed that M/s. 14:56:44 indicated in Nizamsingh Chauhan and M/s. Biswajeet the Enterprises are part of joint venture of comment M/s. Allied Corporation (JV) who has awarded the work order no.9100001499 dt. 20.08.2019 for purchase of sand for Munsar, Kandri and Beldongri mines for sand stowing purpose. M/s. Allied Corporation (JV) has supplied the sand to these mines using fraud royalty. MOIL has filed the FIR case against M/s. Allied Corporation (JV) for this fraud at Sadar police station, Nagpur and the case is continuing. In all the tender of MOIL Ltd.
there is a specific clause stating that the agreement is subjected to law of the land.
On the same lines the contractor has to mandatorily sign the integrity pact. In case work order issued to M/s. Allied Corporation (the JV of M/s. Nizamsingh Chauhan and M/s.Biswajeet Enterprises) an Integrity Pact was signed. The Integrity 30 WP-4446.23+9-J.odt Pact clearly stipulated that for the violations MOIL shall have right to disqualify the bidder/contractor for participation in future contracts of MOIL.
As such, they are technically disqualified.
13. A perusal of the commitments of the bidder (Section II) of the Integrity Pact, as quoted above would indicate that though there is allegation regarding contravention of clauses, of the Integrity Pact, however it does not specify, which of the clauses, A, B, C, D, E or F of the same have been violated. There is no allegation by the respondent No.2, which of these clauses, in section II of the Integrity Pact, have been violated by the JV M/s. Allied Corporation. In fact, the nature of the allegations being made against the JV M/s. Allied Corporation, would indicate, that it does not fit into the language of either of the clauses A to E of Section-II of the Integrity Pact (Pg.190) as quoted above, as it is not the contention of the respondent No.2, that any offer or promise to offer was made to any of its employee of any illegal gratification/benefit; or any agreement was entered into by the JV M/s. Allied Corporation with any other contending contractor for any price fixing for cartel formation; or any confidential information provided by the respondent No.2 as part of the tender document/contract was disclosed or any information regarding payment to agents/intermediaries was disclosed; or that the JV M/s. Allied Corporation or its constituents had approached the Courts while representing the matter to the IEM. Thus, the contention that the obligation 31 WP-4446.23+9-J.odt upon M/s. Allied Corporation and its constituents, as imposed by Section-II of the Integrity Pact, has been violated in view of the registration of the FIR against them, is clearly misconceived and could not have been the ground for the purpose of rejecting the offer of the petitioners on the ground of violation of the Integrity Pact (impugned communication at page 127-AD).
14. It is also contended by Mr. Sharif, learned counsel for the respondent No.2, that the disqualification is also justified, in terms of clause 42 (Pg. 41) of the bid document dated 18/05/2023 (Pg.28). For the purpose of appreciating this contention, it is necessary to consider the language of clause 42 of the bid document, which reads as under :
"42. (i) The bidders, who have failed to perform satisfactorily during execution of earlier contracts of MOIL Limited, shall not be qualified to participate in the present tender. Offers of such bidders shall not be considered during a period of four years in case of Clause (a) and two years in case of Clause (b) given below the time period of two and four years shall be reckoned from the date of discontinuance or completion of work respectively.
For this purpose, failure to perform satisfactorily would mean-
(a) Incomplete execution in earlier contract(s) beyond the applicable norms of the company OR
(b) Completion of work order quantities beyond stipulated period in respective work order(s) with more than two extensions on account of reasons of poor performance attributable to such contractor.
32 WP-4446.23+9-J.odt
(ii) If the contractors
(a) Fails to complete the work order quantity within scheduled time period for the reasons attributed to him and leaves the work uncompleted. OR
(b) Completes the work order quantity with more than two extensions on account of reasons of poor performance attributable to such contractor, Such failure shall amount to and be treated as an automatic disqualification incurred by the contractor to participate in any future tender(s) or contract(s) of MOIL Limited for four years in case of (a) above and two years in case of (b) above. The time period of two and four years shall be reckoned from the date of discontinuance or completion of work respectively. In case of (i) and (ii) above foreclosure of the work by MOIL and/or closure of contract for force majeure reasons will not be treated as incomplete execution of work by the contractor.
(iii) If the contractor fails to comply with any of the statutory provisions of the labour Laws/Acts applicable during the execution of the earlier awarded work orders, such failure shall be treated as an automatic disqualification incurred by the contractor to participate in any future tender(s) or contract(s) of MOIL Limited for two years.
The period of two years shall be reckoned from the date of discontinuance or completion of work respectively. If the contractor fails to comply with any of the statutory provisions of the Laws/Acts applicable during execution of the work awarded in terms of the NIT, MOIL will be free to terminate the contract and made alternate arrangements for completing the work at the risk and cost of the contractor."
14.1. Clause 42(i) contemplates disqualification of a bidder to participate in a tender process, in case such a bidder has earlier failed to perform 33 WP-4446.23+9-J.odt satisfactorily under its contracts with the respondent No.2, which disqualification is for a period of four/two years. This clause 42(i) specifically describes, the expression "failure to perform satisfactorily", to mean incomplete execution of the earlier contracts or completion of work order beyond stipulated period with more than two extensions on account of poor performance attributable to the poor performance of the contractor. Admittedly, it is not the contention of the respondent No.2, that the JV M/s. Allied Corporation, had not completed the work under the contract, or had completed it beyond the stipulated period with more than two extensions and therefore, the disqualification as contemplated by clause 42(i), of the bid document, is not attracted.
14.2. Clause 42(ii) of the bid document contemplates disqualification of the contractor if he fails to complete the work order quantity within scheduled time period for the reasons attributed to him and leaves the work uncompleted, or completes the work quantity with more than two extensions on account of poor performance attributable to the contractor, which is same as clause 42(i)(b). This is also not the case of the respondent No.2, as is reflected from the comments indicated above for disqualifying the petitioners. 14.3. Clause 42(iii) of the bid document contemplates disqualification upon failure of the contractor to comply with the statutory provisions of the 34 WP-4446.23+9-J.odt labour laws, Acts applicable during the execution of the earlier awarded work orders. As indicated above, the registration of the crime against the constituents of the JV M/s. Allied Corporation, is not on account of any of the aforesaid actions contemplating disqualification under clause 42 of the bid document, but is on account of a suspicion that fraudulent e-TPs have been submitted by the JV M/s. Allied Corporation during the execution of the earlier work order dated 28/03/2019. We have already noted above, that the respondent No.2 has not brought to our notice any statutory provision, rule or regulation, which would require the e-TP, to be only in the name of the ultimate buyer/recipient of the commodity, on account of which, as of now in absence of the same, and specifically, in light of the finding recorded by the learned Arbitrator in his award dated 21/09/2020 while answering Issue No.D, we are unable to hold, that any statutory provision, rule, regulation has been violated by the JV M/s. Allied Corporation, in the matter of completion of the work order dated 28/03/2019.
14.4. The above position would therefore indicate, that the reason for rejecting the technical bid of the petitioners by the respondent No.2, cannot be sustained at law.
15. Afcons Infrastructure Limited (supra) relied upon by Mr.Sharif, holds that the words used in tender document cannot be ignored or treated as 35 WP-4446.23+9-J.odt redundant or superfluous, which is an undisputable position, however, in the present matter even consideration of the language of the tender document, as indicated above does not justify the disqualification of the petitioners. Silppi Constructions ; N G Projects ; M/s R K Sancheti and Minakshi (supra) lay down the parameters for interference in judicial review. In Surendra Infrastructure (P) Ltd. (supra) relied upon by Mr.Jibhkate, learned counsel for the respondent no.3 in Writ Petition No.4475 of 2023, the Court had refrained from interfering in the tender process being undertaken by authority on the ground that it had reached to a stage where a work order had already been issued. These judgments, however do not lay down a proposition of Courts adopting a totally hands off policy, even if it notices illegality in the matter. Since we find that the disqualification of the bids of the petitioners on the grounds claimed by the respondent no.2, was unjustified, the Court would be bound to interfere, the relief, to be granted to the petitioners, is however another matter.
16. A perusal of the prayer clauses in all these petitions would indicate that the disqualification of the petitioners by the respondent no.2, on account of the FIR pending against the JV- M/s Allied Corporation (Pg.127-AD) has been questioned by them. It is also necessary to note, that it is also not disputed that the work, has since been allotted to the respondent no.3, in these petitions and has progressed to a substantial stage. This being the position, the clock, cannot now be turned back. However, since the disqualification of the 36 WP-4446.23+9-J.odt petitioners on the ground as indicated above having been found to be unsustainable in law, and would affect the future opportunities of the petitioners to participate in tender process, to that extent, we deem it appropriate to interfere.
17. The disqualification of the petitioners is a direct result of the petitioners being banned or blacklisted, without terming it as such, in so many words, which is even without any hearing at all, and that stems from the lodging of the FIR against them, in respect of an alleged claim of submitting fraudulent e- TP's, which is being continued to be pressed into service inspite of the finding to the contrary by the learned Arbitral Tribunal. Such a conduct on part of the respondent no.2, which in fact is a 'State' within the meaning of Article 12 of the Constitution, is clearly unwarranted and unsustainable in law, considering the factual background in which it has been made.
18. Thus for the reasons recorded above, we are unable to sustain the rejection of the bids of the petitioners by the respondent No.2. However, we cannot at the same time, loose sight of the fact, that the work has already been awarded to the respondent No.3 and the statement made by Mr.Jibhkate, learned counsel for the respondent No.3 on 11/06/2024, states that the work has already progressed to a substantial degree under the contract awarded to the respondent No.3, which position has not been controverted by the learned 37 WP-4446.23+9-J.odt counsel for the petitioners, in light of which, though we set aside the communication dated 20/09/2023 (Pg. 127-AD) and similar communications in all these petitions disqualifying the petitioners from participating in the tender process of the respondent No.2 in future contracts of the respondent No.2, we deem it appropriate to decline to grant the reliefs of permitting the petitioners, to participate in the tender process, as that is already a thing over and done with. The petitions are therefore partly allowed by holding that the petitioners would be entitled to participate in the future tenders process of the respondent No.2. Rule made absolute to this extent only. Considering the circumstances, there shall be no order as to costs.
(SMT. M.S. JAWALKAR, J.) (AVINASH G. GHAROTE, J.) Deshpande/Khunte Signed by: Mr. G.S. Khunte Designation: PS To Honourable Judge Date: 12/11/2024 16:18:50