Orissa High Court
M/S. Sakrobotix Lab vs State Of Odisha And Others ..... Opp. ... on 31 August, 2023
Author: B.R.Sarangi
Bench: B.R.Sarangi
ORISSA HIGH COURT: CUTTACK
AFR
W.P(C) NO. 26720 OF 2023
In the matter of an application under Article 226 of the
Constitution of India.
---------------
M/s. SakRobotix Lab ..... Petitioner
Private Limited
-Versus-
State of Odisha and others ..... Opp. Parties
For petitioner : Mr. Pitambar Acharya,
Sr. Advocate along with
Mr. S. S. Tripathy, Advocate
For opp. parties : Mr. L. Samantaray,
Addl. Government Advocate
[O.P.1]
Mr. Ashok Kumar Parija,
Sr. Advocate along with
Mr. Tarun Patnaik, Advocate
[O.Ps. 2 and 3]
Mrs. Pami Rath, Sr. Advocate
along with Mr. Abhishek Dash,
Advocate [O.P. 4]
P R E S E N T:
THE HONOURABLE DR. JUSTICE B.R.SARANGI AND THE HONOURABLE MR JUSTICE MURAHARI SRI RAMAN Date of Hearing : 24.08.2023 :: Date of Judgment : 31.08.2023 Page 1 of 46 DR. B.R. SARANGI, J. M/s. SakRobotix Lab Private Limited, a company incorporated under the Companies Act, 1956, has filed this writ petition seeking following reliefs:-
"A. Why the Opp. Parties shall not be directed to reject the bid and participation of Opp. Party no 4 herein, i.e. EDICIL (India) Limited, in the tender process bearing RFP No.-OCAC-SEGP- INFRA-0025-2023-23028, dated 24-04-2023 vide Annexure-2;
B. Why the Opp. Parties shall not be directed to settle the bid with the Petitioner being the lowest bidder in the financial bid; C. Why the Opp. Parties shall not be directed to initiate necessary action against the EDICIL India Limited for deliberately providing misleading information in its RFP;
D. Why such other order/orders as this Hon'ble Court may deem fit and proper shall not be passed;
If the opposite parties fail to show cause or show insufficient cause the Hon'ble Court may be pleased to make the rule absolute in granting the relief's prayed for in the facts and circumstances of the case;"
2. The factual matrix of the case, in brief, is that Odisha Computer Application Centre (OCAC)-opposite party no. 2 invited bids vide RFP No. OCAC-SEGP-INFRA-0025- 2023-23028 dated 24.04.2023, for procurement, supply, installation and commissioning of five hundred (500) numbers of Robotics Labs in Secondary Schools of the Page 2 of 46 State of Odisha, for School & Mass Education Department (S&ME), Government of Odisha for a period of five (05) years, including three (03) years warranty support period and two (02) years comprehensive annual maintenance support period as per the "Scope of Work" described in the Request For Proposal (RFP). Under clause-10 of the RFP at sl.no.8, it was specified that the bidder must attach manufactures authorization certificate specific to the tender & back-to-back support letter from OEMs for providing comprehensive on-site support and services covered under the RFP, as per the format specified in Annexure-6 to the RFP. The petitioner, being the OEM (Original Equipment Manufacturer), provided the manufactures authorization certificate to the Telecommunication Consultants India Limited (TCIL) to submit the bid.
2.1 The schedule for submission of bid in terms of the RFP was as under:-
Sl. Particulars Date and
No. Time
1 Availability of Bid Document 24-04-2023
in the website (www.ocac.in/ To 22-05-
www.odisha.gov.in 2023 at
Page 3 of 46
03:00 PM
2. Last date for receiving queries 22-05-2023 by 04:00 PM
3. Date and Time of Pre-bid 01-052023 Conference at 12:30 PM
4. Last Date and Time for 22-05-2023 Submission of Bid document by 03:00 PM through https://enivida.odisha.gov.in.
5. Date and Time of opening of 22-05-2023 Pre-Qualification Bids (PQ) at 04:30 PM
6. Date and Time of opening of To be Technical Bids (TB)/ informed Financial Bid later 2.2 As per the guidelines prescribed above and after completion of the bidding process there were two successful bidders, namely, Telecommunication Consultants India Limited (TCIL) and EDICIL India Limited remained for consideration as per RFP.
2.3 Clause-10 of the RFP provides the pre-
qualification/ eligibility criteria, which a bidder participating in the bidding process shall possess. Any bidder failing to meet the stated criteria in clause-10 shall be summarily rejected and will not be considered for technical evaluation. At serial no. 7 of the table provided in clause-10, it has been clearly stated that the bidder should Page 4 of 46 not be under a declaration of ineligibility for corrupt and fraudulent practices issued by any Government or PSU in India. The RFP also requires to make such a declaration in the format as provided in Annexure-4 to the RFP. The petitioner, being the OEM for Telecommunication Consultants India Limited, submitted its declaration in the form as provided under Annexure-4 to the RFP. 2.4 The petitioner, in the meantime, came across the information that the other qualified participant in the bidding process, i.e., EDCIL India Limited-opposite party no. 4 has been blacklisted by Bihar Skill Development Mission, Department of Labour Resources, Government of Bihar, vide letter no BSDM/ Knowledge Partner-228/2022- 712 dated 26.05.2023, for a period of three years. The petitioner brought the same into the notice of opposite party no.3, but the same was not taken into consideration. As a result, a blacklisted entity like opposite party no.4 was allowed to participate in the tender process. Therefore, action of the opposite parties no.2 and 3 in allowing the blacklisted entity to participate in the tender process is Page 5 of 46 tented with mala fide and also resulted in arbitrary decision making process in order to show undue favour to an ineligible bidder. Hence, the petitioner, by filing this writ petition, seeks aforementioned reliefs.
3. Mr. Pitambar Acharya, learned Senior Counsel appearing along with Mr. S.S. Tripathy, learned counsel for the petitioner vehemently contended that opposite party no.4 incurred a disqualification because it was blacklisted by Bihar Skill Development Mission, Department of Labour Resources, Government of Bihar. Clause-10 of the RFP prescribed the pre-qualification/ eligibility criteria. The said clause indicates that the bidder participating in the bidding process shall possess the minimum pre-qualification/ eligibility criteria as mentioned therein and any bidder failing to meet the stated criteria shall be summarily rejected and will not be considered for technical evaluation. Under clause-10 of the RFP, at sl. no.7, blacklisting has been prescribed. According to said criteria, the bidder should not be under a declaration of ineligibility for corrupt and fraudulent practice issued by any Government or PSU Page 6 of 46 in India. To that extent, a self declaration as per Annexure- 4 was to be submitted. He further contended that even though opposite party no.4 had been blacklisted by Bihar Skill Development Mission, Department of Labour Resources, Government of Bihar, but the same has not been disclosed by making self declaration, as provided under Annexure-4 to the RFP. It is therefore, contended that opposite party no.4 had incurred a disqualification, as suppression of the said fact before the authority amounts to playing fraud on the authority and adhering to corrupt practice. As such, the application submitted by opposite party no.4 to the tendering authority, being void ab initio, should have been rejected outright. Therefore, he seeks for interference of this Court at this stage. In support of his contention, he has placed reliance on the judgments of the apex Court in Tata Cellular v. Union of India, (1994) 6 SCC 651; Jagdish Mandal v State of Orissa, (2007) 14 SCC 517; and Nova Ads v. Metropolitan Transport Corpn., (2015) 13 SCC 257.
Page 7 of 46
4. Mr. L. Samantaray, learned Addl. Government Advocate appearing for the State-opposite party no.1 contended that, in the instant case, the tender has been issued by opposite party no.2, therefore, the State has no role to play, even though it is the beneficiary of the tender, as the work is for procurement, supply, installation and commissioning of five hundred (500) numbers of Robotics Labs in Secondary Schools of the State of Odisha, for School & Mass Education Department (S&ME), Government of Odisha, which is to be done for opposite party nos. 2 and 3 and the ultimate result of the tender process may have some impact on opposite party no.1.
5. Mr. Ashok Kumar Parija, learned Senior Advocate appearing along with Mr. Tarun Patnaik, learned counsel for opposite party nos. 2 and 3, at the outset, raised objection with regard to the maintainability of the writ petition at the instance of the present petitioner, contending that the petitioner is not a participant to the tender process initiated, vide RFP No. OCAC-SEGP-INFRA- 0025-2023-23028 dated 24.04.2023 issued by opposite Page 8 of 46 party no.2, as it has not submitted its bid pursuant thereto. The petitioner may be OEM (Original Equipment Manufacturer) of Telecommunication Consultants India Limited, who is one of the participants in the bid. It is further contended that the petitioner is also otherwise not eligible to participate in the bid, in view of the eligibility criteria fixed in the RFP. According to him, six entities including opposite party no.4 and Telecommunication Consultants India Limited purchased the tender papers, but bids were submitted by opposite party no.4 and Telecommunication Consultants India Limited on 02.06.2023. The bids consisted of pre-qualification proposal, technical proposal and financial proposal to be submitted by the bidders in separate covers. As per the tender schedule, the last date for submission of bids was fixed to 22.05.2023, but the said date was extended up to 02.06.2023 by virtue of a corrigendum issued by opposite party no.2. Thereafter, on 03.07.2023, the technical and financial bids of both the bidders were opened. The tender committee evaluated the bids of opposite party no.4 and Page 9 of 46 Telecommunications Consultants India Limited (TCIL) and the opposite party no.4 was found to be the lowest bidder. Therefore, opposite party no.4 was called upon by opposite party no.2, vide its e-mail dated 20.07.2023, for negotiation, in order to reduce the price, on 25.07.2023. After negotiation, opposite party no.4 offered to execute the project at Rs 57,09,02,370/- vide its letter dated 01.08.2023. Consequentially, on 09.08.2023, the tender committee of opposite party no.2 decided to award the contract in favour of opposite party no.4 at the negotiated amount of Rs 57,09,02,370/- and followed thereby a letter of intent (LOI) was issued on 14.08.2023 in favour of opposite party no.4. But, in view of interim order passed by this Court on 18.08.2023, no further action could be taken. 5.1 He further contended that the present petitioner communicated opposite party no.3 regarding debarment/ blacklisting of opposite party no.4 on 06.07.2023, i.e., three days after the final price bid of the tender was opened, and opposite party no.4 was found to be the L1 bidder. The letter submitted by the petitioner was brought to the notice Page 10 of 46 of the representative of opposite party no.4 in the negotiation meeting and on being confronted with the letter dated 26.05.2023 issued by Bihar Skill Development Mission, the representative of opposite party no.4 submitted the letter dated 15.07.2023 issued by Bihar Skill Development Mission wherein it was stated that the debarment of opposite party no.4, vide letter dated 26.05.2023, has been withdrawn. Therefore, it is contended that opposite party no.4 was not aware of the fact of blacklisting on the date of submission of the tender document. This fact only been brought to the notice, when the petitioner submitted the document on 06.07.2023. By that time, opposite party no.4 had already been selected, but he was called to have the negotiation with regard to the price. Therefore, the contention raised, that as per clause- 10(7) of the RFP the bidder should be under a declaration of ineligibility for corrupt and fraudulent practices issued by any Government or PSU in India, cannot be sustained. It is further contended that the pre-condition for clause-10 (7) of the RFP to be applicable is that the ineligibility should have Page 11 of 46 arisen from an act of corrupt and fraudulent practice by the bidder. However, assuming but without admitting, if the letter dated 26.05.2023 issued by Bihar Skill Development Mission is looked into, it would be seen that opposite party no.4, being a consortium member, had been debarred to participate in the future tenders for a period of three years on account of non-submission of performance guarantee and consequential act of non-execution of the contract. Therefore, such act of non-submission of performance guarantee and consequential action of non-execution of the contract with Bihar Skill Development Mission regarding debarment/blacklisting of opposite party no.4 for three years, cannot be termed as "corrupt and fraudulent practices" and, therefore, it does not satisfy the requirement of clause-10(7) of the RFP to debar opposite party no.4 to participate in the present tender process. In view of such position, no illegality or irregularity can be said to have been committed by opposite party nos. 2 and 3 in accepting the bid of opposite party no.4 and making its selection with the price, which has already been negotiated to perform. Page 12 of 46
6. Mrs. Pami Rath, learned Senior Advocate appearing along with Mr. Abhisek Dash, learned counsel for opposite party no.4 accepted the argument advanced by Mr. Ashok Kumar Parija, learned Senior Advocate appearing for opposite party nos. 2 and 3; and also contended that the so called blacklisting of the petitioner, vide letter dated 26.05.2023, by Bihar Skill Development Mission was never communicated to opposite party no.4 and, as such, for the first time, this letter was produced by the petitioner on 06.07.2023, i.e., three days after the final price bid of the tender was opened. By that time, two stages of the bid had already been over, i.e., pre-qualification evaluation and technical evaluation and at no point of time the petitioner had ever brought to the notice of the tendering authority with regard to such disqualification. Even after the financial bid was opened, when opposite party no.4 was selected and called for negotiation, three days after, the petitioner brought to the notice of the tendering authority, on 06.07.2023, with regard to debarment/blacklisting of the petitioner dated 26.05.2023. The said letter was confronted Page 13 of 46 to opposite party no.4 by opposite party nos. 2 and 3 during negotiation meeting. The representative of opposite party no.4 submitted the letter dated 15.07.2023 issued by Bihar Skill Development Mission wherein it was stated that the debarment of opposite party no.4 vide letter dated 26.05.2023 has been withdrawn. Therefore, the question of any corrupt and fraudulent practice alleged to have been adopted by opposite party no.4 does not arise at all. The bid of opposite party no.4 can be found to be ineligible if opposite party no.4 would have played corrupt and fraudulent practice in tendering the bid. In absence of such materials, it cannot be construed that the bid submitted by opposite party no.4 has incurred disqualification under clause-10 (7) of the RFP.
6.1 It is further contended that assuming but without admitting the fact that there is a debarment/ blacklisting order in favour of opposite party no.4, but on perusal of the letter dated 26.05.2023, it is made clear that Bihar Skill Development Mission had issued such letter to opposite party no.4, being a consortium member and Page 14 of 46 debarred it to participate in the future tenders for a period of three years on account of non-submission of performance guarantee and consequential act of non- execution of the contract. Therefore, such act of non- submission of performance guarantee and consequential action of non-execution of the contract with Bihar Skill Development Mission cannot be termed as corrupt and fraudulent practice so as to cover the ineligibility condition prescribed under clause-10(7) of RFP and disqualify opposite party no.4 from participating in the bid itself. Thereby, it is contended that the writ petition is liable to be dismissed.
6.2 It is further contended that since there is no candid disclosure of relevant and material facts, the petitioner is guilty of misleading the Court, therefore, its petition should be dismissed at the threshold without considering the merits of the claim. It is also contended that a prerogative remedy is not a matter of course. While exercising extraordinary power, a writ court would certainly bear in mind the conduct of the party who invokes the Page 15 of 46 jurisdiction of the court. Therefore, seeks for dismissal of the writ petition. To substantiate her contention, she has relied on the decision of the apex Court in the case of K.D. Sharma v. Steel Authority of India Limited, (2008) 12 SCC 481.
7. This Court heard Mr. Pitambar Acharya, learned Senior Advocate appearing along with Mr. S.S. Tripathy, learned counsel for the petitioner; Mr. L. Samantaray, learned Addl. Government Advocate appearing for the State-opposite party no.1; Mr. Ashok Kumar Parija, learned Senior Advocate appearing along with Mr. Tarun Patnaik, learned counsel for opposite party nos. 2 and 3; and Mrs. Pami Rath, learned Senior Advocate appearing along with Mr. Abhisek Dash, learned counsel appearing for opposite party no.4 in hybrid mode and perused the records. In view of the counter affidavit filed on behalf of opposite parties no. 1 to 3, Mrs. Pami Rath, learned Senior Advocate appearing for opposite party no.4 states that opposite party no.4 steps into the shoes of opposite party nos. 1 to 3 and relies upon such counter affidavit and does not require to Page 16 of 46 file a separate counter affidavit. She further contended that since the interim order is operating, the matter may be heard and disposed of expeditiously in the interest of justice, equity and fair play. Therefore, on the consent of learned counsel for the parties, the writ petition is being disposed of finally at the stage of admission.
8. On the basis of factual matrix and the arguments advanced by the learned counsel appearing for the respective parties, as enumerated above, the following issues are framed for a just and proper adjudication of the case in hand.
(i) Whether the petitioner has the locus standi to seek the above noted reliefs in the writ petition?
(ii) Whether opposite party no.4 incurs a disqualification, in view of clause-10 (7) of the RFP?
(iii) Whether the petitioner has approached this Court with clean hands?
9. Issue No. (i):
Whether the petitioner has the locus standi to seek the above noted reliefs in the writ petition?Page 17 of 46
To effectively answer this issue, it is of relevance to refer Clause-10 of the RFP, which prescribes the pre-
qualification/eligibility criteria:-
"Following table describe the pre-qualification criteria. A bidder participating in the bidding process shall possess the following minimum pre- qualification/ eligibility criteria. Any bidder failing to meet the stated criteria shall be summarily rejected and will not be considered for Technical Evaluation."
Sl. No. 1 of Clause-10 reads as follows:-
Pre-Qualification Evaluation Criteria Sl. PQ Description of the Criteria Documents to No Criteria be submitted
1. Legal As specified under GFR a. Valid copy of Entity 2017, the bidder must be certificate of a Public Sector incorporation Undertaking set up by and the Centre or State Govt. registration to carryout I.T. related certificates.
activities or any b. Copy of GST Central/State Govt. registration. Organization/PSU which c. Copies of may be notified by the relevant MeitY/MoE/ or any other Certificates of Ministry in the field of IT registration for such purpose. Income Tax / Relevant supporting PAN Number documents may be from the furnished. respective Note: - Consortium of any Government kind shall not be Department.
acceptable for this d. Documents project. Any deviation of local bidder would lead to to be submitted disqualification or as per formats termination of the same. attached on However, as per the State 8.1.3 FORM IT Policy 2022, Clause PQ-4. Along 8.18, to ensure with Work Page 18 of 46 mandatory local Order + Project participation. The bidder completion/ needs to make Completion collaborative certificate / arrangement with local Partial enterprises with completion minimum 25% for Certificate deployment and (Milestone maintenance components completion for implementation Certificate) having adequate experience. The local enterprise should have developed and implemented software projects in the state preferably in Government/PSU sector.
The minimum worth of tile software projects execute by the local enterprise in last five financial years should be Rs. 5.00 crores.
9.1. On perusal of the aforementioned clause it is made clear that bidder must be a Public Sector Undertaking set up by the Centre or State Govt. to carryout I.T. related activities or any Central/State Govt. Organization/PSU which may be notified by the MeitY/MoE/ or any other Ministry in the field of IT for such purpose and to furnish the relevant supporting documents to that effect. Thereby, the petitioner is neither a Public Sector Undertaking set up by the Centre or State Govt. to Page 19 of 46 carryout I.T. related activities or any Central/State Govt. Organization/PSU which may be notified by the MeitY/MoE/ or any other Ministry in the field of IT, as the petitioner has not furnished any documents in support thereof. In course of hearing, when this question was confronted, Mr. Pitambar Acharya, learned Senior Advocate appearing for the petitioner candidly admitted such position and contended that the petitioner is an OEM as per clause- 10 (8) of the pre-qualification evaluation criteria, which reads as follows:-
Pre-Qualification Evaluation Criteria Sl. PQ Description of the Documents to No Criteria Criteria be submitted
8. OEM The bidder must OEM MAF Authori Attach Manufactures Annexure-6 zation Authorization certificate specific to this tender & Back-to- back support letter from OEMs for providing Comprehensive on-site support and services covered under this RFP. OR The Authorized Partner of OEM in India in case the OEM has no registered office in India This is a condition required for the bidder to meet the pre-qualification evaluation criteria. Meaning Page 20 of 46 thereby, the bidder, who satisfies the criteria, as per clause 10(1), as mentioned above, must attach Manufactures Authorization Certificate specific to the tender and back-to-
back support letter from OEMs for providing comprehensive on-site support and services covered under the RFP or the Authorized Partner of OEM in India in case the OEM has no registered office in India.
9.2 In paragraph-4 of the writ petition, the petitioner itself has pleaded as follows:-
4. That the Petitioner participated in the tender process and submitted the Request for Proposal along with Telecommunication Consultants India Limited, a Government of India enterprise, as an Original Equipment Manufacturer ("OEM") for supply and installation of Robotics Lab in secondary schools on Odisha and submitted the lowest financial bid. The Petitioner is an Indian research and educational Startup founded in the year 2012, which helps to establish Centre of Excellence on future technologies in k12 & Higher educational institutions. The Petitioner has trained more than I lakhs students on robotics & is a state partner of Govt of Odisha, DTET-SDTE Department to offer robotics training in all Government ITI & Polytechnic institution since the year 2020."
In view of such pleading available on record, it is made clear that the petitioner, being an OEM, has been authorised to give the certificate to the tenderer and back- Page 21 of 46 to-back support which is covered under RFP. Therefore, the petitioner cannot be construed to be a participant in the tender process. It might have discharged the responsibility of OEM on behalf of Telecommunication Consultants India Limited, a Government of India Enterprises, which is a bidder in terms of clause-10(1) of pre-qualification evaluation criteria and it might have some credentials in its favour, but cannot be a bidder in terms of clause-10(1), as mentioned above. It may be OEM authorisation on behalf of the bidder-Telecommunication Consultants India Limited, a Government of India Enterprise. Therefore, the petitioner cannot be considered to have participated in the tender process, as per the RFP. Rather, such pleading of the petitioner is absolutely misleading and cannot be sustained in the eye of law. More particularly, the petitioner has no locus standi to file this writ petition. Locus standi means, a place of standing; a right of appearance in a court of justice; right to bring an action and to be heard. 9.3 In de Smith's Judicial Review of Administrative Action, (Fourth Edition), page 416, "locus Page 22 of 46 standi is understood to mean legal capacity to challenge an act on decision".
9.4 Gamer and Jones in their Administrative Law, (Sixth Edition), page 175 are of the view that locus standi is a threshold question in the simplest or clearest cases of lack of standing".
In view of the above, it could be deduced that a person must have a sufficiency of interest to sustain his standing to sue.
9.5 Taking into consideration Article 226 of the Constitution of India, at best a "person aggrieved" can invoke the jurisdiction claiming the relief. Broadly speaking a party or person is aggrieved by a decision when, it only operates directly and injuriously upon his personal, pecuniary and proprietary rights.
9.6 In Babua Ram v. State of UP., (1995) 2 SCC 689, while considering Section 28-A of Land Acquisition Act 1894, the apex Court observed that the person aggrieved, in this context, would mean a person who had suffered legal Page 23 of 46 injury or one who has been unjustly deprived or denied of something, which he would be interested to obtain in the usual course or similar benefits or advantage or results in wrongful affectation of his title to compensation. 9.7 In Gopabandhu Biswal v. Krishna Chandra Mohanty and others, (1998) 4 SCC 447, the apex Court observed that words mean a person directly affected by the impugned action or order. Only persons who are directly and immediately affected by the impugned order can be considered as "parties aggrieved" under Section 22(3)(f) of the Administrative Tribunal Act, 1985 read with Order 47 Rule 1 of Civil Procedure Code.
9.8 In Adi Pherozshah v. H.M. Seervai, 1970 (2) SCC 484: AIR 1971 SC 385, the apex Court was seized with the question as to whether the Advocate Genera of a State or Bar Council of a State can be regarded as a "person aggrieved" to maintain an appeal under section 37 or 38 of the Advocates Act, 1961. The majority of the apex Page 24 of 46 Court held that the Advocate General could not be regarded as a "person aggrieved".
9.9 It was because of the above decision of the apex Court, amendments were made in the Advocates Act, 1961 by specifically mentioning that the Advocate General of the State can prefer appeal under sections 37 and 38 of the Act. The very same question had again came up for examination by the apex Court in Bar Council of Maharashtra v. M.V. Dabholkar, 1975 (2) SCC 702 : AIR 1975 SC 2092, where the question was whether the Bar Council of the State could be a "person aggrieved". The Constitution Bench presided by Hon'ble Chief Justice Ray delivered the judgment for himself and four other learned Judges held that the meaning of the expression "person aggrieved" will have to be ascertained with reference to the purpose and the provisions of the statute; and may thus vary according to the context of the statute. Normally, one is required to establish that one has been denied or deprived of something to which one is legally entitled in order to make one "a person aggrieved". Again a person is Page 25 of 46 aggrieved if a legal burden is imposed on him. The test was said to be whether "a person has a genuine grievance because an order has been made which prejudicially affects his interests". The Bar Council was ultimately regarded as a "person aggrieved" by all the learned Judges constituting the Bench.
9.10 In Jasbhai Motibhai Desai v Roshan Kumar, 1976 (1) SCC 671 : AIR 1976 SC 578, the apex Court held in paragraphs 36, 37 and 38 to the following effect:-
"36 It will be seen that in the context of locus standi to apply for a writ of certiorari, an applicant may ordinarily fall in any of these categories: (i) 'person aggrieved'; (ii) 'stranger'; (iii) busybody or meddlesome interloper. Persons in the last category are easily distinguishable from those coming under the first two categories. Such persons interfere in things which do not concern them. They masquerade as crusaders for justice. They pretend to act in the name of Pro Bono Publico, though they have no interest of the public or even of their own to protect. They indulge in the pastime of meddling with the judicial process either by force of habit or from improper motives. Often, they are actuated by a desire to win notoriety or cheap popularity; while the ulterior intent of some applicants in this category, may be no more than spoking the wheels of administration. The High Court should do well to reject the applications of such busybodies at the threshold.
37. The distinction between the first and second categories of applicants, though real, is not always well-demarcated. The first category has, as it were, Page 26 of 46 two concentric zones; a solid central zone of certainty, and a grey outer circle of lessening certainty in a sliding centrifugal scale, with an outermost nebulous fringe of uncertainty. Applicants falling within the central zone are those whose legal rights have been infringed. Such applicants undoubtedly stand in the category of 'persons aggrieved'. In the grey outer-circle the. bounds which separate the first category from the second, intermix, interfuse and overlap increasingly in a centrifugal direction. All persons in this outerzone may not be "persons aggrieved".
38. To distinguish such applicants from 'strangers', among them, some broad tests may be deduced from the conspectus made above. These tests are not absolute and ultimate. Their efficacy varies according to the circumstances of the case, including the statutory context in which the matter falls to be considered. These are: Whether the applicant is a person whose legal right has been infringed ? Has he suffered a legal wrong or injury, in the sense that his interest, recognised by law. has been prejudicially and directly affected by the act or omission of the authority, complained of ? Is he a person who has suffered a legal grievance, a person "against whom a decision has been pronounced which has wrongfully deprived him of something or wrongfully refused him something, or wrongfully affected his title to something" ? Has he a special and substantial grievance of his own beyond some grievance or inconvenience suffered by him in common with the rest of the public ? Was he entitled to object and be heard by the authority before it took the impugned action? If so, was he prejudicially affected in the exercise of that right by the act of usurpation of jurisdiction on the part of the authority ? Is the statute, in the context of which the scope of-the words "person aggrieved" is being considered. a social welfare measure designed to lay down ethical or professional standards of conduct for the community ? or is it a statute dealing with private rights of particular individuals ?
Page 27 of 46 9.11 The conception of expression "person aggrieved"
has undergone a change. At one point of time it was thought that for a person to be regarded as aggrieved he must have suffered a "legal grievance". This expression was of wide import and included a person who had a "genuine grievance" in that an order had been made which prejudicially affected his interest.
9.12 In Attorney General of Gambia v. N' Jie, (1961) 2 ALL ER 504, Lord Denning stated as follows:-
".........the words 'person aggrieved' are of wide import and should not be subject to a restrictive interpretation. They do not include of course • a mere busybody who is interfering in things which do not concern him; but they do include a person who has a genuine grievance because an order has been made which prejudicially affects his interests".
9.13 Therefore, the scope and meaning of the person aggrieved depends on diverse and variable factors, such as, the content and intent of the statute, the specific circumstances of the case, the nature and extent of petitioner's interest, injury and prejudice. Page 28 of 46 9.14 If this analogy is applied to the present context, in view of the conditions stipulated in the pre-qualification evaluation criteria, it cannot be construed that the petitioner can be elucidated as the person aggrieved. If at all a person aggrieved can be construed, it can only be TCIL, which is the bidder in terms of clause-10 (1) of the pre-qualification evaluation criteria of the RFP. 9.15 Mr. Pitambar Acharya, learned Senior Advocate appearing on behalf of the petitioner relied upon the document under Annexure-3 to the writ petition, i.e., the undertaking furnished by the General Manager (IT & T-III) TCIL, wherein it has been indicated that "this is to certify that TCIL has submitted bid on 02.06.23 for the RFP "Selection of CPSU/SPSU for Supply and Installation of Robotic Lab in Secondary Schools in Odisha" RFP No:
OCAC-SEGP-INFRA-0025-2023-23028, dated 24.04.2023.
M/s SakRobotics Lab Private Limited, Bhubaneswar, Odisha is their OEM for Robotics Lab in above mentioned bid. He also relied on the document under Annexure-4 to the writ petition, which is in respect of OEM authorisation Page 29 of 46 letter and the petitioner was required to submit in compliance to Annexure-6 of the RFP. As such, the same has been submitted, wherein it has been stated as follows:-
"We, SAKROBOTIX LAB PRIVATE LIMITED who is an established and reputable manufacturer of Complete solutions for Robotic Lab, ATL Lab, AI/ML LAB, 3D Printing, Electronics LAB, Drone Lab, and other STEM DIY (Do it Yourself) Kits, etc. having factories/ development facilities at CTEF- LNNOVEX, CIPET-IPT, Patia Bhubaneswar Odisha -
751013 do hereby authorize M/s TELECOMMUNICATIONS CONSULTANTS INDIA LIMITED Address TCIL Bhawan, Greater Kailash-I New Delhi-110048, India to submit a Bid, and accept the Purchase Order against the above Bid Invitation."
9.16 Both the above referred letters clearly indicate that the petitioner is not a bidder in terms of clause-10 (1) of the pre-qualification evaluation criteria of RFP, rather it acts as an OEM on behalf of the TCIL, which has been given authorisation in terms of clause-18.6 vide Annexure-6 of the RFP. Clause-18 of the RFP deals with the annexures, which are to be submitted along with the bid. 9.17 Therefore, this Court is of the considered view that neither the petitioner has any locus standi nor it is a Page 30 of 46 person aggrieved to maintain this writ petition. Accordingly, issue no.1 is answered against the petitioner.
10. Issue No. (ii) Whether opposite party no.4 incurs a disqualification, in view of clause-10 (7) of the RFP?
In order to answer this issue, it is worthwhile to refer to Clause-10 (7) of the pre-qualification evaluation criteria, which reads as follows:-
Pre-Qualification Evaluation Criteria Sl. PQ Description of the Criteria Documents to No Criteria be submitted
7. Blackli The bidder should not be Self declaration sting under a declaration of Annexure-4 Ineligibility for corrupt and fraudulent practices issued by any Government or PSU in India.
10.1 In terms of the aforementioned clause, a bidder has to make a self declaration in the form prescribed in Annexure-4 to the RFP, which reads as follows:-
"18.4 Annexure 4: Self-Declaration (Non-blacklisted in company Letter I lead) To, The General Manager (Admn.) Odisha Computer Application Centre (OCAC) OCAC Building, Plot No.-N-1/7-D, Page 31 of 46 Acharya Vihar Square, RRL Post Office, Bhubaneswar-751013 (INDIA) Dear Sir, In response to the RFP Ref. No: OCAC-SEGP-INFRA- 0025- 2023/23028 dated 24-04-2023, for RFP titled "Request for Proposal (RFP) for Selection of CPSU/ SPSU for Supply and Installation of Robotic Lab in Secondary Schools in Odisha", as an owner/ partner/ Director of (organization name) I/We hereby declare that presently our Company/firm is not under declaration of ineligible for corrupt & fraudulent practices, blacklisted either indefinitely or for a particular period of time, or had work withdrawn, by any State/ Central government/ PSU.
I/We further declare that there is no past/ ongoing legal trial in name of any of the Owner / Partner / Director of the bidding company as on the tender submission date.
If this declaration is found to be incurred then without prejudice to any other action that may be taken, my/our security may be forfeited in full and the tender If any to the extent accepted may be cancelled.
Thanking you, Name of the Bidder:...................... Authorized Signatory:...................... Signature:
Seal:
Date:
Place:"
10.2 Clause-10 (7) of the RFP states specifically that the bidder shall be ineligible on the ground of "corrupt and fraudulent practices", if a declaration is issued by any Government or PSU in India to that effect. Accordingly, a Page 32 of 46 self declaration by the bidder has to be made, as provided under Annexure-4 to the RFP. The bidder has to make a declaration that their company/firm is not under declaration of ineligible for corrupt & fraudulent practices, blacklisted either indefinitely or for a particular period of time, or had work withdrawn, by any State/ Central Government/PSU. Therefore, the provision, as contemplated under clasue-10(7) showing the ineligibility of bidder for corrupt & fraudulent practices, is being more clarified by giving a detailed explanation to make a self declaration under Annexure-4 finding it ineligible for corrupt and fraudulent practice, blacklisted either indefinitely or for a particular period of time. Thereby, the contention is raised by Mr. Ashok Kumar Parija, learned Senior Advocate appearing for opposite parties no. 2 and 3 and clarified by Mrs. Pami Rath, learned Senior Advocate appearing for opposite party no.4 that blacklisting should be referred to in respect of bidder to become ineligible for corrupt & fraudulent practice cannot be the sole ground, rather it is one of the grounds which has been qualified by Page 33 of 46 making a self declaration in Annexure-4. It includes "corrupt & fraudulent practices", "blacklisted either indefinitely or for a particular period of time" or had work withdrawn, by any State/Central Government/ PSU. Therefore, the words "corrupt & fraudulent practices" are being segregated with the words "blacklisted either indefinitely or for a particular period of time" with a punctuation mark 'comma'.
10.3 Use of punctuation mark 'comma' in Annexure-4 is the smallest division of a sentence in language. The 'comma' and 'semicolon' are both used for the same purpose in punctuation, namely, to divide sentences and parts of sentences; the only difference being that the 'semicolon' makes the division a little more prolonged than the 'comma'.
10.4 The 'comma' is a matter of sense and experience. The only rule is that if it makes the meaning clearer put in a 'comma'; if not, leave it out. A 'comma' is used to mark off a phrase or a clause when it is thought that it makes the Page 34 of 46 sense clearer to do so. It is also used to mark a series of words, phrases, or clauses. Another use of the 'comma' is when a word is placed out of its natural order for the sake of stress. This use is however unlikely to occur in legislative drafting.
10.5 In Sree Durga Distributors v. State of Karnataka, (2007) 4 SCC 476, the apex Court held that the expressly use of punctuation mark 'comma' after the words animal feed and feed supplements indicates that the legislature intended to classify these two items as one class or category and not two separate categories. 10.6 Thereby, by using 'comma' in between the words "corrupt & fraudulent practices" and "blacklisted either indefinitely or for a particular period of time", it qualifies that blacklisting should be referred to corrupt and fraudulent practice done by the bidder to become ineligible to participate in the bid. Nothing has been placed on record to indicate that so called blacklisting of the opposite party no.4 has been referred to satisfy the ineligibility criteria for Page 35 of 46 corruption and fraudulent practice. Rather, the letter dated 26.05.2023 issued by the Bihar Skill Development Mission shows that opposite party no.4, being a consortium member, has been debarred to participate in the future tenders for a period of three years on account of non- submission of performance guarantee and consequential act of non-execution of the contract. Therefore, such act of non-submission of performance guarantee and consequential act of non-execution of the contract with Bihar Skill Development Mission cannot be termed as corrupt and fraudulent practice so as to make it ineligible to participate in the bid itself. More particularly, it is specifically urged by Mrs. Pami Rath, learned Senior Advocate appearing on behalf of opposite party no.4 that the letter dated 26.05.2023 was not served on opposite party no.4 till the same was produced by the petitioner on 06.07.2023, which was confronted by the opposite party nos. 2 and 3, and consequentially the representative of opposite party no.4 submitted the letter dated 15.07.2023 issued by Bihar Skill Development Mission wherein it has Page 36 of 46 been stated that the debarment of opposite party no.4 vide letter dated 26.05.2023 has been withdrawn. 10.7 As to the reliance placed on Tata Cellular (supra), the principle decided therein is not in dispute that the principles of judicial review would apply to the exercise of contractual powers by Government bodies in order to prevent arbitrariness or favoritism, as to find the right balance between the administrative discretion to decide matters whether contractual or political in nature or issues of social policy; thus they are not essentially justifiable and the need to remedy any unfairness, and that such an unfairness is set right by judicial review. However, no case is made out by the present petitioner with regard to applicability of the said principle, as has been decided by the apex Court in the aforementioned judgment.
Similarly, in Jagdish Mandal (supra), the apex Court has laid down the criteria for interference in tender on contractual matters in exercise of powers of judicial review. The same has also been taken into consideration Page 37 of 46 and in the opinion of this Court it has no application to the present case.
So far as Nova Ads (supra) is concerned, wherein the apex Court held that transparency and fair method is the criteria to award the tender, it has also been taken care of by this Court.
Thereby, the judgments relied upon by Mr. Pitambar Acharya, learned Senior Advocate appearing for the petitioner and principle decided therein, having been tested on the touchstone of reasonableness, arbitrariness, this Court comes to a conclusion that none of such conditions are being satisfied so as to exercise the discretion of judicial review to interfere with the decision making process of opposite party nos. 2 and 3. 10.8 In view of such position, this Court is of the considered view that opposite party no.4 has not incurred a disqualification in terms of clause-10 (7) of the RFP and thereby, issue no. (ii) is answered against the petitioner. Page 38 of 46
11. Issue No. (iii) Whether the petitioner has approached this Court with clean hands?
So far as this issue is concerned, the petitioner itself in paragraph-4 of the writ petition, which has already been quoted above, has contended "the petitioner participated in the tender process and submitted the Request for Proposal along with Telecommunication Consultants India Limited, a Government of India enterprise, as an Original Equipment Manufacturer ("OEM") for supply and installation of Robotics Lab in secondary schools on Odisha and submitted the lowest financial bid." In view of clause-10 (1), the petitioner could not have participated in the bid process, rather it only confines to Public Sector Undertaking set up by the Centre or State Govt. to carryout I.T. related activities or any Central/State Govt. Organization/PSU. The petitioner neither comes within the purview of the legal entity mentioned under clause-10 (1) of the pre-qualification evaluation criteria of the RFP. Therefore, it has no occasion to participate in the bid. Rather, it may come under clause-10(8), being OEM Page 39 of 46 Authorisation, which means it has only given authorisation to TCIL in the prescribed Form 18(6) of the RFP, which it has done and the same has been placed on record under Annexure-4. Therefore, the authorisation given by the OEM cannot be construed that it has participated in the bid, which is one of the criteria to be fulfilled by the bidder to participate in the bid itself.
11.1 In course of hearing, it is fairly admitted that the petitioner is the OEM for TCIL. The jurisdiction of this Court under Article 226 of the Constitution is extraordinary, equitable and discretionary. Prerogative writs mentioned therein are issued for doing substantial justice. It is, therefore, of utmost necessity that the petitioner approaching the Writ Court must come with clean hands, put forward all the facts before the Court without concealing or suppressing anything and seek an appropriate relief. If there is no candid disclosure of relevant and material facts or the petitioner is guilty of misleading the Court, his petition may be dismissed at the threshold without considering the merits of the claim. Page 40 of 46 11.2 In R. v. Kensington Income Tax Commissioners, (1917) 1 KB 486 Scrutton, L.J., held as follows:-
".......it has been for many years the rule of the Court, and one which it is of the greatest importance to maintain, that when an applicant comes to the Court to obtain relief on an ex parte statement he should make a full and fair disclosure of all the material facts- it says facts, not law. He must not misstate the law if he can help it; the Court is supposed to know the law. But it knows nothing about the facts, and the applicant must state fully and fairly the facts; and the penalty by which the Court enforces that obligation is that if it finds out that the facts have not been fully and fairly stated to it the Court will set aside any action which it has taken on the faith of the imperfect statement". (emphasis supplied) In the said judgment, Viscount Reading, C.J. observed as follows:-
"Where an ex parte application has been made to this Court for a rule nisi or other process, if the Court comes to the conclusion that the affidavit in support of the applicant was not candid and did not fairly state the facts, the Court ought, for its own protection and to prevent an abuse of its process, to refuse to proceed any further with the examination of the merits. This is a power inherent in the Court, but one which should only be used in cases which bring conviction to the mind of the Court that it has been deceived. Before coming to this conclusion a careful examination will be made of the facts as they are and as they have been stated in the applicant's affidavit, and everything will be heard that can be urged to influence the view of the Court when it reads the affidavit and knows the true facts. But if the result of this examination and hearing is to leave no doubt that Page 41 of 46 this Court has been deceived, then it will refuse to hear anything further from the applicant in a proceeding which has only been set in motion by means of a misleading affidavit". (emphasis supplied) 11.3 In K.D. Sharma (supra), the apex Court at paragraphs 36, 38 and 39 observed as follows:-
"36. A prerogative remedy is not a matter of course. While exercising extraordinary power a Writ Court would certainly bear in mind the conduct of the party who invokes the jurisdiction of the Court. If the applicant makes a false statement or suppresses material fact or attempts to mislead the Court, the Court may dismiss the action on that ground alone and may refuse to enter into the merits of the case by stating "We will not listen to your application because of what you have done".
The rule has been evolved in larger public interest to deter unscrupulous litigants from abusing the process of Court by deceiving it.
38. The above principles have been accepted in our legal system also. As per settled law, the party who invokes the extraordinary jurisdiction of this Court under Article 32 or of a High Court under Article 226 of the Constitution is supposed to be truthful, frank and open. He must disclose all material facts without any reservation even if they are against him. He cannot be allowed to play `hide and seek' or to `pick and choose' the facts he likes to disclose and to suppress (keep back) or not to disclose (conceal) other facts. The very basis of the writ jurisdiction rests in disclosure of true and complete (correct) facts. If material facts are suppressed or distorted, the very functioning of Writ Courts and exercise would become impossible. The petitioner must disclose all the facts having a bearing on the relief sought without any qualification. This is because, "the Court knows law but not facts".
Page 42 of 46
39. If the primary object as highlighted in Kensington Income Tax Commissioners is kept in mind, an applicant who does not come with candid facts and `clean breast' cannot hold a writ of the Court with `soiled hands'. Suppression or concealment of material facts is not an advocacy. It is a jugglery, manipulation, maneuvering or misrepresentation, which has no place in equitable and prerogative jurisdiction. If the applicant does not disclose all the material facts fairly and truly but states them in a distorted manner and misleads the Court, the Court has inherent power in order to protect itself and to prevent an abuse of its process to discharge the rule nisi and refuse to proceed further with the examination of the case on merits. If the Court does not reject the petition on that ground, the Court would be failing in its duty. In fact, such an applicant requires to be dealt with for contempt of Court for abusing the process of the Court."
To buttress this view, the apex Court had also taken into consideration the decision in the case of State of Haryana v. Karnal Distillery, (1977) 2 SCC 431, Vijay Kumar v. State of Haryana, (1983) 3 SCC 333, Welcom Hotel v. State of A.P., (1983) 4 SCC 575, Agricultural & Process Food Products v. Oswal Agro Furnae, (1996) 4 SCC 297, State of Punjab v. Sarav Preet, (2002) 9 SCC 601, Union of India v. Muneesh Suneja, (2001) 3 SCC 92, All India Sate Bank Officers Federation v. Union of India, 1990 Supp SCC 336.
Page 43 of 46 11.4 In Vijay Syal & Anr. v. State of Punjab & Ors., (2003) 9 SCC 401, the apex Court at paragraph-24 observed as follows:-
"In order to sustain and maintain sanctity and solemnity of the proceedings in law courts it is necessary that parties should not make false or knowingly, inaccurate statements or misrepresentation and/or should not conceal material facts with a design to gain some advantage or benefit at the hands of the court, when a court is considered as a place where truth and justice are the solemn pursuits. If any party attempts to pollute such a place by adopting recourse to make misrepresentation and is concealing material facts it does so at its risk and cost. Such party must be ready to take consequences that follow on account of its own making. At times lenient or liberal or generous treatment by courts in dealing with such matters are either mistaken or lightly taken instead of learning proper lesson. Hence there is a compelling need to take serious view in such matters to ensure expected purity and grace in the administration of justice".
11.5 It may be noted that in the prayer 'A' made in the writ petition the petitioner has prayed for rejection of the bid and participation of opposite party no.4 in the tender and in prayer 'B' seeks direction to settle the bid in its favour being the lowest bidder in the financial bid. The petitioner is not capable of being a bidder, in view of the eligibility criteria prescribed under clause-10 (1) of the pre- Page 44 of 46 qualification evaluation criteria of RFP and, as such, cannot be said to be a lowest bidder and the same cannot be stated to be settled in its favour. Therefore, the petitioner wants to get the benefit, which it is not otherwise entitled to get in terms of the RFP. Thereby, the petitioner has tried to get undue advantage of seeking the relief from this Court by suppression of the fact and, as such, has not come to the court with clean hands.
11.6 Taking into consideration the contention raised by the petitioner, this Court, vide order dated 18.08.2023, had called upon the Chief Executive Officer, OCAC to apprise this Court with regard to factum of receipt of the letter dated 15.07.2023, by which the blacklisting order issued in favour of opposite party no.4, was revoked by the Bihar Skill Development Mission. In compliance to the same the said officer appeared in Court and explained the position by filing an affidavit. Therefore, the correct fact having been revealed, it clearly indicates that the petitioner has not come to the Court with clean hands and Page 45 of 46 suppressed certain material facts. Therefore, issue no. (iii) is answered against the petitioner.
12. In view of the fact and law, as discussed above, this Court does not find any merit in the writ petition, which is accordingly dismissed. However, there shall be no order as to costs.
(DR. B.R. SARANGI)
JUDGE
M.S. RAMAN, J. I agree.
(M.S. RAMAN)
JUDGE
Orissa High Court, Cuttack
The 31st August, 2023, Arun
Signature Not Verified
Digitally Signed
Signed by: ARUN KUMAR MISHRA
Designation: ADR-cum-Addl. Principal Secretary Reason: Authentication Location: Orissa High Court Date: 31-Aug-2023 16:48:26 Page 46 of 46