Delhi High Court - Orders
M/S Jsp Projects Pvt Ltd vs National Highways Authority Of India & ... on 13 April, 2023
Author: Prathiba M. Singh
Bench: Prathiba M. Singh
$~13, 35, 39, 97-99
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 16440/2022 & CM APPL. 16385/2023
M/S JSP PROJECTS PVT LTD ..... Petitioner
Through: Mr Manish Gupta, Mr Neelmani
Guha, Ms Harshal Gupta, Mr Amresh
Jha, Mr Aryank Panchal, Advocates.
versus
NATIONAL HIGHWAYS AUTHORITY OF INDIA
& ANR. ..... Respondents
Through: Ms. Madhu Sweta, Ms. Raveena
Dewan, Advocates for Respondent
No.1 and 2 (M-9871650888)
35 WITH
+ W.P.(C) 15600/2022, CM APPL. 48517/2022, 50895/2022,
55688/2022
MS KRISHNA CONSTELLATION PVT LTD MS JSP PROJECTS
PVT LTD JV ..... Petitioner
Through: Mr Manish Gupta, Mr Neelmani
Guha, Ms Harshal Gupta, Mr Amresh
Jha, Mr Aryank Panchal, Advocates.
versus
NATIONAL HIGHWAYS AUTHORITY OF INDIA
& ANR. ..... Respondents
Through: Mr. Jayant Mehta, Sr. Advocate with
Ms. Madhu Sweta, Ms. Raveena
Dewan & Ms. Nikita, Advocates for
Respondent No.1 and 2 (M-
9871650888)
39 WITH
+ W.P.(C) 4052/2023, CM APPLs. 15840/2023 & 15841/2023
M/S JSP PROJECTS PVT LTD ..... Petitioner
Through: Mr Manish Gupta, Mr Neelmani
Guha, Ms Harshal Gupta, Mr Amresh
Jha, Mr Aryank Panchal, Advocates.
versus
NATIONAL HIGHWAYS AUTHORITY OF INDIA
& ANR. ..... Respondents
Signature Not Verified
Digitally Signed W.P.(C) 16440/2022& connected matters Page 1 of 6
By:DEVANSHU JOSHI
Signing Date:17.04.2023
19:23:46
Through: Ms. Madhu Sweta, Ms. Raveena
Dewan, Advocates for Respondent
No.1 and 2 (M-9871650888)
WITH
97
+ W.P.(C) 16492/2022 & CM APPL. 51812/2022
M/S JSP PROJECTS PVT LTD ..... Petitioner
Through: Mr Manish Gupta, Mr Neelmani
Guha, Ms Harshal Gupta, Mr Amresh
Jha, Mr Aryank Panchal, Advocates.
versus
NATIONAL HIGHWAYS AUTHORITY OF INDIA
& ANR. ..... Respondents
Through: Ms. Madhu Sweta, Ms. Raveena
Dewan, Advocates for Respondent
No.1 and 2.
98 WITH
+ W.P.(C) 16493/2022 & CM APPL. 51814/2022
M/S JSP PROJECTS PVT LTD ..... Petitioner
Through: Mr Manish Gupta, Mr Neelmani
Guha, Ms Harshal Gupta, Mr Amresh
Jha, Mr Aryank Panchal, Advocates.
versus
NATIONAL HIGHWAYS AUTHORITY OF INDIA
& ANR. ..... Respondents
Through: Ms. Madhu Sweta, Ms. Raveena
Dewan, Advocates for Respondent
No.1 and 2.
99 AND
+ W.P.(C) 16708/2022 & CM APPL. 52730/2022
M/S JSP PROJECTS PVT LTD ..... Petitioner
Through: Mr Manish Gupta, Mr Neelmani
Guha, Ms Harshal Gupta, Mr Amresh
Jha, Mr Aryank Panchal, Advocates.
versus
NATIONAL HIGHWAYS AUTHORITY OF INDIA
& ANR. ..... Respondents
Through: Ms. Madhu Sweta, Ms. Raveena
Signature Not Verified
Digitally Signed W.P.(C) 16440/2022& connected matters Page 2 of 6
By:DEVANSHU JOSHI
Signing Date:17.04.2023
19:23:46
Dewan, Advocates for Respondent
No.1 and 2.
CORAM:
JUSTICE PRATHIBA M. SINGH
ORDER
% 13.04.2023
1. This hearing has been done through hybrid mode.
2. The present six writ petitions have been filed by the Petitioners challenging the order of debarment of the Petitioners passed in view of pending proceedings under the PMLA against the Petitioners. The case of the Petitioners is that the Special Court, CBI has abated the proceedings against M/s JSP Constructions.
3. The CBI Court has held the partnership firm JSP Construction has merged with JSP Projects Pvt. Ltd. and has thus abated the proceedings against M/s JSP Constructions. In view of this order, it is the case of Petitioners that the debarment is not sustainable. Reliance is placed on the decision of the Supreme Court in Vijay Madanlal Choudhary.
4. Vide interim order dated 14th November, 2022, this Court had considered the order dated 4th November, 2022 passed by the ld. Division Bench in WP(C) 5946/2021 titled JSP Projects Pvt. Ltd. v. NHAI wherein, it was held that allegations of money laundering will not render the Petitioners ineligible to participate in the bidding process. A perusal of the ld. Division Bench's order shows that while making observations in paragraph 12 of the said order, the reason for setting aside of the debarment was the non-issuance of show cause notice in the said case. The relevant portion of the ld. Division Bench's order is set out below:
Signature Not Verified Digitally Signed W.P.(C) 16440/2022& connected matters Page 3 of 6 By:DEVANSHU JOSHI Signing Date:17.04.2023 19:23:46"12. We have heard learned counsel for the petitioner, the learned ASG, and also perused the record. We have also perused the Prevention of Money Laundering Act, 2002 (PMLA). An act of money laundering may pose a serious threat to the financial system of the country. However, it does not follow that every act of money laundering, even if established, would necessarily impinge on the integrity and sovereignty of the nation. In the facts of the present case, there is no allegation against the accused of undertaking an activity, or resorting to conduct which would, ex facie, be described having a bearing on the integrity and sovereignty of the country. As aforesaid, the case is one where the accused has been charged of indulging in corrupt activities, and proceeds of that crime have allegedly been laundered to acquire properties and assets.
13. In our view, if the respondent had granted an opportunity to the petitioner to show cause as to why it should not be disqualified by resort to clause (b) of Annexure VII Appendix IA, the petitioner may have been able to satisfy the respondent that its case is not covered by the said Clause (b). We are, therefore, of the view that the impugned communications issued to the petitioner rejecting its bid cannot be sustained and we, accordingly, set aside the same. We leave it open to the respondent to issue show cause notice to the petitioner on the aforesaid ground, or any other ground that it may validly have in respect of both the matters; call for the explanation; and, then take a reasoned decision on the aspect of the petitioner's disqualification, inter alia, under Clause (b) of Annexure VII Appendix IA. The respondents would, thereafter, be free to proceed with the tender process in accordance with law."
5. Thereafter show cause notice was issued in the present tender, reply was sought and the debarment has been directed. The interim order that has been granted by this Court in W.P.(C) 15600/2022 reads as under:
Signature Not Verified Digitally Signed W.P.(C) 16440/2022& connected matters Page 4 of 6 By:DEVANSHU JOSHI Signing Date:17.04.2023 19:23:46"3.Prima facie the Court finds merit in the contention addressed by learned counsel for the petitioner who submits that the order of 04 November 2022 is in clear breach of what was observed by the Division Bench of the Court in the judgment rendered inter partes in M/s JSP Projects Pvt. Ltd. vs. National Highways Authority of India, Through its Chairman [W.P.(C) 6249/2021] in which it was held that the allegations that were made against the petitioner with respect to proceedings which had been initiated under the Prevention of Money Laundering Act, 2002 [PMLA] cannot be construed as a disqualification and thus rendering the petitioner ineligible to participate in the bidding process.
4. Learned counsel has thereafter drawn the attention of the Court to the order passed by the Special Court, CBI on 08 March 2022, in terms of which the proceedings which had been initiated in respect of the commission of scheduled offences by JSP Constructions have been closed as having abated. In view of the aforesaid, it was his submission that once proceedings in respect of the scheduled offence had come to abate, there would be no justification for the respondents to hold against the petitioner. Learned counsel has also referred to the principles which were enunciated by the Supreme Court in Vijay Madanlal Choudhary and Ors. vs. Union of India and Ors. [2022 SCC OnLine Del 7618] in this respect. Matter requires consideration.
5. Let this petition be called again on 21.12.2022 for final disposal.
6. Any further proceedings that may be taken by the respondents in respect of the subject tender shall abide by the final result of the writ petition."
6. Today, the NHAI has moved an application in WP(C) 16440/2022 seeking early hearing. However, due to paucity of time today, it is not possible to finally hear all the six writ petitions.
7. Mr. Mehta, ld. Senior Counsel submits that due to the order dated Signature Not Verified Digitally Signed W.P.(C) 16440/2022& connected matters Page 5 of 6 By:DEVANSHU JOSHI Signing Date:17.04.2023 19:23:46 14th November, 2022, passed by the Court, NHAI is unable to award the contracts in question to third parties and due to said delay, the cost of the projects is escalating.
8. Insofar as NHAI's urgency is concerned for award of these tenders which relate to infrastructure projects, the interim order dated 14th November, 2022 is clear to the effect that proceedings may be taken by the Respondents but the same shall be subject to the final result of the petitions. Thus, there is no impediment in the NHAI going ahead and awarding these tenders relating to highways/infrastructure projects to any third party.
9. It is again made clear that such award shall be subject to the outcome of these writ petitions.
10. Insofar as the impugned debarment order is concerned, the debarment cannot have any retrospective effect. If any bids have been submitted by the Petitioners prior to the date of impugned debarment order i.e. 4th November, 2022, in respect of which no award of contract has been made yet, the Petitioners are free to make a representation to the NHAI which can be decided within a period of two months.
11. List on 21st September, 2023 for final hearing.
12. Early hearing application is disposed of.
13. All interim applications are also disposed of.
14. The date of 15th May, 2023 stands cancelled.
PRATHIBA M. SINGH, J APRIL 13, 2023 Rahul/SK Signature Not Verified Digitally Signed W.P.(C) 16440/2022& connected matters Page 6 of 6 By:DEVANSHU JOSHI Signing Date:17.04.2023 19:23:46