All these writ petitions are connected together by a common thread of the same texture. The subject matter relates to the tender floated by the Respondent-Bilaspur Smart City Limited. The ...
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1
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Order Reserved on: 28/01/2021
Order Delivered on : 19/02/2021
WPC No. 2390 of 2020
·Raipur Construction Pvt. Ltd. A Company Duly Incorporated Under The
Provisions Of The Companies Act, 1956 And Having Its Office At 24 Ground
Floor, Babla Complex, G.E. Road, Raipur Chhattisgarh
---- Petitioner
Versus
1.State of Chhattisgarh Through Secretary, Urban Administration And
Development Department, Mahanadi Bhawan, Mantralaya, Naya Raipur, District
Raipur Chhattisgarh
2.Bilaspur Smart City Ltd., Through Its Managing Director, 3rd Floor, Vikas
Bhawan, Nehru Chowk, Bilaspur, District Bilaspur Chhattisgarh
3.Manager, Bilaspur Smart City Ltd., 3rd Floor, Vikas Bhawan, Nehru Chowk,
Bilaspur, District Bilaspur Chhattisgarh
4.M/s Prakash Asphaltings And Toll Highways (India) Ltd. And Ganpati
Infrastructure (M/s Path-Gi (JV), Mall Road, Mhow, Indore, Madhya Pradesh.
5.M/s Dineshchandra R. Agrawal Infracon Pvt. Ltd., 401, The Grand Mall, S.M.
Road, Opposite State Bank Zonal Office, Ambawadi, Ahmedabad Gujarat
---- Respondents
For Petitioner : Shri Manoj Paranjpe, Shri K. Rohan & Shri Bharat Sharma,
Advocates.
For Respondent/State: Shri Chandresh Shrivastava, Deputy Advocate General
For Respondent No. 2: Shri Prafull N Bharat, Shri Mateen Siddiqui, and Shri
and 3 Faisal Akhtar, Advocates
For Respondent No. 4: Shri Rajeev Shrivastava, Shri Ankit Singhal and Shri Om
Kukreja, Advocates.
WPC No. 2396 of 2020
·Raipur Construction Pvt. Ltd. A Company Duly Incorporated Under The
Provisions Of The Companies Act, 1956 And Having Its Office At 24 Ground
Floor, Babla Complex, G.E. Road, Raipur Chhattisgarh
---- Petitioner
Versus
1.State of Chhattisgarh Through Secretary, Urban Administration And
Development Department, Mahanadi Bhawan, Mantralaya, Naya Raipur, District
Raipur Chhattisgarh
2.Bilaspur Smart City Ltd., Through Its Managing Director, 3rd Floor, Vikas
Bhawan, Nehru Chowk, Bilaspur, District Bilaspur Chhattisgarh.
3.Manager, Bilaspur Smart City Ltd., 3rd Floor, Vikas Bhawan, Nehru Chowk,
Bilaspur, District Bilaspur Chhattisgarh
4.M/s Prakash Asphaltings And Toll Highways (India) Ltd. And Ganpati
Infrastructure (M/s Path-Gi (JV), Mall Road, Mhow, Indore, Madhya Pradesh 2021:CGHC:4654-DB
Neutral Citation
2
5.M/s Dineshchandra R. Agrawal Infracon Pvt. Ltd., 401, The Grand Mall, S.M.
Road, Opposite State Bank Zonal Office, Ambawadi, Ahmedabad Gujarat
---- Respondents
For Petitioner : Shri Manoj Paranjpe, Shri K. Rohan & Bharat Sharma,
Advocates.
For Respondent/State: Shri Chandresh Shrivastava, Deputy Advocate General
For Respondent No. 2: Shri Prafull N Bharat, Advocate, Shri Mateen Siddiqui,
and 3 and Shri Faisal Akhtar, Advocates.
For Respondent No. 4: Shri Rajeev Shrivastava, Shri Ankit Singhal and Shri
Om Kukreja, Advocates.
WPC No. 2860 of 2020
·M/s Prakash Asphaltings And Toll Highways (India) Ltd., a Company
incorporated and registered under the provisions of the Companies Act 1956,
Having Its Registered Office at 76, Mall Road, Mhow, District Indore, Madhya
Pradesh, through its authorized signatory Shri Mayank Agrawal.
---- Petitioner
Versus
1.Bilaspur Smart City Ltd. Through Its Managing Director, 3
rd
Floor, Pingle
Bhawan, Nehru Chowk, Bilaspur District Bilaspur Chhattisgarh
2.The Manager Bilaspur Smart City Ltd. 3rd Floor, Pingle Bhawan, Nehru Chowk,
Bilaspur, District Bilaspur, Chhattisgarh.
---- Respondents
For Petitioner : Shri Rajeev Shrivastava, Shri Ankit Singhal and Shri Om
Kukreja, Advocates.
For Respondents : Shri Prafull N Bharat, Advocate, Shri Mateen Siddiqui,
Shri Faisal Akhtar, Advocates.
WPC No. 2872 of 2020
·M/s Prakash Asphaltings and Toll Highways (India) Ltd. A Company Incorporated
And Registered Under The Provisions Of The Companies Act, 1956, having its
Registered Office at 76, Mall Road, Mhow, District Indore, Madhya Pradesh
---- Petitioner
Versus
1.Bilaspur Smart City Ltd. Through Its Managind Director, 3
rd
Floor, Pingle
Bhawan, Nehru Chowk, Bilaspur, District Bilaspur Chhattisgarh.
2.The Manager Bilaspur Smart City Ltd., 3rd Floor, Pingle Bhawan, Nehru Chowk ,
Bilaspur , District Bilaspur , Chhattisgarh.
---- Respondents
For Petitioner : Shri Rajeev Shrivastava, Shri Ankit Singhal and Shri Om
Kukreja, Advocates.
For Respondents : Shri Prafull N Bharat, Advocate, Shri Mateen Siddiqui,
Shri Faisal Akhtar, Advocates. 2021:CGHC:4654-DB
Neutral Citation
3
WPC No. 3150 of 2020
·Raipur Construction Pvt. Ltd. a Company Duly incorporated under the provisions
of the Companies Act, 1956 And Having Its Office At 24 Ground Floor, Babla
Complex, G.E. Road, Raipur, Chhattisgarh.
---- Petitioner
Versus
1.State of Chhattisgarh Through Secretary, Urban Administration And
Development Department, Mahanadi Bhawan, Mantralaya, Naya Raipur, District
Raipur, Chhattisgarh
2.Bilaspur Smart City Ltd., Through Its Managing Director, 3rd Floor, Vikas
Bhawan, Nehru Chowk, Bilaspur, District Bilaspur, Chhattisgarh
3.Manager Bilaspur Smart City Ltd., 3
rd
Floor, Vikas Bhawan, Nehru Chowk,
Bilaspur, District Bilaspur, Chhattisgarh
---- Respondents
For Petitioner : Shri Manoj Paranjpe, Shri K. Rohan & Shri Bharat Sharma
Advocates.
For Respondent/State: Shri Chandresh Shrivastava, Deputy Advocate General
For Respondent No. 2: Shri Prafull N Bharat, Advocate, Shri Mateen Siddiqui,
and 3 and Shri Faisal Akhtar.
WPC No. 3151 of 2020
·Raipur Construction Pvt. Ltd. A Company duly incorporated under the provisions
of the Companies Act, 1956 and having its Office at 24 Ground Floor, Babla
Complex , G.E. Road , Raipur , Chhattisgarh.
---- Petitioner
Versus
1.State of Chhattisgarh Through Secretary, Urban Administration And
Development Department, Mahanadi Bhawan, Mantralaya, Naya Raipur , District
Raipur Chhattisgarh.
2.Bilaspur Smart City Ltd. Through Its Managing Director , 3rd Floor, Vikas
Bhawan, Nehru Chowk, Bilaspur , District Bilaspur Chhattisgarh.
3.Manager Bilaspur Smart City Ltd., 3
rd
Floor, Vikas Bhawan, Nehru Chowk,
Bilaspur , District Bilaspur Chhattisgarh.
---- Respondents
For Petitioner : Shri Manoj Paranjpe, Shri K. Rohan & Bharat Sharma,
Advocates.
For Respondent/State: Shri Chandresh Shrivastava, Deputy Advocate General
For Respondent No. 2: Shri Prafull N Bharat, Advocate, Shri Mateen Siddiqui,
and 3 and Shri Faisal Akhtar. 2021:CGHC:4654-DB
Neutral Citation
4
WPC No. 3188 of 2020
·M/s Prakash Asphaltings And Toll Highways (India) Ltd. A Company
Incorporated And Rregistered Under The Provisions Of The Companies Act.,
1956, Having Its Registered Office At 76, Mall Road, Mhow, District- Indore,
Madhya Pradesh, Through Its Authorized Signatory Shri Mayank Agrawal
---- Petitioner
Versus
1.Bilaspur Smart City Ltd. through its Managing Director, 3
rd
Floor, Pingle Bhawan,
Nehru Chowk, Bilaspur, District- Bilaspur, Chhattisgarh.
2.The Manager Bilaspur Smart City Ltd., 3rd Floor, Pingle Bhawan, Nehru Chowki,
Bilaspur, District- Bilaspur, Chhattisgarh
3.P.K. Panchaity S/o Late Dr. U.K. Panchaity Aged About 58 Years Manager,
Bilaspur Smart City Limited, Bilaspur, Chhattisgarh.
4.Dena Bank Through Its Branch Manager, Address South Tukoganj, District-
Indore, Madhya Pradesh
---- Respondents
For Petitioner : Shri Rajeev Shrivastava, Shri Ankit Singhal and
Shri Om Kukreja, Advocates.
For Respondents No. 1 & 2: Shri Prafull N Bharat, Shri Mateen Siddiqui, and Shri
Faisal Akhtar, Advocates.
Hon'ble Shri P.R. Ramachandra Menon, Chief Justice
Hon'ble Shri Parth Prateem Sahu, Judge
C A V Order
Per P.R. Ramachandra Menon, Chief Justice
1.All these writ petitions are connected together by a common thread of the
same texture. The subject matter relates to the tender floated by the
Respondent-Bilaspur Smart City Limited. The challenge raised is against
cancellation of the Second tender (after cancelling the First tender) and in
respect of the subsequent/Third tender proceedings, besides the instance of
blacklisting the parties concerned and other incidental aspects.
2.The main points that arise for consideration are:
(a)Whether the repeated cancellation of the tender floated by the
Respondent-Bilaspur Smart City Limited is with intent to extend
undue favours to anybody of choice of the Respondents? 2021:CGHC:4654-DB
Neutral Citation
5
(b)Whether the blacklisting of the Tenderer ordered by the
Respondent-Bilaspur Smart City Limited without issuing any show
cause notice is correct or sustainable in law?
(c)Whether the disqualification of the Petitioner-Company in WPC No.
2390/2020 and WPC No. 2396/2020 {M/s. Raipur Construction Pvt.
Ltd.} in the Second round of tender is correct or justified?
(d)Whether the disqualification of the Petitioner in WPC No. 2860/2020
and WPC No. 2872/2020 {M/s. Prakash Asphaltings & Toll
Highways (India) Ltd.} in the Second round of tender after declaring
them as already qualified and placing them at L1, based on some
complaint as to the alleged suppression of the work in hand - to
assess the bid capacity, is in order?
(e)Whether blacklisting of the Petitioner in WPC No. 3150/2020 and
WPC No. 3151/2020 (same Petitioner Company in WPC No.
2390/2020 and WPC No. 2396/2020) as per order dated 11.11.2020
and the subsequent proceedings dated 24.11.2020 informing that
the physical bid of the said Petitioner cannot be opened in the Third
round of tender in view of the blacklisting ordered on 11.11.2020
and the further order dated 25.11.2020 rejecting the bid submitted in
respect of the Third tender, is correct and justified?
(f)Whether the 'decision making process' pursued by the Respondent-
Bilaspur Smart City Limited is transparent and sustainable in law;
both with regard to the question of 'disqualification' and the
'blacklisting' of the parties concerned?
(g)Is the version of the Petitioners in WPC No. 3150/2020, WPC
No. 3151/2020 (same petitioner in WPC No. 2390 and WPC No.
2396/2020) that the agreement stated as executed between the
said Petitioner and the Raipur Smart City Ltd. on 05.08.2020 (with
reference to the existing work in hand produced by the
Respondent/Bilaspur Smart City Ltd. alongwith the covering memo)
is forged/concocted, or acceptable to be acted upon with reference
to the relief sought for?
3.We heard Shri Manoj Paranjpe, Shri K. Rohan and Shri Bharat Sharma, the
learned counsel for the Petitioner-Raipur Construction Pvt. Ltd. in WPC No.
2390/2020, 2396/2020, 3150/2020 and WPC No. 3151/2020, Shri Rajeev 2021:CGHC:4654-DB
Neutral Citation
6
Shrivastava, Shri Ankit Singhal and Shri Om Kukreja for the Petitioner-M/s.
Prakash Asphaltings & Toll Highways (India) Ltd. in WPC No. 2872/2020,
2860/2020 and 3188/2020, besides Shri Chandresh Shrivastava, the
learned Deputy Advocate General for the State, Shri Prafull N. Bharat, Shri
Mateen Siddiqui and Shri Faisal Akhtar, Advocates for the Respondent-
Bilaspur Smart City Limited.
4.The sequence of events starts from the day when the Respondent-Bilaspur
Smart City Ltd. issued a Tender notification dated 09.06.2020 inviting bids
for construction of bituminous road and drain works from Arpa River Indira
Setu to Shanichari Rapta (Left Side). A similar tender was floated in respect
of similar construction for the same stretch on the 'Right side' as well. The
Petitioner-Raipur Construction Pvt. Ltd. contends that though they had
participated, they were wrongly declared as ineligible vide order dated
25.07.2020. However, the said tender came to be cancelled by the
Respondent-Bilaspur Smart City Ltd. on 25.07.2020 who issued a fresh
tender for the work on the same day. The Petitioner-Raipur Construction
Pvt. Ltd. responded to the Second round of tender and participated in the
bids, but this time again, the Petitioner-Raipur Construction Pvt. Ltd. was
declared ineligible as per order dated 08.09.2020, which according to the
said Petitioner, was only to extend undue favours to the other contractor
{Petitioner-M/s. Prakash Asphaltings & Toll Highways (India) Ltd. in WPC
No. 2872/2020, 2860/2020 and 3188 of 2020}. The Petitioner-Raipur
Construction Pvt. Ltd. raised a complaint against the bidder by name M/s.
Prakash Asphaltings & Toll Highways (India) Ltd. who was found eligible
and placed at L1 and then challenged the disqualification of the Petitioner
and in qualifying M/s. Prakash Asphaltings & Toll Highways (India) Ltd. in
respect of the two different tenders by filing to separate writ petitions as
WPC No. 2390 of 2020 and WPC No. 2396 of 2020. 2021:CGHC:4654-DB
Neutral Citation
7
5.The disqualification of the Petitioner M/s. Raipur Constructions Pvt. Ltd. and
the qualifying of M/s. Prakash Asphaltings & Toll Highways (India) Ltd.
placing them at L1 was sought to be justified by the 2
nd
respondent-Awarder
by filing return before this Court in WPC No. 2390/2020 and WPC No.
2396/2020. However, during pendency of the above proceedings, the said
Respondent-Bilaspur Smart City Ltd. passed an order on 17.11.2020, based
on the complaints preferred, holding that there was suppression of material
facts with regard to the 'work in hand' for assessing the bid capacity from
the part of M/s. Prakash Asphaltings & Toll Highways (India) Ltd. and
accordingly, the said tender was cancelled and M/s. Prakash Asphaltings &
Toll Highways (India) Ltd. was blacklisted. After cancelling the Second
tender, the Respondent-Bilaspur Smart City Ltd. proceeded with further
steps by floating a similar tender; however adding some additional
clause/clarification with regard to the tender while issuing the Third tender
notification on 06.11.2020. Cancellation of the Second tender and
disqualification of M/s. Prakash Asphaltings & Toll Highways (India) Ltd. for
the alleged suppression of fact and issuance of the Third tender notification
dated 06.11.2020 are put to challenge from their side by filing WPC No.
2860/2020 and 2872/2020, simultaneously seeking for a direction to
complete the tender process pursuant to the Second tender notified on
25.07.2020. WPC No. 3188/2020 has been filed by the very same
Petitioner (in WPC No. 2872/2020 and 2860/2020) challenging the
subsequent developments pursued by the Respondent-Bilaspur Smart City
Ltd. causing the EMD furnished by the Petitioner to be forfeited by giving
instructions to the Bankers, notwithstanding the interim order passed by this
Court on 24.11.2020 in WPC No. 2872/2020 and 2860/2020) and for
causing enquiry of the high handed action and punish the guilty persons for
defrauding with the system to favour a particular bidder and burdening the
public exchequer by cancelling the tender time and again. 2021:CGHC:4654-DB
Neutral Citation
8
6.The blacklisting of the Petitioner- M/s. Prakash Asphaltings & Toll Highways
(India) Ltd. {in WPC No. 2860/2020, 2872/2020 and 3188/2020} was sought
to be challenged separately by filing WPC No. 2897/2020 and 2989/2020,
with a specific contention that such blacklisting was ordered without issuing
any notice or affording any opportunity of hearing, and hence, not
sustainable in view of the settled position of law. The above two writ
petitions came up for consideration before this Court on 24.11.2020, when
the challenge against cancellation of the Second tender raised by the said
Petitioners by way of WPC No. 2860/2020 and WPC No. 2872/2020 was
taken note of. It was conceded by the learned counsel for the Respondent-
Bilaspur Smart City Ltd. that the impugned order of blacklisting dated
11.11.2020 was passed without issuing any notice and that the matters
could be disposed of with liberty to the Respondent-Bilaspur Smart City Ltd.
to pursue further steps in accordance with law, after issuing proper notice.
In the said circumstance, the balcklisting of M/s. Prakash Asphaltings & Toll
Highways (India) Ltd. ordered on 11.11.2020 was set aside without
prejudice to the rights and liberties of the Respondent-Bilaspur Smart City
Ltd. to pursue further steps in accordance with law, after issuing notice to
the Petitioner seeking for an explanation and giving an opportunity of
hearing in this regard. Hence, no grievance exists with regard to the
question of blacklisting of the Petitioner-M/s. Prakash Asphaltings & Toll
Highways (India) Ltd., as on date.
7.While so, pursuant to the Third round of tender proceedings for the same
work issued by the Respondent-Bilaspur Smart City Ltd., M/s. Raipur
Constructions Pvt. Ltd. {Petitioner in WPC No. 2390/2020, 2396/2020,
3150/2020 and 3151/2020} submitted its bid within the specified time. They
were however served with an order dated 11.11.2020 (stated as received by
e-mail dated 17.11.2020) informing that, pursuant to the disqualification in
the Second tender, their EMD furnished in the Second round has been 2021:CGHC:4654-DB
Neutral Citation
9
forfeited and that they have been debarred/blacklisted from participating in
the tender process issued by the Respondent-Bilaspur Smart City Ltd. for a
period of two years. With reference to the said blacklisting in reference to
the Second round, M/s. Raipur Constructions Pvt. Ltd. were informed, as
per the proceedings dated 24.11.2020 issued by the Respondent-Bilaspur
Smart City Ltd., that the physical bid submitted by them in the Third round
could not be opened and vide order dated 25.11.2020, the bids submitted
by M/s. Raipur Constructions Pvt. Ltd. were rejected. This made M/s. Raipur
Constructions Pvt. Ltd. to challenge the order of blacklisting dated
11.11.2020 and the subsequent proceedings dated 24.11.2020 and
25.11.2020 refusing to open the technical bid and the rejection by filing
WPC No. 3150/2020 and WPC No. 3151/2020.
8.There is no dispute to the chronology of dates and events with reference to
the subject work involved, as contained in the two separate tenders floated
by the Respondent-Bilaspur Smart City Ltd. by way of the First, Second and
Third rounds of tender notifications. Admittedly, there is no challenge
against cancellation of the First tender and the dispute is only with regard to
the course and proceedings in respect of the Second and Third round of
tender notifications. In the Second round, as noted already, M/s. Raipur
Constructions Pvt. Ltd. was disqualified; whereas M/s. Prakash Asphaltings
& Toll Highways (India) Ltd. was initially qualified and placed at L1. The said
proceeding was sought to be justified by the Respondent-Bilaspur Smart
City Ltd. in the return filed by them in WPC No. 2390/2020 and 2396/2020
(filed by M/s. Raipur Constructions Pvt. Ltd. challenging the impugned
proceedings). It was thereafter, that M/s. Prakash Asphaltings & Toll
Highways (India) Ltd. was disqualified and declared as ineligible for not
revealing the existing work in hand (to assess the bid capacity), followed by
cancellation of the Second tender and the blacklisting ordered against them.
The instance of blacklisting against M/s. Prakash Asphaltings & Toll 2021:CGHC:4654-DB
Neutral Citation
10
Highways (India) Ltd. without issuing any notice to them has already been
interdicted by this Court as per judgment dated 24.11.2020 in WPC No.
2897/2020 and 2898/2020. As such, the remaining questions with regard to
the Second tender is whether the Respondent-Biaspur Smart City Ltd. was
justified in disqualifying M/s. Raipur Constructions Pvt. Ltd. (Petitioner in
WPC No. 2390/2020 and 2396/2020) and if they were justified in
subsequently disqualifying M/s. Prakash Asphaltings & Toll Highways
(India) Ltd. (Petitioner in WPC No. 2860/2020 and 2872/2020) after initially
justifying the qualification of M/s. Prakash Asphaltings & Toll Highways
(India) Ltd. in the proceedings filed before this Court by way of return filed
in WPC No. 2390/2020 and WPC No. 2396/2020.
9.With regard to the first point as to whether the Respondent-Bilaspur Smart
City Ltd. was justified in disqualifying M/s. Raipur Construction Pvt. Ltd; the
specific case projected is that the terms and conditions of the bid insisted to
satisfy various requirements as specified therein. Pursuant to the said
Second tender proceedings notified on 25.07.2020, six bidders participated
in the exercise including M/s. Raipur Construction Pvt. Ltd. and M/s.
Prakash Asphaltings & Toll Highways (India) Ltd. The disqualification of
M/s. Raipur Construction Pvt. Ltd. is as per Annexure P/9 dated 08.09.2020
in WPC No. 2390/2020 and WPC No. 2396/2020; which is for the reasons
including that the documents relating to turnover were not signed/counter-
signed both by the bidder and the Chartered Accountant and that
'Annexure-3' relating to the total executed civil engineering work performed
on all classes of civil engineering construction for the last five years was not
filled up (but for attaching the certificate issued by Engineer-in-Chief)
whereas, as per the RFP, the information was to be given in the prescribed
format. That apart, the authorisation letter from the OEMs was to be
submitted alongwith the pre-qualification documents online, which was also
not done. 2021:CGHC:4654-DB
Neutral Citation
11
10.Despite hearing the matter at length, M/s. Raipur Construction Pvt. Ltd.
could not satisfy this Court that the documents were signed/counter-signed
as prescribed and that they had submitted the experience certificate of
similar work in the requisite manner. The submission of the learned counsel
that all the relevant documents to show the credentials had already been
produced, does not persuade this Court to hold that it will be a substitute for
the requirement as to the signing/counter-signing as specified. Similarly, it
has not been substantiated by M/s. Raipur Construction Pvt. Ltd. that they
had submitted experience certificate of similar work in the required manner,
as prescribed in the tender notification/conditions or that he had submitted
the authorisation letter from OEMs alongwith the other pre-qualification
documents. This being the position, it cannot be held that the
disqualification of M/s. Raipur Construction Pvt. Ltd. as per Annexure P/9
dated 08.09.2020 ordered by the Respondent-Bilaspur Smart City Ltd. was
wrong, unsustainable or unjustified in any manner. As it stands so, the
challenge raised in WPC No. 2390/2020 and WPC No. 2396/2020 stands
repelled.
11.The remaining question in the above two writ petitions is with regard to the
qualification of M/s. Prakash Asphaltings & Toll Highways (India) Ltd. which
is sought to be set aside. In fact, M/s. Prakash Asphaltings & Toll Highways
(India) Ltd. was subsequently disqualified by the Respondent-Bilaspur
Smart City Ltd. (after filing WPC No. 2390/2020 and WPC No. 2396/2020
by M/s. Raipur Construction Pvt. Ltd.) as per the proceedings dated
07.11.2020 (Annexure P/8) which is under challenge by M/s. Prakash
Asphaltings & Toll Highways (India) Ltd. in WPC No. 2860/2020 and
2872/2020 and hence, this has to be considered alongwith the challenge
raised in the said two cases. There is a contention for the Petitioner-M/s.
Raipur Construction Pvt. Ltd. in WPC No. 2390/2020 and 2396/2020 that
the 4
th
Respondent-M/s. Prakash Asphaltings & Toll Highways (India) Ltd. 2021:CGHC:4654-DB
Neutral Citation
12
who is the Petitioner in the other two cases (WPC No. 2860/2020 and WPC
No. 2872/2020) has not disclosed all the work in hand at the time of
submitting the bid and that extraneous consideration was being extended to
them. Similarly, a plea has been raised by the Petitioner-M/s. Prakash
Asphaltings & Toll Highways (India) Ltd. to the effect that undue favours are
sought to be extended by the Respondent-Bilaspur Smart City Limited to
the sole remaining qualified tenderer M/s. Radheshyam Agrawal, in the third
round.
12.As pointed out already, in the Second round of tender, after disqualifying
M/s. Raipur Construction Pvt. Ltd., M/s. Prakash Asphaltings & Toll
Highways (India) Ltd. was identified as the qualified bidder who came to be
placed at L1. The said selection was sought to be justified with reference to
the materials on record, as on the date of filing return, by the Respondent-
Bilaspur Smart City Ltd. in WPC No. 2390/2020 and 2396/2020 preferred by
M/s. Raipur Constructions Pvt. Ltd. challenging their disqualification and
cancellation of the tender. It was much thereafter, that things took a different
turn, leading to cancellation of the Second tender in which M/s. Prakash
Asphaltings & Toll Highways (India) Ltd. was identified as the successful
bidder, as per Annexure P/8 intimation dated 07.11.2020 (in WPC No.
2860/2020 and WPC No. 2872/2020).
13.It is quite evident that absolutely no reason has been stated for cancelling
the Second tender where M/s. Prakash Asphaltings & Toll Highways (India)
Ltd. was identified as the successful bidder. This has been subjected to
challenge by filing WP(C) No. 2860/2020 and WPC No. 2872/2020 within
48 hours by filing the said proceedings on 09.11.2020. It was much later,
that some other insinuations were levelled against M/s. Prakash Asphaltings
& Toll Highways (India) Ltd. as to the 'alleged suppression of material facts'
with regard to the 'work in hand' which was having a bearing with regard to 2021:CGHC:4654-DB
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13
the assessment of the bid capacity of the tenderer, in turn leading to the
blacklisting of M/s. Prakash Asphaltings & Toll Highways (India) Ltd. as per
the proceedings dated 11.11.2020. This made M/s. Prakash Asphaltings &
Toll Highways (India) Ltd., the successful bidder, to challenge the
'blacklisting' separately by filing WPC No. 2897/2020 and 2898/2020, where
the impugned proceedings came to be interdicted for having issued without
giving an opportunity of hearing and accordingly, the said writ petitions have
been allowed, based on the admitted factual position from the part of the
Respondents.
14.In the challenge against cancellation of the Second tender raised by M/s.
Prakash Asphaltings & Toll Highways (India) Ltd. in WPC No. 2860/2020
and 2872/2020, a return has been filed by the Respondent-Bilaspur Smart
City Ltd. trying to improve their case by finding reasons and seeking the
same to be read into Annexure P/8 order dated 07.11.2020 for cancelling
the tender, which legally may not be permissible in view of the law declared
by the Constitution Bench of the Supreme Court on the point in Mohinder
Singh Gill & Another v. The Chief Election Commissioner, New Delhi &
Others; {(1978) 1 SCC 405} to the effect that administrative orders cannot
be improved by raising pleadings in the counter affidavit. In the return, the
Respondent-Bilaspur Smart City Ltd. points out that after justifying the
selection of M/s. Prakash Asphaltings & Toll Highways (India) Ltd. as the
successful bidder in the Second round (by filing a return in a challenge
raised by M/s. Raipur Construction Pvt. Ltd. in WPC No.2390/2020), some
additional facts came upto the surface. The National Highway Authority of
India as well as the Madhya Pradesh Road Development Corporation
Limited (who had awarded some works) furnished certain material
information with respect to the Petitioner-M/s. Prakash Asphaltings & Toll
Highways (India) Ltd., which clearly spelt out that M/s. Prakash Asphaltings
& Toll Highways (India) Ltd., while submitting the bid document, had not 2021:CGHC:4654-DB
Neutral Citation
14
disclosed all civil construction works in hand; {in response to the queries
raised, with reference to the involvement of M/s. Prakash Asphaltings & Toll
Highways (India) Ltd}. This made the Tender Committee meeting convened
on 04.11.2020 to recommend action to be taken under Clause 47 of the
request for proposal (RFP) to disqualify the said bidder, forfeit the EMD and
to debar for two years. The said recommendation was accepted by the
Empowered Committee in the meeting held on 06.11.2020, which led to the
blacklisting order dated 11.11.2020 (which was the subject matter of
challenge in WPC No. 2897/2020 and 2898/2020, where they have already
been set aside). The aforesaid stand of the Respondent-Bilaspur Smart
City Ltd. trying to find reasons for cancellation of the Second tender ordered
as per Annexure P/8 (where no reason is given) is put to challenge and
scrutiny.
15.Shri Rajeev Shrivastava, the learned counsel for the Petitioner-M/s. Prakash
Asphaltings & Toll Highways (India) Ltd. submits that the so-called
additional facts with regard to the disputed works were very much available
with the Respondent-Bilaspur Smart City Ltd. The factual and legal position
were sought to be ascertained by the Respondent-Bilaspur Smart City Ltd.
by calling for opinion from the Chartered Accountant and also from the
Lawyer, copy of which proceedings have been produced alongwith the
rejoinder as Annexure R/6 and R7. The relevant portions of the said
documents are to the following effect:
"Opinion of the Chartered Accountant:
In view of the above reply it is clear that the EPC work or
the Physical Construction work was not assigned to
Prakash Asphalting & Toll Highways (India) Ltd. (PATH)
Opinion of the Lawyer:
Thus non furnishing of the details of works by PATH GI
(JV) in Annexure 4 of the RFP with regard to Beohari-
Bansuklisidhi Road and Bilaspur Pathrapali four lane
would not have any bearing for the present tender as the 2021:CGHC:4654-DB
Neutral Citation
15
information sought by you in the tender document is with
respect to prime contractor only, lead member only
therefore it is not necessary that every member of the
consortium should disclose all his works in hand in
Annexure 4 of the RFP document"
16.The queries raised by the Respondent-Bilaspur Smart City Ltd. and the
answers given by the National Highway Authority of India vide Annexure
R/1 dated 14.10.2020 are to the following effect:
"Sl.
No.
Queries of Bilaspur Smart City Ltd. Reply of PIU Bilaspur, NHAI
1. Whether the above road project was to be
developed under Hybrid Annuity method? If yes
whether selection of M/S Prakash Asphaltings &
Toll Highways (India) Ltd. In the said Road
Project was meant to only as an investor?
Yes, the Bilaspur- Pathrapali
project is being developed on
Hybrid Annuity Mode. The
agreement has been signed by
M/S Bilaspur Pathrapali Road
Pvt. Ltd. Which is a Limited
Liability Company which has
been promoted and
incorporated by the Consortium
consisting of Adani Enterprises
Ltd. And Path (India) Ltd. Which
had bid as a Consortium. Adani
Enterprises ltd. is the lead
Member of the Consortium with
74% share. Path (India) Ltd.
Has 26% equity stake.
2. Who was, under the above work awarded by
your organization was responsible for the
physical construction (EPC) of the road project?
M/S Bilaspur Pathrapali Road
Pvt. Ltd., the Concessionaire of
NHAI has signed the EPC
Contract with Adani Infra (India)
Ltd. for Civil Construction work.
3. According to your records which agency has
carried out/being carrying out the job of EPC for
the captioned project? If it was not Prakash
Asphaltings & Toll Highways (India) Ltd. then
whether any specific permission was required to
be obtained from National Highway Authority for
the same. If yes, whether any such approval
was applied by the said Prakash Asphaltings &
Toll Highways (India) Ltd? If so whether any
such permission was given by you. In addition to
your reply kindly also provide documentary
records in respect to the matter.
The responsibility/liability for
construction rests with M/s
BPRPL, M/s Adani Infra (India)
is the EPC Contractor of M/s
BPRPL, M/s BPRPL has signed
EPC Contract with M/s Adani
Infra (India) with the consent of
NHAI. It is informed that
whatever communication has
been made with NHAI, it has
been made by M/s BPRPL
which is an SPV of Adani Infra
(India) Ltd. & PATH (India) Ltd.,
PATH (India) itself were never
communicated anything with
NHAI.
4. What was the overall role and scope of work of
M/s Prakash Asphaltings & Toll Highways (India)
Ltd. In the above mentioned project?
M/s Prakash Asphaltings & Toll
Highways (India) Ltd. is only a
JV Partner with 26% equity
Stake in M/s BPRPL. NHAI
deals only with M/s BPRPL for
execution of Contract and not
individually to any of the
member of the Consortium." 2021:CGHC:4654-DB
Neutral Citation
16
17.Similarly, the clarification given by the Madhya Pradesh Road Development
Corporation Ltd. on 13.10.2020 has been produced as Annexure R/2;
wherein the name of the Petitioner-M/s. Prakash Asphaltings & Toll
Highways (India) Ltd. has been mentioned as the successful bidder and as
to the subsequent formation of SPV - M/s. Beohari Bhansukhli Pathways
Pvt. Ltd. In fact, the Respondent-Bilaspur Smart City Ltd. had sought for
clarification referring to the non-revealing of two different works, in the list of
ongoing construction work in Annexure-4; which was clearly answered by
the Petitioner-M/s. Prakash Asphaltings & Toll Highways (India) Ltd. vide
Annexure R/4 dated 23.09.2020 giving the particulars of the different
companies to whom the EPC work was given. We find it appropriate to
extract the same as well, to have an easy reference, as given below:
"Letter No. 7574/ADBVI/MPRDC/CW/Pkg-13/Part-I/2020 Bhopal Dated13/10/2020
To,
Authorized Signatory
Bilaspur Smart City Limited (BSCL)
Pingle Bhawan, Nehru Chowk, Bilaspur,
Chhattisgarh- 495001
Sub:-Clarification on Development of Beohai- Bansukli- Sidhi Road to two lane in
the State of Madhya Pradesh on Hybrid Annuity Mode- Package- 13.
Ref:- Your office letter No. 1696/BSCL/2020-21 Bilaspur dated 01.10.2020
This has a reference to your office letter No. 1696/BSCL/2020-21 Bilaspur
dated 01.10.2020 the point wise clarification to the queries is as below:
1. Yes, the road project under Package- 13 is to be developed on Hybrid Annuity
Mode. M/s Prakash Asphaltings & Toll Highways (India) Ltd. had been the successful
bidder and as per provisions of the bid document they have formed an SPV “ BEOHARI
BANSUKLI PATHWAYS PVT. LTD”, who have entered into Concession Agreement
dated 04.06.2020.
2. As per Concession Agreement dated 04.06.2020 SPV “BEOHARI BANSUKLI
PATHWAYS PVT. LTD” is responsible for the execution of the project. A copy of letter
No. PATH/PPPPMPRSP/2020-21/Pkg-13/157 dated 04.06.2020 attached herewith
3. Same as S. N. 2, as requested a copy of the agreement dated 04.06.2020 is
enclosed.
4. M/s Prakash Asphaltings & Toll Highways (India)Ltd. had been the successful
bidder and subsequently formed the SPV “ BEOHARI BANSUKLI PATHWAYS PVT.
LTD”.
Encl:- As above 06 pages.
Sd/-
(Gopal Singh)
O/c Chief Engineer (ADB VI/VII)
MPRDC, Bhopal" 2021:CGHC:4654-DB
Neutral Citation
17
On issuance of Annexure R/5 letter dated 16.10.2020 by the
Respondent-Bilaspur Smart City Ltd. to the Madhya Pradesh Road
Development Corporation Ltd. requesting that further clarification was
necessary, as to who was responsible for the physical civil construction
work in respect of the relevant project, it was answered by the Madhya
Pradesh Road Development Corporation Ltd. vide Annexure R/6 dated
28.10.2020 that: "M/s. Beohari Bhansukhli Pathways Pvt. Ltd. (SPV)
will be responsible for physical civil construction works in which M/s.
Prakash Asphaltings & Toll Highways (India) Ltd (the Petitioner) has
'51% share holding".
18.Shri Prafull N Bharat, the learned counsel appearing for the Respondent-
Bilaspur Smart City Ltd. submits that since the Madhya Pradesh Road
Development Corporation Ltd. has made it clear, as per Annexure R/6
dated 28.10.2020, that M/s. Prakash Asphaltings & Toll Highways (India)
Ltd. was having 51% share holding, there was a clear suppression of
material fact as to the ongoing work in hand by the prime contractor in
Annexure-4 submitted alongwith the tender and it was for this suppression,
that steps were recommended to be taken in terms of Clause 47 of the
RFP, as recommended by the Tender Committee vide Annexure R/8
proceedings held on 04.11.2020; which came to be approved by the
Empowered Committee in its meeting held on 06.11.2020 vide Annexure
R/9, leading to the disqualification of the Petitioner-M/s. Prakash
Asphaltings & Toll Highways (India) Ltd., forfeiture of the EMD and also
ordering blacklisting for a period of two years alongwith. Similar proceedings
were pursued in respect of M/s. Raipur Construction Pvt. Ltd. as well,
because of non-disclosure of the work in hand, in connection with the work
assigned to them by Raipur Smart City Ltd. (with reference to the work
order and agreement dated 05.08.2020) while submitting their bid in the 2021:CGHC:4654-DB
Neutral Citation
18
Second tender. The learned counsel submits that in view of the reply
furnished by the Madhya Pradesh Road Development Corporation Ltd. vide
Annexure R/6 dated 28.10.2020, pointing out that the Petitioner-M/s.
Prakash Asphaltings & Toll Highways (India) Ltd. was having "51% share
holding", the Petitioner was the "prime contractor" and it was the duty of the
'prime contractor' to have disclosed the existing commitments and all
ongoing civil construction works in Annexure-4, where there is a failure.
19.Shri Rajeev Shrivastava, the learned counsel for the Petitioner-M/s. Prakash
Asphaltings & Toll Highways (India) Ltd. points out that, no such obligation
was mulcted on the Petitioner as evident from the 'Note' attached to
Annexure-4 (forming part of the Second round of tender); whereas the
burden virtually came to be incorporated only by amending the 'Note'
subsequently, when the Third tender notification dated (06.11.2020) was
published on 07.11.2020. Specific reference is made to the above
Annexures forming part of the Second tender and the Third tender
respectively, and we find it appropriate to have the same extracted to have
easy reference:
Annexure-4 of Second Tender
"Annexure-4
Existing commitments and ongoing all classes of civil Engineering construction works, by the Prime Contractor
S.No. Project
Name
Descript
ion of
work
Contract
No. &
Year
Name
&
Address
of the
Client
Value of
Contract
(Rs.
Lakhs)
Date
of
issue
of
work
order
Stipulate
d Date
of
Complet
ion
Stipulat
ed
period
of
complet
ion in
months
Anticipat
ed date of
completi
on **
Value
of work
done up
to date
of issue
of NIT
(Rs.
Lakhs)
**
Probabl
e value
of work
remaini
ng to be
complet
ed (Rs.
Lakhs)
**
Anticipa
ted
months
required
for
completi
on of
balance
works
Value of
claims or
dispute if
any,
pending
1 2 3 4 5 6 7 8 9 10 11 12 13 14
Note (i) ** Enclose certificates from Engineer-In-Charge(s) in charge (Not below the rank of Executive Engineer or
equivalent) for value of work remaining to be completed, value of work done, anticipate date of completion.
(ii) Tenderer may attach certified copies of work order issued by Engineer-in-Charge not below the rank of
Executive Engineer." 2021:CGHC:4654-DB
Neutral Citation
19
Annexure-4 of Third tender
"Annexure-4
Existing commitments and ongoing all classes of civil Engineering construction works, by the Prime Contractor
S.No. Project
Name
Descript
ion of
work
Contract
No. &
Year
Name
&
Address
of the
Client
Value of
Contract
(Rs.
Lakhs)
Date
of
issue
of
work
order
Stipulate
d Date
of
Complet
ion
Stipulat
ed
period
of
complet
ion in
months
Anticipat
ed date
of
completi
on **
Value of
work
done up
to date
of issue
of NIT
(Rs.
Lakhs)
**
Probabl
e value
of work
remaini
ng to be
complet
ed (Rs.
Lakhs)
**
Anticipa
ted
months
required
for
complet
ion of
balance
works
Value of
claims or
dispute if
any,
pending
1 2 3 4 5 6 7 8 9 10 11 12 13 14
Note (i) Attach certificates issued by the competent authority of the Department and Bidder should attach copy of
Work-Order & Completion.
Or
Bidder should provide details in Annexure 04 with Seal & Signature of himself and Bidder should attach
certified copies of work order and Balance Work Certificate remaining to be completed, value of work done,
anticipate date of completion, issued by Engineer-In-Charge not below the rank of Executive Engineer.
(ii) It is clarified that the existing commitments would mean and include all kind of work awarded to the bidder
from any one in respect of any work including work awarded in respect of any road under Build Operate
Transfer (BOT), Annuity method, Hybrid Annuity Method or other mode. It is further clarified that even if the
work of road awarded to the bidder requires creation of a separate special purpose vehicle (SPV) for execution
of such project, for the purpose of existing commitment the same shall be included and complete details of all
existing commitments including the above are to be given in Annexure-4."
From the above, it is crystal clear that the 'alternative clause' under Note
(i) as well as Note (ii) in Annexure-4 of the Third tender notification were not
existing as part of the Note in Annexure-4 attached to the Second tender
notification. The addition of such a clarification in the Third round itself
shows that no idea was conveyed to the participating bidders of the Second
tender to have the particulars disclosed in the manner as it is intended in
the Third round of tender notification and hence, no fault or lapse can be
attributed to the Petitioner-M/s. Prakash Asphaltings & Toll Highways (India)
Ltd. in this regard.
20.Yet another important aspect to be noted is that the heading/title of
Annexure-4 attached to the Second as well as the Third round tender
speaks about the disclosure of the particulars by the "prime contractor". It
is important to note that the term 'prime contractor' has not been defined
anywhere in the NIT or such other proceedings in connection with the
tender. 2021:CGHC:4654-DB
Neutral Citation
20
21.Shri Prafull N. Bharat, the learned counsel for the Respondent-Bilaspur
Smart City Ltd. submits that since the Petitioner-M/s. Prakash Asphaltings &
Toll Highways (India) Ltd. is stated as having "51% share holding" in M/s.
Beohari Bhansukhli Pathways Pvt. Ltd. (SPV), as certified by the Madhya
Pradesh Road Transport Corporation Ltd. vide Annexure R/6, the Petitioner
is to be treated as the 'prime contractor' and hence, it was for the Petitioner-
M/s. Prakash Asphaltings & Toll Highways (India) Ltd. to have disclosed all
such particulars. We find it difficult to agree to the said proposition, for the
reason that the tender notification/terms and conditions and the relevant
proceedings attached thereto are silent as to who the "prime contractor" is.
There may be cases where one of the parties to the Joint Venture may be
providing more finance than the contribution of the other, as agreed upon.
But it may be the latter, who is to arrange the entire infrastructure and work
force, executing the work at the site. The former may not be having the
technical know-how, whereas the latter alone may be having it, with
qualified Engineers, work force, equipments and infrastructure and to be
held responsible to get things done. As such, the 'extent of investment' may
not be the 'litmus test' to identify the 'Prime Contractor', unless it is declared
so, in the Tender Conditions/General or Special instructions.
22.With regard to the assessment of the 'bid capacity' in terms of Clause 10 of
the NIT dated 25.07.2020, different factors may contribute in this regard. As
it stands so, it was obligatory for the Respondent-Bilaspur Smart City Ltd. to
have defined the term 'prime contractor' in the tender proceedings with
clarity, to fix the liability upon the parties concerned. Having not chosen to
do so, it is not correct or proper for the Respondent-Bilaspur Smart City Ltd.
to interpret the same in the manner they want to have it and draw adverse
inference against the successful bidder, more so when the 'clarificatory
note' amended and incorporated in the Third round of tender (in Annexure-
4) was never there in the Annexure-4 attached to the Second tender. In the 2021:CGHC:4654-DB
Neutral Citation
21
said circumstance, we hold that the 'decision making process' pursued by
the Respondent-Bilaspur Smart City Ltd. in finalising the Second tender,
leading to cancellation of the same, is not at all correct or justified.
Annexure P/8 challenged in WPC No. 2860/2020 and 2872/2020 stands set
aside. The Respondent-Bilaspur Smart City Ltd. has to take the
proceedings to logical conclusion treating the Petitioner-M/s. Prakash
Asphaltings & Toll Highways (India) Ltd., placed at L1 as qualified in all
respects. It goes without saying that the further steps pursued by the
Respondent-Bilaspur Smart City Ltd. by issuing the 'Third tender
notification' dated 07.11.2020 and the subsequent proceedings are not
liable to be proceeded further and hence, the Third tender notification dated
07.11.2020 stands set aside.
23.Coming to the question of blacklisting the Petitioner-M/s.Raipur Construction
Pvt. Ltd. (challenged in WPC No. 3150/2020 and 3151/2020), the specific
case of the Petitioner is that absolutely no notice whatsoever was issued
before passing Annexure P/1 order. It is the case of the Respondent-
Bilaspur Smart City Ltd. as put forth by Shri Prafull N. bharat, that a prior
notice was issued on 23.09.2020 (Annexure R-2/3) to the above Petitioner
which is vehemently denied by Shri Paranjpe, the learned counsel for the
Petitioner; pointing out that there is absolutely no whisper as to the
'proposal for blacklisting' in the notice dated 23.09.2020 which is for a
different purpose. The legal position is well settled by the Apex Court that,
before ordering blacklisting, a specific notice has to be issued as to the
proposal, giving an opportunity to explain the relevant circumstances, and
that the matter can be finalised only after considering the explanation with
proper application of mind. Shri Paranjpe sought to rely on the decisions
rendered by the Apex Court in Vetindia Pharmaceuticals Limited v.
State of Uttar Pradesh; {2020 SCC OnLine SC 912} and UMC
Technologies Private Limited v. Food Corporation of India; {2020 SCC 2021:CGHC:4654-DB
Neutral Citation
22
OnLine SC 934}. For convenience of reference, we find it appropriate to
extract paragraphs 21 and 25 of the UMC Technologies Private Limited
(supra) which lays down the law in crystal clear terms:
"21. Thus, from the above discussion, a clear legal position
emerges that for a show cause notice to constitute the
valid basis of a blacklisting order, such notice must spell
out clearly, or its contents be such that it can be clearly
inferred therefrom, that there is intention on the part of the
issuer of the notice to blacklist the noticee. Such a clear
notice is essential for ensuring that the person against
whom the penalty of blacklisting is intended to be imposed,
has an adequate, informed and meaningful opportunity to
show cause against his possible blacklisting.
25. The mere existence of a clause in the Bid Document,
which mentions blacklisting as a bar against eligibility,
cannot satisfy the mandatory requirement of a clear
mention of the proposed action in the show cause notice.
The Corporation’s notice is completely silent about
blacklisting and as such, it could not have led the appellant
to infer that such an action could be taken by the
Corporation in pursuance of this notice. Had the
Corporation expressed its mind in the show cause notice to
black list, the appellant could have filed a suitable reply for
the same. Therefore, we are of the opinion that the show
cause notice dated 10.04.2018 does not fulfil the
requirements of a valid show cause notice for blacklisting.
In our view, the order of blacklisting the appellant clearly
traversed beyond the bounds of the show cause notice
which is impermissible in law. As a result, the consequent
blacklisting order dated 09.01.2019 cannot be sustained."
24.It is in conformity with the law already declared by the Supreme Court in
Gorkha Security Services v. Government (NCT of Delhi) and Others;
{(2014) 9 SCC 105} as to the mandatory requirement of affording an
opportunity of being heard before ordering blacklisting. The legal position
was virtually conceded from the part of the Respondent-Bilaspur Smart City
Ltd. as well, when the blacklisting of the other Petitioner-M/s. Prakash
Asphaltings & Toll Highways (India) Ltd. was challenged in WPC No.
2897/2020 and WPC No. 2898/2020; which came to be finalised as per
judgment on 24.11.2020 setting aside the impugned proceedings without
prejudice to the rights of the Respondent-Bilaspur Smart City Ltd. to
proceed afresh in accordance with law. This being the position, the 2021:CGHC:4654-DB
Neutral Citation
23
challenge raised by the Petitioner-Raipur Construction Pvt. Ltd. in WPC No.
3150/2020 and WPC 3151/2020 against Annexure P/1 order of blacklisting
is sustained and the impugned orders are set aside. But the challenge
against Annexure P/2 dated 24.11.2020 and Annexure P/3 dated
25.11.2020 rejecting the bid of the Petitioner-Raipur Construction Pvt. Ltd.
in the Third round of tender is not having any significance as we have
already interdicted cancellation of the Second tender and floating of the
Third tender dated 07.11.2020. This is more so since, when the basic order
goes, the subsequent orders also should go.
25. In connection with the steps taken by the Respondent-Bilaspur Smart City
Ltd. for blacklisting the Petitioners, pursuant to the proceedings of the
Tender Committee held on 04.11.2020, as approved by the Empowered
Committee on 06.11.2020, a specific case has been brought out to the
effect that the Petitioner-Raipur Construction Pvt. Ltd. was already awarded
a tender by M/s. Raipur Smart City Ltd; that work order was awarded to
them and an agreement was also executed on 05.08.2020, but the said
particulars were not disclosed by them when they submitted their bid on
10.08.2020 in respect of the Second tender floated by M/s. Bilaspur Smart
City Ltd; thus attracting suppression of material fact, which warranted
action in terms of Clause 47 of the RFP (disqualification, forfeiture of EMD
and blacklisting). A copy of the agreement dated 05.08.2020 executed
between the Petitioner and the Raipur Smart City Ltd. has been produced
by the Respondent-Bilaspur Smart City Ltd. The version of the Petitioner-
M/s. Raipur Construction Pvt. Ltd. is that no such agreement was executed
on 05.08.2020; that the document produced by the Raipur Smart City Ltd. is
a forged/fabricated and concocted one and further that the above forged
agreement dated 05.08.2020 has been introduced at the instance of
somebody else. This made us to pass an order on 25.01.2021 directing the
Respondent-Bilaspur Smart City Ltd. to give the particulars as to the 2021:CGHC:4654-DB
Neutral Citation
24
sequence of events and directing to produce the 'inward/outward Register'
as to the various correspondences with the Raipur Smart City Ltd. Pursuant
to the said direction, copies of the relevant documents have been produced
by the Respondent-Bilaspur Smart City Ltd. alongwith the covering memo
dated 27.01.2021. The date of receipt of the complaint, the course of action
pursued by the Respondent-Bilaspur Smart City Ltd. by addressing the
various institutions concerned with regard to the issue involved, the reply
obtained, further clarification sought for, copies of the envelopes as to the
correspondences, entries in their inward/forward register etc. are all
produced, as part of the documents alongwith the covering memo. It is also
brought to our notice that in the First tender notification, there were four
participants and none of the participants including the Petitioner got
qualified. In the Second tender, there were 'six' participants, among whom
only the Petitioner-M/s. Prakash Asphaltings & Toll Highways (India) Ltd.
and another M/s. Dineshchandra R. Agrawal Infracon Pvt. Ltd. turned to be
the qualified bidders. The other Petitioner-M/s. Raipur Construction Pvt. Ltd.
was disqualified for the reasons already dealt with.
26.Since the Petitioner-Prakash Asphaltings & Toll Highways (India) Ltd. who
was qualified in the Second round of tender was subsequently disqualified
and blacklisted as per proceedings dated 17.11.2020, referring to the
alleged suppression of material fact as to the existing/ongoing contracts
(which we have interdicted), there remained only one bidder whose rate
was found to be Rs. 2.5 Crores above L1 and hence, the Second tender
was cancelled leading to issuance of the Third tender. In the Third round,
only two participants were there i.e. M/s.Raipur Constructions Pvt. Ltd. and
one Radheshyam Agrawal. The Petitioner-M/s. Prakash Asphaltings & Toll
Highways (India) Ltd. did not participate as they had already challenged
cancellation of the Second tender by filing WPC No. 2860/2020 and
2872/2020. Taking stock of the situation, we find that the course of action 2021:CGHC:4654-DB
Neutral Citation
25
pursued by the Respondent-Bilaspur Smart City Ltd. has been properly
explained, connecting all the links to form a chain and no malafide act or
intent on the part of the Respondent-Bilaspur Smart City Ltd. is
substantiated. The contentions raised by the Petitioners to the contrary are
repelled.
27.With regard to the disputed agreement dated 05.08.2020 (stated as
executed by the Petitioner-M/s. Raipur Construction Pvt. Ltd. with Raipur
Smart City Ltd.) and awarding of the work order, it is the case of the
Petitioner-M/s. Raipur Construction Pvt. Ltd. that though they had
participated and come out successful, they were never given the 'LoI' by the
Raipur Smart City Ltd. as on the date of submission of the Second tender
on 10.08.2020. There was no scope for executing any agreement without
awarding 'LoI'. With reference to Annexure P/21 dated 02.01.2021 issued
by Raipur Smart City Ltd., it is pointed out by the learned counsel for the
Petitioner-Raipur Construction Pvt. Ltd. that 'effective agreement' was
executed only on 29.10.2020 and further that the Raipur Smart City Ltd. had
made clear that there were no records as to service the LoI or the work
order to the Petitioner-Raipur Constructions Pvt. Ltd., to infer that they were
aware of the work in hand, to have included it in Annexure-4 (as the
ongoing works) as part of their Second tender. The learned counsel also
made a specific reference to the difference in signature of the Officer stated
as representing the Petitioner-Raipur Construction Pvt Ltd., as it appears in
agreement dated 05.08.2020 and the 'effective agreement' stated as
entered into on 29.10.2020. The learned counsel requested the Court to
make a comparative analysis, in support of the contention that the
agreement dated 05.08.2020 produced by the Respondent-Bilaspur Smart
City Ltd. is false, forged, fabricated and concocted. We find that there is
black and white difference between the signature of the officer representing
the Petitioner as contained in the agreement dated 05.08.2020 and the one 2021:CGHC:4654-DB
Neutral Citation
26
dated 29.10.2020, though the signature of the officer representing the
Respondent-Biaspur Smart City Ltd. remains to be the same.
28.Shri Prafull N Bharat, the learned counsel for the Respondent-Bilaspur
Smart City Ltd. draws our attention to the signature of the party representing
the Petitioner-Raipur Construction Ltd. in the agreement dated 05.08.2020
and the proceedings signed by the authorised officer of the very same
Petitioner-Company in WP(C) No. 2396/2020. The said signature of the
authorised officer who signed the proceedings in WPC No. 2396/2020
appears to be exactly similar, as contained in the agreement dated
05.08.2020 produced alongwith the reply filed by the Respondent-Bilaspur
Smart City Ltd. in WPC No. 3150/2020.
29.The learned counsel for the Petitioner-M/s. Raipur Construction Pvt. Ltd.
finds it difficult to explain; but for stating that the persons authorised to sign
the different writ petitions/proceedings are different. But the Petitioner-M/s.
Raipur Construction Pvt. Ltd. is the same in all the four writ petitions; which
is a 'Company' incorporated under the relevant provisions of the Indian
Companies Act, 1956. The Petitioner-M/s. Raipur Construction Pvt. Ltd. is
represented in WPC No. 3150/2020 through Mohd. Asgar, while it is
through Mohd. Amir in WPC No. 2396/2020. This means the signature to
the agreement dated 05.08.2020 prima facie has to be presumed as having
subscribed by Mohd. Amir who is the signatory to WPC No. 2396/2020
(representing the same Company) and the contentions to the contrary are
only to be rejected. It is ordered accordingly.
30.The Respondent-Bilaspur Smart City Ltd., based on the repeated
representations made by the Petitioner-M/s. Raipur Construction Pvt. Ltd.
(with reference to the omission to mention all the on-going works in hand,
as on the date of submission of the tender and with reference to the work
awarded by the Raipur Smart City Ltd.) had sought for a specific clarification 2021:CGHC:4654-DB
Neutral Citation
27
from the Raipur Smart City Ltd. vide letter bearing No. BSCL/2020-
21/1666, dated 28.09.2020 (filed alongwith the covering memo dated
27.01.2021), which is to the following effect:
"dzekad@ch,llh,@2020&21@1666 fcykliqj] fnukad 28@09@2020
izfr]
izca/k lapkyd
jk;iqj LekVZ flVh fyfeVsM
jk;iqj ¼N-Xk-½
fo”k;%& esllZ jk;iqj daLVªD'ku dks tkjh dk;kZns'k ,ao vuqca/k dh iqf”V ckcr~A
fo”k;karxZr Kkr gks fd fcykliqj LekVZ flVh fyfeVsM }kjk bafnjk lsrq ls iqjkuk ljd.Mk iqy gksrs
gq, 'kfupjh jiVk rd] nkbZ vksj unh fdukjs lM+d fuekZ.k gssrq flLVe Vs.Mj uEcj 66554 ykxr 4944-83
yk[k] RFP tkjh fnukad 25@07@2020 vkeaf=r d;k x;k Fkk] ftlds fufonk dh dk;Zokgh izfdz;k/khu
gSA
fcykliqj LekVZ flVh fyfeVsM }kjk fLkLVe Vs.Mj uEcj 66554 esa fufonkdkj }kjk izLrqr
nLrkostksa dk ijh{k.k fd;k x;k o 6 fufonkdkjksa esa ls 4 fufonkdkj Disqualified o 2 fufonkdkj
Qualified ?kksf”kr fd;s x;s gSaA
blh ifjis{; esa esllZ jk;iqj daLVªD'ku ls lacf/kr fuEUk nks nLrkostkas dh iqf”V dh tkuh gSaA
1- jk;iqj LekVZ flVh fyfeVsM varXkZr xzhu dkWjhMksj] ;qFkgkc rFkk osafMax tksu ds dk;Z dh ykxr 16-
73 djksM+ ckcr esllZ jk;iqj daLVªD'ku izk;osV fyfeVsM dks i= dzekad 625@LekVZ flVh@2020
fnukad 05@08@2020 dks egkizca/kd ¼E&T½ }kjk tkjh dk;kZns'k
2- jk;iqj LekVZ flVh fyfeVsM varXkZr Xkzhu dkWjhMksj] ;wFkgkc rFkk osafMaXk tksu dk;Z dh ykxr jkf'k
16-73 djksM ckcr esllZ jk;iqj daLVªD'ku izk;osV fyfeVsM ,ao jk;iqj LekVZ flVh fyfeVsM
egkizca/kd ¼E&T½ ds e/; fd;k x;k vuqca/k fnukad 05@08@2020A
mijksDr nksuksa nLrkostksa dh Nk;kizfr layXu gSA d`i;k Ikqf”V djus dk d”V djsa fd mijksDr
dk;kZns'k jk;iqj LekVZ flVh fyfeVsM }kjk esllZ jk;iqj daLVªD'ku dks tkjh fd;k x;k gS ,oa
mijksDr dk;Z gsrq jk;iqj LekVZ flVh fyfeVsM ,oa jk;iqj daLVªD'ku dks tkjh fd;k x;k gS ,oa
mijksDr dk;Z gsrq jk;iqj LekVZ flVh fyfeVsM ,ao jk;iqj daLVªD'ku ds e/; fnukad 05@08@2020
dks vuqca/k fd;k x;k gSA vjik unh ds fodkl ckcr NRrhlx<+ 'kklu dh egRodka{kh ;kstuk ds
fufonk ds laca/k es fu.kZ; ysus gsrq mijksDr tkudkjh dh vko';drk gSaA d`i;k 'kh+/kz miyC/k djkus
dk d”V djsA
layXu%&¼1½ dk;kZns'k fnukad 05@08@2020 dh Nk;kizfrA
¼2½ vuqca/k fnukad 05@08@2020 dh Nk;kizfrA
¼izca/k funs'kd }kjk vknsf'kr½
gLrk{kj
28@09@2020 2021:CGHC:4654-DB
Neutral Citation
28
izac/kd
fcykliqj LekVZ flVh fyfeVsM
fcykliqj ¼N-Xk-½
i`-dz- ---------@ch,llh,y@2020&21 fcykliqj] fnukad 28@09@2020
izfrfyfi%&
1- dYksDVj fcykliqj dh vksj lknj lqpukFkZ izsf”krA
2- izca/k funs'kd] fcykliqj LekVZ flVh fyfeVsM dh vksj lknj lqpukFkZA
3- egkizca/kd ¼E&T½] jk;iqj LekVZ flVh fyfeVsM dh vksj lknj lwpukFkZA
izac/kd
fcykliqj LekVZ flVh fyfeVsM
fcykliqj ¼N-Xk-½"
31.This was answered by the Raipur Smart City Ltd. vide letter bearing
No. 6772/Smart City/2020, dated 01.10.2020 in the following manner:
"dzekad@6772@LekVZ flVh@2020 jk;iqj] fnukad 01@10@2020
izfr]
izca/k funs'kd
fcykliqj LekVZ flVh fyfeVsM
fcykliqj ¼N-Xk-½
fo”k;%& esllZ jk;iqj daLVªD'ku dks tkjh dk;kZns'k ,ao vuqca/k dh iqf”V ckcr~A
lanHkZ%& vkidk i= dz- ch,llh,y@2020&21@1666 jk;iqj fnukad 28@09@2020
&&00&&
fo”k;karxZr ys[k gS fd esllZ jk;iqj daLVªD'ku ls lacf/kr fuEu nks nLrkostks dh iqf”V fd;s tkus
gsrq vkidk i= izkIr gqvk gS%&
1- jk;iqj LekVZ flVh fyfeVsM varZxr xzhu dkWjhMksj] ;qFkgc rFkk osafMx tksu ds dk;Z dh ykxr 16-73
djksM+ ckcr esllZ jk;iqj daLVªD'ku izk;osV fyfeVsM dks i= dzekad 625@LekVZ flVh@2020
fnukad 05@06@2020 dks egkizca/kd ¼E&T½ }kjk tkjh dk;kZns'kA
2- jk;iqj LekVZ flVh fyfeVsM varxZr xzhu dkWjhMksj] ;wFkgc rFkk osafMx tksu ds dk;Z dh ykxr jkf'k
16-73 djksM+ ckcr~ esllZ jk;iqj daLVªD'ku izk;osV fyfeVsM ,oa jk;iqj LekVZ flVh fyfeVsM
egkizca/kd ¼E&T½ ds e/; fd;k x;k vuqca/k fnukad 05@08@2020
mijksDr nksuksa nLrkost miyC/k uLrh vuqlkj jk;iqj LekVZ flVh fyfeVsM }kjk tkjh fd;k
x;k ftldh iqf”V dh tkrh gSA ,tsalh }kjk vkt rd fuekZ.k dk;Z izkajHk ugha fd;k x;k gSA 2021:CGHC:4654-DB
Neutral Citation
29
¼izac/kd lapkyd egksn; }kjk vknsf'kr½
gLrk{kj
izca/kd ¼flfoy½
jk;iqj LekVZ flVh fyfeVsM
dzekad@ @LekVZ flVh@2020 jk;iqj] fnukad @ @2020
izfrfyfi%&
1- dysDVj] fcykliqj dh vksj lknj lqpukFkZ izsf”krA
2- izca/k lapkyd] jk;iqj fyfeVsM dh vksj lknj lwpukFkZA
gLrk{kj
izca/kd ¼flfoy½
jk;iqj LekVZ flVh fyfeVsM"
32.Two days thereafter, referring to the very same letter dated 28.09.2020,
without further request from anybody, the Raipur Smart City Ltd.
issued another letter dated 03.10.2020 addressing the Respondent-
Bilaspur Smart City Ltd. which is to the following effect:
"dzekad@6800@LekVZ flVh@2020 jk;iqj] fnukad 03@10@2020
izfr]
izca/k funs'kd
fcykliqj LekVZ flVh fyfeVsM
fcykliqj ¼N-Xk-½
fo”k;%& esllZ jk;iqj daLVªD'ku dks tkjh dk;kZns'k ,oa vuqca/k dh iqf”V ckcr~A
lanHkZ%& vkidk i= dz- ch,llh,y@2020&21@1666 jk;iqj fnukad 28@09@2020
&&00&&
fo”k;karxZr ys[k gS fd esllZ jk;iqj daLVªD'ku ls lacf/kr fuEu nks nLrkostks dh iqf”V fd;s tkus
gsrq vkidk i= izkIr gqvk gS%&
1- jk;iqj LekVZ flVh fyfeVsM varZxr xzhu dkWjhMksj] ;qFkgc rFkk osafMx tksu ds dk;Z dh ykxr 16-
73 djksM+ ckcr~ esllZ jk;iqj daLVªD'ku izk;osV fyfeVsM dks i= dzekad 625@LekVZ flVh@2020
fnukad 05@06@2020 dks egkizca/kd ¼E&T½ }kjk tkjh dk;kZns'kA
2- jk;iqj LekVZ flVh fyfeVsM varxZr xzhu dkWjhMksj] ;wFkgc rFkk osafMx tksu ds dk;Z dh ykxr jkf'k
16-73 djksM+ ckcr~ esllZ jk;iqj daLVªD'ku izk;osV fyfeVsM ,oa jk;iqj LekVZ flVh fyfeVsM
egkizca/kd ¼E&T½ ds e/; fd;k x;k vuqca/k fnukad 05@08@2020A
mijksDr nksuksa nLrkost miyC/k uLrh vuqlkj jk;iqj LekVZ flVh fyfeVsM }kjk tkjh fd;k x;k
ftldh iqf”V dh tkrh gSA fnukad 01@10@2020 dks lwpuk ds vf/kdkj ds varXkZr tulwpuk vf/kdkjh ls
izkIr izdj.k dk ijh{k.k fd;k x;k ftlesa ik;k x;k fd mijksDr dk;Z gsrq jk;iqj LekVZ flVh fyfeVsM
}kjk tkjh L.O.A. ,oa dk;kZns'k ,tsalh esllZ jk;iqj daLVªD'ku izk;osV fyfeVsM dks izkfIr dh ikorh ugh
gSaA 2021:CGHC:4654-DB
Neutral Citation
30
¼izac/kd lapkyd egksn; }kjk vknsf'kr½
gLrk{kj
izca/kd ¼flfoy½
jk;iqj LekVZ flVh fyfeVsM
dzekad@ @LekVZ flVh@2020 jk;iqj] fnukad @ @2020
izfrfyfi%&
1- dysDVj] fcykliqj dh vksj lknj lqpukFkZ izsf”krA
2- izca/k lapkyd] jk;iqj fyfeVsM dh vksj lknj lwpukFkZA
izca/kd ¼flfoy½
jk;iqj LekVZ flVh fyfeVsM"
33.Since the Raipur Smart City Ltd. has admitted execution of the
agreement dated 05.08.2020 and since the specific query raised by the
Bilaspur Smart City Limited was not fully answered, another letter was
issued by the Respondent-Bilaspur Smart City Ltd. {Annexure P/14
(WPC No. 3150/2020) dated 17.11.2020} which was evasively answered
by the Raipur Smart City Ltd. stating that 'Effective Agreement' was
executed with M/s. Raipur Constructions Pvt. Ltd. only on 29.10.2020,
as per the reply dated 02.01.2021 in the following terms:
"dzekad % 7395@LekVZ flVh@2011 jk;iqj fnukad 02@01@2021
izfr]
izcaa/kd
fcykliqj LekVZ flVh fyfeVsM
fcykliqj
fo"k;%& jk;iqj LekVZ flVh fyfeVsM varxZr xzhu dkWfjMksj ;wFkgc ds dk;Z ykxr 16-37
djksM ckcrA
lanHkZ%& fcykliqj LekVZ flVh irz dz- 2008@fc,llh,y@2020&21 fcykliqj fnukad
17@11@2020
&&00&&
lanfHkZr irz dk voyksdu gksA jk;iqj LekVZ flVh fyfeVsM }kjk jk;iqj
daLVªD'ku izk- fy- ds lkFk fo"k;kafdr dk;Z gsrq izHkko'khy vuqca/k fnukad 29@10@2020 dks
fd;k x;k gSA 2021:CGHC:4654-DB
Neutral Citation
31
gLrk{kj
izca/k lapkykd
jk;iqj LekVZ flVh fyfeVsM
dzekad 7396@LekVZ flVh@2021 jk;iqj fnukad 02@01@2021
izfrfyfi%&
1- esllZ jk;iqj daLVªD'ku izk-fy- dh vksj lwpukFkZA
gLrk{kj
izca/k lapkykd
jk;iqj LekVZ flVh fyfeVsM"
34.It is to be noted that M/s. Raipur Smart City Ltd. has virtually conceded the
execution of the agreement dated 05.08.2020, but they have not stated
anything with regard to the said Agreement dated 05.08.2020 in their letter
dated 02.01.2021 but for mentioning that 'Effective Agreement" was
executed only on 29.08.2020. What is 'effective agreement' or what is
'non-effective agreement' is not mentioned anywhere. Since the factual
aspects with regard to the suppression of the material facts are relevant to
deal with the issue of 'blacklisting' and further since the disqualification of
the Petitioner-Raipur Construction Pvt. Ltd. on the relevant grounds has
already been upheld by this Court and moreover, since the blacklisting
ordered as per Annexure P/1 impugned in WPC No. 3150/2020 and WPC
No. 3151/2020 has been set aside with liberty to the Respondent-Bilaspur
Smart City Ltd. to pursue appropriate steps in accordance with law, we do
not make any further comments on this aspect, lest it should aversely affect
the decision making process to be pursued by the Respondent-Bilaspur
Smart City Ltd.
35.As put forth by Shri Rajeev Shrivastava, the learned counsel for the
Petitioner-M/s. Prakash Asphaltings & Toll Highways (India) Ltd., the
'decision making process' pursued by the Respondent-Bilaspur Smart City
Ltd. is bad, with regard to the cancellation of the Second tender, that too
when no grounds have been mentioned in Annexure P/8. Further, no 2021:CGHC:4654-DB
Neutral Citation
32
obligation was cast upon the Petitioner-M/s. Prakash Asphaltings & Toll
Highways (India) Ltd. to have revealed the particulars of the work in hand in
the Second tender, in the manner as sought to be made in Annexure-4
attached to the Third tender and the relevant/modified 'Note' was
incorporated in 'Annexure-4' only as per the subsequent amendment while
issuing the Third tender and never before. It is pointed out that the relevant
facts have to be considered while the irrelevant facts have to be ignored as
held by the Apex Court in Bangalore Medical Trust v. B.S.Muddappa &
Others (1991) 4 SCC 54 (para 48 and 49), where the Respondent-Bilaspur
Smart City Ltd. has gone wrong. Reliance is also sought to be placed on the
decision of the Apex Court in Union of India & Others v. Dinesh
Engineering Corporation & Another (2001) 8 SCC 491 (para 12 and 16)
to contend that if the relevant facts are not considered, it will make the
decision arbitrary. Similar observations made by the Apex Court in Lt.
Governor, NCT & Others v. Ved Prakash alias Vedu (2006) 5 SCC 228
(para 21 and 24) are also sought to be pressed into service.
36.As noted already, the repeated cancellation of the tender by the
Respondent-Bilaspur Smart City Ltd. is not with intent to extend undue
favours to anybody. But the 'decision making process' with regard to the
cancellation of the Second tender is quite bad, as it was on wrongly holding
the Petitioner-M/s. Prakash Asphaltings & Toll Highways (India) Ltd. as
having suppressed material information with regard to the ongoing works in
hand. As such, the said decision is liable to be treated as null and void in all
respects.
37.In WPC No. 3188/2020, the Petitioner M/s. Prakash Asphaltings & Toll
Highways (India) Ltd. challenges the steps taken by the Respondent-
Bilaspur Smart City Ltd. in causing the EMD to be forfeited vide
communication dated 25.11.2020. This was pursuant to the blacklisting of 2021:CGHC:4654-DB
Neutral Citation
33
the Petitioner as per order dated 17.11.2020. Since we have held that the
order of blacklisting without issuing notice was bad, in turn setting aside the
same as per judgment dated 24.11.2020 in WPC No. 2897/2020 and
2898/2020; that the alleged suppression of facts as to the works in hand by
the Petitioner while submitting the Second tender is not correct or
sustainable; that the cancellation of the Second tender was not legally
justifiable; that the floating of the Third tender dated 06.11.2020 and the
subsequent proceedings are not of any consequence and further that the
Respondent-Biaspur Smart City Ltd. is bound to take the proceedings to a
logical conclusion treating the Petitioner-M/s. Prakash Asphaltings & Toll
Highways (India) Ltd. as qualified (along with the other qualified bidder in
the Second tender), the proceeding impugned in this writ petition giving
instructions to the Respondent-Bank to forfeit the EMD is not correct or
sustainable in the eye of law. It stands set aside.
38.In view of the above discussion, we answer the various questions framed by
us in the following lines:
(a) – that repeated cancellation of the tender floated by the
Respondent-Bilaspur Smart City Ltd. is not with an intent to
extend undue favours to anybody.
(b) – that the blacklisting of the Tenderer ordered by the
Respondent-Bilaspur Smart City Ltd. is neither correct nor
sustainable in law.
(c) – that the disqualification of the Petitioner-M/s. Raipur
Constructions Pvt. Ltd. in WPC No. 2390/2020 and WPC No.
2396/2020 in the Second round of tender is correct and
justified.
(d) – that the disqualification of the Petitioner-M/s. Prakash 2021:CGHC:4654-DB
Neutral Citation
34
Asphaltings & Toll Highways (India) Ltd. in WPC No.
2860/2020 and WPC No. 2872/2020 in the Second tender is
not in order.
(e) – that the blacklisting of the Petitioner-M/s. Raipur
Constructions Pvt. Ltd. in WPC No. 3150/2020 and WPC No.
3151/2020 is not correct or justified.
(f) – that the 'decision making process' pusued by the
Respondent-Bilaspur Smart City Ltd. with reference to the
disqualification of M/s. Prakash Asphaltings & Toll Highways
(India) Ltd. in WPC No. 2860/2020 and WPC No. 2872/2020
in the Second tender, as well as the decision making process
in blacklisting M/s. Raipur Construction Pvt. Ltd. (Petitioner in
WPC No. 3150/2020 and WPC No. 3151/2020) is bad.
(g) – that the version of the Petitioners in WPC No.
3150/2020, WPC No. 3151/2020 (same Petitioner in WPC
No. 2390/2020 and WPC No. 2396/2020) that the agreement
dated 05.08.2020 is forged or concocted is not correct or
liable to be accepted.
39.In the above facts and circumstances, WPC No. 2390/2020 and WPC No.
2396/2020 filed by M/s. Raipur Construction Pvt. Ltd. (challenging their
disqualification and the declaration of M/s. Prakash Asphaltings & Toll
Highways (India) Ltd. - 4
th
Respondent therein as the qualified bidder) stand
dismissed as devoid of any merit.
40.WPC No. 3150/2020 and WPC No. 3151/2020 filed by the very same
Petitioner-M/s. Raipur Constructions Pvt. Ltd. challenging the blacklisting
ordered as per Annexure P/1 dated 11.11.2020 stand allowed in part,
setting aside Annexure P/1, with liberty to the Respondent-Bilaspur Smart 2021:CGHC:4654-DB
Neutral Citation
35
City Ltd. to pursue appropriate steps in accordance with law, after issuing
show cause notice and after considering the objections, if any, in this
regard.
41.WPC No. 2860/2020 and WPC No. 2872/2020 {filed by M/s. Prakash
Asphaltings & Toll Highways (India) Ltd.} stand allowed insofar as
Annexure P/8 proceedings dated 07.11.2020 cancelling the Second tender
have been set aside. The Respondent-Bilaspur Smart City Ltd. is directed to
proceed with further steps and finalise the "Second tender" proceedings
dated 25.07.2020, treating the above Petitioner as duly qualified along with
the other qualified bidders if any, as expeditiously as possible at any rate,
within 'one month' from the date of receipt of a copy of this judgment.
42.WPC No. 3188/2020 {filed by M/s. Prakash Asphaltings & Toll Highways
(India) Ltd.} stands allowed to the extent as mentioned already.
43.The parties shall bear their cost.
Sd/- Sd/-
(P.R. Ramachandra Menon) (Parth Prateem Sahu)
CHIEF JUSTICE JUDGE
Amit 2021:CGHC:4654-DB
Neutral Citation
Legal Notes
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