JUDGMENT :

Sabyasachi Bhattacharyya, J.

1. The writ petitioners are registered suppliers of the Government e-Market Place (GeM) portal. The petitioner no. 1-Firm participated in an e-auction floated through the GeM by respondent no. 3, the Inspector General, Ftr. Hq. BSF Jodhpur. However, primarily alleging that the petitioners participated in the bid along with a sister/associated/allied concern, an incident was raised and subsequently escalated within the contemplation of the General Terms and Conditions (GTC) on GeM 4.0 (Version 1.13) dated November 29, 2023, read with the GeM Incident Management Policy applicable with effect from July 1, 2023. Such action has been challenged in the present writ petition.

2. Learned counsel for the petitioners argues that the genesis of the GeM portal is Rule 149 of the General Financial Rules (GFR), 2017. Rule 151 thereof contemplates two types of debarment from bidding. Clauses (i) and (ii) of the said Rule speak about general debarment on conviction of an offence under the Prevention of Corruption Act, 1988 or the Indian Penal Code or any other law for the time being in force for causing any loss of life or property or causing a threat to public health as part of execution of a public procurement contract.

3. On the other hand, Clause (iii) speaks about limited debarment by the procurement entity with regard to tenders floated by such entity only for a period not exceeding two years. It is argued that the petitioners were not given adequate opportunity to show cause and of hearing before taking the decision of the petitioners being uploaded as a debarred entity.

4. Secondly, it is argued that on merits the petitioner no. 1’s alleged sister concern was ineligible even to participate in the concerned tender. Hence, there was no ‘participation’ as such, which could be construed to be a violation of Clause 29 of the GTC. Clause 29 of the GTC stipulates the Rule of “One Bid Per Bidder”. It is submitted that it was a bona fide error on the part of the petitioners to have submitted the bids of both the petitioner and the said entity which was disclosed by the petitioners to the respondent no. 3. Hence, the decision to debar the petitioner no. 1 was illegal.

5. On a wider context, learned counsel argues that Clauses 21 and 29 of the GTC are to be quashed, being in contradiction with the GFR itself, which the source of authority of the GeM.

6. It is argued that the GeM is a Special-Purpose Vehicle floated by the Government which operates, monitors and supervises all business transactions on the GeM portal as per defined roles and responsibilities on behalf of the Government, as enumerated in the introduction of the GTC itself. Thus, the GeM is not the Government and does not have any authority to introduce restrictions beyond the GFR, which has been issued by the Ministry of Finance, Department of Expenditure of the Government of India itself.

7. Learned counsel appearing for the respondent no. 3 squarely opposes the allegations and submits that the petitioners were admittedly guilty of violation of Clause 29.

8. It is reiterated by the respondents that the incident was raised and escalated duly and sufficient opportunity of show cause has been given to the petitioners. Learned counsel for the respondents also places reliance upon the concerned provisions of the GTC and submits that it is a part of the GeM Policy. The GeM functions under the aegis of the Government of India and as such has ample authority to initiate the impugned action for debarment.

9. Apart from the above, the respondents have a fundamental objection as to maintainability of the writ petition. In this context, learned counsel relies on Clause 16.2 of the GTC which speaks about arbitration and Clause 16.1 which pertains to prior efforts of conciliation. In view of the arbitration clause, it is argued that the writ petition is not maintainable.

10. The writ petition has also been challenged on the point of territorial jurisdict