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2021 Supreme(All) 366
IN THE HIGH COURT OF ALLAHABAD
RAJAN ROY, SAURABH LAVANIA, JJ.
M/S Kkspun India Ltd. Thru. Director Himanshu Gupta - Petitioner
Versus
U.P. Jal Nigam Thru. Chairman, Lko. & Anr. - Respondents
Misc. Bench No. 12227 of 2021
Decided On : 18-06-2021
Advocate Appeared:
For the Petitioner: Desh Deepak Singh, Abhishek Dwivedi, Anilesh Tewari, Devashish Chauhan, Divyanshu Bhatt, Shashwat Singh.
Point of Law: Notice for Invitation of E-Tenders - Tendering authority is entitled not to have business dealings with persons who are undergoing vigilance enquiry or criminal proceedings.
Headnote:
Constitution of India, 1950 - Article 226 - Prevention of Corruption Act, 1988 - Section 13(2) & 13(1)(d) – Indian Penal Code, 1860 - Section 120B read with Section 420, 467, 468, 471 – Criminal Conspiracy and Cheating - Prayed for issuance of a writ of Mandamus to direct respondents to amend Clause 2.2.4 of tender document in relation to Notice for Invitation of E-Tenders to this writ petition to limited extent of withdrawing provision with respect to non-consideration of "Any Agency/ Firm or its known Partners/ Directors against which/ whom any investigating authority has instituted any vigilance enquiry or there are criminal proceedings in any Court of law" for awarding of the tender.
Finding of the court: It is a choice which is available to tendering authority in a matter of award of tender/ contract. This High Court under Article 226 of the Constitution of India or, for that matter, petitioner can not compel opposite parties to allow a person against whom vigilance enquiry or criminal proceedings are pending to participate in tender especially as the petitioner does not have an indefeasible right much less a fundamental right to carry on business with the opposite party as held by Supreme Court in the case of Michigan Rubber (supra).
Result: Writ petition dismiss
JUDGMENT :
Rajan Roy, J.
1. Heard.
2. By means of this writ petition, the petitioner has prayed for issuance of a writ of Mandamus to direct the respondents to amend Clause 2.2.4 of the tender document in relation to Notice for Invitation of E-Tenders dated 05.04.2021, contained as Annexure No. 2 to this writ petition to the limited extent of withdrawing the provision with respect to non-consideration of "Any Agency/ Firm or its known Partners/ Directors against which/ whom any investigating authority has instituted any vigilance enquiry or there are criminal proceedings in any Court of law" for awarding of the tender.
3. The contention of learned Counsel for the petitioner is that insertion of such a condition in the tender document is arbitrary, unreasonable and illegal as it amounts to treating the petitioner guilty whereas there is no judgment of conviction in the criminal proceedings which are pending against the petitioner and as of now as per principles of criminal jurisprudence, the petitioner is to be deemed to be innocent till proved guilty. However, by inserting the aforesaid condition the petitioner has been ousted from the zone of consideration. He says that this condition has been deliberately put for the first time so as to oust the petitioner and it is therefore tailormade to suit certain favoured persons.
4. In support of his contentions Sri Divyanshu Bhatt, learned Counsel for the petitioner relied upon the decision of Hon'ble Supreme Court reported in 2014 (9) SCC 1 (Manoj Narula Vs. Union of India); the judgment of Gujarat High Court in Special Civil Application No. 23050 of 2019 dated 10.02.2020 and a decision of the Allahabad High Court dated 03.04.2012 rendered in Writ Petition No. 7447(MB) of 2011.
5. It is the admitted factual position that FIR No. RC0062017A0026 was lodged by the Central Bureau of Investigation, under Section 120B read with Section 420, 467, 468, 471 IPC and Section 13(2) & 13(1)(d) Prevention of Corruption Act, 1988, wherein a charge-sheet has been filed against the petitioner’s officers/ agents on 15.02.2021 before Court of criminal jurisdiction, although cognizance has not been taken as yet by the said court. It is also an admitted position that the tender document in respect to which a writ of mandamus has been sought for amending Clause 2.2.4 thereof was issued on 05.04.2021 i.e. after the filing of charge-sheet against the petitioner in the Court of Special Judge, Central Bureau of Investigation West Lucknow by the CBI.
6. It is worthwhile to quote the relevant tender conditions of which Clause 2.2.4 is a part. The same reads as under:-
"2.2. Prohibition from Bidding:
2.2.1. Bidders shall not be under a declaration of ineligibility for corrupt and fraudulent practices by the Central or State Government Department, U.P. Jal Nigam or any public undertaking, autonomous body, authority by whatever name called under the Central or the State Government.
2.2.2. Any bidder having criminal record is not allowed to participate in the bidding process. Any person who is having criminal cases against him or involved in the organised crime or gangster activities or Mafia or Goonda or Anti-social activity are strictly prohibited to participate in the bidding process. If it is established that any bidder has criminal record, his bid shall be automatically cancelled.
2.2.3. Any bidder who is an Advocate and/or Registered with any State Bar Council/ Bar Council of India shall not be allowed to participate in the bidding. If it is established that the contractor is registered with the state bar council, his bid shall be treated as automatically cancelled.
2.2.4. Any agency / firm or its known Partners/ Directors against which/ whom any investigating authority has instituted any vigilance enquiry or there are criminal proceedings in any Court of Law or has been debarred or blacklisted by any Govt./ Semi Govt./Board/ Corporation shall not be considered for award, unless such debarment/ blacklisting period has e
