C A V Order

Per Parth Prateem Sahu, Judge Petitioner by way of filing this writ petition under Article 226 of the Constitution of India has challenged the letter of communication of order dated 03.11.2021 (Annexure P/1) whereby Letter of Intent ('LOI') bearing No.SECL:BSP:CMC:1050 dated 24.08.2021 was cancelled, petitioner firm was banned from participating in any future tender in South Eastern Coalfields Limited ('SECL') and subsidiaries of Coal India Limited ('CIL') for a period of 24 months and imposed penalty of Rs.31,38,12,832.28 (Rupees Thirty One Crore Thirty Eight Lakh Twelve Thousand Eight Hundred Thirty Two and Paise Twenty Eight only).

2. Facts relevant for disposal of this writ petition, are that, petitioner is a joint venture of Ranavir Projects & Goldmine Power Infrastructure Industries engaged in civil constructions and other works. Respondents issued e-Tender (Annexure P/2) vide Tender Notice No.SECL/BSP/CMC/e-Tender/450 dated 13.05.2021 for “Hiring of Vertical Ripper machines or other suitable strata cutter machines to be used as primary extraction machine for blast less excavation in all kinds of strata / overburden / in seam bands on per cum basis and hiring of HEMM for excavation, mechanical loading, mechanical transportation, unloading, the excavation material and silt, dumping, dozing, scrapping, preparation and maintenance of haul road, water sprinkling and spreading of material and other allied activities at the site shown in the plan and as per the directives of management / engineer in charge of the Dipka Expansion Project for a total quantity of 153,01,614 cum in 730 days @ 20,961 Cum/day” at Dipka OC, Tehsil : Katghora, Dist : Korba, State : Chhattisgarh, Pin-495452. The estimated value of work was Rs.1,68,71,65,764.92 (inclusive of GST) to be completed within a period of 730 days. Petitioner along with other tenderers submitted their bids, in which petitioner became successful being L-1 bidder. Petitioner was issued LOI on 24.08.2021. As per requirement of tender conditions, petitioner was required to furnish Performance Security Deposit ('PSD') in prescribed form, details of which is given under Instructions to Bidders. The amount of PSD was quantified as Rs.2,35,35,963.00, which is equal to 3% of the annualized value of contract amount. The period prescribed for furnishing PSD was 21 days from the date of issuance of LOI. Petitioner on 29.09.2021 wrote letter to respondents submitting drafts of Bank Guarantee issued from the EMERIO BANQUE Ltd. (Bank) for approval. Petitioner failed to submit PSD as required in terms of tender document, which made the respondents to issue letters to the petitioner reminding to submit PSD within the stipulated period. Petitioner failed to submit PSD in the form of Bank Guarantee in terms of tender document. Show-cause notice was issued and thereafter, considering the reply submitted to show-cause notice to be non- satisfactory, order of cancellation of LOI, banning the petitioner for a period of 24 months and penalty to the tune of Rs.31,38,12,832.28 was issued. This made the petitioner to approach this Court by way of filing this writ petition seeking following reliefs : “10.1 Quash the entire impugned Order dated 03.11.2021 (Annexure P/1) on account of it being violative of principles of natural justice, arbitrary, contrary to article 14 rule of law and being illegal.

10.2 Direct the Respondent SECL to consider representations of the Petitioner (Annexure P/17 (Colly.) to accept the bank guarantee of EUROPA BANK Public Limited as valid on account of no available bidders to fresh tenders and ECL having already accepted the same, to treat equals as equals under article 14.

10.3 Any other relief/reliefs, which this Hon'ble Court may think fit and proper in the facts and circumstances of the case may also please be granted to the Petitioner.”

3. Respondents submitted reply to the writ petition raising preliminary objection of maintainability of writ petition on the groun