Nayak Infrastructure Pvt. Ltd. vs State

Mansoor Ahmad Mir, J.—Challenge in this Letters Patent Appeal is to the order dated 1-6-2013 passed by the learned single Judge in

OWP No. 1668/2012, in case, titled as, M/s. Nayak Infrastructure Pvt. Ltd. v. State of J.& K. and others, on the grounds taken in the memo of

appeal (for short, impugned judgment). Vide the impugned judgment, the writ petition filed by the appellant came to be dismissed. The facts in brief

are that the Government under Pradhan Mantri Gram Sadak Yojana (for short, PMGSY) took a decision to construct road from Km. 2nd LO25

to Champal, Block Bhallesa, Package No. JK04-151, Phase III, Stage 1st. Accordingly, respondent No. 2, i.e. Chief Engineer, PMGSY, invited

e-tenders from the approved and eligible contractors. In response thereto, appellant herein along with others also applied. Appellant's technical bid

came to be rejected on the ground that he had given wrong information in the affidavit about the litigation and was held non-responsive. It would

be appropriate to reproduce the reasons given while rejecting the technical bid of appellant herein, as recorded at page 170 annexed with the

appeal.

The bidder has given the wrong undertaking in the affidavit about the litigation as he is already in litigation with this Department, hence non-

responsive.

Feeling aggrieved, the writ petitioner filed OWP No. 1668/2012 questioning the' rejection of his technical bid on the ground that he was not

supposed to mention about the litigation as per the conditions contained at 4.7 (i) & (ii) of Notice Inviting Tenders. If would be appropriate to

reproduce the said conditions hereunder.

4.7. Even though the bidders meet the; above qualifying criteria, they are subject to be disqualified if they have:

i. made misleading or false representations in the forms, statements, affidavits and attachments submitted in proof of the qualification requirements;

and/or

ii. record of poor performance such as abandoning the works, not properly completing the contract, inordinate delay in completion, litigation

history or financial failures etc.

The Writ Court after examining the pleadings, documents and the tender conditions contained in 4.7(i) & (ii) held that the writ petitioner did not

disclose in the affidavit the litigation which was pending between him and the department, thus has given false statement in the affidavit. The learned

single Judge, therefore, while dismissing the writ petition held that the technical bid of the writ petitioner has rightly been rejected by the official

respondents and he has rightly been disqualified.

The star argument of learned counsel for appellant is that the appellant was supposed to give all facts regarding the litigation history, if the same

was relating to the record of his poor performance of the previous contract. Since no such contract was earlier allotted to the writ petitioner,

therefore, he was not supposed to disclose about the current litigation, which otherwise is miscellaneous one and not connected with the poor

performance.

The argument though is attractive but is devoid of force for the following reasons.

Condition 4.7(i) provides that if any bidder(s) makes a false representation in the forms, statements, affidavits and attachments submitted in

proof of the qualification requirements, such bidder(s) is to be disqualified.

The writ petitioner though had sworn the affidavit and annexed the same with the tender documents, yet the same does not disclose who had

sworn the affidavit. However, that is not a ground for rejection of his technical bid by the official writ respondents, but the rejection is only on the

ground that he did not disclose all the facts regarding the litigation while submitting the tender documents. It would be appropriate to reproduce

paragraphs 2 & 9 of the affidavit herein.

That we have not been fallen into litigation with any Government Department.

That the information supplied with the bidding document is correct and nothing has been concealed. For any deviation we shall be responsible.

The writ petitioner has specifically stated that the firm is not involved in any litigation with any Government Department. Further, he made a

statement in paragraph 9 of the affidavit that he did not conceal any information while submitting the tender documents. However, the fact of the

matter is that the writ petitioner is already involved in litigation with the writ respondents, thus had made a false statement in the affidavit while

concealing the material facts.

Apparently, the writ petitioner while submitting the tender documents had concealed the pendency of writ petition between him and the

department. Even he did not mention in the tender documents or in the affidavit that though litigation is pending between him and the department,

but the same is not as per the conditions contained in 4.7 of the Notice Inviting Tender.

In our view it is for concerned authority to decide what fact is or is not material, it was obligatory on the part of the writ petitioner to disclose

all the facts and leave the decision to the concerned authority. As discussed hereinabove, the writ petitioner had concealed the pendency of

litigation while submitting the tender documents. Whether that was material or not was to be decided by the competent authority. As per the

conditions contained in the Notice Inviting Tender, the writ petitioner was under a legal obligation to disclose all the facts, which he concealed;

rather he made an affidavit making a statement that no litigation is pending between him and any Government department. Therefore, the official

writ respondents have rightly rejected the technical bid of writ petitioner. Our view is also fortified by a judgment of the Apex Court in Bhaskar

Laxman Jadhav and Others Vs. Karamveer Kakasaheb Wagh Education Society and Others, wherein their Lordships have held that it is not for a

litigant to decide what fact is material.

The writ Court after discussing all the facts has rightly come to the conclusion that the writ petitioner has not succeeded in carving out a case. It

is also worthwhile to mention here that the contract already stands allotted to respondent No. 5. Having said so, we are also of the considered

view that the order made by the writ Court is legal one, needs no interference. Accordingly, the appeal is dismissed along with connected MCA(s),

if any.