# M/S Geo Miller & Co. Pvt. Ltd v. U.P. Jal Nigam, Lucknow & Ors

- **Citation:** (2021) 8 ILRA 356
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-08-17
- **Case number:** Misc. Bench No. 15664 of 2020
- **Bench:** Ritu Raj Awasthi, Dinesh Kumar Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-geo-miller-co-pvt-ltd-v-u-p-jal-nigam-lucknow-ors-47199
- **Pages:** 21

## Headnote

Rishabh Kapoor, Raj Kumar Singh, Sudhir
Kumar Pandey

NMCG is ultimate authority to review,
appove and monitor the overall execution
and
implementation
of
tender-Public
interest would outweigh private interest
of the Petitioner-no interference with
award of contract in Judicial Review.
W.P. dismissed.(E-7)

List of Cases cited:

## Text

_Characters 0–39,940 of 68,720. This is a partial read: ask again with offset=39940 for what follows._

356 INDIAN LAW REPORTS ALLAHABAD SERIES
authorities to extend the period of lease
from five years to ten years.

22. The submission of the petitioner's
counsel based on grant of lease for ten
years to Hanuman Prasad also does not
advance the petitioner's case any further as
in paragraph 8 of the petition, the petitioner
has admitted that in the case of Hanuman
Prasad, the date of approval is after the date
of commencement of the substituted Rule
57 (12) of the Rules, 2016, which was
granted for ten years.

23. We therefore, do not find any
merit in the writ petition, which is
accordingly dismissed.
----------
(2021)08ILR A356
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 17.08.2021

BEFORE

THE HON'BLE RITU RAJ AWASTHI, J.
THE HON'BLE DINESH KUMAR SINGH, J.

Misc. Bench No. 15664 of 2020

M/S Geo Miller & Co. Pvt. Ltd. ...Petitioner
Versus
U.P. Jal Nigam, Lucknow & Ors.
 ...Respondents

Counsel for the Petitioner:
Agendra Sinha, S.D. Singh

Counsel for the Respondents:
Rishabh Kapoor, Raj Kumar Singh, Sudhir
Kumar Pandey

NMCG is ultimate authority to review,
appove and monitor the overall execution
and
implementation
of
tender-Public
interest would outweigh private interest
of the Petitioner-no interference with
award of contract in Judicial Review.
W.P. dismissed.(E-7)

List of Cases cited:

1. M.C. Mehta Vs U.O.I., 1987(4) SCC 463,
(1988) 1 SCC 471, (2015) 2 SCC 764

2. Shagun Mahila Udyogik Sahakari Sanstha
Maryadit Vs St. of Mah. & Ors: (2011) 9 SCC
340

3.
Raunaq
International
Ltd.,
Vs
I.VsR.
Construction Ltd., & ors.,(1999) 1 SCC 492

4. Jasbhai Motibhai Desai Vs Roshan Kumar, :
(1976) 1 SCC 761

5. P. Chitharanja Menon & ors. Vs A.
Balakrishnan & ors., (1977) 3 SCC 255

6. Amarjeet Singh & ors. Vs Devi Ratan & ors.,
(2010) 1 SCC 417

7. Air India Ltd. Vs Cochin International Airport
Ltd., & ors. (2000) 2 SCC 617

8. Jagdish Mandal Vs St. of Orissa & ors.,
(2007) 14 SCC 517

9. Siemens Aktiengeselischaft & Siemens Ltd.Vs
Delhi Metro Rail Corporation Limited & ors.,
(2014) 11 SCC 288

10. Commissioner of Police & anr., Vs Umesh
Kumar (2020) 10 SCC 488

11. Punjab Electricity Board & ors. Vs Malkiat
Singh: (2005) 9 SCC 22

12. Bharat Coking Coal Ltd., Vs AMR Dev
Prabha: (2020) 16 SCC 759

(Delivered by Hon'ble Dinesh Kumar
Singh, J.)

1. According to Hindu Mythology,
Bhagiratha, a legendary king of the
Ikshvaku dynasty, brought the River Ganga
to Earth from heavens because only she
could bestow nirvana to Bhagiratha's
ancestors who were cursed by Sage Kapila.
8 All. M/S Geo Miller & Co. Pvt. Ltd. Vs. U.P. Jal Nigam, Lucknow & Ors.
357
After years of great penance, River Ganga
descended on Earth and Lord Shiva agreed
to channelize her flow. Therefore, River
Ganga flowed from Lord Shiva's hair. The
place where the sacred river originated is
known as Gangotri in present times, and
since the river originated from Lord Shiva's
Jata (hair) it is also called Jatashankari.

2. River Ganga is called by several
names,
including
Jahnavi,
Shubhra,
Sapteshwari,
Nikita,
Bhagirathi,
Alaknanda, and Vishnupadi.

3. It is believed that it flows from all
the
three
worlds
-
Heaven/Swarga,
Earth/Prithvi,
and
Hell/Patala.
In
Hinduism, the holy River Ganga is
personified and personalized as Goddess
Ganga. People believe that bathing in the
pious Ganga can help wash all sins. It is
also believed that a mere touch of the river
can help attain moksha (salvation) and so
the ashes of the dead persons are immersed
in the sacred river so that the dead attains
moksha (gange tav darshanarth mukti).
There is no match to the everlasting
divinity of holy river Ganga.

4. It is lifeline of India because it
provides
water
to
40%
of
India's
population. It is a source of irrigation for a
wide variety of crops. Its basin has fertile
soil that largely influences the agricultural
economies of India and its neighboring
country of Bangladesh. It also supports
fishing industries, making it an agricultural
and
professional
necessity
for
the
livelihood of Indians.

5. Varanasi, Haridwar, Gangotri,
Prayagraj, and Rishikesh are the prime
religious destinations that have great
religious significance for Hindus located at
the Banks of river Ganga. Kumbh Mela is
organized in Prayagraj and Haridwar.
Ganga Arti takes place in twilight everyday
at Rishikesh, Haridwar and Varanasi.

6.

Adventure
tourism
is
also
organized in Rishikesh, such as river
rafting, kayaking, and body surfing etc. The
bathing ghats of Ganga are popular tourist
attraction. Travellers often visit these ghats
to bathe and witness the funeral rites and
Ganga Arti.

7. Several yoga retreats have been
established on the banks of River Ganga
because
of
its
calm
and
peaceful
atmosphere. River Ganga is worshiped as
Ganga Maa or Mother Ganges.

8. It is the longest river in India and it
flows
around
2525
kms
from
the
Himalayan Mountains to Bay of Bengal. It
has the second greatest water discharge in
the world, and its basin is the most heavily
populated in the world with over 400
million people living in it. The course of
river begins in Himalayan Mountains
where the Bhagirathi River flows out of the
Gangotri glacier in Uttarakhand. The
glacier is located at an elevation of 12,769
feet. In long stream, the Bhagirathi and
Alaknanda rivers join. As the river Ganga
flows out of the Himalayas, it creates a
narrow, rugged canyon. From Rishikesh, it
begins to flow onto the Indo-Gangetic
Plain. As river Ganga then flows farther
downstream, it changes its direction several
times and is joined by many other tributary
rivers such as Yamuna, Ramganga, Tamsa,
and Gandaki Rivers. River Ganga flows
out of India and into Bangladesh, its main
branch is known as Padma River. Before
entering the Bay of Bengal, the river
creates the world's largest delta, Ganges
Delta. This region is a highly fertile
sediment-laden area that covers 23,000
358 INDIAN LAW REPORTS ALLAHABAD SERIES
square miles. Its overall length of drainage
size is based on what tributary rivers are
included. Its drainage basin is estimated to
be about 4,16,990 square miles.

9. River Ganga basin has been
inhabited by humans since ancient times.
The first region Harappan civilization, who
moved into the Ganges River basin from
the Indus River basin around the 2nd
millennium B.C.E. Later, the Gangetic
plain became the center of the Maurya
Empire and then the Mughal Empire.
Megasthenes in his work Indica has
discussed the importance and significance
of river Ganga.

10. Despite being the lifeline of the
nation, having been worshiped, providing
sustenance to large population, over the
time river has become highly polluted.
According to the studies, it is one of the
most polluted river in the world. Pollution
of River Ganga is caused by both human
and
industrial
waste
due
to
rapid
industrialization as well as religious events.
Waste and raw sewage of population living
in the river Ganga basin (400 Millions) is
dumped into the river. Many people bath
and use the river to clean their laundry.
Studies have described bacteria level near
Varanasi at least 3000 times higher than
what has been prescribed as safe by the
World Health Organization.

11. Industrial practices, population
growth and harmful religious activities are
plausibly
responsible
for
high
level
pollution of the river. Tanneries, Chemical
plants, Textile mills, distilleries, slaughter
houses etc., along with river dumping their
untreated and intoxicated water into the
river are responsible for very high pollution
and for poor health of river Ganga. Its
water contains high level of intoxicated
substances
like
Chromium
Sulphate,
Arsenic, Cadmium, Mercury and Sulphuric
Acid. Even religious practices such as
offering foods and other items to rive
Ganga which are regularly thrown into the
river as well as religious events also add to
the pollution level of the river.

12. In the late 1980s, Rajiv Gandhi,
India's the then Prime Minister began the
Ganga Action Plan (GAP) to clean up the
river Ganga. The plan shut down many
highly polluting industrial plants along the
river and funds were allotted for the
construction of wastewater treatment plants
However, efforts have fallen short as the
plants are not large enough to handle the
waste coming from such a large population.
Many of the polluting industrial plants are
also continuing to dump their hazardous
waste into the river.

13. The future of this nation to large
extent will be depending on health and well
being of this river. It is, therefore,
imperative that every effort should be made
to revive the river and make it pollution
free. Prime Minister, Narendra Modi after
getting
elected
from
Varanasi
Parliamentary seat in May, 2014 said " It's
my destiny to serve Maa Ganga"

14. In 2014, the Government has
come out with a Flagship Programme
'Namami
Gange',
an
Integrated
Conservation Mission, to accomplish twin
objectives
of
effective
abatement
of
pollution, conservation and rejuvenation of
National River ''Ganga'. It is being operated
under the Department of Water Resources,
River
Development
and
Ganga
Rejuvenation, Ministry of Jal Shakti. The
programme is being implemented by the
National
Mission
for
Clean
Ganga
(NMCG),
and
its
state
counterpart
8 All. M/S Geo Miller & Co. Pvt. Ltd. Vs. U.P. Jal Nigam, Lucknow & Ors.
359
organizations
i.e.,
State
Program
Management Groups (SPMGs). NMCG is
the implementation wing of National
Ganga Council set up in 2016; which
replaced the National Ganga River Basin
Authority (NRGBA). Budget outlay is
Rs.20,000-crore,
centrally-funded,
nonlapsable corpus and consists of nearly 288
projects.
The
main
pillars
of
the
programmes are:

(i)
Sewerage
Treatment
Infrastructure
&
Industrial
Effluent
Monitoring,

(ii) River-Front Development &
River-Surface Cleaning,

(iii)
Bio-Diversity
&
Afforestation,

(iv) Public Awareness.

15. The government's Namami Gange
Programme has revitalized India's efforts in
rejuvenating river Ganga. Critical sewage
infrastructure in 20 pollution hotspots along
with the river and cleaning of its tributaries
is underway. River Gomti is one of the
tributaries of river Ganga. River Gomti is
very highly polluted.

16. Several strategies are being
evolved
and
implemented
under
the
Mission to see that the river is rejuvenated
and becomes pollution free. National
Mission for Clean Ganga (NMCG) is the
implementing agency of Namami Ganges
Programme. NMCG is treated as an
authority with statutory powers under
Environment Protection Act, 1986. It has
been given bureaucratic autonomy and
regulatory powers to execute the mission in
coordination
with
respective
State
Governments. In five years, Rs.20,000
crore have been sanctioned which is five
times the amount committed in the past 35
years. There is 100 per cent central funding
of key projects. The mission has four major
parts:-

(i) Nirmal Ganga;

(ii) Aviral Ganga;

(iii) Jan Ganga and

(iv) Gyan Ganga.

17. The focus is on rejuvenating the
entire main strem of river Ganga rather
than a few cities on its banks. There is
emphasis on regenerating and conserving
the aquatic and riparian biodiversity of the
river basin. Seven IITs had prepared a
detailed basin management plan and plenty
of fieldwork, including estimating the
amount of sewage generated by major
urban and rural centres alongwith its banks.
So far the NMCG has sanctioned a total of
333 projects at a cost of Rs 29,578 crore, of
which 142 projects have been completed.

18. The NMCG is an authority
constituted
in
accordance
with
the
provisions
of
Section
3
of
the
Environmental (Protection) Act, 1986 vide
notification
No.S.O.3187(E)
dated
07.10.2016 inter alia to take measures for
prevention, control and abatement of
environmental pollution in river Ganga and
to ensure continuous adequate flow of
water so as to rejuvenate river Ganga. It is
a nodal agency for implementation of the
provisions of the above notification and for
effective abatement of pollution and
rejuvenation, protection and management
of river Ganga and its tributries.

19.

NMCG
is
under
the
administrative control of Ministry of Jal
Shakti, Government of India. It is a Central
Government Authority constituted for the
purpose of executing projects such as
cleaning of river Ganga undertaken on
mission mode by the Central Government
360 INDIAN LAW REPORTS ALLAHABAD SERIES
in view of the concerns on the subject of
pollution in river Ganga and its tributaries
including those expressed by the Supreme
Court (M.C. Mehta vs Union of India,
1987(4) SCC 463, (1988) 1 SCC 471,
(2015) 2 SCC 764) and in orders passed by
the National Green Tribunal.

20.

In
order
to
expedite
implementation of the project in all
earnestness and in transparent manner,
keeping with spirit of the orders passed by
the Supreme Court and taking into
consideration the public interest involved
and the obligation of the Government to
provide a clean and healthy environment,
the State missions have been set up in
various States and executing agencies have
been identified for execution of the
projects. NMCG has provided substantial
funding for these projects up to an extent of
100 per cent central funding and has also
imposed conditions amongst others to keep
overall control over the nodal missions in
the State. The sewerage works in the State
of Uttar Pradesh are being executed
through U.P. Jal Nigam, a State owned
corporation. The executing agency is
required to take such steps for award of
contracts and its implementation thereof, as
may be deemed necessary including
issuance of tenders subject to certain
conditions specified by NMCG.

21. It is stated that overall control on
such processes including for award and
implementation
thereafter
rests
with
NMCG.

22. River Gomti is one of the tributaries
of river Ganga. River Gomti is highly
polluted in Lucknow city and it smells and
looklike a big sewer drainage in City
Lucknow. Untreated sewerage and waste
flows directly into river Gomti in Lucknow.
To make river Gomti clean so that its flow
into river Ganga is pollution free, a tender for
project of construction of sewerage network
of STP (Lucknow) was sanctioned by
NMCG in favour of U.P. State Ganga
Conservation
Programme
Management
Society, Government of U.P. This Society is
within the State Mission for clean Ganga,
which is an executing arm of the State Ganga
Committee, constituted vide notification
dated 07.10.2016. State mission for clean
Ganga is an implementing agency for the
project based on their proposal submitted to
NMCG
and
sanctioned
by
executing
committee of NMCG subject to several terms
and conditions. The project is to be executed
through U.P. Jal Nigam (respondent No.1),
an agency of State Government.

23. NMCG generally funds the
following category of projects:-

(i)
projects
funded
through
externally aided agencies including World
Bank; and

(ii) projects funded under National
Ganga Plan (NGP)

24. The project in question at Lucknow
was sanctioned in March, 2019 under NGP
under Namami Gange Programme with 100
per cent central funding.

25. Tenders for the above works were
accordingly invited for the execution of the
project work. Tenders were invited on
30.01.2020 vide notification No.358/M13/16. NMCG has sanctioned estimated cost
of Rs.213.91 Crores on 06.05.2020 with 100
per cent NMCG funding for the pollution,
abatement works for river Gomti at Lucknow
with STP.

26. It is also one of the conditions that
procurement of goods and services shall be
8 All. M/S Geo Miller & Co. Pvt. Ltd. Vs. U.P. Jal Nigam, Lucknow & Ors.
361
made strictly as per National Ganga River
Basin Authority (NGRBA) Programme
Framework and various guild-lines of
NMCG. Union Cabinet while approving
Namami Gange Programme decided that
the programme will be executed in
accordance
with
NGBRA
Programme
Framework.

27. For the said sanctioned work, U.P.
Jal Nigam invited bids from qualified,
capable
and experienced bidders for
Survey, Investigation, Design, Supply,
Construction,
Installation,
Testing
&
Commissioning for pollution abatement
works of river Gomti at Daulatganj,
Lucknow
including
all
appurtenant
structures and allied works including 15
years of operation and management as per
the scope of the bid document vide Tender
Notice No.358M-B/16 dated 30.01.22020.
The work is to be executed within 18
months. One of the qualifications of the
bidder for sound financial capabilities, is
that the bidder must possess a financial net
worth minimum equivalent to INR 1784.89
lakhs in each of the last three financial
years ending on 31.03.2020 and bidder
should demonstrate the banker's certificate
that it has available cash credit facility
minimum equivalent to INR 1189.93 lakhs
as on the date of submission of the bids.
Tenders were invited on two bids system
i.e. (i) Technical cum Financial Capacity
and pre-qualification evaluation bid; and
(ii) Financial bid.

28. Subsequently, NMCG sanctioned
revised
Administrative
Approval
and
Expenditure Sanction (AA&ES) for the
pollution abatement works of river Gomti
at Lucknow.

29.

NGRBA
framework
procurement manual (chapter number-4
clause 4.2), which has been placed with
the counter affidavit filed by Union of
India provides that all contracts of value
more than US $1 million equivalent
(Rs.7.4 Crores) are subject to prior
review by the funding agency i.e. NMCG
in the instant case. Accordingly, the
procurement for this project is also under
prior review and approval by NMCG.

30. Eight bidders namely, (i) Geo
Miller and Co. Pvt. Ltd.,; (ii) HNB
Engineers Pvt. Ltd; (iii) Maha Shree
Infrastructure; (iv) MHS Infratech Pvt.
Ltd.; (v) M/s Ashoka Buildcon Ltd.; (vi)
M/s JSP Projects Pvt. Ltd.; (vii) M/s.
K.B.
Srivastava;
and
(viii)
R.K.
Engineers Sales Ltd., submitted their bids
in response to the aforesaid tender notice.
However, by corrigendum notice dated
29.07.2020, General Manager, U.P. Jal
Nigam, the Executing Agency without
taking approval from the NMCG, the
funding agency, cancelled the tender
without assigning any reason. This action
of the Executive Agency would cause
unwarranted delay in implementation and
execution of the project within the time
frame provided by the National Green
Tribunal and the Supreme Court and
would severely affect the clean Ganga
Mission much against public and national
interest as such.

31. Bidders upon learning about the
cancellation of the tendering process,
represented before the NMCG which in
turn vide letter dated 31.07.2020 issued
instructions to U.P. Jal Nigam not to give
effect to the cancellation order. The NMCG
noted that delay in matters of tendering and
indecisions or improper decisions by the
Executive
Agencies/State
missions
adversely affect the programmes of these
high priority projects.
362 INDIAN LAW REPORTS ALLAHABAD SERIES

32. It is further said that timelines are
fixed by the National Green Tribunal and
the Supreme Court and State must do
everything possible earlier to these timeline
and expedite action at every stage. The
Project Director of U.P. Jal Nigam was
directed to submit the technical evaluation
reports of the bidders. The Executing
Agency was directed to proceed further
only after getting instructions/clearance
from the NMCG.

33. It is important to note that the
Technical Evaluation Committee headed by
the Chief Engineer of U.P. Jal Nigam had
found three bidders to be technically
qualified excluding the petitioner and four
others, namely;

(i) M/s R.K. Engineers Sales Ltd;

(ii) M/s KB Srivastava;

(iii) Ashoka Buildcon Pvt. Ltd.

34. Minutes of the meeting of the
Technical Evaluation Committee dated
20.07.2020 have been placed on record as
Annexure CA-6 of the counter affidavit
filed on behalf of the U.P. Jal Nigam.
However, Tender Sanctioning Committee
headed by the Managing Director of U.P.
Jal Nigam in its meeting dated 27.07.2020,
found that only one bidder i.e. Ashoka
Buildcon Pvt. Ltd., was qualified and in
that view of the matter a Corrigendum
dated 29.07.2020 was issued canceling the
tender process.

35. The NMCG reviewed the
recommendation of the technical evaluation
committee and evaluated the technical bids
of
all
eight
bidders
including
the
petitioner's bid herein and found two more
bidders namely (i) M/s R.K. Engineers
Sales Ltd; (ii) M/s KB Srivastava; besides
Ashoka Buildcon Pvt Ltd., to be technically
qualified and their bids responsive as was
found
by
the
Technical
Evaluation
Committee head by the Chief Engineer.

36. The petitioner's bid was again not
found responsive at the level of hte NMCG
as it was not technically qualified. In view
of the aforesaid, the NMCG having overall
control and supervision of the project and
being 100 % funding agency, vide letter
dated 25.08.2020 directed the U.P. Jal
Nigam to open the financial bids of three
bidders, who were found technically
qualified by the Technical Evaluation
Committee and, later on by the NMCG
itself.

37. In pursuance of the aforesaid
direction issued by the NMCG, U.P.Jal
Nigam issued notice dated 03.09.2020 for
opening of the financial bids. In the
financial bids, respondent no.4 was found
to be eligible and, therefore, Letter of
Award dated 17.09.2020 has been issued in
its favour.

38. The present writ petition has been
filed by the petitioner, whose bid was not
found responsive as having not met the
technical qualification criteria, first by the
Technical Evaluation Committee headed by
the Chief Manager, secondly by Tender
Sanction
Committee
headed
by
the
Managing Director of U.P. Jal Nigam and,
thirdly by the NMCG praying for inter alia
following reliefs:-

"(a) Issue a writ of certiorari or
any other writ/order/direction of similar
nature
seeking
the
quashing
of
letter/decision dated 2.09.2020 issued by
the Chief Engineer, U.P. Jal Nigam
Respondent No.2; and

(b) Issue a writ of certiorari or
any other writ/order/direction of similar
8 All. M/S Geo Miller & Co. Pvt. Ltd. Vs. U.P. Jal Nigam, Lucknow & Ors.
363
nature
whereby
quashing
the
order/message dated 03.09.2020 (Annexure
No.13) issued by the respondent No.1 and 2
for allegedly revoking the cancellation
order dated 29.7.2020 and notifying the
Petitioner
as
it
was
declared
"Not
qualified";

..

(d) Issue a writ of certiorari or any
other writ /order/direction of similar nature
whereby quashing the document dated
7.9.2020 (P-16) uploaded on the website of
the Respondent No.1 whereby three Bidders
have been declared as qualified and the
Petitioner so there declared not qualified;

....

(h) Issue a writ of mandamus or
any other writ, order or direction of the
similar nature whereby commanding the
Respondent Nos.1 and 2 to open the price bid
of the petitioner herein with respect to etender
notice
no.358/M-13/16,
dated
30.1.2020 and award the contract to the
Petitioner if the price Bid of the Petitioner is
lowest one, as per the procedure and rules;

....."

39. Heard Mr. S.D. Singh, learned
counsel, assisted by Mr. Agendra Sinha,
Advocate appearing for the petitioner,
Mr. Raghvendra Kumar Singh, learned
Advocate
General,
assisted
by
Mr.
Rishabh Kapoor, Advocate appearing for
respondent nos. 1 and 2-U.P.Jal Nigam,
Mr.
J.N.
Mathur,
learned
Senior
Advocate, assisted by Mr. Amrit Khare
and Mr. Ruchir, Advocates, appearing for
respondent no. 3-Union of India, Mr. S.B.
Pandey,
learned
Assistant
Solicitor
General, assisted by Mr. Raj Kumar
Singh, Advocate also made submissions
on behalf of respondent no. 3-Union of
India and, Mr. Sudhir Kumar Pandey,
appearing for respondent no. 4-M/s R.K.
Engineers Sales Limited.

40. Mr. S.D. Singh, learned counsel
for the petitioner has submitted that once
the decision was taken by the competent
authority to cancel the tender, which was in
fact cancelled vide corrigendum dated
29.07.2020, the same could not have been
revived by NMCG and fresh bids ought to
have been invited for implementing the
project/scope of the tendering process. He
has further submitted that there was no
authority vested in the NMCG to interfere
with the tendering process or the decision
taken by the owner i.e. U.P. Jal Nigam,
which is defined under the tender document
itself and, therefore, the decision of the
NMCG to re-evaluate the technical bids of
the tenderers was without jurisdiction. He
has also submitted that the decision of the
NMCG to declare two more bidders i.e. (i)
M/s R.K. Engineers Sales Ltd; (ii) M/s KB
Srivastava; to be qualified is null and void
as being without jurisdiction and powers of
the NMCG. It is submitted that direction of
the NMCG to the U.P. Jal Nigam, the
owner to open the financial bids of only
three bidders was again without jurisdiction
and thus, Letter of Intent issued in favour
of respondent No.4 dated 17.09.2020 is
illegal, arbitrary and unjustified and is
liable to the set aside.

41. Mr. S.D. Singh, learned counsel
for the petitioner has placed reliance on
Clause 6.2 of the Bid Document, under
which rights of respondent No.1 being
owner of the project in question has been
defined, which reads as under:-

"6.2 Owner's Right to Accept or
Reject and Waive Irregularities:- the owner
reserves the right to

1. accept the bid;

2. reject the bid;

3. annul the bidding process and
reject all bids;
364 INDIAN LAW REPORTS ALLAHABAD SERIES

4. annul the bidding process and
commence a new process; and

5. Waive irregularities, minor
informalities, or minor non-conformities
which
do
not
constitute
material
deviations in the submitted bids from the
bidding documents, at any time prior to
the award of
the
contract
without
incurring any liability to the affected
Bidder or Bidders and without any
obligation to inform the affected bidder or
bidders of the grounds for the Owner's
actions.

b. Nothing in ITB section 6.2(a)
is intended to permit the owner to refuse
to provide reasons for rejection to an
unsuccessful bidder."

42. Mr. S.D. Singh, learned counsel
for the petitioner has, therefore, submitted
that after the tendering process was
cancelled
vide
corrigendum
dated
29.07.2020, the only course of action
available to the owner was to commence
fresh tendering process. There is nothing in
the tendering document under which
respondent No.1 i.e. U.P. Jal Nigam is
vested with the power to revoke the
decision of canceling the tendering process
and, therefore, decision to proceed with
canceled tender, is totally illegal and
contrary to the terms and conditions of the
tender document itself. The said decision is
without any right or authority and,
therefore, void ab initio.

43. With the cancellation of the
tender, all the processes came to an end.
Respondent No. 1 does not have any other
option but to return the bids to all the
bidders and invite fresh bids. Bids
submitted in response to the tender which
stood cancelled, could not be considered at
all and all the bids technically become
redundant and infructuous.

44. However, it has been stated in
para 25 of the writ petition that for any
reasons, if this court finds and arrives at a
conclusion that the bids could have been
opened
and
reconsidered
even
after
corrigendum
notice
dated
29.07.2020,
petitioner's right needs to be protected and,
the declaration of the petitioner as not
being qualified is required to be quashed.

45. It has been further submitted that
the respondent authorities are obligated and
duty bound to follow U.P. Procurement
Manual and Manual for Procurement of
Works, 2019 of the Government of India,
Ministry
of
Finance,
Department
of
Expenditure
which
contains
basic
principles and guidelines for any tendering
process. Learned counsel has placed
reliance on Clause 14.34 of the U.P.
Procurement
Manual
to
submit
that
procuring entity would not be entitled to
open any bids or proposals after taking a
decision to cancel the procurement and, is
required to return such unopened bids or
proposals. A procurement process, once
canceled, cannot be reopened and the only
option is to start a new procurement
process, if so required. He has also placed
reliance on Clause 5.6.8 of the manual for
procurement of work, 2019 of Government
of India issued by Ministry of Finance,
Department of Expenditure.

46. In view of the aforesaid
submissions, he has submitted that the
decision to open the financial bids of three
bidders and on that basis impugned L.O.I.
dated 17.09.2020 issued in favour of
respondent No.4 are illegal, arbitrary and in
the teeth of the tender document itself and,
therefore, the same is liable to be quashed
and the executing agency be directed to
adopt afresh tendering process to finalize
the work in favour of the successful bidder.
8 All. M/S Geo Miller & Co. Pvt. Ltd. Vs. U.P. Jal Nigam, Lucknow & Ors.
365

47. Mr. Raghvendra Singh, learned
Advocate General assisted by Mr. Rishabh
Kapoor appearing for respondent No.1 and
2, U.P. Jal Nigam has made preliminary
submissions regarding maintainability of
the writ petition on behalf of the petitioner
and has submitted that the petitioner was
not found eligible and technically qualified
by the Technical Evaluation Committee
and Tender Sanctioning Committee headed
by the Chief Engineer and Managing
Director respectively inter alia for the
following reasons:

(i) Effluent norms not stated as
required;

(ii) Required design inlet norms
not taken in design; and

(iii) Cash Credit facility not
verified by the Bank.

Since, the petitioner has not
challenged its disqualification and, it
appears that he would not have any
objection if the tender was awarded to
Ashoka Buildcon Pvt. Ltd., the only bidder,
which was found eligible by the Tender
Sanctioning Committee headed by the
Managing Director, he is not entitled to
challenge the decision of the NMCG for
qualifying two more bidders and directing
respondent No.1 to open and evaluate
financial bids of technically qualified
bidders. Once the petitioner has not
challenged its disqualification, the writ
petition on its behalf for finalizing the
tender in favour of respondent No.4 and
issuing L.O.I. in its favour is not
maintainable.

In support of this submission, he
has placed reliance on the judgment of the
Supreme Court in the case of Shagun
Mahila
Udyogik
Sahakari
Sanstha
Maryadit vs State of Maharashtra &
Ors: (2011) 9 SCC 340. He has also placed
reliance on the judgment of the Supreme
Court in the case of Raunaq International
Ltd., vs I.V.R. Construction Ltd., and
Ors:(1999) 1 SCC 492.

48. Learned Advocate General has
also submitted that once the petitioner has
not challenged his disqualification, he
cannot be said to be a 'person aggrieved' to
maintain the writ petition under Article 226
of the Constitution of India. The petitioner
is not prejudiced in any manner inasmuch
as he has not been found technically
qualified. The 'person aggrieved' is one
who has suffered some legal injury and
only such a person would have right to
approach this Court. He in support of this
submission has placed reliance on the
judgment of the Supreme court in the case
of Jasbhai Motibhai Desai vs Roshan
Kumar, : (1976) 1 SCC 761.

49. Next submission of the learned
Advocate General is that the petitioner has
not challenged the order dated 25.08.2020
taken by the NMCG in pursuance of which
financial bids of three technical qualified
bidders
were
opened.
Orders
dated
02.09.2020
and
03.09.2020
are
consequential orders to the order dated
25.08.2020. Since the petitioner has not
challenged
the
main
order
dated
25.08.2020, the writ petition would not be
maintainable to challenge the consequential
orders.
In
support
of
the
aforesaid
submission, he has placed reliance on two
judgments in the cases of P. Chitharanja
Menon and Ors vs A. Balakrishnan and
Ors: (1977) 3 SCC 255 and Amarjeet
Singh and Ors vs Devi Ratan and Ors :
(2010) 1 SCC 417.

50. Mr. Raghvendra Singh, learned
Advocate General has also submitted that
in commercial matters even if some defects
are found in decision making process, the
366 INDIAN LAW REPORTS ALLAHABAD SERIES
Court should exercise its jurisdiction under
Article 226 of the Constitution of India
only in furtherance of public interest. He
has further submitted that even if it is
assumed that the decision of revocation of
the
cancellation
vide
order
dated
02.09.2020 is defective because of some
procedural aberration in decision making
process, this Court should exercise its
discretion in furtherance of public interest
and not otherwise.

51. The present work is of very large
public interest inasmuch as untreated
sewage, waste and drainage water is being
flown into river Gomti, one of the main
tributaries of river Ganga and the water of
river Gomti is injurious not only to humans
but also to biodiversity and, any delay
would not only increase the cost but also to
have adverse impact on the National
Mission for Clean Ganga. He has,
therefore, submitted that looking at the
large public and national interest involved
and the fact that the delay would adversely
affect the ambitious mission of clean
Ganga and prevention of abatement of
pollution in river Gomti, this Court may not
interfere with the decision of the competent
authority to award the contract in favour of
the technically qualified bidder, which is
just, fair and reasonable. He has placed
reliance of the judgment of the Supreme
Court in the case of Air India Ltd. vs
Cochin International Airport Ltd., &
Ors: (2000) 2 SCC 617.

52. It has further been submitted that
entering into a contract is a commercial
transaction and evaluation of tenders and
awarding
contracts
are
commercial
functions. If the award of contract is
bonafide and in the public interest, the
Court should not interfere in exercise of
powers of judicial review even, if there is a
procedural aberration or error in assessment
or prejudicial to a particular tenderer. The
Court is required to balance the public
interest viz-a-viz private interest and
private interest cannot be protected at the
cost of the public and national interest
while deciding a contractual dispute. To
buttress this submission, he has placed
reliance upon the judgment in the case of
Jagdish Mandal vs. State of Orissa &
Ors : (2007) 14 SCC 517.

53. Learned Advocate General has
further submitted that it is a well
established principle that in contractual
matters the Court should not exercise the
power of judicial review, if there is no
arbitrariness or favoritism while awarding
the contract. In support of the aforesaid
submissions, he has placed reliance upon
the
judgment
of
Siemens
Aktiengeselischaft and Siemens Limited
vs Delhi Metro Rail Corporation Limited
and Ors: (2014) 11 SCC 288.

54. Mr. J.N. Mathur, learned Senior
Advocate assisted by Mr. Amrit Khare has
submitted that NMCG is an authority
constituted
in
accordance
with
the
provisions of Sub-section 3 of the Section 3
of the Environmental (Protection) Act,
1986 vide Notification No.S.O. 3187 (E)
dated 07.10.2016. The NMCG is an
approving
authority
for
planning,
financing, execution and implementation of
projects
for
prevention,
control
and
abatement of pollution in river Ganga in
terms of said notification. Even in terms of
Administrative Approval and Expenditure
Sanctioned (AA&ES) dated 02.03.2019,
overall financial and administrative control
is vested with the NMCG for clean Ganga
mission. The U.P. Jal Nigam has been
selected as Executing Agency for the
projects in the State of Uttar Pradesh to be
8 All. M/S Geo Miller & Co. Pvt. Ltd. Vs. U.P. Jal Nigam, Lucknow & Ors.
367
undertaken by the NMCG. However, the
NMCG retains right to issue directions to
the U.P. Jal Nigam and, also right to seek
compliance of all observations made by it.
Under notification dated 07.10.2016, the
NMCG is an ultimate authority to review,
approve, monitor the overall execution and
implementation of the tender in question
and, it is the final authority to take all
decision in respect of tenders floated by
U.P. Jal Nigam.

55. When the NMCG received
complainants regarding abrupt decision
taken by respondent No.1 on 29.07.2020 to
cancel the tender process, it directed
respondent No.1 to submit its report on the
complaints made by bidders along with
Technical Evaluation Report of all the
bidders and directed the U.P. Jal Nigam to
proceed
further
only
after
getting
instructions from the NMCG.

56. It has been submitted that the
petitioner has not challenged the decision
of the U.P. Jal Nigam to disqualify the
petitioner in the technical evaluation stage
itself and, there is no challenge to said
decision of the U.P. Jal Nigam or NMCG
and, therefore, the writ petition is not
maintainable. It has been further submitted
that in sum and substance in pursuance of
the Corrigendum dated 29.07.2020 vide
which the tender had been cancelled, readvertisement could have been issued and,
the petitioner would have another chance of
being selected, if found qualified. He has,
therefore, submitted that mere chance of
selection does not entail a vested right in an
interested person. He has placed reliance
upon two judgments in the cases of
Commissioner of Police & Anr. vs
Umesh Kumar (2020) 10 SCC 488 and
Punjab Electricity Board and Ors vs.
Malkiat Singh: (2005) 9 SCC 22.

57. It has further been submitted that
the NMCG is an expert body created for
the
purposes
as
mentioned
in
the
notification dated 07.10.2016. This expert
body has evaluated the entire tendering
process by U.P. Jal Nigam and, after taking
into account the commercial and technical
evaluation involved in the project, decision
has been taken to open the financial bids of
three technically qualified bidders. The
petitioner
was
not
found
technically
qualified by U.P. Jal Nigam or by the
NMCG. The impugned decision was taken
by the NMCG in pubic interest and same
should not be interfered with by this Court
in exercise of powers of judicial review
under Article 226 of the Constitution of
India. He has placed reliance on the
judgment of the Supreme Court in the case
of Bharat Coking Coal Ltd., vs AMR
Dev Prabha: (2020) 16 SCC 759.

58. Mr. S.B. Pandey, learned
Assistant Solicitor General assisted by Mr.
Raj
Kumar
Singh,
learned
counsel
appearing for respondent No.3 and Mr.
Sudhir Kumar Pandey, learned counsel
appearing for respondent No.4 have made
similar arguments advanced by learned
Advocate General and Mr. J.N. Mathur,
learned Senior Advocate. Learned counsel
for respondent No.4 has submitted that as
per the notification dated 02.03.2019
placed along with the supplementary
affidavit filed on behalf of respondent
No.1, U.P. Jal Nigam is an executing
agency for the projects to take up the I&D
and STP works pertaining to pollution
abatement of river Gomti on DBOT model.
The condition on Administrative Approval
and Expenditure Sanction for the project
specifically
stipulates
that
executing
agency
shall
comply
with
all
the
observations of NMCG. He, therefore, has
submitted that overall control having been
368 INDIAN LAW REPORTS ALLAHABAD SERIES
vested in the NMCG, it was well within its
power to call for a report from the U.P. Jal
Nigam about the technical evaluation of the
bidders and having been found three
bidders technically qualified, direction was
issued for opening their financial bids.
Respondent No.4 having being found
eligible and financial bid most competitive,
L.O.I. has been issued in its favour. It is,
therefore, submitted that since the decision
making process was fair, transparent and
reasonable, this Court may not interfere
with the decision taken by the competent
authority for awarding contract.

59.

We
have
considered
the
submissions of the learned counsel for the
parties and gone through the record.

60. The questions, which arise for
consideration in the present case are:-

"(i) Whether NMCG does not
have any authority to give directions to
U.P.