# M/S Kkspun India Ltd v. U.P. Jal Nigam & Anr. 216 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2021) 6 ILRA 215
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-04-05
- **Case number:** Misc. Bench No. 12227 of 2021
- **Bench:** Rajan Roy
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-kkspun-india-ltd-v-u-p-jal-nigam-anr-216-indian-law-reports-allahabad-series-47023
- **Pages:** 5

## Headnote

(a) Contract Law - tender document - The
tendering authority who is inviting tenders is
entitled to prescribe reasonable conditions
keeping in mind the kind of person from which
he would like to have the bids so as to ensure
smooth operation of the contract and its
completion without any glitches. If a condition
such as Clause 2.2.4 is included in the tender
document then the intention of the tendering
authority inviting the tender is to avoid
participation of any person against whom there
may be any criminal proceedings or vigilance
enquiry. Such a condition is necessary so as to
ensure that the work is performed by bidder
who has impeccable and impeachable work.
Therefore, such a condition cannot be said to
arbitrary or unreasonable. (Para 8)

Writ Petition Rejected. (E-8)

List of Cases cited:-

## Text

6 All. M/S Kkspun India Ltd. Vs. U.P. Jal Nigam & Anr.
215
cannot now dispute the legal proposition
that the earlier view of this Court that the
appellant was required to explain the delay
of each day till the date of filing the appeal
has since been diluted by the later decisions
of the Apex Court and is, therefore, held as
no longer good law".

16. This court finds that the petitioners in
their application for condonation of delay
indicated reasons for the delay in filing the
application for setting aside of the order dated
14.09.2010. The Additional Commissioner
(Judicial), Lucknow unfortunately did not deal
with those explanations and has merely stated
that no justifiable reason has been stated for
day-to-day
delay.
The
Additional
Commissioner was required to examine
correctness of the explanation given by the
petitioners in their application and was required
to record his specific finding on consideration
on those reasons and keeping in view the
principles of law, on the subject of condonation
of delay, if the explanation furnished by the
petitioners was plausible or not and constituted
"sufficient cause" or not.

17. In view of the above legal position
and the law laid down, I am of the considered
opinion that the Additional Commissioner
(Judicial) in passing the order under challenge,
rejecting
the
petitioners'
application
for
condonation of delay and consequent thereupon
in rejecting the application for setting aside the
order
dated
14.09.2010
has
committed
illegality. The cause shown in the application
should have been considered and on such
consideration, keeping in view the settled law
on condonation of delay after recording specific
finding if the cause shown was or was not
sufficient, the applications should have been
decided.

18. For the aforesaid reasons, the order
under challenge deserves to be quashed, the
writ petition deserves to be allowed and the
matter deserves to be remitted to the Additional
Commissioner for decision afresh on the
petitioners' application for condonation of
delay.

19. Accordingly, the petition succeeds
and is allowed. The impugned order dated
05.04.2021
passed
by
the
Additional
Commissioner (Judicial) Lucknow Region
Lucknow-opposite party No.1 in Revision No.
967/2002-03: Savitri Devi and another Vs. Dr.
Ram Nrayan Verma. (contain as Annexure
No.1) is hereby quashed. The matter is
remitted
to
the
court
of
Additional
Commissioner Judicial Lucknow Region
Lucknow for decision afresh on the petitioners'
application for condonation of delay, in
accordance with law keeping in view the
observations made hereinabove, with due
opportunity
of
hearing
to
the
parties
concerned, expeditiously within a period of
three months from the date of providing of
copy of this order before the said court. If the
application for condonation of delay is
allowed the petitioners' application for setting
aside of the order dated 14.09.2010 shall also
be considered and decided in accordance with
law with due opportunity of hearing to the
parties concerned.

20. No orders as to costs.
----------
(2021)06ILR A215
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 18.06.2021

BEFORE

THE HON'BLE RAJAN ROY, J.
THE SAURABH LAVANIA, J.

Misc. Bench No. 12227 of 2021

M/S Kkspun India Ltd. ...Petitioner
Versus
U.P. Jal Nigam & Anr. ...Respondents
216 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Petitioner:
Desh Deepak Singh, Abhishek Dwivedi, Anilesh
Tewari, Devashish Chauhan, Divyanshu Bhatt,
Shashwat Singh

Counsel for the Respondents:
---

(a) Contract Law - tender document - The
tendering authority who is inviting tenders is
entitled to prescribe reasonable conditions
keeping in mind the kind of person from which
he would like to have the bids so as to ensure
smooth operation of the contract and its
completion without any glitches. If a condition
such as Clause 2.2.4 is included in the tender
document then the intention of the tendering
authority inviting the tender is to avoid
participation of any person against whom there
may be any criminal proceedings or vigilance
enquiry. Such a condition is necessary so as to
ensure that the work is performed by bidder
who has impeccable and impeachable work.
Therefore, such a condition cannot be said to
arbitrary or unreasonable. (Para 8)

Writ Petition Rejected. (E-8)

List of Cases cited:-

1. Manoj Narula Vs U.O.I. 2014 (9) SCC 1
(distinguished)

2. Michigan Rubber (India) Ltd. Vs St. of Karn. &
ors. (2012) 8 SCC 216

(Delivered by Hon'ble 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 ETenders 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 Gujrat 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 chargesheet has been filed against the petitioner's
6 All. M/S Kkspun India Ltd. Vs. U.P. Jal Nigam & Anr.
217
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 ended.
An affidavit to this effect shall be submitted
by the participating agencies / firms.

2.2.5. The bidder shall have to enter
into Integrity Pact with U.P. Jal Nigam, he
should therefore acquaint himself with the
contents of the Integrity Agreement."

7. Petitioner has chosen to challenge
only Clause 2.2.4 whereas Clause 2.2.2
also prohibits any bidder having criminal
record from participation in the bidding
process. It also says that any person who is
having criminal cases against him or
involved in organized crime or gangster
activities or Mafia or Goonda or Antisocial Activities are strictly prohibited to
participate in the bidding process and any
bidder having criminal record, his bid shall
automatically be cancelled.

8. Clause 2.2.4 has already been
referred in the context of relief claimed in the
writ petition. The said clause says that any
Agency/ Firm or its known Partners or
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 Government/
Semi Government/ Board/ Corporation shall
not be considered for award of tender unless
such proceedings have ended. Now it is an
admitted position that a charge-sheet has
been filed in the Court of Special Judge, CBI
West Lucknow against petitioner's officers
under Sections of relevant Statutes as already
referred hereinabove, therefore, by means of
this Clause, petitioner is prohibited from
submitting his tender bid. The only question
to be considered by this Court is as to
218 INDIAN LAW REPORTS ALLAHABAD SERIES
whether this condition is arbitrary and
unreasonable or not? The ruling cited by
counsel for petitioner as rendered by the
Hon'ble Supreme Court in the case of Manoj
Narula vs. Union of India; (2014) 9 SCC 1;
does not relate to a tender document/ contract
matter. It in fact relates to a matter pertaining
to an election to a public Office. Matters of
contract and tender fall in a different realm.
The tendering authority who is inviting
tenders is entitled to prescribe reasonable
conditions keeping in mind the kind of person
from which he would like to have the bids so
as to ensure smooth operation of the contract
and its completion without any glitches. If a
condition such as Clause 2.2.4 is included in
the tender document then the intention of the
tendering authority inviting the tender is to
avoid participation of any person against
whom there may be criminal proceedings or
vigilance enquiry, that is a person regarding
whom there may be a cloud as to its
functioning etc. The fact that such a person
may not have been convicted in the criminal
proceedings is not very material as such a
tendering authority who is inviting the tender
is entitled to have such a condition in the
tender document so as to ensure that the work
is performed by bidder who has impeccable
and unimpeachable record. It can not be said
that such a condition is arbitrary or
unreasonable. In fact, we would like to refer
to a decision, which has been cited by
counsel for the petitioner itself in paragraph
16 of the writ petition i.e. Michigan Rubber
(India) Ltd. vs. State of Karnataka & Ors.
(2012) 8 SCC 216; wherein it has been interalia held in paragraph 19(c)- "In the matter of
formulating conditions of a tender document
and awarding a contract, greater latitude is
required to be conceded to the State
authorities unless the action of tendering
authority is found to be malicious and a
misuse of its statutory powers, interference
by Courts is not warranted; (e) If the State or
is instrumentalities act reasonably, fairly and
in public interest in awarding contract, here
again, interference by Court is very restrictive
since no person can claim fundamental
right to carry on business with the
Government."

9. In paragraph 20 Hon'ble the Supreme
Court has mentioned the questions which a
Court should pose to itself in exercise of
power of judicial review, before interfering in
tender or contractual matters and they are :-
(i) Whether the process adopted or decision
made by the authority is mala fide or
intended to favour someone; or whether the
process adopted or decision made is so
arbitrary and irrational that the court can say:
" the decision is such that no responsible
authority acting reasonably and in accordance
with relevant law could have reached"; and
(ii) Whether the public interest is affected. If
the answers to the above questions are in
negative, then there should be no interference
under Article 226."

10. Apart from the fact that petitioner
has sought a writ of mandamus instead of a
writ of certiorari (which would have been the
appropriate relief) directing the opposite party
to amend Clause 2.2.4, that too, without
challenging other similar Clauses such as
Clause 2.2.2 but, even if, we ignore this
aspect of the matter for a moment, we are of
the opinion that merely because of insertion
of such a condition, it can not be said that the
petitioner has been treated guilty of the
criminal offence alleged that too during
pendency of the criminal proceedings. As
already stated all that such a condition does is
to keep out such persons against whom
vigilance enquiry or criminal proceedings are
pending, which can not be said to be
irrational. The tendering authority is entitled
not to have business dealings with persons
who are undergoing vigilance enquiry or
6 All. Gurmeet Singh Soni(Adv.) Vs. State of U.P. & Ors.
219
criminal proceedings. It is a choice which is
available to the 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, the
petitioner can not compel the opposite parties
to allow a person against whom vigilance
enquiry or criminal proceedings are pending
to participate in the 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
the Supreme Court in the case of Michigan
Rubber (supra).

11. The contention that the condition
has been tailormade to favour certain persons
it does not have the requisite factual
foundation in the writ petition. As already
stated, the condition is neither arbitrary nor
irrational. It can also not be said that it is
against public interest. As observed by the
Hon'ble Supreme Court, greater latitude is
required to be conceded to the State
authorities unless the action of tendering
authority is found to be malicious and a
misuse of its statutory powers, which we do
not find in this case i.e. we do not find any
malice or arbitrariness nor that the condition
has been deliberately inserted to favour any
person. The decisions cited by counsel for
petitioner do not help its cause.

12. For all these reasons, we are not
inclined to interfere in this matter. We
accordingly dismiss this writ petition.
----------
(2021)06ILR A219
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 07.06.2021

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE JASPREET SINGH, J.
P.I.L. Civil No. 11520 of 2021

Gurmeet Singh Soni(Adv.) ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sanjay Awasthi

Counsel for the Respondents:
--

A. Public Interest Litigation-Article 226maintainability of-petitioner raised an
issue regarding award of a contract to
the
private-respondent-petition
not
espousing the cause of any member of a
disadvantageous section of the society
or any person, who is downtrodden or
for certain disabled person, who is
unable to approach the court or that the
matter
in
question
relates
to
infringement or denial of any basic
human
right
to
such
marginalized
section of the society-privte dispute
between two waring groups can not be
entertained
as
public
interest
litigation.(Para 1 to 39)

The PIL dismissed. (E-5)

List of Cases cited:-

1. People's Union for Democratic Rights & ors.
Vs U.O.I. & ors. (1982) 3 SCC 235

2.
Akhil
Bharatiya
Soshit
Karamchari
Sangh(Railway) Vs U.O.I., (1981) 1 SCC 246

3. Bandhua Mukti Morcha Vs U.O.I .& ors.
(1984) 3 SCC 161

4. St. of Uttranchal Vs Balwant Singh Chaufal
& ors.,(2010) 3 SCC 402

5. Tehseen Poonawalla Vs U.O.I .(2018) 6
SCC 72

6. Narendra Kumar Yadav Vs St.of U.P.,(2020)
11 ADJ 637 LB (DB)

(Delivered by Hon'ble Ramesh Sinha, J.)