# M/s SPML Infra Ltd., New Delhi v. State of U.P. & Ors

- **Citation:** (2021) 11 ILRA 357
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-09-20
- **Case number:** Writ-C No. 21099 of 2021
- **Bench:** Manoj Kumar Gupta, Deepak Verma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-spml-infra-ltd-new-delhi-v-state-of-u-p-ors-46550
- **Pages:** 4

## Headnote

A. Civil Law - Auction - Tender process -
Requirement
of
past
experience
-
Concealment of the fact regarding termination
of earlier work for poor performance - Effect -
Purpose of past experience explained - Held,
the
requirement
of
furnishing
proof
of
experience is to judge capability of the bidder
on two aspects. Firstly, the purpose is to
ascertain
whether
the
bidder
had
the
capability
to
successfully
undertake
and
complete the work under the contract in terms
of its quality. It is for the said reason that
previous experience should be in relation to
'completed work'. Second aspect is to make
qualitative assessment - whether the bidder
had experience of undertaking work of such
magnitude - High Court found no illegality in
the decision of the respondents in declaring
the petitioner as disqualified to participate in
the tender process. (Para 10)
Writ petition disposed of. (E-1)

## Text

11 All. M/s SPML Infra Ltd., New Delhi Vs. State of U.P. & Ors.
357
permissible should not be delayed. Therefore,
whenever a dispute arises in respect of the route
of an electricity line the same should be
addressed with utmost expedition so that the
supply of electricity is not indefinitely stalled.
Thus, where objections are considered and
rejected, unless there is perversity in its
consideration and rejection, ordinarily, such a
decision
should
not
be
interfered
with,
particularly, where the affected party has been
heard before the decision. More so, because the
person affected can be monetarily compensated.

19. Accordingly, for all the reasons
recorded above, we do not find any merit in this
petition and the same is dismissed.
----------
(2021)11ILR A357
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.09.2021

BEFORE

THE HON'BLE MANOJ KUMAR GUPTA, J.
THE HON'BLE DEEPAK VERMA, J.

Writ-C No. 21099 of 2021

M/s SPML Infra Ltd., New Delhi ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Raghav Dev Garg, Sri Anurag Khanna (Senior
Adv.)

Counsel for the Respondents:
C.S.C., Sri Kaushalendra Nath Singh

A. Civil Law - Auction - Tender process -
Requirement
of
past
experience
-
Concealment of the fact regarding termination
of earlier work for poor performance - Effect -
Purpose of past experience explained - Held,
the
requirement
of
furnishing
proof
of
experience is to judge capability of the bidder
on two aspects. Firstly, the purpose is to
ascertain
whether
the
bidder
had
the
capability
to
successfully
undertake
and
complete the work under the contract in terms
of its quality. It is for the said reason that
previous experience should be in relation to
'completed work'. Second aspect is to make
qualitative assessment - whether the bidder
had experience of undertaking work of such
magnitude - High Court found no illegality in
the decision of the respondents in declaring
the petitioner as disqualified to participate in
the tender process. (Para 10)
Writ petition disposed of. (E-1)

(Delivered by Hon'ble Manoj Kumar Gupta, J.
&
Hon'ble Deepak Verma, J.)

1. Heard Sri Anurag Khanna, learned
Senior Counsel, assisted by Sri Raghav Dev
Garg for the petitioner, learned Standing
Counsel for respondent 1 and Sri Kaushalendra
Nath Singh for respondents 2 and 4. With their
consent, the writ petition is being disposed of
finally, without inviting a formal counter
affidavit.

2.

The
petitioner,
an
incorporated
Company, has preferred the instant writ petition
being aggrieved by a communication dated
23.6.2021, issued by the fourth respondent,
informing the petitioner-Company that it stands
disqualified and precluded from participating in
the tender process in future also, as it had
furnished wrong information relating to its
previous experience. The petitioner has also
prayed for a mandamus directing the second
respondent to issue LOI, execute agreement and
work orders in its favour, being the lowest
bidder (L1).

3. The second respondent, i.e. New Okhla
Industrial Development Authority (NOIDA),
issued a notice on 24.3.2021, inviting tenders for
providing and fixing smart water meters with set
up of Advanced Metering Infrastructure (AMI)
358 INDIAN LAW REPORTS ALLAHABAD SERIES
in pilot project area with 10 years O&M. The
last date for submission of bids was 30.3.2021.
The petitioner-Company had submitted its bid
on 26.3.2021. The tender process comprised of
two stages, i.e. technical round and financial
round.
One
of
the
requirements
for
prequalification of tender was submission of
proof of previous experience. Clause 10 which
stipulates nature of proof to be submitted is as
follows: -

"10. Proof of previous experience:

(1) Experience of having successfully
completed works during the last 7 years ending
last day of the month previous to the one in
which applications are invited with Govt./Semi
Govt./PSU only:

Or

Three similar completed works costing
not less than the amount equal to 60% of
estimated cost put to tender

Or

One similar completed works of
aggregate cost not less than the amount equal to
80% of estimated cost put to tender

(2) Experience of having successfully
completed works during the last 7 years ending
last day of the month previous to the one in
which applications are invited."

4. The petitioner-Company submitted
Experience Certificate dated 5.2.2021, issued by
Executive Engineer (Project) Water - I, Delhi Jal
Board, Govt. of NTC of Delhi, certifying that it
had satisfactorily completed the work of supply
and installation of water meters described
therein and completed maintenance of those
meters for a period of approximately six years
from its installation. The value of the work said
to have been done was Rs. 67,14,09,841/-. The
petitioner was declared to have qualified
technical bid and was permitted to participate in
the second stage, i.e. financial round. In all,
there were three bidders, out of whom, the bid of
the petitioner was the lowest. As per the
tendering process, the solvency and experience
certificate of the petitioner were sent for
verification to the issuing authority. In response
thereto, the Superintending Engineer (Project)
W - II, Delhi Jal Board, vide e-mail dated
10.6.2021 informed the second respondent that
the contract of the petitioner-Company for
supply, installation and seven years maintenance
of 15mm size AMR/Non AMR Water Meters, in
respect of which, it had submitted Experience
Certificate dated 5.2.2021, was terminated vide
letter dated 28.11.2019 for poor performance.
The petitioner-Company had obtained a stay
order against the termination order from the
court of District and Sessions Judge, South East
Saket, New Delhi and the matter is sub judice.
Consequently, the Experience Certificate issued
by Executive Engineer (Project) dated 5.2.2021,
stands withdrawn in respect of satisfactory
performance of the work. The petitioner
submitted representation dated 14.6.2021 against
the communication (e-mail) of Delhi Jal Board
dated 10.6.2021. The technical committee
considered the representation of the petitioner,
but decided to disqualify the petitioner. It was
communicated to the petitioner by the order
impugned.

5. By means of an amendment application,
the petitioner has challenged the fresh e-tender
notice issued on 13.9.2021, pertaining to the
same work.

6. The amendment application is allowed,
being consequential to the main relief sought in
the writ petition.

7. Sri Anurag Khanna, learned counsel
appearing on behalf of the petitioner, submitted
that the impugned decision is illegal on two
grounds. Firstly, that the order terminating the
contract by Delhi Jal Board, is admittedly stayed
by a court of competent jurisdiction and
therefore any decision of Delhi Jal Board
withdrawing the Experience Certificate, would
11 All. M/s SPML Infra Ltd., New Delhi Vs. State of U.P. & Ors.
359
itself be illegal. Second, it is submitted that it is
not disputed even by Delhi Jal Board that the
petitioner had completed work of value of Rs.
67,14,09,841/-, which was much more than 80%
of the value of present tender. Consequently, the
petitioner possesses requisite experience as per
Clause 10.

8. Sri Kaushalendra Nath Singh, learned
counsel for respondents 2 and 4, on instruction,
submitted that according to Clause 10, "one
similar completed work of aggregate cost not
less than the amount equal to 80% of the
estimated cost put to tender", would not mean
that the work done should exceed 80% of the
cost of work done, or the estimated cost of the
work put to tender. It would mean that the
experience should be in relation to a completed
work, the aggregate value whereof should not be
less than an amount equal to 80% of estimated
cost of the present tender. He further submitted
that the petitioner has been declared disqualified
not only for the reason that he did not have
previous experience in terms of Clause 10, but
also for not disclosing correct facts and making
attempt to mislead the Authority by procuring
the Experience Certificate which is vague and
did not reflect the fact that the contract with
Delhi Jal Board was cancelled for unsatisfactory
work and the petitioner had been working on
basis of a stay order.

9. The facts which are not in dispute are
that the petitioner had a contract in its favour
from Delhi Jal Board and whereunder, it was
required to perform a similar kind of work. It is
also not in dispute that the petitioner had
completed more than 80% of the total value of
the contract awarded in its favour by Delhi Jal
Board. Its value is also more than 80% of the
estimated cost put to tender by the second
respondent. The main question is whether on
basis of the petitioner having completed more
than 80% of the work awarded to it by Delhi Jal
Board, it was qualified to participate in the
tender process in question or not. The own case
of the petitioner is that it would fall under a last
portion of Clause 10 of the Tender Document,
which envisages "One similar completed works
of aggregate cost not less than the amount equal
to 80% of estimated cost put to tender". The
total value of the project as per Tender
Document is Rs. 9,46,52,321.38. 80% of the
said value is Rs. 7,57,21,900/-, in term of Clause
10 of the Tender Document. Concededly, the
work done by the petitioner with Delhi Jal Board
was of much more value than that was required.
However, as per stipulation, the experience of
work should be in relation to a completed work
and not work which is yet to be completed.
Clause 10 gives three different options to
bidders in relation to nature of past experience.
However, the common feature in all the three
options is that the experience certificate should
be in relation to a 'completed work'. Since it is
not in dispute that the work of the petitioner with
Delhi Jal Board is still not complete and
therefore, the first part of the stipulation under
Clause 10, is not met and thus the petitioner
would not qualify in terms of work experience.

10. The impugned order has been passed
primarily on the ground that the petitioner had
concealed correct facts relating to its past
experience as it was not disclosed that contract
with Delhi Jal Board was terminated by it on
account of poor performance. Albeit there is a
stay order in favour of the petitioner against the
order terminating the contract and in terms
whereof, it may have been permitted to
undertake the remaining work, but the fact
remains that the earlier contract was terminated
on ground of poor performance. The matter is
still stated to be pending before the District and
Sessions Judge, South East Saket, New Delhi
and thus, it has yet to be decided as to whether
work done under the contract was of poor
quality or not. The requirement of furnishing
proof of experience is to judge capability of the
bidder on two aspects. Firstly, the purpose is to
360 INDIAN LAW REPORTS ALLAHABAD SERIES
ascertain whether the bidder had the capability
to successfully undertake and complete the work
under the contract in terms of its quality. It is for
the said reason that previous experience should
be in relation to 'completed work'. Second aspect
is to make qualitative assessment - whether the
bidder had experience of undertaking work of
such magnitude. That is why there is stipulation
regarding the monetary value of previous work.
The fact that the work in respect of which
experience
certificate
was
furnished
was
terminated for poor performance, was thus an
important factor, while adjudging the capability
from the qualitative point of view. The technical
committee thus cannot be faulted for declaring
the petitioner disqualified as soon as the fact
relating to cancellation of previous contract
came to its knowledge. At the same time, it
cannot be said that the petitioner was guilty of
furnishing
any
wrong
information,
as
concededly the extent of work done with the
Delhi Jal Board, is not in dispute. We thus do
not find any illegality in the decision of the
second and fourth respondents in declaring the
petitioner as disqualified to participate in the
tender process. The apprehension expressed by
learned Senior Counsel appearing for the
petitioner that stipulation in the impugned order
that the petitioner will not be permitted to
participate in future amounts to black listing the
petitioner, is unfounded. Sri Kaushalendra Nath
Singh, learned counsel for second respondent,
on instructions, has clarified that the said
stipulation would not preclude the petitioner
from participating in other tenders that may be
floated by the second respondent in future.
However, in respect of present work, as held
above, the petitioner did not possess requisite
experience, therefore is not qualified to
participate
in
the
same.
As
the
same
qualification applies to fresh tender notice dated
13.9.2021, the challenge to it, also fails.

11. In the end, we would like to record the
statement of Sri Kaushalendra Nath Singh,
learned counsel appearing on behalf of the
second
and
fourth
respondents
that
the
interpretation made by us above, will be
uniformly applied to all the bidders and in case
none qualifies as per the said interpretation, they
will not proceed any further in pursuance of the
fresh tender notice. However, as prayed by Sri
Kaushalendra Nath Singh, liberty is reserved in
favour of the second respondent to relax
stipulation relating to previous work experience
in future, if they still do not get a bidder who
meets the above requirements. In such an event,
the petitioner shall also be entitled to participate
in the tender process and its bid will be
evaluated as per new norms without being
influenced by the impugned order, or any
observation made in the instant order.

12. The writ petition stands disposed of
accordingly.
----------
(2021)11ILR A360
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.10.2021

BEFORE

THE HON'BLE SAURABH SHYAM SHAMSHERY, J.

Writ C No. 22299 of 2021

Regional Manager & Anr. ...Petitioners
Versus
Prabhu Dayal & Anr. ...Respondents

Counsel for the Petitioners:
Sri Awadhesh Kumar Saxena, Sri Avijit Saxena

Counsel for the Respondents:
C.S.C., Sri Aditya Vardhan Singh, Sri Samir
Sharma

A. Labour Law - Termination order passed after
domestic
inquiry,
upheld
in
Appeal
and
Revision - Industrial dispute raised after
reference to the Labour court - Doctrine of res
judicata - Application - Maintainability of