* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 02.08.2011
+ WP (C) No.4331 of 2011 & CM No. 8869/2011
M/S PATEL ENGINEERING LTD. ...PETITIONER
Through: Mr.Rajiv Nayar, Sr.Advocate
with Mr. Jai Munim, Ms.Shally
Bhasin and Ms.Shikha Sarin,
Advocates.
Versus
UNION OF INDIA & ANR. ...RESPONDENTS
Through: Mr.Neeraj Chaudhri, CGSC
with Mr.Akshay Chandra and
Mr.Mohit Auluck, Advocates
for R-1/UOI.
Mr. Amrinder Sharma, Sr.
Advocate with
Ms. Padma Priya
and
Mr.Somesh Chandra Jha,
Advocates for R-2/NHAI.
CORAM:
HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON‟BLE MR. JUSTICE RAJIV SHAKDHER
1. Whether the Reporters of local papers
may be allowed to see the judgment? Yes
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WP (C) No.4331 of 2011 Page 1 of 25
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be No
reported in the Digest?
SANJAY KISHAN KAUL, J.
1. The National Highways Authority of India (for short
„NHAI‟)/respondent No.1, issued a request for
qualification in November, 2010 for a six-laning project
of Dhankuni-Kharagpur Section of NH-6 from 17,600 to
1,29,000 in the States of West Bengal and Orissa
under the National Highway Development Projects
Phase-V on design, build, finance, operate, transfer
and toll basis. The petitioner, a public limited
company, submitted its bid on 10.01.2011. The bid
submitted by the petitioner and other bidders were
processed and by a letter of award dated 17.01.2011,
respondent no. 2 informed the petitioner that its bid
had been accepted and that the petitioner should
execute the relevant documents in that regard.
2. It is the say of the petitioner that on account of various
factors including amendments, perceived insufficient
time etc., the bid submitted by the petitioner was
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WP (C) No.4331 of 2011 Page 2 of 25
significantly higher than it should have been and thus
the petitioner came to the conclusion on 24.01.2011
that the bid made by it was commercially unviable.
This fact was intimated to respondent no.2 on
24.01.2011 within the period of 7 days prescribed for
the petitioner to execute the necessary documents.
3. As a sequitur to this, respondent no.2 informed other
bidders, and ultimately the contract was awarded to
M/s.Ashoka Buildcon Limited at a much lower premium
of Rs 126.06 crores. We may notice at this stage that
the petitioner had specified a premium of Rs 190.53
crores.
4. All the bidders were to submit a bid security amount of
Rs.13.97 crores. Part „D‟ deals with the bid security
amount. Clause 2.20.6 envisages forfeiture of bid
security amount in the following terms:
“2.20.6 The Authority shall be entitled to
forfeit and appropriate the Bid Security as
Damages inter alia in any of the events
specified in Clause 2.20.7 herein below.The Bidder, by submitting its Bid pursuant
to this RFP, shall be deemed to have
acknowledged and confirmed that the
Authority will suffer loss and damage on
account of withdrawal of its Bid or for any
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WP (C) No.4331 of 2011 Page 3 of 25
other default by the Bidder during the
period of Bid validity as specified in this
RFP. No relaxation of any kind on Bid
Security shall be given to any Bidder.”5. The aforesaid amount was agreed as a genuine pre-
estimate of compensation in respect of the eventuality
set out in the clause 2.20.7. The facts of the case fall
within such an eventuality where a contractor fails to
sign and return a duplicate copy of the LOA. Clause
2.20.7 reads as under:
“2.20.7 The Bid Security shall be forfeited
and appropriated by the Authority as
mutually agreed genuine pre-estimated
compensation and damages payable to the
Authority for, inter alia, time, cost and effort
of the Authority within prejudice to any
other right or remedy that may be available
to the Authority hereunder or otherwise,
under the following conditions:a) If a Bidder submits a non-responsive Bid,
“subject however that in the event of
encashment of bid security occurring due to
operation of para 2.20.7 (a), the damage so
claimed by the authority shall be restricted
to 5% of the value of the bid security.;b) If a Bidder engages in a corrupt practice, fraudulent practice, coercive practice, undesirably practice or restrictive practice as specified in Clause 4 of this RFP;c) If a Bidder withdraws its Bid during the
period of Bid validity as specified in this RFP
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WP (C) No.4331 of 2011 Page 4 of 25
and as extended by mutual consent of the
respective Bidder(s) and the Authority;d) In the case of Selected Bidder, if it fails
within specified time limit –i) To sign and return the duplicate copy of LOA;ii) To sign the Concession Agreement;
oriii) To furnish the Performance Security
within the period prescribed therefor in the
Concession Agreement; ore) In case the Selected Bidder, having signed
the Concession Agreement, commits any
breach thereof prior to furnishing the
Performance Security.”
6. It is in view of the aforesaid facts and circumstances
that respondent no.2 took a decision to encash the
bank guarantee furnished towards the bid security
amount; however in the meanwhile petitioner
addressed a letter dated 01.02.2011 volunteering to
make the payment of Rs.13.97 crores in return of the
bank guarantee; which amount was duly paid vide a
demand draft on 03.02.2011. Thus, the issue of
encashment of the bid security amount stood
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WP (C) No.4331 of 2011 Page 5 of 25
concluded with the said step and both the partiesaccepted the same.
7. The grievance of the petitioner arises out of the
subsequent action taken by respondent no.2 to issue a
show cause notice dated 24.02.2011 to the petitioner
to debar the petitioner for a period of five years from
“pre-qualification, participating or bidding” for future
projects to be undertaken by respondent no.2.
7.1 This show cause notice was replied to by the petitioner
on 01.03.2011, and the impugned letter was issued on
20.05.2011, on the basis of which respondent has
debarred the petitioner for a period of one year
commencing from the date of issue of the letter, i.e.,
20.05.2012 from “pre-qualification, participating or
bidding” for future projects of or to be undertaken by
respondent no.2.
7.2 The petitioner made a representation against such
debarment to the Ministry of Road Transport and
Highways on 28.05.2011, and subsequently filed the
present writ petition on 13.06.2011 under Article 226
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WP (C) No.4331 of 2011 Page 6 of 25
of the Constitution of India making a prayer for
quashing of the letter dated 20.05.2011.
8. The aforesaid grievance has naturally been contested
by respondent no.2. Respondent no.1/UOI has not filed
any separate counter affidavit in this matter.
9. We have heard learned counsel for the parties.
10. It is the say of learned senior counsel for the petitioner
that the forfeiture of the bid security amount
concluded the consequence which the petitioner could
be visited with on its failure to convey the acceptance
in respect of the LOA. In other words the petitioner
could not be penalized any further by being debarred
from participation in future projects undertaken by
respondent no. 2. According to the learned counsel
the order of debarment was in the nature of the
petitioner being blacklisted.
11. The learned counsel in this behalf has drawn our
attention to clause 4.2 which forms part of part 4 with
the heading „Fraud and Corrupt Practices‟. Clause 4.2
reads as under:
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WP (C) No.4331 of 2011 Page 7 of 25
“Without prejudice to the rights of the
Authority under Clause 4.1 hereinabove and
the rights and remedies which the Authority
may have under the LOA or the Concession
Agreement, or otherwise if a Bidder or
Concessionaire, as the case may be, is
found by the Authority to have directly or
indirectly or through an agent, engaged or
indulged in any corrupt practice, fraudulent
practice, coercive practice, undesirable
practice or restrictive practice during the
Bidding Process, or after the issue of the
LOA or the execution of the Concession
Agreement, such Bidder or Concessionaire
shall not be eligible to participate in any
tender or RFP issued by the Authority during
a period of 2(two) years from the date such
Bidder or Concessionaire, as the case may
be, is found by the Authority to have
directly or indirectly or through an agent,
engaged or indulged in any corrupt practice,
fraudulent practice, coercive practice,
undesirable practice, or restrictive
practices, as the case may be.”
12. Learned senior counsel for the petitioner submitted
that the aforesaid clause applied only if the petitioner
indulged in any “corrupt practice”, “fraudulent
practice”, “coercive practice”, “undesirable practice”
or “restrictive practice” during the bid process or after
the issuance of LOA or on the execution of the
Concession Agreement, and that the definition of each
of these expressions provided in clause 4.3 made this
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WP (C) No.4331 of 2011 Page 8 of 25
aspect quite clear. Learned counsel thus submitted
that the case of the petitioner does not fall in any of
the aforementioned practices as defined in clause 4.3
read with clause 4.2.
12.1 A reference was made to following paragraphs of the
show cause notice dated 24.02.2011 to buttress this
point:
“AND WHEREAS subsequent to technical
evaluation, Financial Bids were opened on
13.01.2011 in the presence of the Bidders
representative and it was noted that M/s
Patel Engineering Ltd. had offered the
highest premium of Rs.190.53 Crore for the
said project. Therefore, as per RFP Volume-I,
Clause 3.3.1, M/s Patel Engineering was
declared by the NHAI as the Selected Bidder
and subsequently was issued the letter of
Award (LOA), as per clause 3.3.5 of RFP
Volume-I. Copy of letter dated 17.01.2011 is
enclosed.
AND WHEREAS, M/s Patel Engineering Ltd.,
vide letter No.Hyd/181/NHAI-DK BOT/3326
dated 24.01.2001, had expressed their
inability to accept the LOA, stating that
errors have crept in impacting the bid value
significantly. Copy of letter dated 24.01.2011
is enclosed.
AND WHEREAS, as per Clause 2.20.07(d) of
the RFP, in case the Selected Bidder fails to
accept the LOA, the bid security shall be
forfeited and appropriated by NHAI as
mutually agreed genuine pre-estimated
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WP (C) No.4331 of 2011 Page 9 of 25
compensation as payable to NHAI for, inter-
alia, time, cost and effort of NHAI without
prejudice to any other right or remedy that
may be available to the NHAI thereunder or
otherwise.
AND WHEREAS, in view of your conduct
which has, inter-alia, resulted in delay of
execution of a project of National
importance, a view is made out not to deal
with you in future for participation and/or
award of further projects of NHAI. It needs to
be appreciated that the projects being
undertaken by NHAI are of huge magnitude
and both in terms of manpower and finance
besides being of utmost National
importance, striking at the root of economic
development and prosperity and general
public and a nation as a whole, the NHAI
cannot afford to deal with entities who fail to
perform their obligations as in your case.
AND WHEREAS, in the premises it is
proposed to debar above named noticee for
a period of five years from pre-qualification,
participating or bidding for future projects
of/or to be undertaken by NHAI, either
directly in your name or indirectly in any
other name or in association with any other
person entity in which you may choose to
carry on your business.
In view of the aforesaid, you are hereby
called upon to show cause within 14 days of
the receipt of this notice as to why action as
aforesaid should not be taken against you. If
no reply is received within the said period, it
shall be presumed that you have nothing to
say against the proposed action of NHAI and
NHAI shall be free to take appropriate action
as may be deemed fit in the facts and
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WP (C) No.4331 of 2011 Page 10 of 25
circumstances of the case and as per
applicable law.”
13. It was contended that aforesaid extract from the show
cause notice would reveal that as per respondent no.2,
it was the failure on the part of the petitioner to enter
into the contract after being declared a successful
bidder which occasioned delay in execution of the
project propelling respondent no.2 in coming to a
prima facie view that it would not deal with the
petitioner in respect of its future projects for a period
of time, which was tentatively proposed as five years.
13.1 Learned senior counsel for the petitioner submits that
such a show cause notice could not have been issued
for the reason that it was not envisaged under the
terms and conditions of the invitation to offer and no
such decision ought to have been taken de hors the
contract. This was more so according to the learned
counsel as no guidelines had been provided.
13.2 Learned senior counsel for the petitioner has also drew
our attention to the contents of the final order of
debarment dated 20.05.2011, to demonstrate that the
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WP (C) No.4331 of 2011 Page 11 of 25
debarment order was passed on grounds which did not
find a mention in the show cause notice. The reason
being, according to the learned counsel, to somehow
bring the order of debarment within the four corners of
clause 4.2 read with clause 4.3 of the ITB.
13.3 It is his say that clause 4.3(e) which defines restrictive
practices cannot bring within its ambit allegations of
“pooling” or “malafides”:
“restrictive practice” means forming a
cartel or arriving at any understanding or
arrangement among Bidders with the
objective of restricting or manipulating a
full and fair competition in the Bidding
Process.”
14. In other words it was contended that the allegations
pertaining to “pooling” and “mala fides” were
incorporated in the debarment letter dated 20.05.2011
only as an afterthought with a view to bring the
petitioner with the purview of “restrictive practices”.
15. In order to appreciate the aforesaid submission, we
consider it appropriate to reproduce the relevant
portion of the letter of debarment dated 20.05.2011
which reads as under:
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WP (C) No.4331 of 2011 Page 12 of 25
” In view of your conduct, Show Cause
Notice dated 24.02.2011 was issued to
you seeking your explanation as to why
action should not be taken to debar
above named addresses for a period of
five years from prequalification,
participating or bidding for future
projects of / or to be undertaken by
NHAI, either directly in your name or
indirectly in any other name or in
association with any other person entity
in which you may choose to carry out
your business. In response to the said
Show Cause Notice dated 24.02.2011,
you vide letter dtd.01/03/2011, inter-alia,
stated that minutes of the pre-bid
meeting, which included several
amendment/queries, were
communicated on website of NHAI on
7.1.2011 while bid submission was kept
the next date on 10.01.2011. You also
stated that in the light of the above
notice in the bid clarification, certain
anomalies crept up in bid submission,
which were only discovered subsequent
to the letter of intent being issued.
It is noted that above submission was
also made in your letter dated
24/01/2011, wherein you have accepted
the fact that other bidders also
participated under the similar
circumstances. Further the fact remains
that clarification/amendments
communicated by NHAI were „minor‟ and
cannot be attributed as a cause for
occurrence of an „error‟ of „major‟ nature
and magnitude. With project facilities
clearly spelt out in the RFP document,
the project cost gets frozen well in
advance and similarly traffic assessment
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WP (C) No.4331 of 2011 Page 13 of 25
& projections, which largely impact the
financial assessment, are also not
expected to be left out for last few days
of bid submission. Therefore, stating that
an „error‟ of this nature and magnitude
occurred is neither correct nor justified.
It is to be noted that your actof non-
acceptance of LOA has resulted in huge
financial loss, to the tune of Rs.3077
crores, as assessed over the life of
concession period, in terms of lower
premium, apart from cost of the time
and effort, to NHAI. It is further noted
that this is the first case where a bidder
has not accepted the LOA, and warrants
exemplary action to curb any practice of
„pooling‟, and „malafide‟ in future.
After considering all material facts, and
your reply in response to the Show
Cause Notice, NHAI is of the considered
view that no justifiable grounds have
been made out in support of your action
of non-acceptance of LOA. Keeping in
view the conduct of the addresses, NHAI
find that they are not reliable and
trustworthy and have caused huge
financial loss to NHAI. Therefore, it is
hereby informed that without prejudice
to any other rights available to NHAI in
terms of the provision of RFP document
and/or the applicable law, you the above
named addresses are hereby barred
from prequalification, participating or
bidding for future projects of / or to be
undertaken by NHAI, either directly in
your name or indirectly in any other
name or in association with any other
person entity in which you may choose
to carry out your business for a period
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WP (C) No.4331 of 2011 Page 14 of 25
of one year from the date of issue of
this letter.”
16. The aforesaid apart, the petitioner is also aggrieved by
the website display of respondent no.2 where the
name of the petitioner is shown with the remark „the
applicant has been debarred by NHAI‟. He thus
submits that this may have an effect on the other
tenders issued by third parties, in which, the petitioner
may want to participate.
17. The last aspect urged by learned counsel for the
petitioner is that without prejudice to the aforesaid,
the punishment imposed on the petitioner is
disproportionate, and such a decision of debarment
can form subject matter of adjudication under Article
226 of the Constitution of India in view of the
judgment of the learned Single Judge of this Court in
M/s V.K.Dewan and Co. v. Municipal Corporation of
Delhi & Ors.; AIR 1994 Delhi 304.
18. On the other hand, learned senior counsel for
respondent no.2 has pointed out to us that all that the
respondent no.2 has done is to take a decision not to
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WP (C) No.4331 of 2011 Page 15 of 25
deal with the petitioner for a period of one year on
account of the petitioner having backed out at the last
minute from entering into the contract. The parties
participating in such bids are well experienced and the
petitioner is one such party, which is in fact a public
limited company, and which has been participating in
various tenders including that of respondent no.2. The
difference between the petitioner as H-1 and H-2 to
whom ultimately the contract was awarded is quite
large (i.e., a differential itself amounting to Rs.64
crores). Since the bid security forfeiture term in the
contract provided for a pre-estimate of damages, only
that amount was forfeited, i.e., a sum of Rs.13.97
crores. Learned counsel has referred to the final order
passed by respondent no.2 to contend that it is a first
case where a bidder has not executed LOA, and
respondent no.2 as a prudent commercial party is
entitled to take a decision to discourage such practice
in future by contractors like the petitioner. The
decision taken by respondent no.2 is a prudent
commercial decision not to deal with a contractor like
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WP (C) No.4331 of 2011 Page 16 of 25
the petitioner for a limited period of one year and that
the position could be no different only because
respondent no.2 is a public sector enterprise. A
decision, such as the one taken by respondent no. 2,
would not have been called into question if a private
party had decided not to deal with such relcalcitrant
entity.
19. It is the say of learned counsel for respondent no.2
that the debarment is for a short period of time
keeping in mind the nature of contracts which are
entered into by respondent no.2. Learned senior
counsel for respondent no.2 states that clause 4.2 has
no role to play in the present case, and that the
decision taken by it is de hors the same in view of
clause 2.20.7 which states that the encashment of the
bid security amount is „without prejudice to any other
right or remedy that may be available to the
authority”.
20. We find the action of respondent no.2 is completely
justified and in accordance with law. The petitioner, a
corporate entity, knew the nature of bid it was making.
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WP (C) No.4331 of 2011 Page 17 of 25
It made a bid for RS 190.57 crores. On having found
out that the next highest bid of H-2 was for Rs.126.06
crores (as revised), though the original bid was even
lower, it had a second thought and under the garb of
ostensibly re-visiting a business decision withdrew
from the tender. It naturally bore the financial
consequences of the bid security amount being
forfeited without any demur or protest. What the
petitioner seeks by way of the present writ petition is a
right to continue to participate in the tenders to be
issued of respondent no.2 in the near future despite
the aforesaid conduct. We cannot lose sight of the
fact that respondent no.2 is dealing with highway
projects all over the country which are of critical
national importance both in terms of their economics
and logistical relevance. Expeditious construction of
road links is an important part of infrastructure
development of the country. Any delay in such
infrastructure projects is a national waste. In such a
situation for the petitioner to have withdrawn at the
last minute, ostensibly on the ground of prudent
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WP (C) No.4331 of 2011 Page 18 of 25
commercial decision can certainly invite the
consequences of the tenderer declining to deal with
such an entity for a specified period of time. Learned
senior counsel for respondent no.2 has rightly
contended that but for the fact that the said
respondent is a public sector undertaking such a
decision would have passed muster of the court on the
ground of business expediency. The fact that
respondent no.2 is a public sector undertaking ought
not to disable it from taking a commercially prudent
and if you take an expedient decision in its own
interest. It is not the function of this Court to interfere
with such a decision which impinges on its business
efficacy merely because it happens to be taken by a
public sector undertaking which, in the instant case,
happens to be respondent no.2. The order of the
respondent no.2 also notes that this is a first instance
of its kind. The reference of „pooling‟ and „mala fide‟ is
made in that context, and as clarified by learned
counsel for respondent no.2, not to bring it within the
parameters of clause 4.2.
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WP (C) No.4331 of 2011 Page 19 of 25
21. In our considered view, such an action by respondent
no.2, in the given facts and circumstances of the case,
is a decision which any prudent businessman placed in
a similar situation would naturally have taken to deter
such like entities from conducting themselves in a
manner, to say the least, which is unbusinessman like.
In such circumstances, it would be both unfair and
unreasonable for the court to issue a direction
requiring respondent no. 2 to deal with a person (i.e.,
the petitioner) who had no qualms in ditching the
project at the nth hour.
22. We are also unable to accept the submission of
learned senior counsel for the petitioner that adequate
opportunity was not granted to the petitioner to
defend its case since an oral hearing was not accorded
to the petitioner. A right of personal hearing is not an
inbuilt right in such like proceedings especially given
the peculiar facts of the case, which stand unrebutted.
In this regard, we draw strength from the observations
of the Supreme Court in Union of India & Anr. v. Jesus
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WP (C) No.4331 of 2011 Page 20 of 25
Sales Corporation; (1996) 4 SCC 69 where para 5
reads as under:
5. The High Court has primarily considered the
question as to whether denying an opportunity
to the appellant to be heard before his prayer
to dispense with the deposit of the penalty is
rejected, violates and contravenes the
principles of natural justice. In that
connection, several judgments of this
Court have been referred. It need not be
pointed out that under different
situations and conditions the requirement
of compliance of the principles of natural
justice vary. The courts cannot insist that
under all circumstances and under
different statutory provisions personal
hearings have to be afforded to the
persons concerned. If this principle of
affording personal hearing is extended
whenever statutory authorities are vested
with the power to exercise discretion in
connection with statutory appeals, it shall
lead to chaotic conditions. Many statutory
appeals and applications are disposed of
by the competent authorities who have
been vested with powers to dispose of the
same. Such authorities which shall be
deemed to be quasi- judicial authorities
are expected to apply their judicial mind
over the grievances made by the
appellants or applicants concerned, but it
cannot be held that before dismissing
such appeals or applications in all events
the quasi- judicial authorities must hear
the appellants or the applicants, as the
case may be. When principles of natural
justice require an opportunity to be heard
before an adverse order is passed on any
appeal or application, it does not in all
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WP (C) No.4331 of 2011 Page 21 of 25
circumstances mean a personal hearing.
The requirement is complied with by
affording an opportunity to the person
concerned to present his case before such
quasi-judicial authority who is expected to
apply his judicial mind to the issues
involved. Of course, if in his own discretion if
he requires the appellant or the applicant to be
heard because of special facts and
circumstances of the case, then certainly it is
always open to such authority to decide the
appeal or the application only after affording a
personal hearing. But any order passed
after taking into consideration the points
raised in the appeal or the application
shall not be held to be invalid merely on
the ground that no personal hearing had
been afforded. This is all the more important
in the context of taxation and revenue matters.
When an authority has determined a tax
liability or has imposed a penalty, then the
requirement that before the appeal is heard
such tax or penalty should be deposited cannot
be held to be unreasonable as already pointed
out above. In the case of Shyam Kishore v.
Municipal Corporation of Delhi (supra) it has
been held by this Court that such requirement
cannot be held to be harsh or violative of
Article 14 of the Constitution so as to declare
the requirement of pre-deposit itself as
unconstitutional. In this background, it can be
said that normal rule is that before filing the
appeal or before the appeal is heard, the
person concerned should deposit the amount
which he has been directed to deposit as a tax
or penalty. The non-deposit of such amount
itself is an exception which has been
incorporated in different Statutes including the
one with which are concerned. Second proviso
to Sub-section (1) of Section 4-M says in clear
and unambiguous words that an appeal against
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WP (C) No.4331 of 2011 Page 22 of 25
an order imposing a penalty shall not be
entertained unless the amount of the penalty
has been deposited by the appellant.
Thereafter the third proviso vests a discretion
in such Appellate authority to dispense with
such deposit unconditionally or subject to such
conditions as it may impose in its discretion
taking into consideration the undue hardship
which it is likely to cause to the appellant. As
such it can be said that the statutory
requirement is that before an appeal is
entertained, the amount of penalty has to be
deposited by the appellant; an order dispensing
with such deposit shall amount to an exception
to the said requirement of deposit. In this back-
is ground, it is difficult to hold that if the
Appellate authority has rejected the prayer of
the appellant to dispense with the deposit
unconditionally or has dispensed with such
deposit subject to some conditions without
hearing the appellant, on perusal of the petition
filed on behalf of the appellant for the said
purpose, the order itself is vitiated and liable to
be quashed being violative of principles of
natural justice.
(emphasis is ours)
23. We also do not find that the consequences
stipulated in the impugned letter are disproportionate
when examined in the context of the conduct of the
petitioner. The case referred to by learned senior
counsel for the petitioner in V.K.Dewan and Co. v.
Municipal Corporation of Delhi & Ors.‟s case (supra)
was a case where period of debarment imposed was
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WP (C) No.4331 of 2011 Page 23 of 25
three years. The aspect of proportionality has to be
examined in the context of the facts and
circumstances arising in a given case. In the present
case, after proposing a debarment for a period of five
years, the decision taken by respondent no.2 is of
debarment of petitioner for a year from participating in
the tenders to be issued by respondent no.2 within the
said time frame. The effect of the petitioner
withdrawing from the contract is that the respondent
no.2 has suffered a loss of Rs 64 crores per year to
begin with, and thereafter, on an extrapolated scale,
spread over a period of 25 years, the loss is pegged at
Rs.3077 crores; as set out in the final order. The
respondent no.2 was thus well within its rights to take
appropriate action against the petitioner, and taking
into consideration the enormity of the loss, we are of
the considered view that respondent no.2 has dealt
with the petitioner rather lightly.
24. Insofar as the display on website is concerned, the
same is only stating a fact that respondent no.2 has
taken a decision to debar the petitioner from further
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dealing for a period of one year. It is not a debarment
qua any third party. It is for the third parties to take an
informed decision whether they would like to deal with
the petitioner keeping in mind the conduct of the
petitioner qua respondent no.2. We can only sum up
by noting that the consequences which flowed in this
case pursuant to the conduct of the petitioner are
those, which are of, the petitioner‟s own making; it has
no one else to blame but itself.
25. We find the writ petition devoid of both merit and
substance and hence dismiss the same with costs
quantified at Rs.1,00,000/-.
26. Interim order stands vacated.
SANJAY KISHAN KAUL, J.
AUGUST 02, 2011 RAJIV SHAKDHER, J. dm
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