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IN THE HIGH COURT OF DELHI AT NEW DELHI - page 19 / 20

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disqualification, but there was not a whisper in any of these letters that the Petitioner had incurred disqualification in this regard. This conduct of the Petitioner by itself disentitles it to the grant of discretionary relief under Article 226 of the Constitution of India. 14. Therefore, we find no merit in the submission made by the Petitioner to the effect that it had put NHAI to notice of the cross holding merely on the ground of having furnished documents in this respect at the time of applying for the tender. In so far as the submission with regard to the NHAI not having followed the principles of natural justice in disqualifying the Petitioner is concerned, suffice to observe that under the provisions of the RFQ as well as the RFP, the NHAI could forthwith disqualify an applicant or a bidder at any time upon discovery or uncovering of any material misrepresentation or violation of any condition stipulated by the RFQ or the RFP. Even otherwise in the present case, before the NHAI could seek an explanation in this respect from the Petitioner, based on the representations of the other bidders, the Petitioner itself wrote a letter dated 8th January, 2009 to the NHAI clarifying its stand in this regard. 15. The Petitioner also contended that it did not suffer any disqualification at the stage of the RFP, since the consortium led by IDFC with Abertis as a partner did not participate in the stage of submission of RFP. In this behalf it is observed that under the provisions of Clause 1.2.2 of the RFP, all the shortlisted applicants remained ‘bidders’ regardless of whether they had submitted the RFP or not. 16. Lastly, on behalf of the Petitioner, it was urged that the stipulations contained in the tender ought to read pragmatically and consequently read down. In this behalf it would serve us well to remember the observations made by the Supreme Court in West Bengal State Electricity Board vs. Patel Engineering Co. Ltd.(Supra), where it was held that “It is essential to maintain the sanctity and integrity of process of tender/bid and also award of a contract……… In a work of this nature and magnitude where bidders who fulfil prequalification alone are invited to bid, adherence to the instructions cannot be given a go-by by branding it as a pedantic approach, otherwise it will encourage and provide scope for discrimination, arbitrariness and favouritism which are totally opposed to the rule of law and our constitutional values. The very purpose of issuing rules/instructions is to ensure their enforcement lest the rule of law should be a casualty. Relaxation or waiver of a rule or condition, unless so provided under the ITB, by the State or its agencies (the appellant) in favour of one bidder would create justifiable doubts in the minds of other bidders, would impair the rule of transparency and fairness and provide room for manipulation to suit the whims of the State agencies in picking and choosing a bidder for awarding contracts as in the case of distributing bounty or charity. In our view such approach should always be avoided………. We have, therefore, no hesitation in concluding that adherence to the ITB or rules is the best principle to be followed, which is also in the best public interest”. 17. It is also observed that in the event of any disqualification under the provisions of Clause 2.6.2, the NHAI had reserved the power and authority to invite the remaining Bidders to submit bids in accordance with Clause 3.3.3 of the tender. 18. For the foregoing reasons we find that the present writ petition is devoid of merits and accordingly dismiss the same. However, the Petitioner shall deposit the actual cost incurred by the NHAI towards litigation expenses in the sum of Rs.7,36,670/- with the Registry of this Court within a period of four weeks from today. 19. List for compliance on 11th May, 2009.

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