1 2025:CGHC:17502-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WPC No. 1842 of 2025 Rozeus Airport Retail Limited A Company Incorporated Under Companies Act, 2013, Having Its Registered OfÏce At D - 73/1, Ttc Industrial Area, Midc Turbhe, Navi Mumbai, Maharashtra 400705, Through Its Authorized Signatory Shrijith Nair, S/o Lt. P.C.S. Nair, Aged About 38 Years, R/o 902, Sumukha, Chs, Plot No. 6, Sectror 35-I, Kharghar, Navi Mumbai Maharashtra. ... Petitioner(s) versus 1. Union of India Represented By Its Secretary, Ministry of Civil Aviation, Government Of India, Block B, Rajiv Gandhi Bhawan, Safdarjung Airport Area, New Delhi 110003. 2. Airports Autority Of India Represented By Its Chairman, Rajiv Gandhi Bhawan, Safdarjung Airport Area, New Delhi 110003. 3. Executive Director (Comercial) Airports Authority Of Inida, Rajiv Gandhi Bhawan, Safdarjung Arirport, New Delhi 110003. 4. Airport Director Airports Authority Of India, Swami Vivekananda Airport, Raipur C.G. 492015. 5. Mahesh Sunny Enterprises Private Limited Through Its Managing Director, OfÏce No. 2, Basement L - 322, Mahipalpur Extension, New Delhi 110037. ...Respondent(s) 2 For Petitioner : Mr. Kshitij Sharma, Advocate. For Respondent No. 1 : Ms. Anmol Sharma, Central Government Counsel. For Respondents No. 2 to 4 : Mr. Aman Saxena, Advocate For Respondent No. 5 : Mr. Kishore Bhaduri, Senior Advocate, assisted by Mr. Aman Pandey, Advocate. Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Arvind Kumar Verma , Judge Order on Board Per Ramesh Sinha , Chief Justice 16/ 0 4/ 202 5 1. Proceedings of this matter have been taken through video conferencing. 2. Heard Mr. Kshitij Sharma, learned counsel for the petitioner. Also heard Mr. Anmol Sharma, learned Central Government counsel, appearing for respondent No. 1/Union of India, Mr. Aman Saxena, learned counsel, appearing for respondents No. 2 to 4 and Mr. Kishore Bhaduri, learned Senior Advocate, assisted by Mr. Aman Pandey, learned counsel, appearing for respondent No. 5. 3. The present writ petition has been filed by the petitioner with the following prayers: “10.1 The Hon’ble Court may kindly be pleased to issue writ/order/direction quashing the impunged communication 11.09.2024 (Annexure P/1) and all consequential communication thereform. 3 10.2 The Hon’ble Court may kindly be pleased to issue writ/order/direction of appropriate nature directing the respondent No. 4 to declare the petitioner as H-1, consequent to the disqualification and termination of letter of award issued in a favour of respondent No. 5. 10.3 The Hon’ble Court may kindly be pleased to issue writ/order/direction of appropriate nature directing the respondents to process the bid of the petitioner and issue the letter of award w.r.t. the subject tender, for it being H-2 and the H-1 (respondent No. 5) being disqualified. 10.4 The Hon’ble Court may kindly be pleased to grant any other relief/pass appropriate orders in the interest of justice.” 4. The facts, in brief, as projected by the petitioner is that the petitioner is a Company incorporated under the provisions of the Companies Act, 2013 engaged in the business of operating retail outlets at Agartala, Bhopal, Imphal and Vijaywada International Airport under the terms and concession/licence agreements entered into with respondent No. 2. 5. On 27.06.2024, the respondent No. 4 issued a Notice of Inviting E- Tender (for short, the NIT) for license for Executive Lounge and Meet & Greet Services at Raipur Airport bearing E-Tender No. 2024_AAI_199609_1, inviting interested parties to submit their respective proposal/bids in response to the NIT. The said NIT was published in the website of Government eMarketplace-Central Public Procurement Portal (www.etenders.gov.in) ("E-tender Portal"). In order to gain access to the NIT, the interested party was required to create a profile in the E-tender Portal and as per the requirements/guidelines provided in the NIT, upload all necessary documents in support of its technical and financial 4 qualification. The NIT had specified various critical dates, which had to be adhered to by an interested party to successfully participate in the tender process, the most important being submission of the documents on or before the bid submission end date, which as per the NIT was 19.07.2024 at 3:00 p.m. (extended from 18.07.2024 at 3:00 p.m.). 6. The petitioner participated in the said tender process and submitted all the necessary documents as was required as per the NIT before the deadline specified therein. Pursuant to submission of the requisite documents by the petitioner and closures of bid submission end date, the petitioner upon accessing the E-tender Portal and also through industry sources learnt that along with petitioner, total of 07 bidders had participated in the tender process. The technical bids of the parties were opened by respondent No. 4 on 22.07.2024 and the financial bid was to be opened on 27.08.2024 at 3.30 p.m. 7. Learned counsel for the petitioner submits that on 27.08.2024, the petitioner accessed the E-tender Portal when it learnt that on the same date, a duly constituted Committee of respondent No. 4 has undertaken Technical Evaluation of the bids and qualified all the participants. Along with the technical evaluation of the bids, the petitioner understands that the respondent No. 4 also opened the financial bid and uploaded the BOQ summary detailing the financial bids of all the participants, upon perusal of which the petitioner learnt that it was ‘H2’ in the tender process and that respondent No. 5-Mahesh Sunny Enterprises Private Limited has outbid the petitioner by a very close margin of Rs. 65,555/-. Thus, the petitioner was only next to the respondent No.5, who was otherwise disqualified to participate in the tender and upon making enquiries on the antecedents of 5 respondent No. 5, the petitioner further learnt through industry sources that respondent No. 5 herein is an associated entity of a Company, namely, Saptagiri Restaurants Private Limited ("SRPL"), which is debarred from participating in the tenders floated by the respondent No. 2 for a period of three years, effective from 20.12.2023 for being found guilty of engaging in collusive bidding. The said debarment order was issued by the respondent No. 3 vide its letter dated 20.12.2023 bearing reference number CL-11047/3/2020-COMMERCIAL/238 and a perusal of paragraph 7 therein clearly demonstrates that the debarment by respondent No. 3 was made applicable on SRPL and its allied firms/partners/subsidiaries/JV (if any), meaning thereby that the debarment from participating in the tenders floated by respondent No. 2 was also applicable on respondent No. 5 for its participation in the present NIT. Since the debarment on SRPL was made applicable to all its allied firms (including respondent No. 5 herein), the respondent No. 4 ought not to have technically qualified respondent No. 5 and should have declared the petitioner as ‘H-1’. He further submits that there is direct nexus between SRPL and the respondent No. 5, and to permit respondent No. 5 to participate in the tender process virtually amounts to allowing SRPL to participate in tenders despite debarment. Thus, the technical bid of the respondent No. 5 should have been rejected summarily, more-so when the ofÏces of respondent No. 2 at various Airports have been disqualifying respondent No. 5 from participation in various tenders in view of the debarment order dated 20.12.2023 (Annexure P/8) issued by the respondent No. 3. 8. It is further contended by Mr. Sharma that the tender floated by 6 respondent No. 4 at Raipur Airport also consisted of clauses which would have led to disqualification of the respondent No. 5. The ‘Disclaimer’ clearly stated that the applicant shall be wholly responsible for any statement/documents/records etc. submitted pursuant to the said tender and if any false declaration is made, then it shall invite action from Airport Authority of India (for short, ‘AAI’) including debarment. He also contends that the debarment letter dated 20.12.2023 (Annexure P/8) issued against SRPL does not form part of the tender pack of respondent No. 5 clearly establishes that it has violated the ‘Disclaime’r, and therefore, such misrepresentation should attract disqualification and/or debarment. 9. Learned counsel for the petitioner would submit that Clause 3 (i) of the General Information and Guidelines, required respondent No. 5 to give declaration giving details of blacklisting or debarring by AAI. The fact that the respondent No. 3 against SRPL and allied firms does not form part of the tender pack of respondent No. 5 clearly establishes that it has violated the General Information and Guidelines Clause 3, and therefore, such misrepresentation should attract disqualification and/or debarment. Similarly Clause 4(a)(iii) of the General Information and Guidelines clearly states that in case any document submitted turn out to be false/incorrect, then e-tender is liable to be rejected and also result in debarment of the firm from participation in future tender of AAl for a period of three years. The fact that the debarment letter dated 20.12.2023 (Annexure P/8) issued by respondent No. 3 against SRPL and its allied firm does not form part of the tender pack of respondent No. 5 clearly establishes that it has violated the General Information and Guidelines Clause 4(a)(iii), and therefore, filing of such false/incorrect information should attract rejection 7 of tender of respondent No. 5 and also attract actions against Satvik Gothwal and respondent No. 5 in the form of debarment from participation in future AAI tenders for a period of three years. 10. It is further contended that in view of the above facts situation of the case, the act of the respondent No. 5 would fall under Clause 9 which is with regard to fraud and corrupt practices and penalty. The tender of respondent No. 5 is liable to be disqualified on the strength of Clause 9 of the NIT which has been clearly violated by respondent No. 5 as it has not disclosed the debarment imposed on SRPL and all allied firms/partners/subsidiaries/JV (if any) of M/s SRPL, which includes respondent No. 5, issued vide debarment letter dated 20.12.2023 (Annexure P/8) by respondent No. 3. Despite all-along the respondent No. 4 being aware of this blatant illegality on part of respondent No. 5, for the reason best known to them qualified the respondent No. 5 and also issued the letter of award in their favour. 11. It is next submitted by Mr. Sharma that the petitioner made a detailed representation with all the supporting documents to the respondents No. 1 to 4, providing all the above information and expecting them to take serious cognizance of the matter and to take a stand similar to that taken by the AAl in other parts of the Country against the respondent No.5. However, to the utter dismay of the petitioner, the respondent authorities, without paying any heed to the complaint made by the petitioner, communicated the rejection of the petitioner on financial evaluation vide an email dated 11.09.2024. On the same day, the respondent No. 4 has also uploaded a document titled financial summary in the e-tender Portal indicating that a Committee comprising of ofÏcers 8 reporting to respondent No. 4 have undertaken financial evaluation of the bid submitted by respondent No. 5. On the same day, the respondent No. 4 has uploaded another document indicating that award of letter has been issued to respondent No. 5. Against the aforesaid communication of rejection of bid of the petitioner being lower than the ‘H-1’ (respondent No. 5), the petitioner approached this Court by filing writ petition bearing WPC No. 5087 of 2024, wherein vide order dated 19.11.2024, this Court had declined to interfere in the matter, since the debarment order dated 21.12.2023 against the M/s. Saptagiri Restaurant Private Limited was kept in abeyance by the judgment dated 08.04.2024 by the Additional District Judge, Budgam. Moreover, against the aforesaid order, a First Appeal No. 13 of 2024 was pending before the Hon'ble High Court of Jammu & Kashmir – Srinagar Wing. This Court, however, was pleased to reserve the liberty in favour of petitioner to take recourse to law, if any, further cause of action arises. The said order passed by the ADJ (Fast Track) Budgam was subject matter of challenge before the Hon'ble High Court of Jammu & Kashmir and Ladakh at Srinagar in FAO No. 13/2024. The Hon'ble Court vide its judgment dated 11.03.2025 has set-aside the order dated 08.04.2024. Thus, the banning order dated 20.12.2023 is very much operating against the respondent No. 5 and the respondent No. 5 is precluded from participating in the tender process, further more, in view of the aforesaid order, the impugned communication made to the petitioner vide Annexure P/1 and the resolution passed for award of license for Executive Lounge and Meet & Greet Services at Swami Vivekanand Airport, Raipur is also rendered illegal. Thereafter, the respondent No. 4, in view of the tender condition and also in view of the 9 judicial determination of the status of SRPL and its allied including the respondent No. 5 has terminated the letter of award and revoked the license granted in favour of the respondent No. 5. A bare perusal of the same would reveal to this Court that infact the respondent No. 5 is guilty of suppressio veri & suggestio falsi, who has concealed his disqualification and fraudulently got himself technically qualified. However, when the petitioner filed the petition before this Court, the only defence which was put-forth was the order passed by the ADJ, Badgum. Thus, it is quite vivid and infact admitted that the respondent No. 5 is an allie of SRPL, covered under the banning order dated 20.12.2023. 12. Mr. Sharma next submits that that in view of the above and also in light of the BOQ Summary (Annexure P/7) as uploaded in the E-tender Portal by respondent No. 4, the petitioner stands at Sl. No. 2 with a bid of Rs. 32,00,000/-, just Rs. 65,555/- below respondent No. 5. However, in view of the above said termination of award and revocation of the license of the respondent No. 5, in view of its disqualification, the respondents should have considered the petitioner's bid and taken steps for award of the tender to the petitioner. Hence, this petition. 13. Ms. Anmol Sharma, learned counsel for the respondent No. 1/Union of India submits that the main contesting party in this petition is the respondents No. 2 to 4 which has issued the NIT in question and the respondent No. 1 is merely a formal party. 14. Mr. Aman Saxena, learned counsel for the respondents No. 2 to 4 submits that the NIT in question was floated way back in June 2024 and thereafter, the respondent No. 5 has been declared the successful bidder 10 and and agreement has also been executed between the petitioners No. 2 to 4 and the respondent No. 5 in September, 2024 and in March, 2025, this petition has been filed. He further submits that a covering memo has been filed on 08.04.2025 alongwith which a communication dated 24.03.2025 has been annexed which is with respect to termination of Licence for the Combined Tender of Executive Lounge and Meet and Greet Services at S.V.Airport, Raipur, addressed to respondent No. 5. The licence awarded on 28.08.2024 issued to the respondent No. 5 has been terminated. It is further submitted that in normal course, when a licence granted to a party is cancelled for any reason, the second in queue is awarded the licence which in the present case, is the petitioner. However, in the instant case, since a long time has elapsed, it would not be possible for the respondents No. 2 to 4 to grant licence to the petitioner for the subject tender and the respondent No. 2 to 4 proposes to issue fresh NIT wherein all the eligible parties may participate. 15. At the outset, Mr. Kishore Bhaduri, learned Senior Advocate alongwith Mr. Aman Pandey, learned counsel for the respondent No. 5 prays for further three days time to file his return. He further submits that the respondent No. 5 has filed a petition before this Hon’ble Court challenging the order dated 24.03.2025 by which its licence has been cancelled. 16. We have heard learned counsel for the parties and perused the materials available on record. 17. On the last date of hearing i.e. on 09.04.2024, this Court had directed the learned counsel for the respondent No. 2 to 4 to seek 11 instructions in the matter. 18. Since the respondents No. 2 to 4 have terminated the licence granted to the respondent No. 5, and the present petition has been filed by the petitioner, the respondent does not have any say in this matter and he has liberty to challenge the cancellation order which according to Mr. Bhaduri, has been done by filing a separate writ petition. 19. The issue in nutshell is that an NIT was issued by the respondents No. 2 to 4 in which the petitioner alongwith the respondent No. 5 participated. As per the allegations, the respondent No. 5, concealing material facts have obtained the licence and despite making various efforts by the petitioner, nothing was done by the respondent authorities for cancellation of the licence and at a very belated stage, only on 24.03.2025, the licence has been cancelled. The main relief sought for by the petitioner in this petition is to declare the petitioner as H-1 consequent to disqualification of the respondent No. 5 and to award the subject tender to the petitioner. It is also the case of the petitioner that the petitioner had been vigilant right through the beginning and had been raising his voice against illegal award of licence to the respondent No. 5 and in such circumstances, the licence should now be awarded to the petitioner. As per the tender document, the period of concession is for five years and still much time is left wherein the petitioner can be granted licence for the subject NIT. 20. It is the contention of the Mr. Saxena, learned counsel appearing for the respondents No. 2 to 4 that even with respect to the licence granted to the M/s. Saptagiri Restaurant Pvt. Ltd. for the Airport at Srinagar is 12 concerned, the respondent-Airports Authority of India had approached the Hon’ble High Court of Jammu & Kashmir and Ladhakh at Srinagar vide FAO No. 13/2024 wherein the order passed by the learned Additional District Judge (Fast Track) Budgam on a petition filed by one Saptagiri Restaurant Pvt. Ltd. of which the respondent No. 5 is an allie, the Hon’ble High Court of Jammu & Kashmir and Ladhakh had quashed the order of the learned Additional District Judge (Fast Track Court) Budgam and allowed the appeal of the Airport Authority of India and as such, the licence granted to M/s. Saptgiri Restaurant Pvt. Ltd. was cancelled which earlier continued on the strength of interim orders of the Hon’ble High Court. 21. A perusal of the ‘Disclaimer’, Clause 3(i) and 4(a)(iii) of the General Information and Guidelines makes it amply clear that in case any document submitted by the bidder turns out to be false/incorrect or that any false declaration is made by the applicant, the bids submitted by the applicant was liable to be rejected alongwith forfeiture of EMD. The respondent No. 5 is an associated entity of a SRPL, which is already debarred from participating in the tenders floated by the respondent No. 2 and as such, the respondent No. 5 was erroneously granted licence. As the cancellation of the licence granted to the respondent No. 5, whether it is legal and justified, is not the subject matter of this petition which according to Mr. Bhaduri, has been challenged in a separate petition. 22. Since the licence granted to the respondent No. 5 has been cancelled vide order dated 24.03.2025 by the respondent No. 4, and much time has elapsed since the licence was granted i.e. on 28.08.2024, the relief(s) as prayed for by the petitioner in this petition, cannot be 13 granted. As such, we dispose of this petition with a direction to the respondents No. 2 to 4 that they may issue fresh NIT wherein all the eligible applicants including the petitioner may participate, and the same shall be considered, strictly in accordance with law. No order as to costs. Sd/- Sd/- (Arvind Kumar Verma) (Ramesh Sinha) Judge Chief Justice Amit / Brijmohan AMIT KUMAR DUBEY Digitally signed by AMIT KUMAR DUBEY Date: 2025.04.22 12:29:23 +0530