M/S Ultratech Cement Pvt. Ltd vs State Of Rajasthan
2021 Latest Caselaw 3426 Raj/2

      HIGH COURT OF JUDICATURE FOR RAJASTHAN
                  BENCH AT JAIPUR

               S.B. Civil Writ Petition No. 8191/2021

M/s   Ultratech    Cement      Pvt.     Ltd.,     Incorporated        Under   The
Provisions Of The Companies Act, 1956, Having Its Registered
Office At Ahura Centre, B Wing, 2Nd Floor, Mahakali Caves Road,
Andheri (East) Mumbai Through Its Power Of Attorney Holder
Sh. Rajiv Saxena, S/o Lt. Sh. Nand Swaroop Saxena, Joint
Executive President, Aged 58 Years R/o B-186, Janta Colony,
Jaipur - 302004.
                                                                     ----Petitioner
                                   Versus
1.     State Of Rajasthan, Through Additional Chief Secretary,
       Department      Of     Mines       And      Petroleum,        Government
       Secretariat, Jaipur.
2.     Director, Department Of Mines And Petroleum, Rajasthan,
       Udaipur.
                                                                  ----Respondents

Connected With S.B. Civil Writ Petition No. 8192/2021 M/s Ultratech Cement Pvt. Ltd.,A Company Incorporated Under The Provisions Of The Companies Act, 1956, Having Its Registered Office At Ahura Centre, B Wing, 2Nd Floor, Mahakali Caves Road, Andheri (East) Mumbai Through Its Power Of Attorney Holder Sh. Rajiv Saxena, S/o Lt. Sh. Nand Swaroop Saxena, Joint Executive President, Aged 58 Years R/o B-186, Janta Colony, Jaipur - 302004.

----Petitioner Versus

1. State Of Rajasthan, Through Additional Chief Secretary, Department Of Mines And Petroleum, Government Secretariat, Jaipur.

2. Director, Department Of Mines And Petroleum, Rajasthan, Udaipur.

----Respondents S.B. Civil Writ Petition No. 8193/2021 M/s Birla Corporation Limited, a Public Limited company governed under the provisions of the Companies Act, 2013,

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having its Registered Office at 9/1, R. N. Mukherjee Road Kolkata-700-001, West Bengal and Corporate office situated at Shakespare Sarani, A.C. Market (2nd Floor), Kolkata 700-071 and site office at situated 401, Jaipur Centre, 4th Floor, B2 Bye Pass, Tonk Road, Jaipur-302018 (Rajasthan) through its authorized officer, Mr. Tamal Pal S/o Mr. Rabindra Nath Pal Age- 42 years, presently residing at Flat No. 802, Cascades Tower-I, Uni-World City, New, Town, Kolkata (west Bengal)

----Petitioner Versus

1. State Of Rajasthan, Through Additional Chief Secretary, Department Of Mines And Petroleum, Government Secretariat, Jaipur.

2. Director, Department Of Mines And Petroleum, Rajasthan, Udaipur.

----Respondents

For Petitioner(s) : Mr. Kamlakar Sharma, Sr. Adv. with Ms. Alankrita Sharma, Adv.

Mr. Aniroodh Bhatia, Adv. & Mr. Ankit Kothari, Adv. on behalf of Dr. Abhishek Manu Singhvi, Sr. Adv.

For Respondent(s) : Mr. RP Singh, AAG with Mr. Jaivardhan Singh Shekhawat, Adv.

HON'BLE MR. JUSTICE SANJEEV PRAKASH SHARMA

Judgment / Order

Reserved on 03/08/2021 Pronounced on 04/08/2021

1. All these three writ petitions have been heard together finally

with the consent of learned counsel for the parties as the issue

involved in the same is almost common.

2. The facts in nut-shell are that the respondent-Government of

Rajasthan notified four mineral blocks at districts Nagaur and

Jhunjhunu while exercising powers under Section 10B of the Mines

and Mineral (Development and Regulation) Act, 1957 and put

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them for auction in terms of Mineral (Auction) Rules, 2015 for the

purpose of grant of mining lease for mineral limestone for fifty

years and accordingly, an NIT was issued on 04/06/2021 inviting

the eligible bidders through electronic auction.

3. The petitioner-M/s Ultratech Cement Pvt. Ltd. applied for

Godhra-Parasrampura West Block & East Block in District

Jhunjhunu while the petitioner-M/s Birla Corporation Ltd. applied

for Block-3C-1, Tehsil Jayal in District Nagaur.

4. The tender documents were made available and as per sub-

rule 4 of Rule 9 of the Mineral (Auction) Rules, 2015, the auction

was to be an ascending forward on-line electronic auction and was

to be comprised of attempts of auction with each attempt of

auction consisting of first round of auction and second round of

auction. The blocks were put up for first attempt of auction. As per

first round of e-auction, the technical bid and initial price offer was

to be submitted electronically and bid security in the form of bank

guarantee was to be furnished as part of the technical bid. A bid

security for INR 7,31,63,186/-, INR 7,10,17,144/- & INR

8,21,73,202/- respectively was mentioned as the amount in the

tender form.

5. A corrigendum to the tender was issued on 21/06/2021

rescheduling sale of tender from 21/06/2021 to 28/06/2021 upto

700 hrs. The corrigendum also further mentioned that all other

terms and conditions shall be as per the tender document and as

per any other addenda, if any, to the tender document.

6. The addendum to the tender document was issued on

24/06/2021 wherein the bid due date was left blank and the net

worth of the bidder was also left blank. At several other places,

the original tender document was substituted leaving blank spaces

(4 of 7) [CW-8191/2021]

like the number of days for review period, the bid due date,

upfront payment of first installment, upfront payment of second

installment and bid security amount.

7. Since the amounts were left blank, the petitioners submitted

that they had no knowledge that the amount of bid security was to

be enhanced. However, it is an admitted case of both the parties

that on the same day i.e. 24/06/2021, a copy of the second

amendment addenda was e-mailed by the MSTC to the bidders

who had purchased the bid document and therein the security

amount was enhanced to INR 17,49,41,484/- for east block and

INR 18,02,27,980/- for west block.

8. It is a case of the petitioners that the e-mail was not opened

and therefore, there was no effective intimation to the petitioners

about the enhanced bid security. It is only when the technical bid

was opened on 26/07/2021 that the petitioners came to know that

their technical bid had been rejected as per Clause 14.11 owing to

the short-fall in bid security amount.

9. The petitioners thereafter submitted a representation to the

Additional Director (Geology) on 29/07/2021 highlighting the error

in issuing the addendum which was contrary to the NIT conditions

as the amount was not mentioned in the addendum which was

issued by the MSTC on its website.

10. Thus, the mode of intimation was not the mode by which it

was required to be communicated. However, the short-fall in bid

security was also additionally deposited by the petitioners which

has been accepted by the respondents.

11. Learned Sr. Counsel for the petitioners submitted that the

addendum to the tender document, which mentioned enhanced

bid security amount, was not uploaded on the website of either

(5 of 7) [CW-8191/2021]

the respondents or the MSTC. In these circumstances, it cannot be

said to be a proper intimation and the petitioners, therefore, ought

not be ousted from participation in the bid. Learned Sr. Counsel

further submitted that the respondents have also accepted the

additional bank guarantee which has been deposited equivalent to

the enhanced bid amount and therefore, the petitioners be

allowed to participate in the bid. Learned Sr. Counsel further

submitted that the State Government has power under the tender

condition to allow modification, substitution of technical bids after

the due date as per Clause 14.10.1.

12. Learned Sr. Counsel further submitted that the short-fall of

security deposit cannot be said to be a major deviation and is a

minor deviation and cannot deny eligibility of the petitioners. He

further submitted that the present auction is different from the

regular NITS and in-fact, it is a case where the floor price will be

declared on the basis of the highest initial price offered from all

the bidders whereafter the bidders would be allowed to participate

in the second round of auction and increase their offer over and

above the initial price and therefore, no prejudice would be caused

to any other bidder. On the other hand, a further healthy

competition would be available if the petitioners are allowed to

participate and the purpose & object of the tender which is to

achieve maximum of revenue for the blocks may be received.

Learned counsel has taken this Court to the provisions of the

tender document to substantiate his submissions. He further

submitted that the bid security amount is not an eligibility or a

technical qualification and is only a precondition for examining the

eligibility. If there was a shortage, the petitioners can make good

(6 of 7) [CW-8191/2021]

the shortage by payment of additional amount of security and the

petitioners could not have been ousted on that count.

13. Per-contra, learned Additional Advocate General for the

respondent-State submitted that the petitioners were informed by

e-mail, however, it is at the level of the petitioners that they did

not check their e-mail. At the same time, learned Additional

Advocate General submitted that the MSTC web-site was required

to mention the enhanced amount of bid security and the blanks

left in the addendum amendment to NIT uploaded on the MSTC

web-site on 24/06/2021 was a mistake and it should have

mentioned the amount of the enhanced bid security also.

However, he submitted that since the said aspect was remedied by

sending an e-mail, it cannot be said that the petitioners had no

knowledge of the enhanced bid security.

14. After hearing learned counsel for the parties, this Court finds

that the present stage is only the initial stage of e-auction where

the technical bid has been submitted by the bidders alongwith

surety amount as originally mentioned. However, the enhanced

surety amount has also been paid by the petitioners on coming to

know about the surety amount having been enhanced.

15. Admittedly, in the addendum to the tender document placed

on the website of the MSTC Ltd., there was no mention of the

enhanced bid security and it was left blank. The MSTC Ltd. is the

official website and this Court agrees with the petitioners that they

would not have imagined that the respondents would inform them

about the enhanced security amount by e-mail which was not

opened by them.

16. This Court is also of the view that the security bid amount by

the very interpretation of the term is merely for security and is not

(7 of 7) [CW-8191/2021]

the eligibility condition and since the respondents themselves have

asked all the bidders to deposit the amount by e-mail and not

through their website, the action of the respondents in declaring

the petitioners ineligible on account of shortage of security

amount is found to be erroneous. This Court also notices that the

petitioners have already made good the security amount and the

auction floor price is required to be only accessed whereafter

regular auction will continue allowing all the parties to bid on a

higher value than the initial price offer (IPO).

17. Consequently, this Court is inclined to allow these writ

petitions and set aside the impugned rejection letters dated

26/07/2021 whereby the technical bid submitted by the petitioner

namely; M/s Ultratech Cement Pvt. Ltd. for Godhra-Parasrampura

West Block in District Jhunjhunu and the petitioner-M/s Birla

Corporation Ltd. applied for Block-3C-1, Tehsil Jayal in District

Nagaur.

18. Accordingly, the writ petition is allowed. The letters

impugned dated 26/07/2021 are hereby quashed and set aside

and it is directed that the petitioners shall be now treated as

eligible for participation and their technical bids shall be uploaded

on the MSTC web-site for assessing the IPO to be opened as per

the scheduled dates. No costs.

(SANJEEV PRAKASH SHARMA),J

RAGHU/

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