Rajasthan High Court - Jodhpur

M/S Ramnarayan Contractor vs State Of Rajasthan on 30 March, 2022

Bench: Vijay Bishnoi

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 3681/2022

M/s Ramnarayan Contractor, Through Its Partner Subhash Chandra S/o Shri Ramnarayan, Aged 50 Years, R/o Near Laxmi Woolen Mills, Sarvodaya Basti, Bikaner.

----Petitioner

Versus

1. State Of Rajasthan, The Secretary, Indira Gandhi Canal Project, Jaipur (Raj.).

2. The Chief Engineer, Indira Gandhi Canal Project, Jaipur (Raj.).

3. The Addl. Chief Engineer, Indira Gandhi Canal Project, Jaipur (Raj.).

4. The Superintendent Of Engineer, Sahwa Lift Canal, Indira Gandhi Canal Project, Jaipur (Raj.).

5. The Executive Engineer, 10Th Division, Indira Gandhi Canal Project, Tara Nagar, Dist. Churu.

----Respondents

S.B. Civil Writ Petition No. 3679/2022

M/s Ramnarayan Contractor, Through Its Partner Subhash Chandra S/o Shri Ramnarayan, Aged 50 Years, R/o Near Laxmi Woolen Mills, Sarvodaya Basti, Bikaner.

----Petitioner Versus

1. State Of Rajasthan, The Secretary, Indira Gandhi Canal Project, Jaipur (Raj.).

2. The Chief Engineer, Indira Gandhi Canal Project, Jaipur (Raj.).

3. The Addl. Chief Engineer, Indira Gandhi Canal Project, Jaipur (Raj.).

4. The Superintendent Of Engineer, Second Stage Circle-I, Indira Gandhi Canal Project, Jaipur (Raj.).

5. The Executive Engineer, 16Th Division, Indira Gandhi Canal Project, Bikaner.

                                                               ----Respondents



                               (2 of 9)                     [CW-3681/2022 & two ors.]

S.B. Civil Writ Petition No. 3687/2022

M/s Ramnarayan Contractor, Through Its Partner Subhash Chandra S/o Shri Ramnarayan, Aged 50 Years, R/o Near Laxmi Woolen Mills, Sarvodaya Basti, Bikaner.

----Petitioner Versus

1. State Of Rajasthan, The Secretary, Indira Gandhi Canal Project, Jaipur (Raj.).

2. The Chief Engineer, Indira Gandhi Canal Project, Jaipur (Raj.).

3. The Addl. Chief Engineer, Indira Gandhi Canal Project, Jaipur (Raj.).

4. The Superintendent Of Engineer, Sahwa Lift Canal, Indira Gandhi Canal Project, Jaipur (Raj.).

5. The Executive Engineer, 10Th Division, Indira Gandhi Canal Project, Tara Nagar, Dist. Churu.

                                                                 ----Respondents


For Petitioner(s)         :     Mr K.K.Shah
For Respondent(s)         :     Mr Sunil Beniwal AAG
                                Mr Saransh Vij



             HON'BLE MR. JUSTICE VIJAY BISHNOI

                          Judgment / Order

30/03/2022

Since all these three writ petitions involve identical

issue, therefore, they are being decided together by this common

order.

For the sake of convenience, facts of S.B.Civil Writ

Petition No.3681/2002 are being taken.

The petitioner submitted its bid in response to the NIT

No.CE-03/2021-22 issued by the respondent No.2 for construction

of Gajuwas Minor from 0.00 km. to 22.980 km. including

(3 of 9) [CW-3681/2022 & two ors.]

structures. The bid of the petitioner was accepted and contract

was awarded to the petitioner. Acceptance letter was issued on

30.09.2021.

As per the petitioner, it started the work on

10.10.2021. It is the case of the petitioner that when the contract

for execution of work was being signed by the petitioner with the

respondent department, it noticed that two conditions are added

in the contract, though there was no mention in the NIT about

them. The two said conditions are 7.24 and 7.25, which are

reproduced hereunder:

"7.24 VEHICLE FOR INSPECTION OF WORK AND CANAL The works shall have to be monitored by frequent inspections and also inspection of source canal from where water supply for the works shall be monitored hence the bidder will provide one new A.C Bolero 4X4 model along with driver and POL for inspection purpose throughout the execution period at no extra cost to the Department, the cost of inspection vehicle, driver and POL shall be borne by the contractor, non compliance will attract a penalty of Rs 3000/- per day.

7.25 RENOVATION OF ESTABLISHMENTS RELATED TO THE WORK This is a very important work which has been taken up as per Chief Minister's Budget announcement of 2019-20, timely completion of work is of prime importance. For effective monitoring of the works of CM announcement, works monitoring cell shall be established by the contractor in Division office at Taranagar. The Division office and sub division office shall be renovated like the old flooring shall be replaced by kota stone and vitrified tiles, walls shall be painted after repair of plaster and applying wall putty with approved washable distemper, the old electricity and sanitary fitting shall be removed and new fitting done using standard make material. The contractor shall provide Four nos. latest specifications

(4 of 9) [CW-3681/2022 & two ors.]

computers (all in one) with UPS, one multifunctional printer and three laser printers, all of standard make for the monitoring cell along with two desert coolers and one water cooler with RO. Office Tables 4 nos of standard make, one office chair, visitor chairs 25 nos, 10 nos, 5 shelves slotted angle Rack of standard make. All the above activities shall be carried out by the contractor at his own cost and material provided for cell as mentioned above shall be the property of the department after completion of the work. All these activities shall be immediately started and must be completed within three months otherwise, penalty of Rs 5000/- per day shall be imposed on the contractor."

It is the case of the petitioner that when the above

referred two conditions are not part of the NIT, the action of the

respondents of pressurising the petitioner to agree with them is

absolutely illegal. The petitioner has, therefore, prayed that the

writ petition may kindly be allowed with costs and appropriate

writ, order or direction be issued to the effect that the condition of

demand of new AC Bolero 4x4 vehicle and condition of renovation

of establishments relating to the work free of cost may kindly be

declared illegal and be deleted from special conditions of contract.

Reply to the writ petition is filed on behalf of the

respondents, wherein preliminary objection regarding availability

of remedy of statutory appeal is raised. It is averred in the reply

that the petitioner is having an alternative remedy of filing a

statutory appeal under Section 38 of Rajasthan Transparency

Public Procurement Act, 2012. (hereinafter to be referred as 'the

Act of 2012').

It is also averred in the reply to the writ petition that

the condition Nos.7.24 and 7.25 are very much part of the bid

document and the petitioner was very much in knowledge of the

(5 of 9) [CW-3681/2022 & two ors.]

said conditions and submitted its bid in response to the NIT

issued.

It is further averred in the reply that on 04.07.2021,

the petitioner gave in writing to the respondents that it accepts all

clauses, conditions, descriptions of the bid documents and

subsequent addenda (if any) without any change, reservations

and conditions. It is also declared by the petitioner that if any

change, reservation or condition has been made in its bid, it

herewith withdraw it.

It is also averred in the reply that the petitioner did not

participate in the pre-bid meeting held on 21.06.2021, however,

one of the contractors raised objection regarding the condition

Nos.7.24 and 7.25 in the pre-bid meeting but the said objection

was specifically rejected by the respondent-department. It is

contended that the allegation of the petitioner of this effect that

the respondent-department has imposed such conditions, which

are not part of the bid document is without any basis. It is,

therefore, prayed on behalf of the respondents that the writ

petition may kindly be dismissed with costs.

Rejoinder is filed on behalf of the petitioner, wherein

the averments made in the reply are denied and it is contended

that the respondents cannot impose any condition, which is in

violation of provisions of the Act of 2012 and Rules made

thereunder. It is contended that the condition Nos.7.24 and 7.25

are illegal and contrary to the provisions of the Act of 2012 and

the Rules made thereunder.

Learned counsel for the petitioner has argued that the

action of the respondents of imposing condition Nos.7.24 and 7.25

(6 of 9) [CW-3681/2022 & two ors.]

is absolutely illegal, however, the counsel for the petitioner is not

in a position to dispute the fact that the said conditions are very

much there in the bid documents.

Learned counsel for the petitioner has further argued

that the condition Nos.7.24 and 7.25 are illegal as the same are in

contravention of the provisions of the Act of 2012 and Rules made

thereunder because the respondents have no authority under the

law to impose such conditions.

Per contra, Mr Sunil Beniwal, learned Additional

Advocate General has vehemently opposed the writ petition and

argued that in the NIT, it is clearly mentioned that any bidder or

prospective bidder is required to download bid document from the

website of the department and after going through the conditions

mentioned in the bid document can submit its bid. It is also

clarified in the bid document that any bidder or prospective bidder

can join the pre-bid meeting and raise objection regarding any of

the conditions of the bid document.

It is submitted by Mr Beniwal that the petitioner did not

attend the pre-bid meeting and raise any objection, rather it gave

in writing that it has gone through the conditions mentioned in the

bid document and is accepting all the conditions. Mr Beniwal has

further submitted that the respondents are having full authority to

impose condition Nos. 7.24 and 7.25 as per the provisions of the

Act of 2012 and Rules made thereunder. It is also submitted that

once the petitioner has accepted all the conditions of the bid-

document and given in writing, it is not open for it to turn back

and challenge the conditions of the bid-document.

Heard learned counsel for the parties.

(7 of 9) [CW-3681/2022 & two ors.]

It is not in dispute that the condition Nos.7.24 and 7.25

are part of the bid document. The bid document is placed on

record as Annexure-R/1 along with reply to the writ petition and

the index of the said bid-document, condition Nos.7.24 and 7.25

are clearly reflected.

It is also to be noticed that as per the condition

No.2.2.1, the bidder is required to carefully examine the

conditions, specifications, size, make and drawings, etc. of the

works and related services to be provided. It is further mentioned

that if there is any doubt about any portion of the condition etc.

the bidder can approach the authorities concerned for clarification.

The condition No.2.2.1 as mentioned in the bid-document is

reproduced hereunder:

"The Bidder shall be deemed to have carefully examined the conditions, specifications, size, make and drawings, etc. of the Works and Related Services to be provided. If any Bidder has any doubts as to the meaning of any portion of the conditions or of the specifications, drawings etc., it shall, before submitting the Bid, refer the same to the Procuring Entity and get clarifications. A Bidder requiring any clarification of the Bidding Document shall contact the Procuring Entity in writing or e-mail at the Procuring Entity's address indicated in the BDS. The Procuring Entity will respond in writing or e-mail to any request for clarification, upto Pre Bid Meeting date. The clarification issued, including a description of the inquiry but without identifying its source shall also be placed on the State Public Procurement Portal and should the Procuring Entity deem it necessary to amend the Bidding Document as a result of a clarification, it shall do so following the procedure under ITB Clause 2.3 [Amendment of Bidding Document] through an addendum which shall form part of the Bidding Document."

(8 of 9) [CW-3681/2022 & two ors.]

Admittedly, the petitioner did not raise any doubt about

any of the conditions of the bid document and even it did not join

the pre-bid meeting.

After acceptance of the bid, the petitioner wrote a letter

to the Chief Engineer, IGNP, Bikaner on 04.07.2021, which is

placed on record as Annexure-R/2 along with reply of the

respondents. Clause (5) of the letter dated 04.07.2021 reads as

under:

"(5) We declare that we have read and understood and that we accept all clauses, conditions, descriptions, of the Bid documents, and subsequent addenda (if any) without any change, reservations and conditions. If any change, reservation or condition has been made in our Bid we herewith withdraw it."

In the rejoinder, the petitioner has not said that letter

dated 04.07.2021 has not been written on behalf of it.

In view of the above discussions, it is clear that the

condition Nos.7.24 and 7.25 are very much mentioned in the bid

document itself and the petitioner after going through the said

conditions had submitted its bid and also given in writing that it

accepts all the conditions mentioned in the bid document.

In such circumstances, it is not open for the petitioner

to turn back and challenge the condition Nos. 7.24 and 7.25 of the

bid document on any of the grounds including the grounds that

the respondents have no authority to impose such conditions and

they are in violation of the provisions of the Act of 2012 and the