M/S Singh And Associates vs State Of Rajasthan
2023 Latest Caselaw 5541 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 19453/2022

M/s Singh And Associates, Through Its Sole Proprietor Sh. Harminder Singh S/o Kalwant Singh, Aged About 61 Years, Resident Of House No. 16, Basant Vihar, Sector No. 14, Udaipur.

----Petitioner Versus

1. State Of Rajasthan, Through The Principal Secretary, Administrative Department, Water Resources Department, Government Of Rajasthan, Jaipur.

2. The Chief Engineer, Water Resources Department, Government Of Rajasthan, Jaipur.

3. The Superintending Engineer, Water Resources Department, Water Resources Construction Circle, Dungarpur.

4. The Executive Engineer, Water Resources Division I, Dungarpur.

5. M/s. Pradeep Construction Company, Through Proprietor, House No. 248, T.p. House, Pratap Nagar Colony, Dungarpur.

                                                                              ----Respondents



For Petitioner(s)                  :     Mr. Shridhar Mehta
For Respondent(s)                  :     Ms. Abhilasha Bora, AGC a/w
                                         Ms. Saloni Malpani



      HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI


                                          Judgment

Reserved on 18/07/2023
Pronounced on 03/08/2023

1. This writ petition under Articles 226 & 227 of the Constitution

of India has been preferred seeking the following reliefs:

"It is, therefore, most respectfully prayed on behalf of petitioner that the writ petition may kindly be allowed and by an appropriate writ, order or direction:- I. The impugned orders dated 28.10.2022 (Annex-5) and 12.12.2022 (Annex-7) passed by the first appellate authority

(D.B. SAW/814/2023 has been filed in this matter. Please refer the same for further orders)

(2 of 7) [CW-19453/2022]

and the second appellate authority may kindly be quashed and set aside and the appeals so filed by the petitioners may kindly be allowed in toto;

II. The order dated 23.08.2022 (Annex-3) may kindly be quashed and set aside and that consequent to aforesaid, the respondents may kindly be directed to consider the bid of the petitioner as responsive and grant the work order in favour of the petitioner if found lowest. III. Any other appropriate order or direction, which this Hon'ble Court considers just and proper in the facts and circumstances of this case, may kindly be passed in favour of the Petitoner.

IV. Costs of the writ petition may kindly be awarded to the Petitioner."

2. As per the pleaded facts, the respondent-Department,

through its advertisement dated 22.07.2022, invited bids for

several works, including the work of renovation of BHE KA NAKA

Dam and LMC, RMC Canal, Tehsil Chhikali, District Dungarpur. The

petitioner accordingly filed its bid along with the requisite

documents (including the experience certificate dated 08.06.2021

for the works at Dhudhanriya Anicut). However, vide the

impugned order dated 23.08.2022, the petitioner's bid was

declared as non-responsive, on count of deficiency in regard to the

experience certificate.

2.1 Aggrieved by the aforesaid order, the petitioner filed First

Appeal before the Chief Engineer, Water Resources Department,

Jaipur. However vide the impugned order dated 28.10.2022, the

said appeal was rejected.

2.2 Thereafter, against the order of the First Appellate Authority,

a second appeal was filed by the petitioner before the Principal

Secretary, Water Resources Department, Jaipur on 31.10.2022;

(D.B. SAW/814/2023 has been filed in this matter. Please refer the same for further orders)

(3 of 7) [CW-19453/2022]

however, while the second appeal was pending, the respondent-

Department vide order dated 17.11.2022 granted the work order

to one M/s. Pradeep Construction Company and the work was to

begin from 27.11.2022; thus, the Second Appellate Authority

noticing that the bidder in whose favour the work order had been

granted had already started the work, rejected the second appeal

of the petitioner vide the impugned order dated 12.12.2022.

Hence, the present petition has been preferred claiming the afore-

quoted reliefs.

3. Learned counsel for the petitioner submitted that though the

work for construction of Dhundhariya Anicut was completed on

21.03.2020 (stipulated date of completion being 14.06.2014), the

experience certificate dated 08.06.2021 clearly stated under the

head of 'contractor performance' as 'satisfactorily completed' and

the same was stated even in the revised certificate dated

15.10.2022. In furtherance, it was submitted that the respondent-

Department failed to clarify as to why while the earlier experience

certificate was not acceptable, but the revised one was.

3.1. It was also submitted that the only reason for declaring the

bid of the petitioner as non responsive was that the experience

certificate was not having any endorsement for increase in the

contract period (i.e. the delay caused in completion of work was

yet to be approved); yet the work was said to be satisfactory by

the respondent-Department itself. In furtherance, the same is

pending approval before the concerned authority till date.

3.2. It was further submitted that while the second appeal was

pending before the appellate authority, the respondent-

(D.B. SAW/814/2023 has been filed in this matter. Please refer the same for further orders)

(4 of 7) [CW-19453/2022]

Department in a hasty manner vide order dated 17.11.2022

awarded the work order to M/s. Pradeep Construction (private

respondent) and noting that the private respondent had already

started the work on 27.11.2022, the Second Appellate Authority

vide the impugned order dated 12.12.2022 rejected the second

appeal of the petitioner; however, it is clear from the

measurement book that the work was started on 12.01.2023. In

furtherance, it was argued that the respondent-Department

awarded the contract to the private respondent even though the

bid costed the State Exchequer around Rupees 12 lakhs more.

3.3. Learned counsel also submitted that as per Section 39 (3) &

(6) of the Rajasthan Transparency in Public Procurement Act,

2012, the appeals preferred before the First Appellate Authority

and the Second Appellate Authority respectively were required to

be decided within one month from the date of filing, yet the

provisions were not complied with.

4. On the other hand, Ms. Abhilasha Bora, learned Additional

Government counsel assisted by Ms. Saloni Malpani, appearing for

the respondents, while opposing the aforesaid submissions made

on behalf of the petitioner, submitted that the experience

certificate so submitted by the petitioner was not in conformity

with the prescribed conditions mentioned in the Notice Inviting

Tender, and thus, the petitioner was rightly disqualified in the

tender process in question.

4.1. It was further submitted that the tender was approved by

the letter dated 31.10.2022 of the Competent Officer, Additional

Chief Engineer, Water Resources Department, Udaipur and the

(D.B. SAW/814/2023 has been filed in this matter. Please refer the same for further orders)

(5 of 7) [CW-19453/2022]

Letter of Acceptance (LoA) was issued on 02.11.2022 and the

work order was thus issued on 17.11.2022 to the private

respondent, fixing the date of commencement and date of

completion as 27.11.2022 and 26.05.2024 respectively. Thus, the

entire process took 17 days to complete and was not done hastily.

4.2. Learned Additional Government Counsel also submitted that

in relation to the tender work awarded to the petitioner for work

related to Repair and Renovation of Dam and RMC of Ghodhakhoj

Minor Irrigation Project, experience certificates of three works

were presented, out of which two works were completed

satisfactorily due to which the petitioner was declared qualified by

the Executive Engineer, Water Resources Department, Salumber;

however, in the present case, the experience certificate of

Dhundhariya Anicut work was presented and the extension of time

for the said work and the final bill were yet to be approved, and

thus the same could not be considered as satisfactory.

4.3. It was further submitted that by the communication dated

12.07.2023 from the Office of Executive Engineer Water Resources

Division First Dungarpur the work experience certificate of the

petitioner was not found to be satisfactory and currently the work

order issued to private respondent the said work is in progress

and till now 4th running bill of Rupees 139.93 lakhs has been

spent.

4.4. Learned Additional Government Counsel, to fortify her

submissions, placed reliance on the judgment rendered by the

Hon'ble Apex Court in the case of N.G. projects Limited v.

Vinod Kumar Jain and Ors., (2022) 6 SCC 127.

(D.B. SAW/814/2023 has been filed in this matter. Please refer the same for further orders)

(6 of 7) [CW-19453/2022]

5. Heard the learned counsel for the parties as well as perused

the record of the case alongwith the judgment cited at the bar.

6. This Court observes that the respondent-Department invited

bids for several works, including the work in question, for which

petitioner submitted its bid alongwith experience certificate for the

works of Dhudhanriya Anicut; however the petitioner's bid was

declared as non responsive; further both the appellate authorities

below rejected the appeals of the petitioner, vide the impugned

orders.

7. This Court further observes that the petitioner's bid was

declared as non-responsive, as the experience certificate so

submitted though stated satisfactory performance, there was no

endorsement for increase in the contract period for the delay the

petitioner had caused in completion of the work; while the

stipulated time was 14.06.2014, however the actual date of

completion of the work was 21.03.2020; since the approval by the

respondent-Department of the delay caused by the petitioner was

pending at the time of submission of experience certificate, the bid

of the petitioner was accordingly declared as non responsive.

8. This Court also observes that both the appellate authorities

below, in the impugned orders, have observed that the petitioner

took around 8 years to complete the work, that was required to be

completed in 18 months, as such though the respondent-

Department has stated satisfactory completion of work under the

head of contractor's performance, however, at the same time, no

approval of such delay has been given by the respondent-

Department.

(D.B. SAW/814/2023 has been filed in this matter. Please refer the same for further orders)

(7 of 7) [CW-19453/2022]

9. This Court further observes that the work has already been

awarded to the private respondent vide work order issued on

17.11.2022 and as per the communication dated 12.07.2023 of

the Executive Engineer Water Resources Division First Dungarpur,

the work has already started, and till now, 4 th running bill of

Rupees 139.93 lakhs has been prepared.

10. Thus, in light of the aforesaid observations and looking into

the factual matrix of the present case, this Court does not find it a

fit case so as to grant any relief to the petitioner in the present

petition.

11. Consequently, the present petition is dismissed. All pending

applications stand disposed of.

(DR. PUSHPENDRA SINGH BHATI), J.

SKant/-

(D.B. SAW/814/2023 has been filed in this matter. Please refer the same for further orders)

Powered by TCPDF (www.tcpdf.org)