Rajasthan High Court - Jodhpur
Ms Yash Enterprises vs Rajasthan Rajya Vidyut Prasaran Nigam ... on 14 December, 2023
Author: Nupur Bhati
Bench: Nupur Bhati
[2023:RJ-JD:42092]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 17011/2023
M/s Yash Enterprises, Through Its Proprietor Pradyuman Singh
Jodha S/o Prahalad Singh Jodha, Aged About 32 Years, R/o 425,
New Bjs Colony, Rto Office Road, Jodhpur (Raj.) 342006.
----Petitioner
Versus
1. Rajasthan Rajya Vidyut Prasaran Nigam Limited, Through
Its Chairman And Managing Director, Registered Office,
Vidyut Bhawan, Jyoti Nagar, Jodhpur (Rajasthan) 342005.
2. The Superintending Engineer (Civil) Rvpnl (Jodhpur), At
New Power House Premises, Jodhpur (Rajasthan) 342003.
----Respondents
Connected With
S.B. Civil Writ Petition No. 17037/2023
M/s Yash Enterprises, Through Its Proprietor Pradyuman Singh
Jodha S/o Shri Prahalad Singh Jodha, Aged About 32 Years, R/o
425 New Bjs Colony, Rto Office Road, Jodhpur (Raj.) 342006.
----Petitioner
Versus
1. Rajasthan Rajya Vidyut Prasaran Nigam Limited, Through
Its Chairman And Managing Director, Registered Office,
Vidyut Bhawan, Jyoti Nagar, Jodhpur (Rajasthan) 342005.
2. The Superintending Engineer (Civil) Rvpnl (Jodhpur), At
New Power House Premises, Jodhpur (Rajasthan) 342003.
----Respondents
S.B. Civil Writ Petition No. 17123/2023
M/s Yash Enterprises, Through Its Proprietor Pradyuman Singh
Jodha S/o Shri Prahalad Singh Jodha, Aged About 32 Years, R/o
425 New Bjs Colony, Rto Office Road, Jodhpur (Raj.) 342006.
----Petitioner
Versus
1. Rajasthan Rajya Vidyut Prasaran Nigam Limited, Through
Its Chairman And Managing Director, Registered Office,
Vidyut Bhawan, Jyoti Nagar, Jodhpur (Rajasthan) 342005.
2. The Superintending Engineer, (Civil) Rvpnl (Jodhpur) At
New Power House Premises, Jodhpur (Rajasthan) 342003.
(Downloaded on 14/12/2023 at 08:46:26 PM)
[2023:RJ-JD:42092] (2 of 13) [CW-17011/2023]
----Respondents
For Petitioner(s) : Mr. Lakshya Singh Udawat
For Respondent(s) : Mr. Suniel Purohit
HON'BLE DR. JUSTICE NUPUR BHATI
ORDER
Reserved On <><> 04/12/2023
Pronounced On <><> 14/12/2023
1. These petitions have been filed by the petitioners under
Article 226 of the Constitution of India with the following prayers:-
"It is therefore, most humbly and respectfully
prayed that this writ petition may kindly be allowed;
and by an appropriate writ, order or direction:-
(a) The record of the case may kindly be called
for;
(b) The office order/office comment dated
05.10.2023 (Annexure-6) whereby the Committee
has decided to reject the tender and re-invite the
tender may be quashed and set aside.
(c) The respondents may kindly be directed to
issue LOI in favour of the petitioner.
(d) Any other appropriate writ or order or
direction which is favorably to the petitioners in the
facts and circumstances of the case may kindly be
granted to the petitioners.
(e) That the costs of the writ petition be also
awarded in favour of the petitioner."
2. Since common questions of facts and law are involved in
these writ petitions, therefore, the same are decided by this
common order and for the purpose of deciding this bunch of
matters, facts of SBCWP No.17011/2023 are being taken into
consideration.
3. Brief facts of the case are that the petitioner is a sole
proprietorship firm registered in the name and style of M/s Yash
[2023:RJ-JD:42092] (3 of 13) [CW-17011/2023]
Enterprises, registered with Government of India bearing GST
Registration No.08AQXPJ8813B1ZJ.
4. A notice inviting bid was issued by the Office of
Superintending Engineer (Civil) RVPNL, Jodhpur on 19.07.2023
(Annexure-2), for construction of Control Room, Quarters, Store,
Guard Hut, Boundary Wall, Civil Foundation, Cable Trench, L&D,
Gravelling and Water Supply and Harvesting System and other
misc. works in yard at 132 KV G.S.S. Chandrak.
5. The petitioner firm qualified the technical bid and the
financial bid was opened on 19.09.2023 (Annexure-3) and the
petitioner was declared as L-1 Bidder, as he had quoted lowest
amount for tender.
6. An email dated 30.09.2023 (Annexure-4) was received by
the petitioner firm which was sent by the Chief Engineer (Civil)
RVPN Jaipur, which asked the petitioner to be present before the
Authority on 03.10.2023 for negotiation of rates for the above
work and the said direction was complied with by the petitioner
firm and agreed to reduce the rates as per the instructions of the
respondent Department.
7. A meeting was held on 05.10.2023 comprising of six
members i.e. Chairman and Managing Director RVPN Jaipur,
Director (Technical) RVPN Jaipur, Director (Fincance) RVPN Jaipur,
Chief Engineer (Civil) RVPN Jaipur, ACE (Civil) RVPN Jodhpur and
Senior AO (Civil) RVPN, Jodhpur, which observed tha the petitioner
firm was the L-1 bidder i.e. firm who has quoted the lowest
amount for the bid and has initially quoted @ 3.96% above for
BOQ-1 and 3.98% above for BOQ-2 and BOQ-3 and for BOQ-4
[2023:RJ-JD:42092] (4 of 13) [CW-17011/2023]
item 1 @ Rs.175 per cum for BOQ-4 item 2 @ Rs.1070 per sq.
meter, total amounting to Rs.57682259.70 including all taxes, but
the respondents decided to reject this tender in view of the higher
rates and further, a decision was taken to re-invite the tender
(Annexure-5).
8. Being aggrieved of the office order/office comment dated
05.10.2023 (Annexure-5) passed by the respondent authorities,
the petitioner has preferred the present writ petition.
9. Learned counsel for the petitioner submitted that the office
order/office comment dated 05.10.2023, has been passed without
jurisdiction and is ex-facie; illegal, arbitrary and unreasonable and
therefore, deserves to be quashed and set aside, because:-
(a) The first appellate authority to which the appeal would lie, in
case of any grievance, would be the Board of Director RRVPNL and
the impugned office order/office comment dated 05.10.2023 has
been passed by the committee comprising of six members, which
are Board of Directors.
(b) The respondent authority in the office order/office comment
dated 05.10.2023 are themselves accepting that the petitioner is
the L-1/lowest bidder and had been called for negotiation to
reduce the rates and also agreed to the fact that the petitioner
firm has reduced the rates in compliance to the negotiation but
the respondent authority rejected the tender and are re-inviting
the tender for the said work, which is illegal on the face of the
record. The petitioner firm after successfully reaching the
culminating point of the tender whereby, only one step was to be
completed i.e. issuance of work order/LOI, arbitrarily, the decision
[2023:RJ-JD:42092] (5 of 13) [CW-17011/2023]
has been taken for rejection of the bid on the ground of higher
rates quoted by the petitioner.
(c) In identical tenders, the work has been sanctioned at much
higher rate as compared to the rate quoted by the petitioner, as
the work order has been issued @ 7.89% above, the another work
order dated 05.10.2023 was issued in the favour of Sahran
Construction Company @ 4% above, on 25.08.2023 for similar
nature of work, the work order has been issued @3.51% above
and similarly, various other work orders have been issued at a
higher rate than the rate quoted by the petitioner.
(d) As per Section 26 of the Rajasthan Transparency and Public
Procurement Act 2012 (hereinafter referred to as 'the Act of
2012'), the procuring entity may record reasons and writing
before the cancellation of the process of procurement initiated by
it but in the present case and by the perusal of the office
order/office comment dated 05.10.2023 (Annexure-5), compliance
of Section 26 and the Act of 2012 has not been made and the
impugned order/comment dated 05.10.2023, has been passed by
the Members of the Board of Directors, whereas, the
Superintending Engineer, RRVPNL, Jodhpur, who has issued the E-
Tender Notice dated 19.07.2023, being the Procuring Authority,
was required to pass the impugned orders/comment. In the
present case, the notice inviting bid has been issued by the
Superintending Engineer (Civil) RVPNL, Jodhpur, and the tender
has been cancelled by the first appellate authority i.e. the Board of
Directors, which proves breach of transparency in the present
procurement process.
[2023:RJ-JD:42092] (6 of 13) [CW-17011/2023]
(e) Without there being any plausible reason, the respondent
Department in haste, cancelled the e-tender. The respondent
Department discriminated between the petitioner firm and the
other firms, by issuing identical tenders to them at higher rates
i.e. 9.95% and denied the LOI/work order to the petitioner firm.
10. In support of his contentions, learned counsel for the
petitioner placed reliance upon the following judgments which are
as follows:-
i.) SBCWP No.16990/2023 (Daniel Furniture P Limited
Vs. State of Rajasthan & Ors.).
ii.) Union of India & Ors. Vs. Dinesh Engineering
Corporation & Anr., reported in (2001) 8 SCC 491.
iii.) Mihan India Ltd. Vs. GMR Airports Ltd & Anr. and other
connected matters, reported in 2022 SCC Online SC 574.
11. Per contra, learned counsel representing the respondent
opposed the submissions advanced by the petitioner's counsel and
submitted that the writ petition may be dismissed with costs
because:-
(a) The decision of rejecting the bid of the petitioner and re-
inviting the tenders after annulment of the present bidding
process is completely valid and justified inasmuch as the
Superintendent Engineer, Civil Circle is the signing authority and
authorized to float the tender but as a matter of fact, the said
tender proceeding is conducted under the supervision of
procurement committee which is supposed to adjudge the viability
of the tender proceedings and it is on the recommendations of the
procurement committee, the final procurement entity i.e. Whole
[2023:RJ-JD:42092] (7 of 13) [CW-17011/2023]
Time Director (WTD) Committee has taken the decision to cancel
the present process and to re-invite the tender as the rate quoted
by the petitioner firm is higher as compared to already awarded
tenders.
(b) The respondent Department is completely justified in
cancelling the tender process in view of the powers conferred
under Section 26 of the Act of 2012 read with Rule 72 of the Rules
of the Rajasthan Transparency and Public Procurement Rules,
2013 (hereinafter referred to as 'the Rules of 2013'), which is
reproduced hereinbelow:-
"72. Procuring entity's right to accept or reject
any or all bids.- The Procuring entity reserves the
right to accept or reject any bid, and to annul the
bidding process and reject all bids at any time prior to
award of contract, without thereby incurring any
liability to the bidders. Reasons for doing so shall be
recorded in writing."
(c) The contention of the petitioner firm regarding award of work
at some other site at higher rates i.e. 9.95% and above, is not
helpful in the present case as the said rates were sanctioned in
peculiar circumstances i.e. balance of work at 220 KV G.S.S.
P.P.S.-IV at Nokh as the said work was a balance work since the
existing contractor did not complete the work awarded and looking
towards the urgency of the work which majorly involved steel and
graveling work, the said rates were sanctioned but that rates too
were on lesser side looking towards the quantum of the work
which was to be completed within a period of one and half month
only and as such, the petitioner cannot claim parity on the basis of
[2023:RJ-JD:42092] (8 of 13) [CW-17011/2023]
the said rates and the entire contention of the petitioner is wholly
misconceived and uncalled for.
12. Heard learned counsel representing the parties and perused
the material placed on record.
13. It is an admitted position that the respondents called upon
the petitioner for negotiation of the rates quoted, however, in the
meeting held on 05.10.2023 by the Whole Time Director (WTD)
Committee, a unanimous decision was taken to reject the tender
and re-invite the tender for the same work. The contention of
learned counsel for the petitioner that once the petitioner was
called for negotiation and reduced rate offered by the petitioner
was duly accepted by the respondents then, the respondents could
not have rejected the tender and re-invited the tender for the
same work is not sustainable as under Rule 69(7), it has been
specifically laid down that after negotiation, if the rates are
considered to be very high, fresh bids shall be invited. The
relevant provision of Rule 69(7) of the Rules of 2013 is reproduced
hereunder:-
"69. Negotiations:-xxxxxxx
xxxxxxx
xxxxxxx
(7) In case the rates even after the negotiations
are considered very high, fresh bids shall be
invited."
Further, it is seen that under Rule 72 of the Rules of 2013, there is
a specific provision wherein, the procuring entity's right to accept
or reject any or all bids, has been laid down and thus, the
procuring entity has the right to accept or reject any bid at any
time prior to award of contract by recording the reasons in writing
and in the instant case, the petitioner has not been awarded the
[2023:RJ-JD:42092] (9 of 13) [CW-17011/2023]
contract and further, by way of Annexure-5, the reasons for
rejecting the bid have also been recorded. Rule 72 of the Rules of
2013, is reproduced hereunder:-
"72. Procuring entity's right to accept or
reject any or all bids.- The Procuring entity
reserves the right to accept or reject any bid,
and to annul the bidding process and reject all
bids at any time prior to award of contract,
without thereby incurring any liability to the
bidders. Reasons for doing so shall be recorded
in writing."
14. Learned counsel for the petitioner has also submitted that
the office order/comment dated 05.10.2023 is dehors the rules as
only the procuring authority is empowered to reject the bid as laid
down in Section 26 of the Act of 2012, but in the instant case, the
Board of Directors have passed the said order is also not
sustainable as after perusing the relevant provisions of law, it is
also seen that under Section 3(2) of the Act of 2012, the definition
for procuring entities has been laid down and the same is
reproduced hereunder:-
"3. Application.- (1) xxxxxxxxxxx.
(2) For the purposes of this Act, "procuring
entity" means,-
(a) any department of the State
Government or its attached or subordinate
office;
(b) any State Public Sector Enterprise owned or
controlled by the State Government;
(c) any body established or constituted by the
Constitution whose expenditure is met from the
Consolidated Fund of the State;
(d) any body or board or corporation or
authority or society or trustor autonomous body
(by whatever name called) established or
constituted by an Act of the State Legislature or
[2023:RJ-JD:42092] (10 of 13) [CW-17011/2023]
a body owned or controlled by the State
Government;
(e) any other entity which the State Government
may, by notification, specify to be a procuring
entity for the purpose of this Act, being an entity
that receives substantial financial assistance
from the State Government in so far as the
utilisation of such assistance towards
procurement is concerned.
(3) xxxxxx
(4) xxxxxx"
Section 26 of the Rajasthan Transparency and Public
Procurement Act 2012, is also reproduced hereunder:-
"26. Cancellation of the procurement process.-
(1) A procuring entity may, for reasons to be recorded
in writing, cancel the process of procurement initiated
by it -
(a) at any time prior to the acceptance of the
successful bid; or
(b) after the successful bid is accepted in
accordance with sub-sections (4) and (5).
(2) The procuring entity shall not open any bids or
proposals after taking a decision to cancel the
procurement and shall return such unopened bids or
proposals.
(3) The decision of the procuring entity to cancel the
procurement and reasons for such decision shall be
immediately communicated to all bidders that
participated in the procurement process.
(4) If the bidder whose bid has been accepted as
successful fails to sign any written procurement
contract as required, or fails to provide any required
security for the performance of the contract, the
procuring entity may cancel the procurement process.
(5) If a bidder is convicted of any offence under this
Act, the procuring entity may-
(a) cancel the relevant procurement process if
the bid of the convicted bidder has been declared
[2023:RJ-JD:42092] (11 of 13) [CW-17011/2023]
as successful but no procurement contract has
been entered into;
(b) rescind the relevant contract or forfeit the
payment of all or a part of the contract value if
the procurement contract has been entered into
between the procuring entity and the convicted
bidder."
15. Thus, as per the definition of procuring entity as laid down
under Section 3(2)(a), any department of the State Government
or its attached or subordinate office, shall be procuring entity and
thus, in the instant case as submitted by the learned counsel for
the respondents, that the Whole Time Director (WTD) Committee,
was empowered to reject the tender and re-invite the tender for
the present work and, thus the impugned order has been passed
by the Whole Time Director (WTD) Committee is held to be
justified.
16. Learned counsel for the petitioner submitted that on account
of the impugned order being passed by the Board of Directors, the
petitioner is rendered as remediless because as per Appendix-III
(Grievance Redressal during Procurement Process) (Annexure-2),
the first appellate authority is the Board of Directors, RRVPNL.
From a bare perusal of Appendix-III appended with the notice
inviting bid, it is seen that under Clause 4, in certain cases, appeal
shall not lie against any decision of procuring entity relating to
certain matters in which the cancellation of procurement process
is also included. Thus, as per the Appendix-III if the procuring
authority decides to cancel the procurement process, then in such
case, there is no provision of appeal. The relevant portion of
[2023:RJ-JD:42092] (12 of 13) [CW-17011/2023]
Clause 4 as laid down in Appendix-III (Grievance Redressal during
Procurement Process) (Annexure-2), is reproduced hereunder:-
"(4) Appeal not to lie in certain cases
No appeal shall lie against any decision of the
Procuring Entity relating to the following matters
namely:-
a) determination of need of procurement;
b) provisions limiting participation of Bidders
in the Bid process;
c) the decision of whether or not to enter into
negotiations;
d) cancellation of procurement process;
e) Applicability of the provisions of
confidentiality."
17. The submission of learned counsel for the petitioner that in
similar work orders, the respondents have granted work order
despite the rate being higher to the rate quoted by the petitioner,
is a technical matter and lies in the domain of the respondents
and it is for the respondents to decide as they are experts of the
field and this Court should not grant indulgence in such matters.
18. As an upshot of the discussion made hereinabove and
looking to the fact that the respondents have taken a decision in
consonance with the provisions as laid down under the Rajasthan
Transparency and Public Procurement Act 2012 and the Rajasthan
Transparency and Public Procurement Rules, 2013 and, taking into
consideration the fact that the procuring entity has been granted
right to accept or reject any or all bids at any time, prior to award
of contract under Rule 72 of the Rules of 2013 and, the
respondents have a right to invite fresh bids even after
negotiations if the rates are considered to be high as laid down
[2023:RJ-JD:42092] (13 of 13) [CW-17011/2023]
under Rule 69 of the Rules of 2013, these writ petitions deserve to
be and are hereby dismissed.
19. Stay application as well as all other pending application(s), if
any, also stand dismissed.
20. No order as to costs.
21. A copy of this order be placed in each file.
(DR. NUPUR BHATI),J
Devesh Thanvi/surabhii-
Powered by TCPDF (www.tcpdf.org)
