Uttarakhand High Court
Aryan Construction & Associates vs State Of Uttarakhand on 9 October, 2023
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
HON'BLE THE CHIEF JUSTICE SRI VIPIN SANGHI
AND
HON'BLE SRI JUSTICE RAKESH THAPLIYAL
WRIT PETITION (M/S) NO. 1512 OF 2021
09TH OCTOBER, 2023
Aryan Construction & Associates .....Petitioner.
Versus
State of Uttarakhand ....Respondent.
Counsel for the Petitioner : Mr. Arvind Vashisth, learned
Senior Counsel assisted by Mr.
Ketan Joshi, learned counsel.
Counsel for the Respondent : Mr. Rajeev Singh Bisht, learned
Additional Chief Standing
Counsel.
The Court made the following:
JUDGMENT:(per Hon'ble The Chief Justice Sri Vipin Sanghi)
The challenge in this writ petition by the petitioner
is to the order dated 05.09.2020, and the notification dated
19.06.2017, issued by the respondent.
2. The petitioner had participated in the tender invited
by the respondent for the work called "Improvement/
Strengthening of Roads under Package No. C4A to C2J in
Almora District of Uttarakhand". The petitioner emerged as
the successful bidder. However, the petitioner failed to
execute the work. The tender gave an option to the bidders
to, either submit the bid security, or submit the bid security
declaration. The bid security declaration was to the effect that
in case the bidder fails to execute the contract after its
award, the respondent could debar the bidder for a period of
ten years from award of further works. The petitioner
consciously gave that declaration. Since the petitioner failed
to execute the contract, the bid security declaration was
invoked, after issuance of notice, and vide order dated
19.06.2017, the petitioner was barred from award of any
work by the respondent for a period of ten years w.e.f. the
date of receipt of the notification dated 19.06.2017.
3. The petitioner earlier preferred a writ petition,
being Writ Petition (M/S) No.683 of 2020, which was disposed
of on 04.08.2020, with a direction to the respondent to
decide the petitioner's representation. That representation
has been rejected on 05.09.2020, which too has been
assailed before us in this petition.
4. The submission of Mr. Arvind Vashisth, learned
Senior Counsel for the petitioner, is that the period of ten
years for debarring the petitioner is too large, and this
tantamounts to virtually killing the petitioner's business.
5. The condition that the bidder, who fails to perform
the contract, would be debarred for a period of ten years, was
a condition well-known to the petitioner even before
submitting his bid. The petitioner opted not to submit the bid
security, but to submit bid security declaration. Even when
the show-cause notice was issued to the petitioner, the
petitioner did not offer to submit the bid security amount, and
invited the order, debarring him for a period of ten years
from the date of issuance of the order dated 19.06.2017.
6. At this stage, it is not permissible for the petitioner
to challenge the condition requiring the debarment of the
petitioner- who does not fulfill the contract when awarded, for
a period of ten years. The challenge to the said clause could,
and should, have been raised before participation in the
bidding process.
7. Mr. Vashisth submits that six years have elapsed,
out of ten years period, and four years remain. He submits
that the petitioner may be permitted to make a
representation to the respondent to consider charging of
proportionate bid security, which the petitioner would be
willing to pay so as to waive the remaining debarment period
of four years.
8. We dispose of this writ petition with liberty to the
petitioner to make such a representation. If the petitioner
makes a representation, the same be considered and
disposed of by the respondent within two weeks from the
date of receipt of such representation by passing a reasoned
and speaking order, under intimation to the petitioner.
9. The writ petition is disposed of in the aforesaid
terms. We have not examined the merits of the aforesaid
submission recorded in Paragraph No.7 above.
10. Pending application, if any, also stands disposed of.
(VIPIN SANGHI, C.J.)
(RAKESH THAPLIYAL, J.)
Dated: 09th October, 2023
NISHANT
