Uttarakhand High Court
7Th November vs Nagar Nigam on 7 November, 2024
Author: Manoj Kumar Tiwari
Bench: Manoj Kumar Tiwari
2024:UHC:8341-DB
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
HON'BLE THE ACTING CHIEF JUSTICE MR. MANOJ KUMAR TIWARI
AND
HON'BLE MR. JUSTICE VIVEK BHARTI SHARMA
WRIT PETITION (M/B) NO. 526 OF 2024
07TH NOVEMBER, 2024
AD World, a partnership firm ...... Petitioner
Versus
Nagar Nigam, Dehradun ...... Respondent
Counsel for the petitioner : Mr. Sagar Kothari, learned counsel
Counsel for the respondent : Mr. Ashish Joshi, learned counsel
The Court made the following:
JUDGMENT:
(per Hon'ble The Acting Chief Justice Mr. Manoj Kumar Tiwari)
Petitioner is an advertising agency.
2) By means of this writ petition, petitioner has
sought the following reliefs :
"(i) Issue a writ, order or direction in the nature
of certiorari quashing the impugned tender notice
dated 26.10.2024 (Annexure No. 3 to this writ
petition) as well as impugned e-tender document
dated 27.10.2024 (Annexure No. 3 to this writ
petition), specifying terms and conditions of tender
notice dated 26.10.2024, which are in direct violation
2024:UHC:8341-DB
and contravention to the Uttarakhand Procurement
Rules, 2017.
(ii) Issue a writ, order or direction in nature of
certiorari quashing the term & condition stipulated in
clause 3(4) of impugned e-tender document dated
27.10.2024 (Annexure No. 3 to this writ petition)
issued in pursuance of impugned tender notice dated
26.10.2024 (Annexure No. 3 to this writ petition), as
the same is in violation of the provisions contained
under Indian Stamp Act, 1899.
(iii) Issue a writ, order or direction in the nature
of certiorari quashing the term & condition stipulated
in clause 4(9) of impugned e-tender document dated
27.10.2024 (Annexure No. 3 to this writ petition)
issued in pursuance of impugned tender notice dated
26.10.2024 (Annexure No. 3 to this writ petition) to
the extent of deposit of earnest money deposit
(Tender Security) in violation of Rule 36 of the
Uttarakhand Procurement Rules, 2017.
(iv) Issue a writ, order or direction in the nature
of certiorari calling for entire records of the tender
process in pursuance to impugned tender notice dated
26.10.2024 (Annexure No. 3 to this writ petition) and
quashing all the actions taken and decisions made in
pursuance of the same."
3) Petitioner is aggrieved by Clause No. 4(9) of e-
tender document published on 27.10.2024. According to
him, condition contained in Clause 4(9) is contrary to
provision contained in Uttarakhand Procurement Rules,
2017.
2024:UHC:8341-DB
4) Clause No. 4(9) of the e-tender document is
extracted hereunder :
"4(9) fufonknkrk dks fufonk esa izfrHkkx djus ls iwoZ leLr
rduhdh nLrkostksa dks LdSu dj bZ0 fufonk iksVZy ij viyksM djrs gaq,
fufonk esa izfrHkkx djus dh vafre frfFk ls iwoZ fnukad 08-11-2024 dh lka;
4%00 cts rd :0& 26]12]050@& dh /kujkf'k dh lh0Mh0vkj0@
,Q0Mh0vkj0 rFkk fufonk 'kqYd dk fMekaM Mªk¶V ewy esa rFkk rduhdh
nLrkostksa dh ewy izfr uxj fuxe dk;kZy; esa tek djuk vfuok;Z gSA"
5) According to the petitioner, Municipal
Corporation, Dehradun issued tender notice on
26.10.2024, inviting bids from persons interested in
award of contract for advertising rights in certain areas
within Municipal limits of Dehradun, and the reserve price
for the said contract was fixed as Rs.2,61,20,500/-. He
contends that as per Rule 36 of the Uttarakhand
Procurement Rules, 2017, the amount required to be
deposited by a bidder as tender security / earnest money
should not be more than two per cent of the value of the
contract subject to minimum of Rs. 75,000/- where the
valuation of the contract is more than rupees 25 lacs. He
further submits that the said provision further provides
that earnest money to the extent of three per cent can be
required to be deposited by the bidders, if the valuation of
the contract is less than rupees 25 lacs. Thus, he submits
that as, in the present case, valuation of the contract is
2024:UHC:8341-DB
more than rupees 200 lacs, therefore, the condition put in
the e-tender document asking the bidders to deposit
earnest money to the extent of ten per cent of the reserve
price is unsustainable in the eyes of law.
6) Municipal Corporation, Dehradun was granted
time to get instructions in the matter. Today, on
instructions, learned counsel appearing for Municipal
Corporation relies upon a Notification dated 16.02.2016,
issued by the Government of Uttarakhand by invoking its
rule making power under Section 540 of the U.P.
Municipal Corporation Act, 1959 (as applicable in State of
Uttarakhand). By the said notification, State Government
has framed exhaustive Rules regulating grant of
advertising rights by Municipal Corporations. Reliance is
placed upon Rule 6(2) of the said Rules, which provides
that every person submitting bid for award of contract for
advertising right will be required to deposit 10 per cent of
the reserve price as earnest money / tender security with
his bid. Thus, he submits that the condition challenged by
the petitioner is as per mandate of Rule 6(2) of the
aforesaid Rules notified on 16.02.2016, therefore, the
challenge to the said condition is without any substance.
7) Learned counsel appearing for respondent
Municipal Corporation, Dehradun further submits that Rule
2024:UHC:8341-DB
36 of the Uttarakhand Procurement Rules, 2017, is not
applicable in the present case as the said provision is
attracted only when a Government department procures
goods or commodities from a private supplier. He refers
to the expression 'lkexzh' used in Rule 36(1) of Uttarakhand
Procurement Rules, 2017. Rule 36 of Uttarakhand
Procurement Rules, 2017 is reproduced below for ready
reference :
"(1) foKkiu ;k lhfer fufonk i`PNk ds izdj.k esa fufonk nsus ds
ckn fufonk okil ysus ;k oS/k vof/k esa fufonk es ifjorZu djus ds lkis{k
lqj{kk iznku djus dh n`f"V ls fufonknkrkvksa ls] mudks NksMdj ftUgs fof/k
,o fu;eksa ds fof'k"V izkfo/kkuksa ds vUrxZr NwV nh xbZ gks] fufonk izfrHkwfr
(ftls /kjksgj /kujkf'k dgk tkrk gS) yh tk,xhA fufonk izfrHkwfr lkekU;r%
lkexzh ds vuqekfur ewY; ds 2 o 3 izfr'kr rd yh tk,xhA izfr'kr dk
fu/kkj.k lkexzh ds lEiw.k ewY; ij fuEukuqlkj fd;k tk;sxk %&
(,d) #0 25.00 yk[k rd 3 izfr'kr
(nks) #0 25.00 yk[k ls vf/kd 2 izfr'kr (U;wure #0 75000)
(2) bu njksa dk 'kklu }kjk le;≤ ij iqujh{k.k fd;k tk
ldrk gS] /kjksgj /kujkf'k dks fMekUM Mªk¶V] lkof/k tek jlhn] cSadlZ psd]
cSad xkjUVh ;k laxBu esa bZ&cSafdx lqfo/kk gksus ij] rnuqlkj fu/kkZfjr Lo:i
es tSlk Hkh l{ke izkkf/kdkjh dh lUrqf"V rFkk Øsrk ds fgrksa dh lHkh izdkj ls
lqj{kk ds fy, vko';d gks] tek fd;k tk ldsxkA lkekU;r% /kjksgj /kujkf'k
dh oS/krk fufonk dh vafre oS/k vof/k ds i'pkr~ 45 fnu gksxh ijUrq bl
vof/k dks vko';drkuqlkj c<+k;k tk ldrk gSA
(3) lQy fufonknkrkvksa dh fufonk izfrHkwfr dh vfUre oS/krk vof/k
dh lekfIr ij ;Fkk'kh?kz] ijUrq lEcf/kr foHkkx@izkf/kdkjh }kjk lafonk djus
ds mijkUr 30 ¼rhl½ fnu ds vUrxZr gh lEcfU/kr fufonknkrkvksa dks ykSVk
nsuh pkfg,A"
2024:UHC:8341-DB
8) The expression 'lkexzh' used in Rule 36 is defined
in Rule 2p of Uttarakhand Procurement Rules, 2017. Rule
2p of said Rules is reproduced hereunder for ready
reference :
"2(p) 'lkexzh' ls lHkh oLrq,a] mRikr] inkFkZ] i'kq/ku] QuhZpj]
fQDlpj] dPpk eky] dy iqtsZ] midj.k] e'khusa] vk/kksfxd l;a=] okgu]
gokbZ tgkt] nokbZ;ka] vewrZ mRikn tSls lkW¶Vos;j VsDukWykWth LFkkukarj.k]
ykblsalt] ys[ku lkexzh ¼LVs'kujh½ vkfn vfHkizsr gSaA lkexzh ds varxZr dk;Z
,ao lsok;sa tks bl izdkj ds lkexzh dh vkiwfrZ ds fy, vko';d gS] tSls fd
<qyku] chek] bULVkWys'ku ,ao dfef'uax] izf'k{k.k ,ao j[kj[kkoA ijUrq ;g fd
iqLrdky; ds fy, Ø; dh tkus okyh iqLrd] izdk'ku] if=dk,a vkfn blesa
lfEefyr ugh gksaxhA"
9) Thus, counsel appearing for the Municipal
Corporation submits that here the tender was issued by
the Municipal Corporation, Dehradun for award of contract
for advertising rights, which is totally different from a
contract for procurement of goods or commodities. He
further submits that provision contained in Rule 36 of the
Procurement Rules is in the nature of guidelines and it
cannot be read as a mandatory condition, violation
whereof may nullify the tender process. He submits that
the present case is regarding grant of advertising rights
which is not akin to procurement of goods, therefore,
applicability of Rule 36 is doubtful. Moreover, the field is
2024:UHC:8341-DB
covered by special law framed by the State Government in
exercise of its rule making power under Section 540 of the
U.P. Municipal Corporation Act, 1959, therefore, the
provision contained in the general law would not be
applicable. The condition impugned by petitioner has the
backing of Rule 6(2) of the aforesaid Rules notified by
State Government on 16.02.2016.
10) Rule 6(2) of the Notification dated 16.02.2016 is
extracted here-in-below for ready reference :
"6¼2½ foKkiudrkZ }kjk izLrkfor izhfe;e dh 10 izfr'kr /kujkf'k
izfrHkwfr ds :i esa fufonk izi= ds lkFk tek djuh vfuok;Z gksxhA"
11) This Court finds some substance in the
submission made by learned counsel appearing for the
respondent Municipal Corporation, Dehradun that Rule 36
of Procurement Rules 2017 would be attracted while
awarding contract for supply of goods. Moreover, the
condition of the tender document is as per the statutory
Rules framed by State Government, which deal with
award of contract of advertising rights alone. The said
Rules are applicable only to Municipal Corporations
established under Municipal Corporation Act and the Rules
have been framed in exercise of rule making power under
Section 540 of the Municipal Corporation Act. Thus, these
2024:UHC:8341-DB
Rules are special in nature, which will override the General
Law. Therefore, the condition mentioned in Clause 4(9) of
the e-tender document, cannot be said to be arbitrary or
illegal.
12) Even otherwise also, the said condition would
apply across the board to all interested persons, who
submit bid for award of contract for advertising rights.
Therefore, no special prejudice is going to be caused to
the petitioner. Every organization, Government or
otherwise, before entering into contract with other
persons, is entitled to put such conditions in the Notice
Inviting Tender, as are deemed necessary to safeguard its
interest. Many a times, it is seen that bidders with weak
financial status or bidders who are not serious in doing the
work, succeed in getting a contract, however, they are not
able to cope with the work pressure and they abandon the
work midway, resulting in difficulty and financial loss to
the employer. Thus, to safeguard the interest of Municipal
Corporation in the matter of grant of advertising rights,
State Government has provided in the Statutory Rules
that every bidder should deposit tender security / earnest
money to the tune of 10 per cent of the reserve price.
The said condition cannot be said to be unjust or
discriminatory, especially when it has the statutory
2024:UHC:8341-DB
backing of Rule 6(2) of the Rules applicable to Municipal
Corporations. Thus, there is no scope for interference
with the impugned tender notice dated 26.10.2024, as
well as e-tender document dated 27.10.2024.
13) For the reasons stated, this writ petition is liable
to be dismissed. The same is, accordingly, dismissed. No
orders as to cost.
_________________________
MANOJ KUMAR TIWARI, A.C.J.
___________________
VIVEK BHARTI SHARMA, J.
Dt: 7TH NOVEMBER, 2024
Negi
HIMANSH
U NEGI
DN: c=IN, o=HIGH COURT OF UTTARAKHAND,
2.5.4.20=bb3b60774012c1ef1dae20d13aaf116e733
51fdaf6878326386908a7f90d5757,
postalCode=263001, st=UTTARAKHAND,
serialNumber=75BD9D0FB7F4A80990FC51A722A6
BC552D470EB4FD2F88DDF7C18DB2A1524A4D,
cn=HIMANSHU NEGI
Date: 2024.11.12 15:47:12 +05'30'
