Rajasthan High Court - Jaipur
M/S Suny Fabricators (India)Ltd vs State (Sugar Mill Dep )Ors on 23 September, 2011
Author: Alok Sharma
Bench: Alok Sharma
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH S.B. CIVIL WRIT PETITION No.9303/2011 M/s. Suny Fabricators (India) Pvt. Ltd. Vs. State of Rajasthan & Ors. Date of Order: 23/09/2011 HON'BLE MR. JUSTICE ALOK SHARMA Mr. Saransh Saini, for the petitioner. Mr. R.N. Mathur, Sr. Advocate assisted by Mr. Dharmendra Jain, for the respondent.
This petition has been filed impugning the rejection of the petitioner-Company in the technical bid and consequent non-consideration of its financial bid with reference to two NITs No.Pur/04/2011-12 and Pur/6/2011-12. Certain anticipatory reliefs have also been prayed for.
The case of the petitioner-Company is that it is engaged in the business of fabrication and erection of the boilers and parts thereto and also participates in contract/job work in the same field. According to the petitioner-Company, two notices inviting tender in respect of NITs No.Pur/04/2011-12 and Pur/6/2011-12 were advertised in various newspapers on 01.07.2011. The petitioner-Company applied for item No.10, 11 and 13 in respect of NIT No.Pur/04/2011-12 and for job work under serial II of NIT No.Pur/6/2011-12. The case of the petitioner-Company is that at the time of opening of the technical bid on 11.07.2011, the technical bid of the petitioner-Company was wrongly rejected consequent to which its financial bid was not considered.
The petitioner-Company submits that the rejection of its technical bid was without assigning any reasons and the entire exercise appears to have been undertaken solely with the intent of favouring one Boiler Component Manufacture Company, Delhi-6 even though the said Company was not qualified as per the conditions of the tender. It is submitted that the petitioner-Company was certified on 26.03.2010 by the National Small Industries Corporation Ltd. (hereinafter 'NSIC) as a small scale industry unit consequent to which it was entitled inter alia to an universal exemption from payment of earnest money/security deposit at the time of submitting tenders in response to the two NITs referred above. It is submitted that the rejection of the petitioner-company's technical bid on the count of non-deposit of earnest money is illegal and arbitrary and liable to the quashed and set aside. It is submitted that for earlier supplies, the petitioner-Company was not required to deposit earnest money with the tenders submitted by it to the respondent Ganganagar Sugar Mills Ltd. except in one instance when owing to wrongful pressure of the respondent-Company it was forced to pay earnest money in respect of one contract. It is submitted based on the certificate registration dated 26.03.2011 issued by NSIC its tender could not have been rejected for its failure to deposit earnest money along with its tender.
Per contra, the counsel for the respondent-Company submits that a bare look at the certificate issued by NSIC on 26.03.2010 clearly indicates that the petitioner-Company has been registered as a SSI unit eligible only for participation in the Central Government Stores Purchase Programme and was entitled to the concessions/benefits/exemptions only in respect of purchase of stores by Central Government and its instrumentalities. He submits that Ganganagar Sugar Mills Ltd. is quite apparently not a Central Government Organization or a public sector undertaking controlled by the Central Government. It is submitted that in fact the purchase of stores by Ganganagar Sugar Mills Ltd. a Rajasthan State PSU are regulated by the directions, procedure and rules for purchase formulated effective 16.09.1968 by the respondent Ganganagar Sugar Mills. Referring to Rule 32 of the aforesaid Purchase Rules, it has been submitted that for the purpose of submitting of tenders and entering into contract and agreements with GSM, the General Financial and Accounts Rules of the State of Rajasthan (hereinafter, GFAR), are to be adopted with modification as made, if any. He submits that consequently GFAR is applicable to the purchases made by the respondent-Company. Counsel has made reference to part-II of the GFAR Rules more particularly Rule 57 of the Rules and submits that in terms of Rule 57(2)(b) of the Rules it has been provided that earnest money @ 0.5% (Half per cent) of the value of the quantity offered for supply by the S.S.I. Units of Rajasthan and security deposit @ 1% of the quantity ordered to be supplied is required to be deposited while submitting tenders. It is further submitted that the manner of availing the concession/relaxation for SSI Units under clause (b) of Rule 57(2) aforesaid is provided therein and the bidder, when a SSI is under an obligation to furnish the original or photostat copy (duly attested) of its registration as a SSI issued by the Director of Industries Rajasthan specifying the stores to which the registration relates. Counsel for the respondents has further referred to the Purchase of Stores (Preference to Industries of Rajasthan) Rule, 1995 more particularly Rule 8 thereof which provides the proforma in which the certificate has to be issued by the Director of Industries of Rajasthan indicating registration of a S.S.I. Unit. Counsel submits that it is thus apparent that the certificate dated 26.03.2010 issued by the NSIC was not relevant to the claim of the petitioner-Company to be entitled to complete exemption with regard to payment of earnest money with its tender made in response to the two NITs in issue, nor was there any illegality in the rejection of the technical bids.
The counsel for the respondent further points out that in fact in the notice inviting tender advertised by the respondent-Company on 01.11.2011 it was categorically provided that the tenders not accompanied by earnest money shall be liable to be rejected. He submits that the condition of the advertisement are not under challenge in this writ petition and consequently they operate inexorably on the determination of rights sought to be agitated by the petitioner-Company before this Court.
In rejoinder, the counsel for the petitioner has relied upon a judgment of Delhi High Court in the case of Delkon Textiles Private Ltd. Vs. Ministry of Railways & Ors, W.P.(C) No.77704/2009 decided on 12.08.2010 in support of its case that the petitioner-Company is entitled to the benefit of certificate dated 26.03.2010 issued by the NSIC for exemption from payment of earnest money with the tenders submitted in response to the two NITs in issue for supplies to be made to GSM Rajasthan State PSU. A bare perusal of the order dated 12.08.2010 aforesaid however clearly indicates that the said judgment far from supporting the case of the petitioner-Company rather supports the contentions of the counsel for the respondent-Company that the registration under National Small Scale Industries Corporation Ltd. and the certification issued on 26.03.2010 is relevant only for the purposes of purchase of stores under Central Government Stores Purchase Programme and not for purchases by the Ganganagar Sugar Mills Ltd. a public sector undertaking controlled of Government of Rajasthan and clearly not covered by the Central Government Stores Purchase Programme.
I have considered the matter and heard the counsel for the parties.
The short question involved in this case is as to whether the certificate dated 26.03.2010 issued by the NSIC to the petitioner-Company is relevant and would override the directions, procedure and rules for purchase as published by the Ganganagar Sugar Mills Ltd., a Government of Rajasthan controlled undertaking, the GFAR adopted by Ganganagar Sugar Mills Ltd. and the condition of the tender notice as advertised by the respondent-Ganganagar Sugar Mills Ltd. A holistic reading of the directions, procedure and rules for purchase adopted by the Ganganagar Sugar Mills Ltd. effective 01.06.1968 is clearly indicative of the fact that the General Financial and Accounts Rules are applicable for the purchases by the Ganganagar Sugar Mills Ltd. In terms of GFAR Rules more particularly Rule 57(2)(b), and the Purchase of Stores (Preference to Industries of Rajasthan) Rule, 1995 only industries registered with the Directorate of Industries Government of Rajasthan as SSI are entitled to a diminution of the obligation to pay earnest money otherwise payable and are to deposit earnest money @ 0.5% of value of the quantity offered for supply. Alternatively the whole of the earnest money as per terms of the NIT is to be deposited.
I find no substance in the case of the petitioner-Company seeking to base its case on the certification registration 26.03.2010 issued by the NSIC. The counsel for the petitioner-Company unfairly overlooks the categorical recital in the certificate dated 26.03.2010 that petitioner-Company was registered as a SSI Unit by the NSIC (A government of India undertaking) for participation in the Central Government Stores Purchase Programme. The purchases by the respondent GSM are not covered by the Central Government Stores Purchase Programme. The Petitoner-Company as a SSI was not entitled at all to a complete exemption from payment/deposit of earnest money required under NIT No.Pur/04/2011-12 and NIT No.Pur/6/2011-12 on the basis of the registration certificate dated 26.03.2010 issued by NSIC. Consequently, the technical bids of the petitioner-Company in response to NIT No.Pur/04/2011-12 and NIT No.Pur/6/2011-12 were rightly rejected for a good cause being non- compliant with the conditions of the tender which provided that tender not accompanied by the requisite earnest money deposit shall liable to be rejected. The petitioner-Company was thus not entitled in law to have its financial bid considered.
Consequently, I find that the writ petition is completely misdirected, meritless and liable to be dismissed. The stay application / and interim application also stand dismissed.
(ALOK SHARMA), J.
MS/-244