Rajasthan High Court - Jodhpur
M/S. Ishwar Singh Hadmat Singh vs State Of Rajasthan on 3 September, 2019
Author: Dinesh Mehta
Bench: Dinesh Mehta
(1 of 10) [CW-13029/2019] HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR (1) S.B. Civil Writ Petition No. 13029/2019 M/s. Ishwar Singh Hadmat Singh, Village Raniwara Kaba (Jalore) Through Its Proprietor Ishwar Singh S/o Sh. Hadmat Singh, Aged About 33 Years, Resident Of Village Raniwara Kaba, Tehsil Jalore, District Jalore.
----Petitioner Versus
1. State Of Rajasthan, Through The Principal Secretary, Department Of Rural Development And Panchayati Raj, Secretariat, Jaipur.
2. The Chief Executive Officer, Zila Parishad, Jalore, District Jalore.
3. The Block Development Officer, Panchayat Samiti Jalore.
4. Gram Panchayat Bibalsar, District Jalore Through Its Sarpanch.
----Respondents Connected with (2) S.B. Civil Writ Petition No. 12613/2019 M/s Jiwan Singh Sawai Singh Ji, Sedariya Kumpawatan, Through Its Proprietor Jiwan Singh S/o Sh. Sawai Singh, Aged About 46 Years, Resident Of Sedariya Kumpawatan, Tehsil Ahore, District Jalore.
----Petitioner Versus
1. State Of Rajasthan, Through The Principal Secretary, Department Of Rural Development And Panchayati Raj Secretariat, Jaipur.
2. The Chief Executive Officer, Zila Parishad, Jalore District Jalore.
3. The Block Development Officer, Panchayat Samiti Jalore.
4. Gram Panchayat Badanwadi, District Jalore Through Its Sarpanch.
----Respondents
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(2 of 10) [CW-13029/2019]
(3) S.B. Civil Writ Petition No. 12615/2019 M/s. Shidhi Vinayak Construction, Vpo- Akoli District- Jalore Through Its Proprietor Kalu Singh S/o Sh. Unkar Singh, Aged About 40 Years, Resident Of Village And Post Akoli, Tehsil Jalore, District Jalore.
----Petitioner Versus
1. State Of Rajasthan, Through The Principal Secretary, Department Of Rural Development And Panchayati Raj Secretariat, Jaipur.
2. The Chief Executive Officer, Zila Parishad, Jalore District Jalore.
3. The Block Development Officer, Panchayat Samiti Jalore.
4. Gram Panchayat Akoli, District Jalore, Through Its Sarpanch.
----Respondents (4) S.B. Civil Writ Petition No. 12628/2019 M/s Jiwan Singh Sawai Singh Ji, Sedariya Kumpawatan, Through Its Proprietor Jiwan Singh S/o Sh. Sawai Singh, Aged About 46 Years, Resident Of Sedariya Kumpawatan, Tehsil Ahore, District Jalore.
----Petitioner Versus
1. State Of Rajasthan, Through The Principal Secretary, Department Of Rural Development And Panchayati Raj Secretariat, Jaipur.
2. The Chief Executive Officer, Zila Parishad, Jalore District Jalore.
3. The Block Development Officer, Panchayat Samiti Jalore.
4. Gram Panchayat Godan, District Jalore Through Its Sarpanch.
----Respondents
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(5) S.B. Civil Writ Petition No. 12635/2019 M/s. Shidhi Vinayak Construction, Vpo- Akoli District- Jalore Through Its Proprietor Kalu Singh S/o Sh. Unkar Singh, Aged About 40 Years, Resident Of Village And Post Akoli, Tehsil Jalore, District Jalore.
----Petitioner Versus
1. State Of Rajasthan, Through The Principal Secretary, Department Of Rural Development And Panchayati Raj Secretariat, Jaipur.
2. The Chief Executive Officer, Zila Parishad, Jalore District Jalore.
3. The Block Development Officer, Panchayat Samiti Jalore.
4. Gram Panchayat Baakra Roadi, District Jalore, Through Its Sarpanch.
----Respondents (6) S.B. Civil Writ Petition No. 12637/2019 Bhanwar Lal S/o Pratap Ji, Aged About 55 Years, Resident Of Rajendra Nagar, Jalore.
----Petitioner Versus
1. State Of Rajasthan, Through The Principal Secretary, Department Of Rural Development And Panchayati Raj Secretariat, Jaipur.
2. The Chief Executive Officer, Zila Parishad, Jalore District Jalore.
3. The Block Development Officer, Panchayat Samiti Jalore.
4. Gram Panchayat Bagra, District Jalore, Through Its Sarpanch.
----Respondents (7) S.B. Civil Writ Petition No. 12689/2019 M/s. Jai Hanuman Construction Company, Meghwalo Ka Atmana Bas, Bagra, Through Its Proprietor Phool Chand S/o Bada Ji Meghwal, Aged About 47 Years, Resident Of Meghwalo Ka Bas, Bagra, District Jalore.
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----Petitioner
Versus
1. State Of Rajasthan, Through The Principal Secretary, Department Of Rural Development And Panchayati Raj Secretariat, Jaipur.
2. The Chief Executive Officer, Zila Parishad, Jalore District Jalore.
3. The Block Development Officer, Panchayat Samiti Jalore.
4. Gram Panchayat, Meda Uparla, District Jalore Through Its Sarpanch.
----Respondents (8) S.B. Civil Writ Petition No. 12745/2019 M/s Babu Singh Balawat, Debawas, Through Its Proprietor Babu Singh Balawat S/o Sh. Daulat Singh, Aged About 38 Years, Resident Of Village Debawas, District Jalore.
----Petitioner Versus
1. State Of Rajasthan, Through The Principal Secretary, Department Of Rural Development And Panchayati Raj Secretariat, Jaipur.
2. The Chief Executive Officer, Zila Parishad, Jalore District Jalore.
3. The Block Development Officer, Panchayat Samiti Jalore.
4. Gram Panchayat Debawas, District Jalore Through Its Sarpanch.
----Respondents For Petitioner(s) : Mr. B.S. Sandhu JUSTICE DINESH MEHTA Order 03/09/2019 By way of the present bunch of writ petitions, the petitioners have challenged the NIT No.1/2019-20, dated 08.08.2019. (Downloaded on 05/09/2019 at 08:48:54 PM) (5 of 10) [CW-13029/2019] As there is commonality of facts, hence, they are being decided conjointly; the facts of SB Civil Writ Petition No.12637/2019, Bhanwarlal Vs. State of Rajasthan & Ors. are however being taken note of.
The respondent No.3 firstly issued an e-NIT dated 14.08.2018, requiring all the interested bidders to furnish e-bid for the financial year 2018-19, for supply of construction material for various schemes of the Government, mentioned in the NIT. The petitioner submitted his bid and was found to be a successful bidder for supply of the goods at Bagra, having quoted the rate as rate 1.57%, below BSR. A letter of acceptance dated 01.12.2019, came to be issued, followed by a work order dated 15.02.2018, requiring the petitioner to supply goods.
The financial year ended, but the respondents could not invite fresh bids, thus, by communication/ order dated 29.04.2019, the petitioner was ordered to supply 50% of the contracted quantity for a period of six months.
Meanwhile, respondent No.3 issued fresh NIT dated 08.08.2019 and invited e-bids for financial year 2019-20. The petitioner, feeling aggrieved of the e-auction/NIT No.1/2019-20, dated 08.08.2019, issued by the respondent No.3, has approached this Court.
Mr. Sandhu, learned counsel for the petitioner challenging the action of the respondent No.3 in inviting fresh bids for the financial year 2019-20, contended that the petitioner's contract had been extended by the respondent No.3, by way of order dated 29.04.2019 for a period of six months, as such, until and unless such period is over, the respondents cannot invite fresh bids.
(Downloaded on 05/09/2019 at 08:48:54 PM)(6 of 10) [CW-13029/2019] Learned counsel argued that the extension was granted to the petitioner in exercise of Rule 73(3)(a) of the Rajasthan Transparency in Public Procurement Rules, 2013 (hereinafter referred to as 'the Rules of 2013'), hence, his rights cannot be taken away or curtailed abruptly. According to the petitioner, the action of the respondent is against the principle of promissory esttopel, despite being arbitrary. It was further contended that the petitioner's vested right, flowing from the communication/ order dated 29.04.2019, cannot be taken away and that the petitioner is entitled to supply 50% of the goods, as per the order/communication dated 29.04.2019 for a period of six months as agreed/ordered by the communication dated 29.04.2019.
Before considering the petitioner's submissions, it would be appropriate to have a glance over the order dated 29.04.2019, vide which the petitioner was permitted to supply additional 50% quantity for a period of six months, relevant part thereof reads thus:-
"mijksDr fo'k;karxZr es ys[k gS fd bl xzke iapk;r ds vkns"k 43 fnukad 15-02-19 ds }kjk vkidks vfxze vkns"kksa rd lkexzh lIykbZ gsrq njsa vuqeksfnr dh xbZ gS pwafd uohu Vs.Mj ls lacaf/kr dksbZ vkns"k izkIr ugha g, gSA vr% jktLFkku yksd mikiu fu;eksa ds fu;e 73 (3) ch ds rgr ;g vkns"k tkjh gksus ls vkxkeh 6 ekg rd ewy vuqca/k dh 50 izfr"kr vfrfjDr lkexzh dz; ds vkns"k tkjh fd;s tkrs gSA ;fn vkids }kjk vuqca/k dh fdlh Hkh "krZ dh ikyuk ugha dh tkrh gS rks vkidj vuqcU/k rqjUr izHkko ls lekIr djus dk vf/kdkj xzke iapk;r ds ikl jgsxkA"
It will also be relevant to reproduce Rule 73 of the Rules of 2013, which runs as under:-
"73. Right to vary quantity.- (1) If the procuring entity does not procure any subject matter of procurement or procures less than the quantity specified in the bidding documents due to change in circumstances, the bidder shall not (Downloaded on 05/09/2019 at 08:48:54 PM) (7 of 10) [CW-13029/2019] be entitled for any claim or compensation except otherwise provided in the bidding documents.
(2) Orders for extra items may be placed by the procuring entity in accordance with the Schedule of Powers as prescribed by the Finance Department, upto 5% of the value of the original contract, if allowed in the bidding documents.
The fair market value of such extra items payable by the procuring entity to the contractor shall be determined by the procuring entity in accordance with guidelines prescribed by the administrative department concerned.
(3) Orders for additional quantities may be placed, if allowed in the bidding documents, on the rates and conditions given in the contract and the original order was given after inviting open competitive bids. Delivery or completion period may also be proportionately increased. The limits of orders for additional quantities shall be as under -
(a) 50% of the quantity of the individual items and 50% of the value of original contract in case of works;
and
(b) 50% of the value of goods or services of the original contract.
Provided that in exceptional circumstances and without changing the scope of work envisaged under the contract, a procuring entity may procure additional quantities beyond 50% of the quantity of the individual items as provided in the original work order with prior approval of the Administrative Department concerned as follows :-
(i) the procuring entity shall obtain prior approval for revised requirements from the competent authority for reasons to be recorded in writing. Wherever necessary, due to the quantum of orders for additional quantities, the procuring entity shall obtain prior and revised technical, financial and administrative sanctions from the competent authorities;
(ii) that the additional quantities so procured shall be part and parcel of the work being executed;
(iii) that the limit of 50% of the value of original contract shall not be exceeded in any case."(Downloaded on 05/09/2019 at 08:48:54 PM)
(8 of 10) [CW-13029/2019] Heard learned counsel for the petitioner and considered the material available on record.
By way of the NIT issued on 14.08.2018, the respondent No.3 had invited e-bids but they were for financial year 2018-19, which ended on 31.03.2019. It is true that the respondent proceeded at a snail's pace and issued letter of acceptance as late as on 01.02.2019 and the work order came to be issued on 15.02.2019. But, then, the petitioner cannot claim any right to supply the goods for a complete year commencing from 15.02.2019, as the bids were invited financial year wise (2018-19). The extension of agreement by way of order dated 29.04.2019, in purported exercise of Rule 73(3)(b) of the Rules of 2013, also does not confer any indefeasible right in favour of the petitioner. As a matter of fact, the power to grant extension is contained in Rule 29 of the Rules of 2013 and not under Rule 73.
A simple reading of Rule 73 of the Rules of 2013 goes to show that the same has been provided only with a view to procure 'additional quantity'. Rule 73 including sub-rule (3) thereof, speaks of additional quantity, which is required to be procured over and above the contracted quantity. As such, the petitioner's reliance upon Rule 73(3)(b) of the Rules of 2013 is absolutely misplaced.
The power to extend the period of contract is contained in Rule 29(2)(i) of the Rules of 2013, which reads thus:-
"29. Rate contract.-(1) XXX XXX (2) (i) It should be ensured that new rate contracts become operative right after the expiry of the existing rate contracts without any gap. In case it is not possible to conclude the new rate contracts due to unavoidable reasons, the existing rate contracts may be extended on same price, terms and conditions for a period not exceeding 3 months. In such cases it shall be ensured that market prices have not fallen down during the on (Downloaded period forat 08:48:54 05/09/2019 the subject PM) matter of (9 of 10) [CW-13029/2019] procurement or its constituents, to be procured under the rate contract."
A look at Rule 29(2)(i) of the Rules of 2013 reveals that on expiry of period of contract, the same can be extended for a period of three months only. Having regard to the provisions contained in Rule 29(2)(i) of the Rules of 2013, this Court holds that the extension cannot be granted beyond the period of three months, as provided under Rule 29(2)(i) of the Rules of 2013. As such, the communication/order dated 29.04.2019, even if provides for extension of the contract for a period of six months, cannot be given any credence, as it runs contrary to Rule 29(2)(i) of the Rules of 2013.
That apart, once the respondent No.3 has undertaken fresh exercise of inviting e-bids for financial year 2019-20, vide impugned NIT No.1/2019-20, dated 08.08.2019, this Court hardly finds any illegality or infirmity in such action.
A perusal of letter of acceptance dated 01.02.2019 leaves no room for ambiguity that it was for financial year 2018-
19. The respondents could have extended the same for a period of three months, per force Rule 29(2)(i) of the Rules of 2013, but not beyond that. Hence, the order of extension cannot traverse beyond 30.06.2019. Merely because the extension letter dated 29.04.2019 stipulates a period of six months, it cannot convey any right in petitioner's favour, much less a right to question their action of inviting fresh tender vide NIT dated 08.08.2019.
Petitioner has no subsisting or substantive right to restrain the respondents from proceeding in furtherance of the NIT dated 08.08.2019, issued for financial year 2019-20.
As an upshot of the above discussion, not only the writ petition filed by M/s. Ishwar Singh Hadmat Singh (CW (Downloaded on 05/09/2019 at 08:48:54 PM) (10 of 10) [CW-13029/2019] No.13029/2019), but all other petitions comprising of the present group along with stay petitions are also dismissed.
(DINESH MEHTA),J 39,174-179 & 181-skm/-
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