Rajasthan High Court - Jodhpur
Pmp Infratech Private Limited vs Rajasthan State Mines And Minerals ... on 13 July, 2023
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 8853/2023
Pmp Infratech Private Limited, A Company Registered Under The
Companies Act, 2013 Having Its Registered Office At Block A
Shop 104A, 104B, Ganesh Meridian S. G. Highway Ahmedabad
Ahmedabad Through Its Authorized Representative Shri Mukesh
Kumar Ishwarlal Patel, S/o Sh Ishwarlal Patel Aged About 40
Years, Resident Of 18, Trishla Residency, Nr. R.c. Technical, Opp.
Gujarat High Court, Sola, Ahmedabad, Gujarat
----Petitioner
Versus
1. Rajasthan State Mines And Minerals Limited, Through Its
Chairman, Having Its Office At C-89, Jan Path, Lal Kothi
Scheme, Jaipur 302015.
2. Managing Director, Rajasthan State Mine And Minerals
Limited Having Its Office At 4, Meera Marg, Udaipur
(Raj.).
3. Head Contracts/dgm (F And A), Rajasthan State Mine And
Minerals Limited Having Its Office At 4, Meera Marg,
Udaipur (Raj.).
4. M/s United Coal Carrier, Prop. Manoj Kumar Agarwalla
(Huf), Opp. Canara Bank, Main Road, Jharia Bazar, So
Jharna, Dhanbad, Jharkhand.
5. JRL Mining Private Limited, Khasra No. 1126 Luthra
Farms, Rajkori, New Delhi.
----Respondents
For Petitioner(s) : Mr. Vikas Balia Sr. Advocate assisted
by Mr. Falgun Buch
Mr. Sachin Saraswat
Mr. Gopal Krishna
For Respondent(s) : Dr. Sachin Acharya Sr. Advocate a/w
Mr. SS Ladrecha
Mr. Suniel Purohit
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Judgment Reserved on 11/07/2023 Pronounced on 13/07/2023 (D.B. SAW/666/2023 has been filed in this matter. Please refer the same for further orders) (Downloaded on 12/11/2023 at 02:36:30 AM) (2 of 10) [CW-8853/2023]
1. This writ petition under Article 226 of the Constitution of India has been preferred claiming the following reliefs:
"It is, therefore, most humbly and respectfully prayed that this writ petition may kindly be allowed and:-
1. By an appropriate writ, order or direction, the decision/order of declaring respondent no.4 M/s. United Coal Carrier and respondent no.5 JRL Mining Private Limited as successful in evaluation of their techno commercial bid may kindly be declared as illegal and contrary to the conditions prescribed in tender dated 23.03.2023 and subsequent corrigendum and the same may kindly be quashed and set aside;
2. By an appropriate writ, order or direction, the respondent RSMML may kindly be directed to issue LOI strictly in accordance with law;
3. Any other appropriate order or relief which this Hon'ble Court may deem just and proper in the facts and circumstances of this case may also kindly be passed in favor of the humble petitioner."
2. Brief facts of the case, as placed before this Court by Mr.Vikas Balia, learned Senior Counsel assisted by Mr. Falgun Buch, Mr. Sachin Saraswat and Mr. Gopal Krishna, are that the petitioner is registered a Private Limited Company. 2.1. The respondent- Rajasthan State Mine and Minerals Limited (RSMML) issued an E-Tender No. RSMM/CO/GGM (Cont)-25/2022- 23 dated 23.03.2023 for loading of limestone gitti of various sizes into trippers/dumpers from crusher hopper(s) and/or different stacks lying at Company's Sanu Mines, District Jaisalmer, its transportation from Mines to railway siding at Sanu Railway Station and its unloading, stacking, watch & ward and mechanized (D.B. SAW/666/2023 has been filed in this matter. Please refer the same for further orders) (Downloaded on 12/11/2023 at 02:36:30 AM) (3 of 10) [CW-8853/2023] loading of limestone gitti into railway wagons using front end loaders etc. 2.2. The last date for submission of the online tender was fixed as 24.04.2023 and the date of opening of techno commercial bid was 25.04.2023. The pre-qualification criteria for the tender was minimum turnover of Rs.45.76 crores in any one of the preceding five financial years.
2.3. Thereafter, vide Corrigendum no.1 dated 21.04.2023, the respondent amended clause no.5.4.1 of the of the pre- qualification criteria by reducing the minimum net worth of the tenderer to Rs.5 crores in any one of the last two financial years, and extended the last date of submitting the tender in question, to 16.05.2023.
2.4. The petitioner-Company, for participating in the tender process in question, submitted its techno commercial bid as well as the financial bid alongwith all the relevant documents. 2.5. The techno commercial bid was opened on 25.05.2023 and there were four other participants in the tender process in question, including respondents no. 4 & 5. Thereafter, on 30.06.2023 at around 6:00 PM, the petitioner-Company received an E-mail, whereby it was informed that the techno bid of the petitioner-Company has been admitted and the financial bid would be opened on same day at 6:05 PM. The petitioner-Company was ranked as L3, while respondents no.4 & 5 were ranked as L1 and L2 respectively in the financial bid; and respondents no. 4 & 5 were declared successful by the respondent - RSMML in tender process in question.
(D.B. SAW/666/2023 has been filed in this matter. Please refer the same for further orders) (Downloaded on 12/11/2023 at 02:36:30 AM) (4 of 10) [CW-8853/2023]
3. Learned Senior Counsel for the petitioner-Company submitted that the respondent no.4 does not have any experience of transporting, unloading, & wagon loading of industrial minerals, and therefore, the respondent-RSMML has committed an illegality in declaring the respondent no.4 as successful in the tender process in question.
3.1. It was further submitted that the respondent no.4 does not fulfill condition no.(ii) of Clause 5.4.1 of the tender document, because as per the said clause, the tenderer should have experience of successful execution of transportation and loading work of industrial minerals, but the respondent no.4 has experience only with regard to transportation and wagon loading of coal, and the coal does not come under the definition of the 'industrial minerals'.
3.2. It was also submitted that as per Indian Mineral Yearbook issued by the Indian Bureau of Mines, Ministry of Mines, Government of India, the fuel mineral, metallic minerals and non- metallic minerals are separately classified. 3.3. It was further submitted that as per Science Director - A Technical Journal, the industrial minerals broadly defined, include all those materials, that man takes out of the earth's crust except for fuels, metallic ores, water and gemstones; as per American Geo Science Institute, industrial minerals are non-metal and non- fuel mineral resources, and thus, come under the definition of the industrial minerals.
3.3.1. It was also submitted that in the present case, the tender is pertaining to transportation, loading and unloading of the (D.B. SAW/666/2023 has been filed in this matter. Please refer the same for further orders) (Downloaded on 12/11/2023 at 02:36:30 AM) (5 of 10) [CW-8853/2023] limestone, and the limestone is the non-metallic mineral and comes under the definition of the industrial minerals. The respondent no.4 herein has experience in coal (fuel minerals) transportation etc. 3.4. It was further submitted that the tender in question is only for the industrial minerals, and respondent no.4 does not have the requisite experience of transportation, loading and unloading of the industrial minerals, and thus, could not have been declared as successful qua the tender process in question. 3.5. It was also submitted that the respondent-RSMML opened the financial bid within 5 minutes of declaring the technical evaluation results, and therefore the petitioner-Company was not given any opportunity to assail the impugned decision of the respondent-RSMML by way of appeal under Section 38 of the Rajasthan Transparency in Public Procurement Act, 2012 (hereinafter referred to as 'Act of 2012').
3.6. It was further submitted that the respondent-RSMML is bound by the norms, standards and procedures as prescribed in the tender document, and cannot act in an arbitrary manner, so as to grant the tender to the bidder (respondent no.4 herein) who has no experience of transportation, loading and unloading of the industrial mineral in question, and therefore the impugned action of the respondent-RSMML is arbitrary and violative of the provisions of law.
3.7. In support of such submissions, reliance was placed on the following judgments rendered by the Hon'ble Apex Court:-
(D.B. SAW/666/2023 has been filed in this matter. Please refer the same for further orders) (Downloaded on 12/11/2023 at 02:36:30 AM) (6 of 10) [CW-8853/2023]
(a) Air India Ltd. Vs. Cochin Int. Airport Ltd Ors., (2000) 2 SCC 617;
(b) Jadish Mandal Vs. State of Orissa & Ors., (2007) 14 SCC 517;
(c) Unitech Limited & Ors. Vs. Telengana State Industrial Infrastructure Corporation (TSIIC) & Ors. (Civil Appeal No 317 of 2021, decided on 17.02.2021).
4. On the other hand, Dr. Sachin Acharya, learned Senior Counsel assisted by Mr. S.S. Ladrecha and Mr. Suniel Purohit appearing on behalf of the respondents, while opposing the aforesaid submissions made on behalf of the petitioner-Company, raised a preliminary objection that the present writ petition itself is not maintainable on count of availability of an alternative remedy of appeal under the Act of 2012.
4.1. It was further submitted that the respondent no.4 submitted a certificate of experience of successful execution of the transport and loading work of industrial minerals of quantity more than the one as required for the tender in question, and that the requisite certificates issued by the Steel Authority of India Ltd., Tata Steel Ltd. and Eastern Coalfields Ltd. are on record; therefore, the respondent no.4 fulfills all the necessary conditions, as mentioned in the document of the tender in question.
4.2. It was also submitted that the petitioner-Company quoted the price of bid to the tune of Rs.2,45,07,00,050/- and the respondent no.4 quoted the price bid of Rs.1,64,49,75,100/-, and therefore, the price bid of the respondent no.4 was much less than the petitioner's bid price; therefore the respondent-RSMML, (D.B. SAW/666/2023 has been filed in this matter. Please refer the same for further orders) (Downloaded on 12/11/2023 at 02:36:30 AM) (7 of 10) [CW-8853/2023] looking into, amongst others, the public interest and the interest of the public exchequer, declared the respondent no.4 as L1 in the financial bid, and rightly so.
4.3. It was also submitted that the petitioner-Company was involved in the anti-competition practices, and as such was found in bid rigging in the tender process by the Competition Commission of India, and thus, the petitioner-Company was involved in malpractices, and accordingly, imposed upon the petitioner-Company a heavy penalty to the tune of Rs.25 lakhs. 4.4. It was further submitted that the industrial minerals as being used by several industries as raw material and the definition of the industrial minerals is very broad as it includes any material which is of any use to the industries and has certain commercial value. 4.5. It was also submitted that the Indian Mineral Yearbook itself suggests that it derives information from internet reports and it was published by in-house authors, and therefore, the said source cannot be said to have any evidentiary value, so far as the present case is concerned.
4.6. It was also submitted that the Superintending Mining Engineer (HQ-II), Directorate of Mines and Geology issued a letter wherein it was stated that the Coal and Lignite are classified as Hydrocarbons Energy Minerals as per part A of 1 st Schedule of MMDR Act, 1957 and industrial minerals are not defined or classified under the MMDR Act, 1957, and therefore, there is no separate definition of the industrial minerals. 4.7. It was lastly submitted that looking into the fact that the tender in question pertains to public infrastructural project, this (D.B. SAW/666/2023 has been filed in this matter. Please refer the same for further orders) (Downloaded on 12/11/2023 at 02:36:31 AM) (8 of 10) [CW-8853/2023] Court may not grant any indulgence to the petitioner-Company in the present petition.
4.8. In support of such submissions, reliance was placed upon the judgments rendered by the Hon'ble Apex Court in the case N.G. Projects Limited Vs. Vinod Kumar Jain & Ors., (2022) 6 SCC 127 and Agmatel India Private Limited Vs Resoursys Telecom & Ors. (2022) 5 SCC 362.
5. Heard learned counsel for the parties as well as perused the record of the case along with judgments cited at the Bar.
6. This Court observes that the respondent-RSMML issued the tender in question, for the works as mentioned therein; the petitioner submitted the necessary documents in relation to the tender process in question and the respondent-RSMML opened the techno commercial bid on 25.05.2023, and on 30.06.2023 at around 6 PM, such techno commercial bid was admitted; on the same day at around 6:05 PM the financial bid was opened. Thereafter, the petitioner has been ranked as L3 in financial bid and respondent nos.4 & 5 have been ranked as L1 and L2 respectively. The respondent no.4 & 5 thereafter were declared as successful by the respondent-RSMML.
6.1. This Court further observes that the decision to declare the respondent no.4 as successful in the financial bid of the tender in question has been taken in public interest and in the interest of public exchequer, as the respondent-RSMML is duty bound to take the same into consideration.
7. This Court further observes that the financial bid of the respondent no.4 was to the tune of Rs. 1,64,49,75,100/- and (D.B. SAW/666/2023 has been filed in this matter. Please refer the same for further orders) (Downloaded on 12/11/2023 at 02:36:31 AM) (9 of 10) [CW-8853/2023] financial bid of the petitioner was to the tune of Rs. 2,45,07,00,050/-; thus, there was a huge price difference between the two; the respondent no.4 bid being the lowest bidder was kept under L1 category. This Court also observes that the respondent-RSMML has exclusive right to grant the bid to the lowest bidder for better public revenue and benefit of the public interest at work.
8. This Court further observes that as per condition no. (ii) of the Clause 5.4.1. of the e-tender in question, the tenderer should have experience of successful execution of transportation and loading work of industrial mineral into open railway wagon of 22.50 Lac MT quantum in any of the last five financial years. 8.1. In the present case, the respondent no.4 furnished a certificate regarding the said experience in the transportation, loading and unloading of the minerals and no separate definition of industrial minerals has been given.
9. This Court also observes that the Department of Mines and Geology also make it clear in its letter that there is no separate definition of industrial minerals classified under the MMDR Act, 1957.
10. This Court also observes that in the present case, the tender was issued only for loading and unloading of the limestone and transportation of the same from one place to another. Thus, there is no question of classified category of the minerals, more particularly, when the definition of the industrial minerals is not in question in the present case.
(D.B. SAW/666/2023 has been filed in this matter. Please refer the same for further orders) (Downloaded on 12/11/2023 at 02:36:31 AM) (10 of 10) [CW-8853/2023]
11. The judgments on behalf of the petitioner-Company also do not render any assistance to its case.
12. In light of the aforesaid observations and looking into the factual matrix of the present case, this Court does not find it a fit case so as to grant any relief to the petitioner in the present petition.
13. Consequently, the present petition is dismissed. All pending applications stand disposed of.
(DR.PUSHPENDRA SINGH BHATI), J.
SKant/-
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