Gujarat High Court
A.K.Utility Services Proprietor Ayub ... vs Ircon International Limited on 12 February, 2020
Equivalent citations: AIR 2020 GUJARAT 171, AIRONLINE 2020 GUJ 279
Author: J.B.Pardiwala
Bench: J.B.Pardiwala, Bhargav D. Karia
C/SCA/9798/2019 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 9798 of 2019
With
CIVIL APPLICATION (FOR VACATING STAY) NO. 1 of 2019
In R/SPECIAL CIVIL APPLICATION NO. 9798 of 2019
==========================================================
A.K.UTILITY SERVICES PROPRIETOR AYUB MOHAMMAD
Versus
IRCON INTERNATIONAL LIMITED
==========================================================
Appearance:
VINAY D BAIRAGAR(8360) for the Petitioner(s) No. 1
MR NISHITH P THAKKAR(2836) for the Respondent(s) No. 1
==========================================================
CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
and
HONOURABLE MR. JUSTICE BHARGAV D. KARIA
Date : 12/02/2020
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE J.B.PARDIWALA) 1 By this writ application under Article 226 of the Constitution of India, the writ applicant, a proprietary concern through its proprietor, has prayed for the following reliefs:
"10(A) Your Lordships may be pleased to issue an appropriate writ, order or direction, quashing and setting aside the subject tender bearing no.IRCON/3018/DFCCILCTP12/eTender/BL/Utility shifting/08245, published on 13 May, 2019, by the respondent;
th (B) In the alternative, Your Lordships may be pleased to issue an appropriate writ, order or direction, directing the respondent to permit the petitioner to participate in the subject tender bearing no. IRCON/3018/ DFCCILCTP12/eTender/BL/Utility shifting/08245, published on 13th May, 2019, to submit its bid and to consider the bid of the petitioner in accordance with law.
(C) Pending hearing and final disposal of this petition, Your Lordships may be pleased to restrain the respondent from taking any further steps or action in and pursuant to the subject tender bearing no. IRCON/ 3018/DFCCILCTP12/eTender/BL/Utility shifting/08245, published on 13th May, 2019, and further not to open the bids received by it pursuant to Page 1 of 5 Downloaded on : Sun Jun 14 16:38:03 IST 2020 C/SCA/9798/2019 ORDER the limited tendering.
(D) Pending hearing and final disposal of this petition, Your Lordships may be pleased to direct the respondent to accept the bid of the petitioner and consider the same in accordance with law;
(E) Your Lordships may be pleased to grant ad interim relief in terms of prayers 10(C) and (D), hereinabove.
(F) Your Lordship may be pleased to grant any other and further reliefs as may be deemed just and proper in the interest of justice and fitness of things."
2 We take notice of the fact that the respondent No.1 namely IRCON International Limited (a Government of India Undertaking) issued a ETender document dated 13th May 2019 for the supply, erection, testing, commissioning and other associated works including the fabrication in all respect for the construction / modification / relocation of electrical utility of 33KV and below Power lines for the Dedicated Freight Corridor (Vaitarana Sachin section of Western DFC Phase - 2) for CTP - 12 Project (package - Gujarat). The technical bid is of a single packet system and limited.
3 It is the case of the writ applicant that it offered its bid online, but the bid was rejected as the writ applicant is a proprietary concern, and according to the terms of the ETender document, only those companies are eligible to apply which are empanelled with the respondent - company.
4 In such circumstances, the writ applicant could not submit the Tender document online. It is the case of the writ applicant that such a ETender document could be termed as violative of Articles 14 and 19(1)
(g) of the Constitution of India. There are other grounds also raised for the purpose of questioning the legality and validity of the subject Page 2 of 5 Downloaded on : Sun Jun 14 16:38:03 IST 2020 C/SCA/9798/2019 ORDER Tender.
5 On 24th May 2019, a learned Single Judge of this Court passed the following order:
"Heard learned advocate Mr.Anuj K. Trivedi for the petitioner. He has submitted that the respondent has issued notice inviting etender on 13.5.2019. It was submitted that when the petitioner came to know about the issuance of etender notice, the petitioner could not submit the tender online and on inquiry, it was found that the tender was only to invite bids from the preselected bidders by the respondent and, there is no eligibility criteria laid down in submitting the tender document. It was further submitted that the Bid Submission End Date is 27.5.2019 and Bid Opening Date is 28.5.2019. Attention of the Court is also invited to the General Financial Rules (GFRs), 2017, more particularly, Rule 162 which provides for Limited Tender Inquiry, wherein, it is provided that, limited tender can be issued when the estimated value of the goods is upto Rs.25,00,000/whereas, in the present case, the value of the tender is Rs.2,80,45,630/.
Having regard to the submissions made by learned advocate for the petitioner, issue NOTICE, returnable on 27.05.2019.
Direct Service is permitted today.
Petitioner is also at liberty to serve the notice by fax and / or email upon the respondent."
6 Thereafter, on 28th May 2019, a learned Single Judge of this Court passed the following order:
"1. Previously, on 24.05.2019, this Court passed the following order:
"Heard learned advocate Mr.Anuj K. Trivedi for the petitioner. He has submitted that the respondent has issued notice inviting e tender on 13.5.2019. It was submitted that when the petitioner came to know about the issuance of etender notice, the petitioner Page 3 of 5 Downloaded on : Sun Jun 14 16:38:03 IST 2020 C/SCA/9798/2019 ORDER could not submit the tender online and on inquiry, it was found that the tender was only to invite bids from the preselected bidders by the respondent and, there is no eligibility criteria laid down in submitting the tender document. It was further submitted that the Bid Submission End Date is 27.5.2019 and Bid Opening Date is 28.5.2019. Attention of the Court is also invited to the General Financial Rules (GFRs), 2017, more particularly, Rule 162 which provides for Limited Tender Inquiry, wherein, it is provided that, limited tender can be issued when the estimated value of the goods is upto Rs.25,00,000/ whereas, in the present case, the value of the tender is Rs.2,80,45,630/.
Having regard to the submissions made by learned advocate for the petitioner, issue NOTICE, returnable on 27.05.2019. Direct Service is permitted today.
Petitioner is also at liberty to serve the notice by fax and / or email upon the respondent."
2. In pursuance of aforesaid order, as submitted by learned advocate Mr. Anuj Trivedi for the petitioner that notice was served to the respondent through email on 24.05.2019 and it was also physically served to the respondent on 25.05.2019 and the matter was listed yesterday and the respondent was also intimated by the petitioner, none appeared for the respondent. In order to give one more opportunity, the matter was adjourned for today. Even today, though notice was served to the respondent, none has appeared for the respondent.
3. Therefore, in view of the contentions raised and arguments advanced by learned advocate Mr. Anuj Trivedi for the petitioner, the respondent authority is restrained from taking any further step/action in pursuance of subject matter I.e. tender bearing no.IRCON/3018/DFCCILCTP12/e Tender/BL/Utility Shifting/08245 dated 13.05.2019, till 17.06.2019. List on 17.06.2019.
Direct service is permitted."
7 Thus, the picture that emerges from the materials on record and the two orders referred to above passed by this Court is that the respondent has been injuncted from taking any further steps / action relating to the ETender document.
8 Mr. Nishith Thakkar, the learned counsel has entered his Page 4 of 5 Downloaded on : Sun Jun 14 16:38:03 IST 2020 C/SCA/9798/2019 ORDER appearance on behalf of the respondent - company. According to Mr. Thakkar, a policy decision has been taken by the respondent - company to withdraw the ETender document in question.
9 According to Mr. Thakkar, after due deliberations, the company has taken a policy decision to float a fresh open ETender document which would enable person like the writ applicant also to apply or rather offer its bid. Mr. Thakkar would submit that in near future, the respondent - company would withdraw the ETender document which is the subject matter of challenge in the present writ application and will float a fresh open ETender document. Once a fresh open ETender document is floated, then it shall be open for the writ applicant to once again apply subject to the eligibility criteria that may be prescribed in the new open ETender document.
10 Having regard to the specific stance of the respondent - company, as noted above, we need not adjudicate this writ application any further now on merits. In such circumstances, this writ application is disposed of accordingly.
11 In view of the order passed in the main matter, the connected civil application would not survive and the same stands disposed of. Notice stands discharged.
(J. B. PARDIWALA, J) (BHARGAV D. KARIA, J) CHANDRESH Page 5 of 5 Downloaded on : Sun Jun 14 16:38:03 IST 2020