Rajasthan High Court - Jodhpur
Vishnu Prakash R Pungalia Limited vs State Of Rajasthan (2024:Rj-Jd:51306) on 13 December, 2024
Author: Nupur Bhati
Bench: Nupur Bhati
[2024:RJ-JD:51306]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 10284/2024
Vishnu Prakash R Pungalia Limited, A Company Registered Under
Companies Act, 1956, Having Principal Place Of Business
Situated At B-31-32, Second Floor, Industrial Estate, New Power
House Road, Jodhpur, Rajasthan Through Its Authorised
Signatory Dipanshu Pungalia Son Of Manohar Lal Aged About 28
Years, Resident Of 22-A, Subhash Colony, New Pali Road, Bhagat
Ki Kothi, Jodhpur 342001.
----Petitioner
Versus
1. State Of Rajasthan, Through Secretary, Public Health,
Engineering Department, Jaipur.
2. Deputy Secretary, Public Health Engineering Department,
Jaipur.
3. Chief Engineer, (Special Projects), Public Health
Engineering Department, Jaipur.
4. Additional Chief Engineer Project, Public Health
Engineering Department, Ajmer.
5. Punjab National Bank, Through Its Branch Manager, Plot
No. 116, Keshav Nagar Opp. Chb Thana, Pal Road
Jodhpur 342005.
----Respondents
S.B. Civil Writ Petition No. 10286/2024
Vishnu Prakash R Pungalia Limited, A Company Registered Under
Companies Act, 1956, Having Principal Place Of Business
Situated At B-31-32, Second Floor, Industrial Estate, New Power
House Road, Jodhpur, Rajasthan Through Its Authorised
Signatory Dipanshu Punglia S/o Manohar Lal Punglia Aged About
28 Years Resident Of 22-A, Subhash Colony, New Pali Road,
Bhagat Ki Kothi, Jodhpur 342001.
----Petitioner
Versus
1. State Of Rajasthan, Through Secretary, Public Health
Engineering Department, Jaipur.
2. Deputy Secretary, Public Health Engineering Department,
Jaipur
3. Chief Engineer Projects, Public Health Engineering
Department, Jodhpur.
4. Additional Chief Engineer Project, Public Health
Engineering Department, Barmer
5. Punjab National Bank, Through Its Branch Manager, Plot
No. 116, Keshav Nagar Opp. Chb Thana, Pal Road,
Jodhpur- 342005
----Respondents
S.B. Civil Writ Petition No. 10290/2024
Vishnu Prakash R Pungalia Limited, A Company Registered Under
Companies Act, 1956, Having Principal Place Of Business
Situated At B 31 32, Second Floor, Industrial Estate, New Power
House Road, Jodhpur, Rajasthan Trhough Its Authorised
Signatory Dipanshu Pungalia S/o Manohar Lal Punglia Aged
About 28 Years Resident Of 22-A, Subhash Colony, New Pali
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Road, Bhagat Ki Kothi, Jodhpur 342001.
----Petitioner
Versus
1. State Of Rajasthan, Through Secretary, Public Health
Engineering Department, Jaipur.
2. Deputy Secretary, Public Health Engineering Department,
Jaipur.
3. Chief Engineer (Special Projects), Public Health
Engineering Department, Jaipur.
4. Additional Chief Engineer Project, Public Health
Engineering Department, Ajmer.
5. Punjab National Bank, Through Its Branch Manager, Plot
No. 116, Keshav Nagar Opp. Chb Thana, Pal Road
Jodhpur 342005.
----Respondents
S.B. Civil Writ Petition No. 10382/2024
Vishnu Prakash R Pungalia Limited, A Company Registered Under
Companies Act, 1956, Having Principal Place Of Business
Situated At B 31-32, Second Floor, Industrial Estate, New Power
House Road, Jodhpur, Rajasthan Through Its Authorised
Signatory Dipanshu Pungalia S/o Manohar Lal Punglia Aged
About 28 Years Resident Of 22-A, Subhash Colony, New Pali
Road, Bhagat Ki Kothi, Jodhpur 342001.
----Petitioner
Versus
1. State Of Rajasthan, Through Secretary, Public Health
Engineering Department, Jaipur
2. Deputy Secretary, Public Health Engineering Department,
Jaipur
3. Chief Engineer Projects, Public Health Engineering
Department, Jodhpur
4. Additional Chief Engineer Project, Public Health
Engineering Department, Barmer
5. Punjab National Bank, Through Its Branch Manager, Plot
No. 116, Keshav Nagar Opp. Chb Thana, Pal Road
Jodhpur - 342005
----Respondents
S.B. Civil Writ Petition No. 10383/2024
Vishnu Prakash R Pungalia Limited, A Company Registered Under
Companies Act, 1956, Having Principal Place Of Business
Situated At B 31-32, Second Floor, Industrial Estate, New Power
House Road, Jodhpur, Rajasthan Through Its Authorised
Signatory Dipanshu Pungalia S/o Manohar Lal Punglia Aged
About 28 Years Resident Of 22-A, Subhash Colony, New Pali
Road, Bhagat Ki Kothi, Jodhpur 342001.
----Petitioner
Versus
1. State Of Rajasthan, Through Secretary, Public Health
Engineering Department, Jaipur
2. Deputy Secretary, Public Health Engineering Department,
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Jaipur
3. Chief Engineer (Special Projects), Public Health
Engineering Department, Jaipur
4. Additional Chief Engineer Project, Public Health
Engineering Department, Ajmer
5. Punjab National Bank, Through Its Branch Manager, Plot
No. 116, Keshav Nagar Opp. Chb Thana, Pal Road
Jodhpur - 342005
----Respondents
S.B. Civil Writ Petition No. 10386/2024
Vishnu Prakash R Pungalia Limited, A Company Registered Under
Companies Act, 1956, Having Principal Place Of Business
Situated At B 31-32, Second Floor, Industrial Estate, New Power
House Road, Jodhpur, Rajasthan Through Its Authorised
Signatory Dipanshu Pungalia S/o Manohar Lal Punglia Aged
About 28 Years Resident Of 22-A, Subhash Colony, New Pali
Road, Bhagat Ki Kothi, Jodhpur 342001.
----Petitioner
Versus
1. State Of Rajasthan, Through Secretary, Public Health
Engineering Department, Jaipur
2. Deputy Secretary, Public Health Engineering Department,
Jaipur
3. Chief Engineer (Special Projects), Public Health
Engineering Department, Jaipur
4. Additional Chief Engineer Project, Public Health
Engineering Department, Ajmer
5. Punjab National Bank, Through Its Branch Manager, Plot
No. 116, Keshav Nagar Opp. Chb Thana, Pal Road
Jodhpur 342005
----Respondents
S.B. Civil Writ Petition No. 10616/2024
Vishnu Prakash R Pungalia Limited, A Company Registered Under
Companies Act, 1956, Having Principal Place Of Business
Situated At B-31-32, Second Floor, Industrial Estate, New Power
House Road, Jodhpur, Rajasthan Through Its Authorised
Signatory Dipanshu Pungalia Son Of Manohar Lal Punglia Aged
About 28 Years, Resident Of 22-A, Subhash Colony, New Pali
Road, Bhagat Ki Kothi, Jodhpur 342001.
----Petitioner
Versus
1. State Of Rajasthan, Through Its Secretary, Public Health
Engineering Department, Jaipur.
2. Deputy Secretary, Public Health Engineering Department,
Jaipur.
3. Chief Engineer, (Special Projects), Public Health
Engineering Department, Jaipur.
4. Additional Chief Engineer, Public Health Engineering
Department, Project Region Udaipur.
5. Bank Of Baroda, Marudhar Industrial Area Branch,
Through Its Branch Manager, 2Nd Phase, Basni, Jodhpur-
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342005.
----Respondents
S.B. Civil Writ Petition No. 10617/2024
Vishnu Prakash R Pungalia Limited, A Company Registered Under
Companies Act, 1956, Having Principal Place Of Business
Situated At B-31-32, Second Floor, Industrial Estate, New Power
House Road, Jodhpur, Rajasthan Through Its Authorised
Signatory Dipanshu Pungalia Son Of Manohar Lal Punglia, Aged
About 28 Years, Resident Of 22-A, Subhash Nagar, New Pali
Raod, Bhagat Ki Kothi, Jodhpur 342001.
----Petitioner
Versus
1. State Of Rajasthan, Through Its Secretary, Public Health
Engineering Department, Jaipur.
2. Deputy Secretary, Public Health Engineering Department,
Jaipur.
3. Chief Engineer, (Special Projects), Public Health
Engineering Department, Jaipur.
4. Additional Chief Engineer Project, Public Health
Engineering Department, Bharatpur
5. Punjab National Bank, Through Its Branch Manager, Plot
No. 116, Keshav Nagar Opp. Chb Thana, Pal Road
Jodhpur, 342005.
----Respondents
S.B. Civil Writ Petition No. 10621/2024
Vishnu Prakash R Pungalia Limited, A Company Registered Under
Companies Act, 1956, Having Principal Place Of Business
Situated At B-31-32, Second Floor, Industrial Estate, New Power
House Road, Jodhpur, Rajasthan Through Its Authorised
Signatory Dipanshu Pungalia Son Of Manohar Lal Punglia, Aged
About 28 Years, Resident Of 22-A, Subhash Colony, New Pali
Road, Bhagat Ki Kothi, Jodhpur 342001.
----Petitioner
Versus
1. State Of Rajasthan, Through Its Secretary, Public Health
Engineering Department, Jaipur.
2. Deputy Secretary, Public Health Engineering Department,
Jaipur.
3. Chief Engineer, (Special Projects), Public Health
Engineering Department, Jaipur.
4. Additional Chief Engineer Project, Public Health
Engineering Department, Bharatpur.
5. Punjab National Bank, Through Its Branch Manager, Plot
No. 116, Keshav Nagar Opp. Chb Thana, Pal Road
Jodhpur, 342005.
----Respondents
S.B. Civil Writ Petition No. 10623/2024
Vishnu Prakash R Pungalia Limited, A Company Registered Under
Companies Act, 1956, Having Principal Place Of Business
Situated At B-31-32, Second Floor, Industrial Estate, New Power
House Road, Jodhpur, Rajasthan Through Its Authorised
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Signatory Dipanshu Pungalia Son Of Manohar Lal Punglia, Aged
About 28 Years, Resident Of 22-A, Subhash Colony, New Pali
Road, Bhagat Ki Kothi, Jodhpur 342001.
----Petitioner
Versus
1. State Of Rajasthan, Through Its Secretary, Public Health
Engineering Department, Jaipur.
2. Deputy Secretary, Public Health Engineering Department,
Jaipur.
3. Chief Engineer, (Special Projects), Public Health
Engineering Department, Jaipur.
4. Additional Chief Engineer, Public Health Engineering
Department, Kota
5. Bank Of Baroda, Marudhar Industrial Area Branch,
Through Its Branch Manager, 2Nd Phase, Basni, Jodhpur-
342005.
----Respondents
For Petitioner(s) : Mr. Vikas Balia, Sr. Adv. assisted by
Mr. Sharad Kothari
Mr. Priyansh Arora
Mr. Mayank Taparia
For Respondent(s) : Mr. Sajjan Singh Rathore, AAG with
Mr. Rajdeep Singh Chouhan
Mr. Deepak Vyas for
Mr. Jagdish Vyas
HON'BLE DR. JUSTICE NUPUR BHATI
Order 13/12/2024
1. This bunch of writ petitions involving identical controversy are being decided by this common order.
2. Briefly stated, the facts of the case are that the petitioner is a company, registered under the Companies Act, 1956 engaged in the business of Construction Work and Engineering Contracts and Designs and as such specialises in Water Supply and Sewage Treatment Plants. The respondent authorities floated various tenders namely - NIT no. 01/2023-24 dt. 05.05.23 (Ajmer), NIT no. 12/2023-24 dt. 05.05.23 (Jodhpur), NIT no. 02/2023-24 dt. (Downloaded on 16/12/2024 at 09:48:19 PM) [2024:RJ-JD:51306] (6 of 12) [CW-6554/2024] 04.05.23 (Ajmer), NIT no. 03/2023-24 dt. 05.05.23 (Udaipur), NIT no. 02/2023-24 dt. 05.05.23 (Bharatpur), NIT no. 04/2023- 24 dt. 07.05.23 (Bharatpur), NIT no. 14/2023-24 dt. 29.05.23 (Kota) for respective works. Thereafter, the petitioner along with submission of the tender offers also submitted bank guarantees for the respective NITs with the Respondents as part of a bid security in terms of Rule 42 of the RTPP Rules, 2013. After submission of the bids for respective NITs, a complaint was received by the Respondent Authorities, alleging mis-declaration and incorrect information provided with respect to insufficient bidding capacity of the Petitioner in the respective NITs. Upon taking cognizance of such complaint, by way of minutes of meeting of Bid Evaluation Committee, the petitioner was declared as non-responsive in the respective NITs and against these orders, appeals were preferred the petitioner and the respective appeals were allowed and the Petitioner was declared as responsive for opening of its financial bids and further evaluation in the respective NITs. Meanwhile, during the entire process of procuring the tender work, the bank guarantees submitted by the petitioner for the respective NITs were extended for some time. Subsequently, the decision was taken by the respondent authorities to annul the procurement process for the respective works against the NITs and further, to re-invite the bids. However, the Bank Guarantees submitted by the petitioner in pursuance of the respective NITs remained in the custody of the Respondent Authorities post-cancellation of the entire procurement process for the respective works. Thereafter, the Petitioner preferred representations to the Respondent Department praying therein (Downloaded on 16/12/2024 at 09:48:19 PM) [2024:RJ-JD:51306] (7 of 12) [CW-6554/2024] that since the procurement process has been annulled, the respective bank guarantees be released at the earliest. Subsequently, the Respondent authorities released the bank guarantees which were submitted in pursuance to NIT no. 02/2023-24 dt. 05.05.23 (Bharatpur), NIT no. 04/2023-24 dt. 07.05.23 (Bharatpur); however, the respondent authorities denied to release the rest of the bank guarantees submitted by the petitioner qua other NITs while asking the petitioner to further extend these bank guarantees. Thereafter, the Finance Committee of the Rajasthan Water Supply & Sewerage Management Board, Jaipur in its 883rd meeting held on 23.05.2024 (Signed on 14.06.2024), vide its Agenda Item Nos. 17, 18, 19, 20, 21, 22 and 23 decided to forfeit the respective bid security submitted by the petitioner in the respective NITs and also debarred the petitioner for a period of six months in future tender process. Thus, aggrieved by the same petitioner has filed these writ petitions.
3. Learned Senior Counsel for the petitioner submits that the impugned orders dated 23.05.2024 (Annexure-15 in SBCWP No.10284/2024), 23.05.2024 (Annexure-15 in SBCWP No.10286/2024), 23.05.2024 (Annexure-15 in SBCWP No.10290/2024), 24.06.2024 (Annexure-9&10 in SBCWP No.10382/2024), 24.06.2024 (Annexure-8 in SBCWP No.10383/2024), 24.06.2024 (Annexure-8 in SBCWP No.10386/2024), 22.06.2024 (Annexure-18 in SBCWP No.10616/2024), 22.06.2024 (Annexure-14 in SBCWP No.10617/2024), 22.06.2024 (Annexure-14 in SBCWP No.10621/2024 and 24.06.2024 (Annexure-20 in SBCWP (Downloaded on 16/12/2024 at 09:48:19 PM) [2024:RJ-JD:51306] (8 of 12) [CW-6554/2024] No.10623/2024), have been passed by the respondent authorities in contravention of the provisions of sub-section (5) of the Section 46 of the Rajasthan Transparency in Public Procurement Act, 2012 (hereinafter referred to as 'RTPP Act'), which pertains to debarment from bidding. He also submits that if at all the State Government or a procuring entity decides to debar bidder under this Section, then before passing any order for debarring the bidder, the State Government or a procuring entity is required to afford a reasonable opportunity of hearing to the person who is required to be debarred. He further submits that in the instant case the respondent authorities have passed the impugned orders without affording the petitioner a reasonable opportunity of hearing and as such these impugned orders deserves to be quashed and set aside.
4. Per Contra, the learned AAG submits that these writ petitions are not maintainable as the petitioner has alternative efficacious remedy of filing civil suit before the competent court of jurisdiction. He also submits that the writ petitions are not maintainable on yet another ground, inasmuch as in the matters related to procurement process, writ petitions should not be entertained ordinary and the parties should be left to avail the remedy provided under the RTPP Act and Rajasthan Transparency in Public Procurement Rules, 2013 ('RTPP Rules') and in the present case alternative efficacious remedy of appeal is available under Section 38 of RTPP Act. He further submits that these writ petitions are nothing but a claim for refund of money in the form of the bank guarantees, which were submitted by the petitioner to the respondent authorities and as such these writ petitions are not (Downloaded on 16/12/2024 at 09:48:19 PM) [2024:RJ-JD:51306] (9 of 12) [CW-6554/2024] maintainable since it is settled law that this Hon'ble High Court may not interfere for the contractual matter of recovery of money or bank guarantee.
4.1. Learned AAG further submits that if any affidavit is sought for at any level, any stage or in any proceedings and once it is sworn to be true then it becomes an authentication on the part of the person signing the affidavit and the particulars of the affidavit are believed to be true and valid, however, in the present case the petitioner has submitted respective affidavits of biding capacity while submitting incorrect and false details with respect to its current liabilities at the time of filing of the bid document and as such the petitioner has breached the belief. He also submits that the filing of false affidavits by the petitioner is clearly a violation of Code of Integrity under Rule 82 of the RTPP Rules and thus, the petitioner is liable to face the actions under Section 11 and 46 of the RTPP Act and therefore, actions as prescribed under the RTPP act and the RTPP Rules have been taken against the petitioner. He further submits that the opportunity of hearing is not required to be given after the authority has come to the conclusion that the petitioner was required to be debarred.
5. Heard learned counsel for the parties and perused the material available on record.
6. This Court finds that the preliminary objection raised by the Learned AAG with respect to the maintainability of these writ petitions is not sustainable as in cases of grave procedural illegality, it is open for the aggrieved person(s) to approach this Court under Article 226 of the Constitution of India. (Downloaded on 16/12/2024 at 09:48:19 PM) [2024:RJ-JD:51306] (10 of 12) [CW-6554/2024]
7. This Court takes into consideration Section 46 of the RTPP Act which reads as under:
"46. Debarment from bidding.- (1) A bidder shall be debarred by the State Government if he has been convicted of an offence -
(a) under the Prevention of Corruption Act, 1988 (Central Act No. 49 of 1988); or
(b) under the Indian Penal Code, 1860 (Central Act No. 45 of 1860) or any other law for the time being in force, for causing any loss of life or property or causing a threat to public health as part of execution of a public procurement contract.
(2) A bidder debarred under sub-section (1) shall not be eligible to participate in a procurement process of any procuring entity for a period not exceeding three years commencing from the date on which he was debarred. (3) If a procuring entity finds that a bidder has breached the code of integrity prescribed in terms of section 11, it may debar the bidder for a period not exceeding three years.
(4) Where the entire bid security or the entire performance security or any substitute thereof, as the case may be, of a bidder has been forfeited by a procuring entity in respect of any procurement process or procurement contract, the bidder may be debarred from participating in any procurement process undertaken by the procuring entity for a period not exceeding three years.
(5) The State Government or a procuring entity, as the case may be, shall not debar a bidder under this section unless such bidder has been given a reasonable opportunity of being heard."
It is clear upon bare perusal of sub-section (5) of Section 46 of the RTPP Act that it is mandatory for the State Government or procuring entity to afford a reasonable opportunity of hearing to the bidder before passing an order of debarring such bidder, however, in the present case, no reasonable opportunity of hearing has been provided to the petitioner before passing the impugned orders.
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8. Thus, this Court deems it appropriate to quash the impugned orders dated 24.06.2024 (Annexure-9&10 in SBCWP No.10382/2024), 24.06.2024 (Annexure-8 in SBCWP No.10383/2024), 24.06.2024 (Annexure-8 in SBCWP No.10386/2024), 22.06.2024 (Annexure-18 in SBCWP No.10616/2024), 22.06.2024 (Annexure-14 in SBCWP No.10617/2024), 22.06.2024 (Annexure-14 in SBCWP No.10621/2024), 24.06.2024 (Annexure-20 in SBCWP No.10623/2024), while taking into consideration the provisions as laid down under sub-section 5 of Section 46 of the RTPP Act.
9. It is open for the respondents to initiate any proceedings, if required, however, the respondents shall not proceed against the petitioners before affording the petitioner a reasonable opportunity of hearing as laid down under sub-section 5 of Section 46 of the RTPP Act.
10. It is also observed that for a period of two months, the respondents shall be restrained from taking any coercive action for encashment/forfeiture of the respective bank guarantees of the petitioner and the petitioner is also directed to keep the respective bank guarantees alive, in cases where it is still alive, for a period of two months from today.
11. Further, the petitioner in S.B.CWP Nos. 10284/2024, 10286/2024 and 10290/2024 would be at liberty to approach this Hon'ble Court, if the occasion arises in the form of any consequential action taken in pursuance of the 883 rd (dated 23.05.2023) Meeting of Finance Committee, Rajasthan Water Supply & Sewerage Management Board, Jaipur.
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12. With the aforesaid directions, the writ petitions are disposed of. Stay applications, as well as all other pending applications, if any, shall also stand disposed of.
(DR.NUPUR BHATI),J 10-19-ajayS/-
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