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Rajasthan High Court · body

2022 DIGILAW 55 (RAJ)

Madan Lal Gurjar v. State Of Rajasthan

2022-01-06

DINESH MEHTA

body2022
ORDER Dinesh Mehta, J. - By way of present writ petition, petitioner has challenged order dated 12.11.2021, whereby contract awarded to the petitioner has been cancelled; petitioner has been blacklisted for three years and a sum of Rs. 1,50,000/- has been ordered to be recovered from him. 2. The facts briefly narrated are that, pursuant to NIT No.1/2021-22 dated 15.06.2021 for supply of material inMahatma Gandhi Nrega Scheme and other construction material in Gram Panchayat Mahua Kanlla, Panchayat Samiti Siwana, District Bhilwara, the petitioner concern furnished its E-Bid. The petitioner having offered rate of 10.50 % below BSR, was declared successful and contract was awarded to it. 3. The petitioner received an order dated 18.08.2021 from the Sarpanch of the respondent No.4 requiring various items mentioned in the communication for three development works to be carried in the Gram panchayat. 4. On receiving the order dated 18.08.2021, the petitioner sent a registered response dated 01.09.2021 to the Development Officer; Sarpanch and Gram Panchayat and asked about the place where the desired goods were to be supplied, as the order did not mention the place of supply. 5. The respondent No.4 again issued a communication dated 03.09.2021 and asked the petitioner to supply said material for the above referred works. This time again, by way of communication dated 15.09.2021 addressed to Development Officer, Sarpanch and Gram Panchayat, the petitioner reiterated that the place of work/village where the material is to be supplied has not been specified. 6. The respondent No.4 yet again issued another letter on 23.09.2021 for the same purpose and this time also, the petitioner sent the communication dated 28.09.2021 to the respondent Sarpanch, Development Officer and Gram Panchayat. 7. In this letter, the petitioner expressed a few more concerns namely, the quantity of tiles has not been mentioned; the village in which Khayad Bus Stand is situated is not specified and that the respondent was supposed to give separate orders for the separate items, whereas one composite order has been issued. 8. Since the petitioner failed to supply the material, the respondent No.3 issued a notice dated 08.10.2021 to the petitioner, inter alia, requiring it to show cause as to why the contract be not cancelled and it be not blacklisted. 9. 8. Since the petitioner failed to supply the material, the respondent No.3 issued a notice dated 08.10.2021 to the petitioner, inter alia, requiring it to show cause as to why the contract be not cancelled and it be not blacklisted. 9. The petitioner submitted its reply dated 18.10.2021 stating that the Sarpanch and Development Officer were against the petitioner concern and they somehow intended to cancel the work order for malafide intentions. 10. It was also stated that when the petitioner tried to supply the desired construction material, no representative of Gram Panchayat was available and they refused to give receipt. 11. Respondent No.3 issued yet another notice dated 25.10.2021 and required the petitioner to supply the required material within a period of three days failing which the petitioner's contract would be terminated as per the provisions of Rajasthan Transparency in Public Procurement Act, 2012. 12. In response to the notice dated 25.10.2021, the petitioner filed a reply dated 01.11.2021 and instead of supplying the material, had taken plea that the Sarpanch and Development Officer were harassing the petitioner and stated that the reply it had already filed, be considered. 13. Finally, an order dated 12.11.2021 came to be passed by the respondent No.3, vide which petitioner's contract has been cancelled; it has been blacklisted for three years and a sum of Rs. 1,50,000/- being security money, in terms of the contract agreement has been demanded from it. 14. Mr. Sajjan Singh, learned counsel for the petitioner invited Court's attention towards various conditions of the NIT namely Nos.18, 24, 29, and 33 which are reproduced hereunder for ready reference :- 15. After reading the above conditions, learned counsel argued that the respondents were required to give separate orders for each item whereas they have issued one order to supply 600 bags of cement; 10 tonnes of iron, 10,000 bricks; 1000 square feet tiles; 30 metric tonnes sand; 40 mm gitty 5 tonnes; 20 mm gitty 5 tonnes and 20 tonnes stone, which was contrary to condition No.29, which provided that the respondents would issue separate orders for each work.16. Mr. Rathore argued that though the respondents were required to issue separate orders yet, they have issued a composite order just to frustrate the petitioner's contract. 17. Mr. Rathore argued that though the respondents were required to issue separate orders yet, they have issued a composite order just to frustrate the petitioner's contract. 17. It was also argued that the petitioner concern gave detailed reply to the respondent No.3 who has not considered the same and has passed the impugned order dated 12.11.2021. 18. Inviting Court's attention towards order dated 26.11.2021, learned counsel for the petitioner pointed out that after cancellation of petitioner's contract, the work has now been awarded to one M/s Shri Ratan Trading Company (respondent No.5), who has quoted much higher rates i.e., below 5% BSR. 19. Heard learned counsel for the petitioner and perused the material available on record. 20. Strictly speaking, the contention of the petitioner may be correct that respondents were required to give separate orders, however, if the condition No.29 is read carefully, it postulates that the respondents would issue separate order for each work. Hence, the respondents were ideally required to issue three separate orders for three works namely construction of bridge in Nokha Mohalla, tiles for flooring at Mataji Bus Stand and construction material for construction of CC road at Jato Mohalla, instead of one order. 21. A perusal of the record clearly shows that petitioner has been corresponding with the respondents and in each correspondence, the petitioner had mentioned that place of supply of the material has not been indicated. 22. The argument that has been advanced by Mr. Sajjan Singh that seven orders ought to have been issued for each of the item for desired quantity was not taken by the petitioner in the first reply dated 15.09.2021. It was only in the second reply sent on 28.09.2021, for the first time the petitioner had stated that respondents were required to issue separate work orders for separate works whereas they have issued one composite order. 23. In the opinion of this Court, the fact that one composite order has been issued, does not give any carte blanche in the hands of the petitioner to not supply the material as required by the respondents. The petitioner had adopted dilly-dallying tactics and instead of supplying the goods, had taken one excuse or the other. 24. Issuance of one order or three orders hardly makes any difference, if the petitioner was bonafidely interested in supply of the goods. 25. The petitioner had adopted dilly-dallying tactics and instead of supplying the goods, had taken one excuse or the other. 24. Issuance of one order or three orders hardly makes any difference, if the petitioner was bonafidely interested in supply of the goods. 25. Even on issuance of the notice by respondent No.3, instead of filing reply on the merit of the issue, the petitioner has chosen to hurl allegations against the Sarpanch and Development Officer in both the replies dated 18.10.2021 and 01.11.2021. 26. It is surprising to note that even pursuant to the notice dated 25.10.2021, instead of supplying the desired material, the petitioner had shown a stubborn attitude and had gone on to say that its reply filed earlier be considered. 27. This being the position, the petitioner itself is to be blamed for cancellation of the contract. 28. If the petitioner bonafidely intended or wished to supply the goods, one fails to comprehend as to how it could not know the locations, which were clearly indicated in the order, such as Nokha Mohalla, Mataji Bus Stand and Jaton Ka Mohalla, that too in a small village. 29. Had the petitioner been bonafide, it would have supplied the goods right at the office of Gram Panchayat or at the site instead of taking excuses of the place of supply not being disclosed to it. A bonafide businessman does not indulge in writing registered letters to buy time or to create evidence. 30. So far as argument of Mr. Rathore, in relation to awarding of the contract to respondent No.5 is concerned, in the opinion of this Court, once the petitioner's contract has been cancelled, the respondents had no other option but to award the contract to the second bidder (L2). This Court does not find any infirmity in awarding the contract to respondent No.5 simply because the same has been awarded at a higher rate of 5% below BSR. 31. This Court neither finds any merit or substance in the petitioner's contentions nor does it find any arbitrariness in respondents' action. Interference in a case like this more so, when after termination, the contract has been awarded to respondent No.5 would be exceeding jurisdiction in light of plethora of judicial pronouncements. 32. Writ petition, therefore, fails. 33. Stay petition also stands disposed of accordingly.