CW 11156/08 //1// In the High Court of Judicature for Rajasthan Jaipur Bench ** Civil Writ Petition No.11156/2008 Satya Pra. Gautam Versus State & Others. Date of Order ::: 15/07/09 Hon'ble Mr. Justice Ajay Rastogi Mr. Sanjay Mehrish, for petitioner Ms Priyanka Pareek, Dy.Govt. Advocate for respondents State Mr. Rohan Jain, for respondent No.5. Matter has come up on application U/Art.226(3) of the Constitution seeking vacation/modification of interim order dt. 25/11/08. At joint request, matter has been finally heard and is being disposed of at admission stage. Instant petition has been filed assailing approval of tender in favour of respondent NO.5 vide order dt.30/08/08 (Ann.10) and consequential order dt.12/09/08 (Ann.9) for work of construction of Over-head Service Reservoir (OHSR) of 275 Kl capacity & 19 M staging under UWSS Pirawa (Jhalawar). Notice (Ann.2) was issued on 05/06/08 inviting tenders (NIT) for execution of various works in Jhalawar Zone - Item NO.5 whereof related to construction of Water Tank in Pirawa (Jhalawar), prescribing last date (10/07/08) for submission of tender document – pursuant to which, petitioner also purchased tender form on CW 11156/08 //2// deposit of requisite fee of Rs.200/- on 08/07/08 two days before last date and the said tender form was to be submitted alongwith earnest money of Rs.40,000/-. However, for administrative reasons, corrigendum (Ann.P8 & R/1) was issued on 09/07/08 duly published in local news paper, extending last date of submission of tender form from 10/07/08 to 17/07/08 upto 3 O' clock for being opened at 4 O' clock on last date (17/07/08). As alleged, person authorised by petitioner came to the office of respondent NO.4 on 10/07/08 at about 2 PM for submitting tender form alongwith earnest money; at that time, he was informed that tender notice (NIT) is to be amended and the petitioner will be informed later on; and on 17/07/08 at about 2 PM, petitioner came to know of accepting tender document, he rushed to respondent's office and inquired as to how without conveying amended date, tender documents are being accepted; as such he submitted tender document within time but failed to deposit earnest money and on 17/07/08, itself, respondent NO.5 having offered lowest bid (L-1), his tender was approved and intimation was sent on 30/08/08 (Ann.10) – pursuant to which, the work order was also placed on 12/09/08 (Ann.R5/2). CW 11156/08 //3// Counsel for petitioner submits that once last date of submission of the tender was extended to 17/07/08, selling date of tender form was also required to be extended but having failed to do so, respondents have violated R.327 Note 6 of Public Works Financial & Accounts Rules (“PWFA Rules”) and all prospective tenderers have been deprived of being participated in process of tender. Counsel further submits that there was no intimation of the date being extended from 10th to 17th July, 2008; while in fact on 10/07/08, when his authorised representative went to the respondent No.4, he was told that corrigendum is going to be issued and would be informed accordingly but since no intimation was received by petitioner and when it came to his notice that tenders are accepted on 17/07/08, also he rushed to the respondent No.4's office to submit his tender form on 17/07/08 but was not able to arrange deposit of earnest money within short period available, which resulted in depriving him to participate in process of tender initiated by respondents. Counsel further submits that respondent No.5 & others have also not deposited earnest money on 10/07/08 but the department accepted their earnest money antedated and in that CW 11156/08 //4// regard, complaint was also lodged but remained unheard, which constrained him to approach this Court. Reply has been filed by State and also by successful bidder (respondent No.5) inter- alia averring therein that on 09/07/08, corrigendum was issued duly published in local news paper with a last date of submission of tender form changing it to 17th July, 2008 till 3 O' clock for being opened at 4 O' clock on last date, itself. Government Counsel submits that it cannot be said that petitioner was not aware of particularly corrigendum duly published in local news papers – pursuant to which, it was open for all those prospective tenderers to purchase tender form as last date was changed from 10th to 17th July, 2008; and as regards petitioner, he cannot be said to be aggrieved since he had already purchased tender form on 08/07/09 but failed to submit it alongwith earnest money; as such has rightly been eliminated from participating in the process. It has also been contended by respondents that as per conditions of NIT and also as per R.333 of PWFA Rules, the tender document has to be supported and accompanied by earnest money but petitioner having failed to CW 11156/08 //5// deposit earnest money, his tender form was not accepted and thus has rightly not been permitted to participate in the process. I have considered rival contentions of Counsel for the parties and with their assistance, examined material on record,. Tenderer in regard to NIT issued on 05/06/08 (Ann.2) which was to be submitted duly accompanied with earnest money notified in the notice for participation in the tender process by 10/07/08. This fact remains un-controverted that last date as notified in initial notice dt.05/06/08 (Ann.2) was 10th July, 2008. As per his own averments, petitioner went to the office alongwith tender document but could not submit alongwith earnest money on the premise that he was allegedly informed that some amendment was going to take place and he would be informed. As regards corrigendum, it was duly published on 09/07/08 in local news paper notifying change in last date from 10th to 17th July, 2008 till 3 O' clock for being opened at 4 O' clock on the very day. But the petitioner failed to submit tender form alongwith earnest money either on 10/07/08 or thereafter till last date extended upto 17/07/08; as such he was not a bidder who could be participated CW 11156/08 //6// pursuant to NIT dt.05/06/08 (Ann.2). As regards submission made on behalf of petitioner that if the date is changed from10th to 17th July, 2008, the selling date is required to be changed only in terms of R.327 Note (6), suffice it to say that petitioner having purchase tender form on 08/07/08, had ample opportunity, if he was interested, to submit tender form alongwith earnest money on or before extended last date (17/07/08), but he failed to do so; and from material on record, it cannot be said that selling of form was not permitted after 10/07/08 which in no manner has caused prejudice to petitioner. As regards submission made on behalf of petitioner that fair opportunity was not afforded to him and was never intimated of change in the last date through corrigendum (Ann.2), suffice it to say that once corrigendum was published in local news paper on 09/07/08 (Ann.R.1) notifying in change of last date from 10th to 17th July, 2008 for submitting tender form till 3 O' clock for being opened at 4 O' clock on the very day, it was adequate notice for petitioner, as well. This fact is further fortified from material on record that as per his own averment, petitioner went on 10th July, 2008 and so also on 17th July, CW 11156/08 //7// 2008 which clearly depicts that it was well within his knowledge of corrigendum as regards change in last date of submission of tender form (supra). Even copy of representation has been placed on record by successful bidder (respondent) as Ann.R.5/1, which was submitted by petitioner to Superintending Engineer, PHED, Jhalawar, according to which he went to the office of XEN on 17/07/08 and later on it revealed to him that tender document had to be submitted alongwith earnest money and within short period, earnest money could not have been arranged; as such he made request to permit him to participate in the tender process by accepting his tender form without being supported by earnest money. Thus, what has been pleaded by petitioner in instant petition is contrary to what representation he made to the authority; as such this court cannot give any credence to the plea which he has raised herein. As regards earnest money, it was part of terms & conditions of tender form that tender form would be accepted, if supported with earnest money being deposited as is required U/r 333 of PWFA Rules – in the absence whereof, petitioner cannot be said to be a CW 11156/08 //8// valid bidder who could participate in process pursuant to NIT impugned. There is no material on record that rates having been finalised by respondents and considered of successful bider as L-1 is much higher than rates having been considered either prior or later on for construction of over-head water taken in the area – in absence whereof, no inference can be drawn by this Court and the decision taken by respondents in treating respondent No.5 as L-1 and acceptance of his tender was not in public interest. Consequently, writ petition fails and is hereby dismissed alongwith stay application. Interim order dt.25/11/08 stands vacated. No order as to costs. (Ajay Rastogi), J. K.Khatri/p.8/11156CW08Jul15DsNIT.doc