1 1. S.B.CIVIL WRIT PETITION NO. 10135/2010 M/s Mateshwari Indrani Contractor (P) Ltd. Vs. State of Rajasthan & Ors. 2. S.B.CIVIL WRIT PETITION NO. 10030/2010 M/s Mateshwari Indrani Contractor (P) Ltd. Vs. State of Rajasthan & Ors. Date of Order :: 6.12.2010 HON'BLE MR. JUSTICE GOVIND MATHUR Mr. Vikas Balia, for the petitioner/s. Mr. V.K. Mathur } Mr. J.P. Joshi } for the respondents. Mr. Sajjan Singh } ... The Deputy Commissioner (Admn.), Commercial Taxes, Udaipur under a notice dated 20.9.2010 invited tenders for collection of revenue as per Section 77 of the Rajasthan Value Added Tax Act, 2003 read with Rule 44 of the Rajasthan Value Added Tax Rules, 2006 for the commodities Bajri and building stones except marbles and granite. As per Clause 14 of the terms and conditions for the tenders invited, no tender could have been accepted in the event of any existing due of department against a tenderer. The petitioner, by positively denying for any such due, submitted application for the grant of contract to collect revenue for Bajri as well as for the building stones. On 28.9.2010 the 2 tenders were opened and the contract was finalized in favour of the petitioner, accordingly, the petitioner deposited half part of the expected annual tax recovery on 30.9.2010 with respondents, as per Clause 17 of the terms of tender. On the same day the Commercial Taxes Officer (CTO), Udaipur instructed the petitioner to satisfy the earlier demand due in a tune of Rs.11,41,479/- but as per the respondents the demand letter aforesaid was not accepted by the representative of the petitioner company, thus, the same was sent for service by registered post acknowledge due. On 1.10.2010 a recommendation was made by the Commercial Taxes Officer to the Deputy Commissioner for not awarding contract to the petitioner as there was a violation of Clause 14 of the tender conditions. Accordingly, the tender submitted by the petitioner was cancelled and a fresh notice inviting tenders was issued on 13.10.2010. The fresh tenders were opened on 27.10.2010 and subsequent thereto these two petitions for writ are preferred claiming following reliefs: “I. By an appropriate writ, order or direction, the tender notification issued on 13.10.2010 (Annex.6) and the proceeding undertake in pursuance thereof may kindly be quashed and set aside. II. The respondent authorities may kindly be directed to complete the remaining proceedings in pursuance of the tender notification dated 20.9.2010 (annex.1) and execute the contract and award to Petitioner Company and to allow him to carry out the work.” 3 The case of the petitioner is that the respondents before terminating the contract or rejection of the tender application submitted by the petitioner company have not at all appreciated the fact that the demand due already stood satisfied on 11.10.2010, that is prior to inviting fresh tenders on 13.10.2010. As per the petitioner, though a demand of Rs. 11,41,479/- was made by the respondents, however, after due verification of accounts, an amount of Rs.8,33,280/- was adjusted and remaining due of Rs.3 lacs & odd was deposited on 11.10.2010. Learned counsel for the petitioner asserted that the amount due was determined on 6.10.2010 and that was deposited on 11.10.2010, therefore, no adequate reason was available with the respondents to issue fresh notice inviting tenders. Per contra, as per the respondents, the petitioner company was facing a default not only at the time of submission of tender but even on the date the tenders were opened, therefore, the tender submitted by it was rightly cancelled as per Clause 14 of the tender conditions. It is submitted by learned counsel for the respondent – Commercial Taxes Department that a demand of Rs.11,41,479/- was created against the petitioner against the contract of revenue collection for the year 2006- 2007, against which an appeal was preferred but that came to be dismissed on 4.6.2010. An application then was preferred for rectification of the assessment under Section 33 of the Rajasthan Value 4 Added Tax Act and by acting upon that on 6.10.2010 the amount of Rs.8,33,280/- wad adjusted, however, a sum of Rs.3,08,200/- was yet outstanding and that was deposited only on 11.10.2010. Prior to it, the tenders were considered on 28.10.2010, a notice thereafter was given to the petitioner on 30.10.2010 to satisfy the demand but no action was taken, as such, a departmental liability was due against the petitioner. While meeting with the defence taken by the respondents it is submitted by learned counsel for the petitioner that, as a matter of fact, the departmental dues were determined at the first instance on 6.10.2010, therefore, no occasion was there for the petitioner to satisfy the demand prior to that. I have considered the arguments advanced and also the record available. It is not in dispute that a demand of Rs.11,41,479/- was made by the respondent-Commercial Taxes Department from the petitioner and the same was under consideration before the appellate authority. On 28.10.2010 the rectification application was also pending. However, mere pendency of the rectification application does not absolve the petitioner from the liability of the demand already made. The amount of the demand made, may had been under dispute but, the requirement of Clause 14 of the tender conditions was for non acceptance of a tender in the event of departmental dues and such due was existing. In view of it, on 28.10.2010 the respondents had no option 5 but to reject the tender submitted by the petitioner-company. The respondents instead of doing so granted an opportunity to the petitioner to deposit the due amount but he did not choose to do so. In these circumstances, the decision taken by the respondents on 4.10.2010 to cancel the petitioner's tender is in accordance with the terms and conditions of the tender notice. Beside the above, the petitioner is not at all entitled for any relief under Article 226 of the Constitution of India looking to its conduct. At the first instance, the petitioner while submitting application in pursuant to notice inviting tender positively denied for any departmental dues. This fact clearly reflects that an effort was made by the petitioner to mislead the department. If the petitioner would have mentioned about the earlier dues, may those be pending consideration before the appellate authority, the respondents would have not considered the tender application submitted by the petitioner, there being a violation of Clause 14 of the tender conditions. It appears that just to get the tender cleared the petitioner intentionally not only concealed the fact about the departmental dues but made a false statement by asserting that, `no departmental dues were pending'. The petitioner, not only before the respondents but before this Court too, tried to conceal the terms and conditions applicable for grant of a contract, those are quite material for adjudication of the issue. The 6 petitioner, alongwith the petition for writ has placed on record copy of the notice inviting tender but has not placed on record the terms and conditions prescribed by the Commercial Taxes Department for grant of contract. No adequate explanation is also given for not placing such an important document on record. An another important aspect of the matter is that the respondents cancelled the petitioner's tender application on 4.10.2010 and then issued a fresh notice inviting tender on 13.10.2010, but the petitioner did not choose to file these writ petitions till opening of the tenders submitted in pursuant to notice inviting tenders on 13.10.2010. Both these petitions were filed by the petitioner after 27.10.2010. Learned counsel for the petitioner failed to satisfy the Court as to why the petitioner, for filing these petitions, was waiting to get the tenders opened. In totality of the facts and circumstances discussed above, I am not inclined to invoke extra ordinary powers of this Court as prayed for in this matter. Accordingly, the petitions for writ are dismissed. (GOVIND MATHUR), J. Jgoyal '