Vineet Kothari, J. - (1.) THE petitioner by way of present writ petition under Article 226 of the Constitution of India has challenged cancellation of Notice Inviting Tender issued by the Dy. Commissioner (Administration), Commercial Taxes Department, Bhilwara for awarding contract on behalf of the State Government for collection of tax on minerals (Chheja Patthar) for Revenue Tehsil Bhilwara, Shahpura, Baneda, Mandal, Jahajpur, Asind, Mandalgarh, Kotdi, Sahada, Raipur, and Hurda in Bhilwara District vide Notice Inviting Tender dtd. 22.8.2006 for Annual Expected Revenue of Rs. 130 lacs. The tenders were to be opened on 31.8.2006 at 4.30 p.m. The award of contract were to be given for tax collection charges on percentage basis on aforesaid expected revenue of Rs. 130 lacs and the petitioner gave the said bid on 30.8.2006 along with the demand draft No. 1183736 dtd. 30.8.2006 for a sum of Rs. 5,10,000/ - towards earnest money as vide column No. 5 of the NIT Annex.1 dtd. 22.8.2006, the said security money was stipulated to be Rs. 5.09 lacs. On 31.8.2006, when the tenders of different bidders were opened, the tender of the petitioner was found to be lowest at 5% collection charges and accordingly as per the terms of the NIT, the petitioner was required to deposit balance sum of Rs. 5,73,333/ - vide letter Annex.2 dtd. 31.8.2006 of the Dy. Commissioner (Administration) Commercial Taxes Department, respondent No. 3 to make the deposit of 1/12th of the expected revenue of Rs. 130 lakhs, which came to Rs. 10,83,333/ -. The petitioner accordingly deposited the said balance sum of Rs. 5,73,333/ - through DD No. 10094 dtd. 1.9.2006 for a sum of Rs. 5,74,000/ - with the respondent No. 3. In the communication Annex. 2 dtd. 31.8.2006, the respondent No. 3 also stated that the bid of the petitioner for tax collection charges was fond to be lowest than other six bidders, therefore, he may deposit the said balance amount.
(2.) ACCORDING to the petitioner, the respondent No. 3 recommended the case of the petitioner for award of contract to the Dy. Commissioner (Anti Evasion), Commercial Taxes, Jaipur vide Annex.4 dtd. 2.9.2006 in which it was also pointed that in the NIT issued by the respondent No. 2 on 22.8.2006, the earnest money was wrongly shown as Rs. 5.09 lacs as against Rs. 5.90 lacs and the correction was duly published in "Rajasthan Patrika" and "Dainik Bhaskar" on 29.8.2006. However, the said amendment could not be published on the website of the Commercial Taxes Department. However, since the petitioner's tender was lowest, and he had deposited complete amount of 1/12th of the expected amount of Rs. 130 lacs, he may be awarded the contract in question. The respondent No. 3 also conveyed the representation of one Mr. Makkhan Lal Khoiwal, Tilak Nagar against the said tender process dtd. 31.8.2006 who had also participated in the said tender process and his bid was found to be 7.77% against the bid of the petitioner at 5% of the expected revenue. It is further the case of the petitioner that while he was awaiting for final award of the contract by the Commissioner, Commercial Taxes Department under Section 77 of the Act, to the utter surprise of the petitioner, the petitioner found another NIT published in the newspaper dtd. 18.9.2006 for the same revenue villages for same nature of contract with the same terms and conditions without either cancelling th bid of the petitioner given earlier and recommended for award of contract or forfeiting his security deposit and new tenders were slated to be opened on 25.9.2006. Upon coming to know of this, the petitioner immediately submitted an application on 18.9.2006 itself to the respondent No. 3 for supply of copy of letter recommending his case for award of contract to the Commissioner and the copy of the order of rejection of his bid or offer, if any. In pursuance of this, the respondent No. 3 informed the petitioner vide Annex.7 letter dtd. 4.10.2006 of the Dy. Commissioner(Administration), Anti Evasion, Jaipur that the respondent No. 3 Dy. Commissioner (Administration), Bhilwara had not sanctioned the contract on 31.8.2006 in favour of the petitioner. Thereafter the petitioner approached this Court by way of present writ petition. The respondents have contested this writ petition by filing reply to the writ petition and also additional affidavit of the Commissioner, Commercial Taxes as directed by this Court on 7.5.2008. The respondents have produced with their reply copy of order of the Commissioner, Commercial Taxes dtd. 14.9.2006 addressed to the respondent No. 3 Dy. Commissioner (Administration), Bhlwara that that in NIT issued by the respondent No. 3, amount of security deposit was wrongly mentioned at Rs. 5.09 lacs as against 5.90 lacs and the amended notification was not published in all the editions of Daily News -paper Dainik Bhaskar/Rajasthan Patrika and also on the website of the Department, therefore, the NIT dtd. 22.8.2006 was cancelled and the process of award of contract was unnecessarily delayed and therefore, he was warned to be careful in future. The respondents have also produced on record a copy of letter of the respondent No. 3 dtd. 26.9.2006 Annex.R/5 by which the said respondent No. 3 in pursuance of fresh NIT issued on 18.9.2006 inviting tender on 25.9.2006, forwarding to the head -office the bid of 5 of the bidders in which one of the bidder M/s Kanchan India Tax Feb. Pvt. Ltd., Bhilwara gave bid of 0.01% of the expected revenue of Rs. 130 lacs and thus being the lowest, its case was recommended by the respondent No. 3 for award of the contract. The other bidders who had participated in earlier NIT process also, namely, Shaukat Khan, Gulabpura as against his earlier bid of 8% gave bid of 3.77% and Sh. Makkhan Khoiwal, Tilak Nagar, Bhilwara as against the earlier bid of 7.77%, gave bid of 14.77%. The Commissioner in his additional affidavit filed in this regard on 20.5.2008 in the Court has stated that even the second NIT issued on 18.9.2006, in which lowest bid of 0.01% was given by one of the bidder has also been cancelled on 17.10.2006 vide Annex.E filed with the said affidavit as the said bid though found lowest, was not found to be feasible by the said authority. The respondents have however, justified cancellation of the earlier NIT dtd. 22.8.2006 in which the bid of the petitioner was found to be lowest at 5% of expected revenue.
(3.) MR . Vikas Balia, learned Counsel appearing for the petitioner vehemently submitted that the whole process of cancellation of earlier NIT dtd. 22.8.2006 was illegal and arbitrary and the same was done with oblique motive of helping other bidders. He submitted that the petitioner had complied with the conditions of NIT and the bonafide error in giving out the security amount of 5.09 lacs as against 5.90 lacs could not be a reason for cancelling the entire tender process once the financial bids were opened on 31.8.2006 and the petitioner was asked to deposit the balance amount to make total deposit of Rs. 1/12th of expected revenue vide letter Annex.2 dtd. 31.8.2006. The petitioner immediately deposited the same and in fact, the petitioner's bid was never rejected by the respondents and they arbitrarily issued fresh NIT on 18.9.2006 without either cancelling the tender of the petitioner or rejecting his bid and informing the petitioner about the same. He further contended that once the Department had corrected the mistake and issued amended notification on 29.8.2006 correcting the amount of security deposit of Rs. 5.90 lacs, they ought not have to opened the financial bid and disclosed bid of the petitioner at 5% of the expected revenue to other parties and thereafter cancelling the entire NIT process and issuing fresh NIT in which one of the earlier participants admittedly gave higher bid after knowing the bid of the petitioner and this showed that the respondents clearly wanted to give a helping hand to such bidders and without any cogent reason and without rejecting the bid of the petitioner, the whole process was cancelled. He submitted that under Clause 46 of the Conditions of NIT, the respondent - Commissioner had power to reject any tender with or without assigning any reason, but he had no power to cancel the whole tender process without giving valid reasons. He further submitted that it was not shown by the respondents that any prejudice to any person was caused on account of aforesaid mistake of the respondent No. 3 and the petitioner had duly complied with the deposit of 1/12th of the expected revenue and his case was duly recommended for award of contract by the respondent No. 3. Without any intimation and information to the petitioner much less an opportunity of hearing to the petitioner, cancellation of the NIT was illegal and arbitrary. He further submitted that notwithstanding the cancellation of said entire subsequent NIT process, there is no reason why the petitioner could not even be now awarded contract in pursuance of earlier NIT dtd. 22.8.2006. He, therefore, prayed that appropriate directions be issued to the respondents in this regard.;