Rajasthan High Court – Jodhpur
Vprpl-Gkr Jv vs Rajasthan State Mines And Minerals … on 29 July, 2025
[2025:RJ-JD:32972]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 12395/2025
VPRPL-GKR JV, having its Office at 32, Second Floor, Industrial
Estate, B-31, New Power House Rd, Jodhpur, Rajasthan 342003
through its Authorized Representative Mr. Suresh Chand Jain S/o
Pushpchand Khivsara Age - 61 Year.
----Petitioner
Versus
Rajasthan State Mines & Minerals Limited, through Group
General Manager (Contracts), having its Office at C-89 Jan Path
Lal Kothi Scheme, Jaipur - 302015.
----Respondent
For Petitioner(s) : Mr. Vikas Balia, Sr. Adv. assisted by
Mr. Sushil Bagga, Adv.
Mr. Chitransh Mathur, Adv.
Mr. Ashish Sharma and
Mr. Mayank Taparia, Adv.
For Respondent(s) : Mr. Ravi Bhansali, Sr. Adv. assisted by
Mr. Suniel Purohit, Adv.
HON'BLE MR. JUSTICE MUNNURI LAXMAN
Judgment
Judgment Reserved on : 08/07/2025
Judgment Pronounced on : 29/07/2025
1) The present writ petition has been filed challengeing the
order dated 30.06.2021 (Annexure-1), whereby the petitioner-
Company was found to be non-responsive in the technical bid
evaluation process and was disqualified from further participation
in the tender process.
2) The first respondent issued a Notice Inviting Tender (NIT)
for the procurement of work related to the hiring of Heavy Earth
Moving Equipment for the removal of overburden, raising, loading,
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transportation, and other allied works concerning saleable lignite
at the Sonari Lignite Mines in District Barmer, with a stipulated
contract period of seven years. The petitioner submitted its bid
document on 23.04.2025, complying with the terms and
conditions of the NIT. The petitioner fulfilled all the requirements
of the pre-qualification criteria.
3) During the bid evaluation process, the petitioner received
a communication from the respondent authority raising certain
queries regarding pending litigation involving the petitioner or its
members. The petitioner promptly responded to the queries and
provided the required details. The lead member of the petitioner’s
joint venture, i.e., Vishnu Prakash R. Pungalia Ltd., was illegally
debarred by the Public Health Engineering Department. However,
the said debarment was quashed by the High Court vide order
dated 13.12.2024. Additionally, there was an illegal termination of
a tender awarded to Vishnu Prakash R. Pungalia Ltd., which was
challenged before the High Court of Madhya Pradesh. By order
dated 30.09.2022, the High Court stayed the operation of the
blacklisting order and directed that it should not hinder the award
of other contracts to the petitioner.
4) The petitioner also invoked the arbitration clause concerning
the said illegal termination, and the matter is presently pending
consideration before the Madhya Pradesh Arbitration Tribunal. The
petitioner is prima facie eligible and has complied with all the
conditions of the tender document. However, to its surprise, the
petitioner was declared non-responsive and disqualified from
further participation in the tender process. The disqualification
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order was passed without assigning any reasons. Hence, the
present writ petition.
5) The preliminary objection raised by the respondent is that
the petitioner has filed the present writ petition before this Court
without availing the statutory alternative remedy of appeal, as
provided under the Tender Conditions and the Rajasthan
Transparency in Public Procurement Act, 2012 (hereinafter
referred to as “the Act of 2012”). Clause No. 2.1.8 of the NIT
specifically states that all provisions of the Act of 2012 shall be
applicable to the tender process. Since an alternative efficacious
remedy is available and the petitioner has approached this Court
without first exhausting such remedy, the present writ petition is
not maintainable.
6) The respondents further contended that during the
technical evaluation process, all participating bidders were asked
to submit the requisite deficiency documents and information. In
response to these communications, the petitioner submitted an
affidavit affirming compliance with the terms and conditions of the
tender document and also furnished details regarding litigation
pending against the lead member of its joint venture.
7) The Technical Evaluation Committee, after considering the
details submitted by the petitioner, found the petitioner ineligible
due to non-compliance with the conditions stipulated under Clause
No. 2.22.1 (c), which disqualifies a bidder if they, or any of their
joint venture members, have been expelled or had a contract
terminated by the Company or any State/Central Government
organization/department or its implementing agency for breach of
contract. In this case, the lead member of the petitioner’s joint
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venture suffered termination of a contract by Indore Smart City
Development Ltd. on 08.09.2022. The said termination was
challenged before the Madhya Pradesh High Court. The High
Court, by way of interim orders, stayed the blacklisting but the
termination of the contract remains in effect. Therefore, as the
petitioner did not meet the eligibility criteria prescribed under the
tender conditions, it was disqualified. The respondents have also
asserted that the petitioner has not challenged the tender
conditions and, without doing so, cannot argue that
disqualification on the ground of termination of contract by Indore
Smart City Development Ltd. is arbitrary.
8) The respondents also pleaded that the petitioner
submitted the bid agreeing to all the conditions of NIT and having
participated in the bid process, he cannot impugn any of the
action taken as per the conditions of NIT.
9) Heard both the parties. 10) Mr. Vikas Balia, learned counsel Senior counsel appearing
for the petitioner has contended that a plain reading of the
impugned order, ex facie, does not indicate any reasons for
declaring the petitioner as non-responsive and, consequently,
disqualifying it from further participation in the tender process is
bad. He has further submitted that when a decision is devoid of
reasons, such reasons cannot be subsequently supplemented by
way of any other material. Therefore, the impugned order is liable
to be set aside on this ground alone. In support of his arguments,
learned counsel Senior Counsel has relied upon the decisions of
Hon’ble Supreme Court in the case of (i) State of Punjab vs.
Bandeep Singh & Ors., reported in (2016) 1. SCC 724, (ii)
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State of Karnataka v. Shree Rameshwara Rice Mills,
Thirthahalli, reported in [1987] 2 SCC 160, (iii) M/s Star
Enterprises & Ors. Vs. City and Industrial Development
Corporation of Maharashtra. Ltd. & Ors., reported in (1990) 3
SCC 280 and the decision of High Court of Delhi in the case of (iv)
PKF Sridhar and Santhanam Vs. Airports Economic
Regulatory Authority of India, passed in W.P.(C) 12385/202,
decided on 06.01.2022.
11) The learned Senior counsel has also contended that
although an alternative remedy of appeal exists, it is not an
effective remedy. Moreover, even if such an appeal is available,
this Court is not barred from entertaining the writ petition,
particularly when the order/action of the respondent suffers from
ex facie arbitrariness for lack of any reasons.
12) Per contra, Mr. Ravi Bhansali, learned Senior Learned
counsel appearing for the respondent has contended that, as per
the terms and conditions of the NIT, all provisions of the Act of
2012 are applicable. The conditions of the NIT, as well as the
provisions of the Act of 2012, clearly stipulate that any order
passed by the procuring agency during the bidding process is
appealable before the designated authority. However, the
petitioner has filed the present writ petition without exhausting
this remedy. In view of the efficacious alternative remedy
available, the present writ petition is not maintainable before this
Court.
13) The learned Senior counsel for the respondent also
submitted that the petitioner has submitted Form No. D without
indicating any exceptions or deviations to the tender conditions.
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This implies that the petitioner accepted all the tender conditions
without any objections. As such, the petitioner cannot now raise
any grievance against the tender conditions.
14) The learned Senior counsel for the respondent further
contended that the procuring entity, being the author of the
tender conditions, has absolute authority to prescribe such
conditions, except the conditions which are arbitrary, suffer from
mala fides, or are intended to benefit a particular party. The
tender conditions clearly require that participants must not be
non-performing parties to any previous NITs issued by the State,
Central Government, their instrumentalities, or any affiliated
entities, including members of a joint venture. As per the terms of
the tender document, the petitioner suffers disqualification, as its
previous contract with Indore Smart City Development Ltd. was
terminated. Although the blacklisting was stayed, the termination
remains in effect. Accordingly, the petitioner incurred
disqualification under the terms and conditions of the NIT.
15) The learned Senior counsel for the respondent also
submitted that the petitioner has not challenged any of the tender
conditions that render him disqualified on account of the
termination of the contract. Without challenging such a condition,
the petitioner cannot contend that termination of a contract must
mean termination as confirmed by any court of law. Such an
interpretation is not tenable, as the language used in the terms
and conditions is plain and unambiguous. Even if there were any
ambiguity, the procuring entity, being the author of the tender, is
best suited to interpret its terms, and such interpretation must
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prevail in favour of the procuring entity. Accordingly, he prayed for
dismissal of the writ petition.
16) In support of his contentions, the learned Senior Counsel
for the respondent has relied upon the decisions rendered in the
cases of (i) M/s Mudgal Tile Bricks Industries Vs. State of
Rajasthan & ors. [Civil Writ (CW) No.12804 of 2016], decided by
this High Court on 04.11.2016, (ii) Adarsh Saraswati Mahila
Shiksha Avem Gramin Vikas Samiti Vs. State of Rajasthan &
Ors., [S.B.Civil Writ Petition No.1921/2015], decided by this High
Court on 09.02.2025, (iii) Montecarlo Ltd. Vs. NTPC Ltd.,
reported in AIR 2016 SC 4946, (iv) National High Speed Rail
Corporation Ltd. Vs. Montecarlo Ltd. & Ors, reported in AIR
2022 SC 866 and (v) M/s. Sharma Transport Agency & Anr.
Vs. Damodar Valley Corporation & Ors., [W.P.A. 18137 of
2024], decided by Calcutta High Court on 07.10.2024.
17) I have considered the arguments advanced by the
counsels representing both the parties and perused the material
available on record.
18) The impugned order dated 30.06.2025 indicates that the
petitioner-company and M/s Mohangarh Construction Company
were considered disqualified as per the pre-qualification criteria
and the provisions of the tender document. This impugned order
deals with two companies, and the disqualifications were on the
grounds of not meeting the pre-qualification criteria and the
provisions of the tender document. This order does not clearly
specify which party does not meet the pre-qualification criteria and
which party does not comply with the provisions of the tender
document. There is no doubt that the order did not explicitly state
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which disqualified party failed to satisfy which pre-qualification
criterion or which provision of the tender document. However, as a
general principle, any order affecting the rights of a party must
contain reasons. In the examination of administrative decisions,
even if the order itself does not explicitly state the reasons for the
decision, the Court may refer to contemporaneous materials.
19) When the contemporaneous documents leading to the
decision indicate the reasons for disqualification, the same can be
taken as the reasons for the decision. The decision of the Technical
Evaluation Committee indicates that the petitioner was
disqualified due to pending litigation.
20) The facts on record show that one of the lead members of
the petitioner-company held a contract with Indore Smart City
Development Ltd. and the said contract was terminated for breach
of conditions, resulting in the blacklisting of the petitioner. The
petitioner challenged the said order before the High Court of
Madhya Pradesh. The High Court suspended the operation of the
blacklisting. The facts further disclose that the operation of
blacklisting was stayed, and the petitioner was directed not to be
disqualified on the ground of blacklisting in any further contracts.
It is also revealed that the petitioner invoked the arbitration
clause, and the matter is currently pending before the Arbitral
Tribunal in Madhya Pradesh.
21) The tender conditions reads as follows:-
"2.22 Evaluation of Techno-Commercial Bid
2.22.1 The Bidder, including an individual or any
of its Joint Venture member, should not be a non-
performing party on the bid submission date. The
Bidder, including any Joint Venture Member, shall be
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deemed to be a non-performing party if it attracts
any of the following parameters:
a) Rated as an unsatisfactory performing
entity/non-performing entity by the Company or any
State/Central Government Organization/Department
and so notified on the website of that organization.
b) Has failed to perform, for the any of the works
assigned/awarded by the Company or any
State/Central Government Organization/Department
in the last 3 (three) years, as evidenced by
imposition of a penalty by an arbitral or judicial
authority or a judicial pronouncement or arbitral
award against the Bidder, including individual or any
of its Joint Venture Member, as the case may be.
c) Has been expelled or the contract
terminated by the Company or any
State/Central Government Organization/
Department or its implementing agencies for
breach of such Bidder, including individual or
any of its joint Venture Member.”
21.1) Looking at Condition No. 2.22.1(c), it is clear that if a
bidder has been expelled or their contract terminated by any
company, or any State/Central Government association,
department, or its implementing agency for breach by such bidder,
including an individual or any of its joint venture members, the
bidder incurs disqualification in the tender evaluation process. The
clause refers to termination or expulsion for breach by the bidder.
A plain reading of the words used in the clause clearly indicates
that termination of a contract for breach by the bidder entails
disqualification.
22) The contention of the learned Senior Counsel for the
petitioner is that the termination of one party to the contract
cannot be said to constitute termination as intended by the clause
that leads to disqualification. According to him, the invocation of
such a clause would be applicable only where expulsion or
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termination for breach has been decided by a competent court of
law. The assertion of one party about breach by another party
cannot be regarded as sufficient in the context of disqualification
mentioned in Condition No. 2.22.1(c) of the NIT.
23) The learned Senior Counsel appearing for the respondent
contended that the interpretation put forth by counsel for the
petitioner cannot be accepted. He argued that the owner or
employer of the project, who authored the tender document, is
the best person to understand and appreciate its requirements
and to interpret the document. Interference by this Court is
unwarranted except in cases of mala fide, perversity in
understanding, appreciation, or application of the conditions of the
tender document.
24) The learned Senior Counsel appearing for the respondent
contended that the authority inviting the tender is aware of the
expectations from the tender process, including the consequences
of non-performance. When the words used in the conditions are
clear and unambiguous, their plain meaning must be applied, and
the interpretation proposed by the petitioner cannot be accepted.
In fact, the respondent authorities, as the authors of the tender
conditions, are the best persons to interpret them. If two
interpretations are possible, the interpretation favorable to the
authority should be given effect.
25) The learned Senior Counsel for the respondent also
submitted that the petitioner did not challenge the tender
conditions and, in Form No. D, did not specify any exceptions or
deviations to the tender conditions. This implies that the petitioner
accepted all the conditions. Having participated in the tender
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process, the petitioner cannot now assail the actions taken by the
authorities in accordance with the tender conditions.
26) From a plain reading of the tender conditions it is clear
that expulsion or termination of a contract for breach by the
bidder results in disqualification. The plain meaning of the clause
is that termination due to breach of contract by the bidder leads to
disqualification. This plain meaning cannot be extended to require
that such termination must be affirmed by a competent court of
law.
27) The basic rule of interpretation of contractual conditions is
that the words shall be understood in their natural, ordinary, or
popular sense and must be construed according to their
grammatical meaning unless there is ambiguity or absurdity. The
petitioner is not entitled to argue that the words “termination for
breach of bidder” should be understood in a way that such words
lead to absurdity or ambiguity. The contention of the learned
Senior Counsel for the petitioner that termination for breach would
only apply in cases where such termination or breach has been
confirmed by a court of law, would amount to expanding the plain
language used in the tender conditions. The best person to
interpret the conditions is the procuring entity, as it authored
those conditions. Even if ambiguity exists leading to two possible
interpretations, the interpretation favorable to the procuring entity
shall be adopted. The interpretation adopted by the procuring
entity, even if not acceptable to this Court, should not be
interfered with by the Constitutional Court. The decision relied by
both the parties reflects such a proposition of law.
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28) As rightly contended by the counsel for the respondents,
the petitioner submitted Form No. D, which requires the tenderer
to provide details of any deviations or exceptions to the tender
conditions. In the said form, the petitioner did not indicate any
deviations or exceptions regarding the tender conditions. This
implies that the petitioner did not express any grievance
concerning the tender conditions. With full knowledge of such
standard conditions, the petitioner participated in the NIT and,
subsequently, cannot question the tender conditions.
29) In fact, the petitioner has not challenged the tender
conditions that led to his disqualification. The undisputed fact is
that, although the blacklisting has been stayed, the termination of
the contract remains in force, subject to the decision of the
competent Arbitral Tribunal. No interim orders have been passed
by the High Court of Madhya Pradesh or the Arbitral Tribunal
suspending the termination.
30) As rightly contended by the learned Senior Counsel
appearing for the respondent, Condition No. 2.1.8 of the NIT
categorically indicates that all provisions of the Rajasthan
Transparency in Public Procurement Act, 2012 shall apply to the
NIT. As per Section 38 of the Act, 2012, an appeal is provided, and
Annexure C to the NIT also details the grievance redressal
mechanism during the procurement process. This means that a
separate statutory forum has been created to address grievances
related to any decision taken in the tender process. The petitioner
has not availed of the alternative remedy available.
31) The learned Senior Counsel for the petitioner contends
that although a statutory forum has been created, it is not
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empowered to pass interim orders of an urgent nature. By the
time the appeal is heard and decided, the procurement process
may be completed, resulting in the accrual of third-party interests
In this regard, it is relevant to refer to decision in the case of
Adarsh Saraswati Mahila Shiksha Avem Gramin Vikas
Samiti Vs. State of Rajasthan & Ors. (cited supra). The
relevant para of the said judgment reads as follows:
“Learned counsel for petitioner has expressed
apprehension that even if appeal is filed, the
respondents may award the work order before
decision thereof. That apprehension of the
petitioner is without any foundation because
Section 39 of the act of 2012 provides for stay of
procurement proceedings pending disposal of the
appeal, if the appellate authority is satisfied that
failure to do so is likely to lead the miscarriage of
justice. Besides, even after the order of award of
work, the appellate authority is convinced that the
award of work was suffering from lack of
transparency and that despite lower offer of the
petitioner, the agency with higher offer was
awarded such work, the appellate authority can
interfere with the matter and annual the already
executed agreement.”
32) The petitioner has not exhausted the alternative remedy.
On this ground also, the writ petition is liable to be dismissed.
33) In the result, the writ petition is dismissed.
34) In the circumstances, no order as to costs.
35) Pending interlocutory applications, if any, shall stand
disposed of.
(MUNNURI LAXMAN),J
NK/-
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