ORDER :

1. The present writ petition has been filed challenging the circular dated 23.10.2017 (Annexure-3) and the special condition No. 59 of Clause 40 of Notice Inviting Bid (NIB) dated 29.09.2023 (Annexure 1).

2. The facts of the case are that the bids had been invited by the respondent Department for the work for “Transportation of Foodgrains Under PDS from FCI Depots and sugar from Godowns To FPS in Dungerpur Districts for the period 12 Months.”

3. A condition had been stipulated in the said NIB that no flour mill owner shall be eligible to participate in the tender process. The said special condition No. 59 of Clause 40 as reproduced hereunder, is the bone of contention in the present matter:

^^foHkkxh; fn'kk funsZ'k tfj;s i=kad ,Q40¼7½ [kkŒysŒ@ ifjogu@2016&17 fnukad 23-10-2017 ds rgr tkjh funsZ'kkuqlkj vkVk fey ekfyd fcM esa Hkkx ysus gsrq ;ksX; ugha gksaxsA vr% fey ekfyd fcM gsrq vik= gksaxsA fcM ÁfØ;k ds fdlh Hkh Lrj ij ;g rF; mtkxj gksus dh n'kk esa ÁLrqr ÁLrko ;k tkjh dk;kZns'k rRdky ÁHkko ls fujLr dj fn;k tkosxkA lkFk dh QeZ dks CySd fyLV@fMckj djrs gq, tek dk;Z lEiknu ÁfrHkwfr jkf'k@vfrfjDr dk;Z laiknu ÁfrHkwfr jkf'k ¼vlarqfyr fcM dh n'kk esa½ iw.kZr;k tCr dj yh tkosxhA bl ckcr fcMnkrk }kjk ;g 'kiFk i= ÁLrqr djuk gksxk fd og@QeZ fdlh Hkh vkVk fey dk LokfeRo ugha j[krs gS vFkok vkVk foØ; lEcfU/kr O;kikj ugha djrs gSA**

4. Learned counsel for the petitioner submits that the above condition is in violation of the basic principles of law as the same would curtail participation of the eligible bidders in the tender process and further, would limit competition and would effectually not get a low rate, ultimately resulting into a heavier financial burden on the public exchequer.

Learned counsel further submits that even otherwise the petitioner firm is situated/operational at Pokran in District Jaisalmer whereas the work in question is for District Dungarpur and therefore, it cannot be concluded that the petitioner can in any manner, enter into any corrupt activity.

5. Heard learned counsel for the parties and perused the record.

6. A perusal of the record shows that the special condition No. 59 has been incorporated in the NIB in pursuance to the circular dated 23.10.2017 as issued by the Food and Supplies Department.

Circular dated 23.10.2017 provided as under:

^^fo"k;% ifjogu fufonk esa 'krksZ esa la'kks/ku ds Øe esaA

mijksDr fo"k;kUrxZr ys[k gS fd jk"Vªh; [kk| lqj{kk ;kstukUrxZr [kk|kUu ifjogu gsrq lEcaf/kr gkWylsyj (RSFCSC/KVSS etc.) }kjk fufonk;sa vkeaf=r dh tkdj njsa vuqeksfnr dh tkrh gSA dfri; ftyksa esa vkVk fey ekfydksa }kjk Hkh ifjogu fufonk esa Hkkx fy;k tk jgk gS] ftuds fo:) [kk| lqj{kk dh xsgwa ds nq:i;ksx dh xEHkhj f'kdk;rsa ÁkIr gq;h gS ,oa gky gh esa Hkz"Vkpkj fujks/kd C;wjks us Hkh buds fo:) dk;Zokgh dh gSA

vr% vkVk fey ekfydksa }kjk [kk| lqj{kk dh xsgwa ds nq:i;ksx dks jksdus gsrq mudks fufonk esa Hkx ysus gsrq iw.kZr% vik= eku tk;sA fufonk Ái= esa mDr 'krZ dk Li"V vadu gks dh vkVk fey ekfyd ifjogu fufonk gsrq ik= ugha gksxsA

mijksDr funsZ'kksa dh dMkbZ ls ikyuk dh tkosaA**

7. After considering the arguments as raised by learned counsel for the petitioner and considering the circular dated 23.10.2017, this Court does not find any reason to quash the circular dated 23.10.2017 and to interfere in the present writ petition for the following reasons:

(i) Admittedly, the circular in question was issued way back in the year 2017 and the impugned condition No. 59 has been incorporated in NIB in pursuance of the said circular. The petitioner, being well aware of the said condition and the circular of the year 2017, did not choose to assail the same earlier but, after having participated in the tender process, has opted to challenge the same only after apprehending that his technical bid would be rejected because of the said condition.

It cannot be assumed that the petitioner was not aware of the above circular or impugned condition before entering his bid as the NIB specifically provides for an affidavit to be furnished by th