Rajasthan High Court - Jodhpur
M/S Satya Construction vs State Of Rajasthan (2023:Rj-Jd:26003) on 17 August, 2023
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
[2023:RJ-JD:26003] (1 of 10) [CW-11747/2023]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 11747/2023
M/s Satya Construction, Having Registered Office At 673
Maharana Pratap Marg, Gandhi Colony, Jaisalmer Through Its
Partner Kailash Chand Khatri S/o Late Shri Hukmi Chand Khadri
Aged About 62 Years, R/o 673 Maharana Pratap Marg, Gandhi
Colony, Jaisalmer.
----Petitioner
Versus
1. State Of Rajasthan, Through Secretary, Local Self
Government Department, Secretariat, Rajasthan, Jaipur.
2. Director Cum Joint Secretary, Directorate Of Local
Bodies,g 3 Rajmahal Residential Area, Near Civil Lines
Phatak, Jaipur.
3. Municipal Council Jaisalmer, Through Its Commissioner
Having Office At Gadisar Road, Jaisalmer (Raj.).
4. M/s Sunmax Corporation, Through Its Partner Sunil
Kumar Purohit Having Its Registered Address At 2Nd
Floor, Sf 6, Central Avenue Unishier Victory Building No.
84 2Nd Main Road, Palace Guttahali Circle, Begaluru
(Karnataka).
5. Commissioner Cum Joint Secretary To Government,
Department Of Information Technology And
Communications, Government Of Rajasthan, Having Its
Office At Ip Building, Yojana Bhawan, Tilak Marg, C
Scheme, Jaipur (Raj.) 302005.
6. Rajcomp Info Services Limited, Through Its Managing
Director, 1St Floor, Yojana Bhawan, Tilak Marg, C Scheme,
Jaipur.
----Respondents
For Petitioner(s) : Mr. Manas Khatri
For Respondent(s) : Mr. Rajesh Parihar, AGC
Mr. Hemant Kumar Ballani
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Order (D.B. SAW/741/2023 has been filed in this matter. Please refer the same for further orders) (Downloaded on 12/11/2023 at 04:27:45 AM) [2023:RJ-JD:26003] (2 of 10) [CW-11747/2023] 17/08/2023
1. The petitioner has preferred the present writ petition claiming the following reliefs :-
"A. The impugned order dated 03.08.2023 (Annexure-
9) and order dated 04.05.2023 (Annexure-4), may kindly be declared illegal and be quashed and set aside and the Letter of Acceptance dt 27.06.2023 (Annexure-
2) issued in favour of the respondent No.4 may kindly be also declared illegal and be quashed and set aside.
B. The second appeal (Annexure-7) may kindly be allowed and financial bid opened in favour of respondent No.4 on 29.03.2023 reflected in document dt 30.03.2023 (Annexure-13) of MCJ NIB No.27/2022- 23 dt 20.02.2023 (Annexure-11) issued by the Municipal Council, Jaisalmer for completion of remaining works of Town Hall at Jaisalmer, may kindly be quashed and set aside.
C. The application for appointment of scientific investigation (Annexure- 17), may kindly be considered and appropriate commission of Scientific Experts / Technical Experts may kindly be appointed to submit their opinion before this Hon'ble Court.
D. The application for impleadment of party (Annexure-
18) may kindly be allowed and the respondent Nos.5 & 6 arrayed as party respondents in the present petition may kindly be allowed to be added as such.
E. The tender MCJ NIB No.27/2022-23 dt 20.02.2023 (Annexure-11) may kindly be cancelled and fresh tender or notice inviting bid may kindly be directed to be issued and any finalization of the contract made by the respondents during pendency of the present petition may kindly be also declared illegal and be quashed and set aside.
F. Cost of litigation and damages may also be allowed in favour of the petitioner."
(D.B. SAW/741/2023 has been filed in this matter. Please refer the same for further orders) (Downloaded on 12/11/2023 at 04:27:45 AM) [2023:RJ-JD:26003] (3 of 10) [CW-11747/2023]
2. Learned counsel for the petitioner submits that the matter pertains to Letter of Acceptance dated 27.06.2023, by which the respondent no.4 has been declared as a successful bidder. He further submits that after declaring the respondent no.4 as a successful bidder, the financial bid was opened on 30.03.2023 for MCJ NIB No.27/2022-23 for completion of work of Town Hall at Jaisalmer.
3. Learned counsel for the petitioner further submits that the petitioner has preferred a first appeal, which was dismissed by the appellate authority-respondent no.2 on 04.05.2023. Against the said order dated 04.05.2023, the petitioner has preferred second appeal before the respondent no.1 on 08.05.2023, wherein though notices were issued, but the interim order was not passed, and thus, the petitioner filed S.B. Civil Writ Petition No.7196/2023, which was decided by this Court vide its order dated 07.07.2023, while directing the second appellate authority to decide the matter finally, in an expeditious manner. Para 4 of the order passed by this Court in the said writ petition, reads as under :-
"4. It is made clear that in case any stay petition is preferred by the petitioner, the same shall be heard and disposed of on or before 30.05.2023, strictly in accordance with law."
4. Learned counsel for the petitioner further submits that thereafter the second appeal has been dismissed contrary to the terms of statute and the Annex.17 and 18, which were submitted by the petitioner.
5. Learned counsel for the petitioner has drawn attention of this Court towards the second appellate order dated 03.08.2023 (Annex.9) and submits that principal ground as taken by the (D.B. SAW/741/2023 has been filed in this matter. Please refer the same for further orders) (Downloaded on 12/11/2023 at 04:27:45 AM) [2023:RJ-JD:26003] (4 of 10) [CW-11747/2023] petitioner was that out of 139 items, which were part of the tender process, rate of 133 items as quoted by the present petitioner and the private respondent no.4 were same. He further submits that such extreme coincidence is impossible in the present factual matrix, and thus, to come out with the transparency, a technical team ought to visit the matter and decide as to whether there was an unlawful access to the E- procurement portal jeopardizing the transparent process of the tender in question.
6. Learned counsel for the petitioner further submits that this was the exact allegation, which were before the second appellate authority, but the second appellate authority without examining the same on its own merits and without giving any sufficient reasons, has simply noted that a financial advisor and system analyst were examined and since it was informed that E-tender site was end-to-end encrypted, therefore, the documents in question were not accessible even to the system administrator.
7. Learned counsel for the petitioner also submits that such vague observation by the second appellate authority did not induce confidence of the petitioner, as the credentials of the financial advisor and system analyst have not been noted by the appellate authority, nor any inquiry has been made to ensure that the same amount quoted in regard to 133 items was not a coincidence. He further submits that a procedure is laid down under the law, mandating grant of a fair and adequate opportunity of hearing to the concerned parties, while duly adhering to the parameters of natural justice, which has not been done by the (D.B. SAW/741/2023 has been filed in this matter. Please refer the same for further orders) (Downloaded on 12/11/2023 at 04:27:45 AM) [2023:RJ-JD:26003] (5 of 10) [CW-11747/2023] second appellate authority, while dismissing the second appeal preferred by the petitioner.
8. Learned counsel for the petitioner also submits that such an inaction on the part of the first and the second appellate authorities, has resulted into deprivation of the petitioner of a competitive bid, and thus, a blatant illegality has been committed by the learned authorities below. He also submits that it was upon the second appellate authority to have gone into the technicalities of the complaint and a proper and thorough inquiry ought to have been conducted so as to ensure prevention of any unlawful and unauthorized technical access to the E-procurement portal by any of the parties.
9. Learned counsel for the petitioner further submits that there was a doctrine of official notice, which has been laid down by the Hon'ble Apex Court, and in accordance with the same, the authority concerned adjudicating anything has to rely upon an expert committee, instead of substituting a lawful conclusion after due adjudication, by its own knowledge.
10. Learned counsel for the petitioner to fortify his submissions placed reliance on the precedent law laid down by the Hon'ble Apex Court in the case of Singruali Super Thermal Power Station Vs. Ashwant Kumar Dubey & Ors. (Civil Appeal No.3856/2022) decided on 05.07.2023, the relevant portion whereof reads as under:-
"14. In a recent landmark decision, Madhyamam Broadcasting Limited v. Union of India (2023) SCC Online 366, the principles of natural justice have been crystalized in the words of Hon'ble CJI-Dr Dhananjaya Y Chandrachud as under:
(D.B. SAW/741/2023 has been filed in this matter. Please refer the same for further orders) (Downloaded on 12/11/2023 at 04:27:45 AM) [2023:RJ-JD:26003] (6 of 10) [CW-11747/2023] "53. ...The facet of audi alterum partem encompasses the components of notice, contents of the notice, reports of inquiry, and materials that are available for perusal. While situational modifications are permissible, the rules of natural justice cannot be modified to suit the needs of the situation to such an extent that the core of the principle is abrogated because it is the core that infuses procedural reasonableness...."
15. A reading of the above, clearly indicates that the NGT is a judicial body and therefore exercises adjudicatory function. The very nature of an adjudicatory function would carry with it the requirement that principles of natural justice are complied with, particularly when there is an adversarial system of hearing of the cases before the Tribunal or for that matter before the Courts in India. The NGT though is a special adjudicatory body constituted by an Act of Parliament, nevertheless, the discharge of its function must be in accordance with law which would also include compliance with the principles of natural justice as envisaged in Section 19(1) of the Act.
16. In this context, it would be useful to refer to what is known as the 'official notice' doctrine, which is a device used in administrative procedure. Although an authority can rely upon materials familiar to it in its expert capacity without the need formally to introduce them in evidence, nevertheless, the parties ought to be informed of materials so noticed and be given an opportunity to explain or rebut them. The data on which an authority is acting must be apprised to the party against whom the data is to be used as such a party would then have an opportunity not only to refute it but also supplement, explain or give a different perspective to the facts upon which the authority relies. This has been explained by Schwartz in his work on Administrative Law. The aforesaid doctrine applies with greater force to a judicial / adjudicatory body.
Therefore, applying the aforesaid principle to the cases that come up before the NGT, if the NGT intends to rely upon an expert Committee report or any other relevant material that comes to its knowledge, it should disclose in advance to the party so as to give an opportunity for discussion and rebuttal. Thus, factual information which (D.B. SAW/741/2023 has been filed in this matter. Please refer the same for further orders) (Downloaded on 12/11/2023 at 04:27:45 AM) [2023:RJ-JD:26003] (7 of 10) [CW-11747/2023] comes to the knowledge of NGT on the basis of the report of the Committee constituted by it, if to be relied upon by the NGT, then, the same must be disclosed to the parties for their response and a reasonable opportunity must be afforded to present their observations or comments on such a report to the Tribunal.
17. It is needless to observe that the experts' opinion is only by way of assistance in arriving at a final conclusion. But we find that in the instant case the report of the expert Committee as well as the recommendations have been made the basis of the directions and such an approach is improper.
18. We have perused the impugned order of the NGT and particularly paragraph '16' which has been extracted above. It is apparent that the appellant(s) herein who were respondents before the NGT were not given an opportunity to file their objections to the recommendations made by the Committee constituted by the NGT which is apparent by the fact that the recommendations were uploaded on 15.01.2022 and the final order of the NGT was passed three days later on, i.e. 18.01.2022. Thus, this is a clear case of there being non compliance with the principles of natural justice. On the said ground alone the impugned order is set aside, the matter is remanded to the NGT for re-consideration from the stage of the recommendations filed by the expert Committee constituted by the NGT. The appellant(s) herein are permitted to file their objections, if they are so advised. The NGT shall consider the objections, if any, filed to the recommendations and thereafter dispose of the applications in accordance with law and after giving a reasonable opportunity to all parties.
19. The appeals are allowed and disposed of in the aforesaid terms. "
11. Learned Additional Government Counsel Mr. Rajesh Parihar appearing on behalf of the State/respondents and Mr. Hemant Ballani, learned counsel appearing for the private respondents submit that the very purpose of the enactment of the Rajasthan Transparency in Public Procurement Act, 2012, (hereinafter (D.B. SAW/741/2023 has been filed in this matter. Please refer the same for further orders) (Downloaded on 12/11/2023 at 04:27:45 AM) [2023:RJ-JD:26003] (8 of 10) [CW-11747/2023] referred to as the 'Act of 2012) would be frustrated, if the confidence, which is to be enjoined in the process of bidding, is lost, amongst the bidders in question. He has taken this Court to Section 38 Sub-section 5 of the Act of 2012 and has sought such intervention so as to come within the parameters of reasonable opportunity to the petitioner to satisfy himself regarding the anomaly, which is cropping-up as per his understanding. Section 38 sub-section 5 of the Act of 2012 reads as follows :-
"(5) On receipt of an appeal under sub-section (4), the officer or authority designated under that sub-section shall, after affording a reasonable opportunity of being heard to the parties, determine as to whether or not the procuring entity has complied with the provisions of this Act, the rules and guidelines made thereunder and the terms of the pre-qualification documents, bidder registration documents or bidding documents, as the case may be, and pass an order accordingly which shall be final and binding on the parties to the appeal"
12. Learned counsel for the respondents submit that the process in question has taken place strictly in accordance with the Act of 2012, as three independent authorities have made due application of mind, in relation to the tender process in question. They further submit that the first authority passed the order declaring the respondent no.4 as a successful bidder; the second authority is the first appellate authority and third authority is the second appellate authority and all three of them are in-tandem as far as the outcome of the tender process in question is concerned.
13. Learned counsel for the respondents further submits that the petitioners are contractors and at times, they seek rates schedule from the vendors and there are chances where the common platform of vendors may give a similar rate. They further submit (D.B. SAW/741/2023 has been filed in this matter. Please refer the same for further orders) (Downloaded on 12/11/2023 at 04:27:45 AM) [2023:RJ-JD:26003] (9 of 10) [CW-11747/2023] that a biggest misnomer is being created by the petitioner, which is clearly borne out from the fact that between the two financial bids made by the petitioner and respondent no.4, there is a difference of Rs.2.10 crores, even when the project itself is of Rs.19 crores, which is a substantial difference.
14. Learned counsel for the respondents further submits that E- procurement portal is not for the petitioner and the respondent alone, instead, the same is for the complete exercise that are taking place within the State of Rajasthan and are within the public domain, as conducted through the Act, 2012 and thus, it is a larger ramification of functioning of E-procurement portal, which is not being used by one Municipal Corporation or one department alone, but has a larger credibility for all the dimensions where the tender processes are involved in the State of Rajasthan and which have public works to be executed.
15. This Court, after hearing learned counsel for the parties and perusing the record of the case, was at first concerned about the strange coincidence of 133 items out of 139 items coming on the same pedestal of rates, but the doubt created by the fact in question, gets washed away by the fact that there is a difference of 2.10 crores between the financial bids of the petitioner and the private respondent no.4.
16. This Court finds that the second appellate authority has taken the opinion of the system analyst, who has categorically informed the authority concerned that all the documents on E- tender site are encrypted and thus, even the system administrator, who is the best person to have access to the documents, he would not have such access to the bid documents, (D.B. SAW/741/2023 has been filed in this matter. Please refer the same for further orders) (Downloaded on 12/11/2023 at 04:27:45 AM) [2023:RJ-JD:26003] (10 of 10) [CW-11747/2023] as the bid documents would convert into encrypted documents in readable format only after the bid is opened. The second appellate authority has recorded the possibility of E-procurement systems database being unlawfully accessed was not possible, due to the encryption involved and also the lack of control even of the system administrator. The E-procurement portal is a long drawn phenomena in Rajasthan and is in operation since the Act of 2012 was promulgated, and thus, is a standard operating procedure in the public domain, where all the States functionaries and other public bodies conduct their tender process. In a wider perspective, the order of the second appellate authority is exhaustive and reasoned and is based upon the expert advise of the system analyst, and thus, there no longer remains any reason for this Court to make any intervention in the impugned process.
17. This Court also finds that the order of Hon'ble Apex Court, which has been cited by learned counsel for the petitioner, would not apply in the present case, because the expert advise has been taken by the learned authority before coming to the conclusion, and thus, no case of interference is made out.
17. With the aforesaid observation, the present writ petition is dismissed. All pending applications stand disposed of.
(DR.PUSHPENDRA SINGH BHATI),J 215-Sudheer/-
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