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With regard to Clause 17(vii) of the NIB regarding exclusion of existing service provider, i.e., Shree Shubham Logistics, it is submitted that a review meeting was held on 11.01.2014, which was chaired by the Hon'ble Chief Minister wherein the issue of only one private company managing most of the warehouses of RSWC in the State was discussed. The Government, therefore, took a decision to avoid a situation where all the warehouses are managed and operated by any particular individual, company or group of companies so as not to create monopoly in its favour. This was a policy decision based on larger public interest, which in the absence of any mala fides or unreasonableness, is not open to interference. The functioning of the warehouses involves public distribution of foods and grains. In (9 of 53) [SAW-1153/2018] case the private player fails to fulfill its obligations, the entire warehousing system of RSWC will come to a standstill and will have adverse impact in the entire State. Also, the tender is not merely for one or two years, but for a period of ten long years. In taking that decision, RSWC relied upon the report of CAG in relation to State of Punjab where it specifically observed that giving the whole warehousing operation to one single private player had adversely affected the entire warehousing operations of the Punjab State Grains Procurement Corporation Limited. RSWC has total 515 godowns at 93 different locations of the State. Out of these, 38 locations were being already managed and operated by Shree Shubham Logistics and warehouses at 55 locations are presently managed by RSWC. Bid has been invited for 33 locations for awarding contract for management and operation of at least 300 warehouses thereat. If Shree Shubham Logistics is awarded this contract, it would have warehouses of 71 locations out of total 93 locations in the State. In this way, it would get 80% of the total warehouses of RSWC. The learned Single Judge has misunderstood the argument relating to monopoly by observing that so long as the contract is not awarded to Star Agri, it cannot be supposed that this would create a monopoly in its favour. He, therefore, held that exclusion of the existing service provider, could only be done by the procuring entity at the stage of inviting bids by incorporating the said condition in the bid document. The learned Single Judge failed to appreciate that the procuring entity after having invited the bids cannot possibly change its terms and conditions to disqualify the bidder after acceptance of his bid on a condition which was not mentioned at the time of floating of the (10 of 53) [SAW-1153/2018] tender. Finding of the learned Single Judge that decision of RSWC in inserting the said condition is based on assumptions and farfetched is absolutely unjustified.

The findings with regard to challenge to validity of Clause 17(vii) of the NIB have been recorded by the learned Single Judge from para 27 to 41 of the impugned judgment, but neither any discussion has been made, nor any conclusion has been recorded with regard to specific stand of the RSWC why it did not want to have monopoly in the hands of a single player. Shree Shubham Logistics already has a contract to operate and manage warehouses of RSWC at 38 locations in the State on their behalf. In the present case, NIB has been floated for awarding management and operation of warehouses at 33 locations. If eventually all these locations are awarded to the same service provider, it would result into monopolising control of one service provider over 80% of total locations. What this Court has to see is whether this policy decision could legally be incorporated by RSWC as an eligibility criteria in the tender document. Undeniably, functioning of the warehouses involves public distribution of foods and grains. The procuring entity by way of an abundant caution for safeguarding the public interest is certainly within its right to avoid such a situation. Apprehension of the respondent-RSWC that if in a given situation, private player fails to fulfill its obligation, (33 of 53) [SAW-1153/2018] then the whole warehousing system could be jeopardised and will have adverse impact in the entire State of Rajasthan, especially qua those who are catered through the public distribution system, cannot be said to be wholly unfounded. The question in such circumstances is whether the condition of this kind can be held to be unreasonable and arbitrary for being quashed and set aside, especially when the contract has to be awarded for long period of ten years. The respondents have relied upon the report of CAG in relation to State of Punjab where it was specifically observed that giving the entire warehousing operation to one single private player had adversely affected the entire warehousing operations of the Punjab State Grains Procurement Corporation Limited. The learned Single Judge recorded a finding that the respondents could not have proceeded on the assumption and jeopardised the participation of Shree Shubham Logistics on the presumption that if it is allowed to bid, it would necessarily be a successful bidder, which would thereupon result into monopoly in its favour, which according to the learned Single Judge was far fetched conclusion to be drawn for including such a condition in the bid document. We are, however, inclined to countenance argument of RSWC that exclusion of the existing service provider could only be done by the procuring entity at the stage of inviting bids by incorporating the such condition in the bid documents because once such an existing service provider is allowed to participate in the tender process and if eventually it turns out to be successful bidder, there is no way that he could be excluded.

According to RSWC, NCDEX and NCME are the only two exchanges which focus on agricultural commodities. NCDEX is the largest agricultural commodity stock exchange wherein most of the large players are trading. Even as per the comparative chart given by Origo Commodities in memo of its writ petition, four out of six prospective bidders qualify that condition. This condition was there even when the MOU was executed by RSWC with Shree Shubham Logistics way back in 2010. At that time also, RSWC required Shree Shubham Logistics to have NCDEX experience as it is the largest agri commodity exchange. Freedom of the procuring entity to have any valid experience of bidder in agri commodity exchange like NCDEX can, in our considered view, in no manner be considered as arbitrary and unjust. Here it may be noted that as per Section 7(1) of the RTPP Act, the procuring entity may determine and apply one or more of the requirements specified in sub-section (2) for a bidder to be qualified for participating in a procurement process. Section 7(2)(a) of the RTPP Act specifically provides that any bidder participating in the procurement process (46 of 53) [SAW-1153/2018] shall possess the necessary professional, technical, financial and managerial resources and competence required by the bidding documents, pre-qualification documents or bidder registration documents, as the case may be, issued by the procuring entity.
Declaration whereof is required to be made in terms of Section 7(3) of the RTPP Act.
This now takes us to Clause 5(5)(vi) of NIB, eligibility criteria of which reads as under:
"vi. The bidder (either directly or through its 100% owned subsidiary) must have license from Rajasthan State Agriculture Marketing Board (RSAMB) to operate Private Sub e-Market in the State."
(47 of 53) [SAW-1153/2018] The learned Single Judge in Para 71 of the impugned judgment has recorded a finding that the condition of having licence as a Private Sub e-Market from RSAMB does not have any nexus with the purpose of the contract. The same is in no manner related to the management and storage infrastructure. Scope of the work was only for operation and management of warehouses on revenue sharing basis and to provide better storage facilities to farmers, traders and other trade participants facilitating availability of finance and evolving functional model for the purpose of development of an efficient warehousing system. The learned Single Judge has held that this condition has been tailor made to benefit only Star Agri which was granted such licence, though writ petitioners have not yet been granted licence. One of the petitioners who challenged the said condition was granted licence after the last date was extended due to pendency of present case. The writ petitioners have challenged this condition on the ground that the scope of the work in the bidding document was described to be only operation and management of the warehouses and not the procurement of the commodities. We on perusal of the tender documents find that general scope in the technical bid in part A captioned "Technical Bid" refers to the tenders for providing warehousing management services and describes the work that both the parties RSWC and the Contractor, will work together towards providing various facilities to farmers traders and other trade participants related to agri/non agri/commodities and to provide better storage facilities to farmers and traders and other trade participants and to facilitate (48 of 53) [SAW-1153/2018] availability of finance and evolve functional models for the purpose of development of an efficient warehousing system. Clause 15 of NIB pertains to technical bid under the caption, "Responsibilities of the service provider". Sub clause (xi) thereof provides as under: