1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR O R D E R S.B. CIVIL WRIT PETITION NO.1314/2009 (M/s Ganpati Diagnostic Centre Vs. State of Raj. & Ors.) Date of order : March 23rd, 2009 P R E S E N T HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS Dr. P.S. Bhati, for the petitioner. Mr. J.P. Joshi } Mr. M.R. Singhvi }, for the respondents. By way of filing the present writ petition under Article 227 of the Constitution of India, the petitioner-firm is challenging the order dated 8.8.2008 Annexure-13 passed by Civil Judge (J.D.) & Judicial Magistrate, Bikaner in Civil Case No.214/2008 whereby the trial Court decided the application filed under Order 39 Rule 1 & 2 read with Section 151 of CPC filed by the respondent No.4 – EMKAY Medicare Services, so also the order dated 12.2.2009 passed by District Judge, Bikaner in appeal No.92/2008 filed by the petitioner-firm against the order dated 8.8.2008 passed by the Civil Judge (J.D.) & Judicial Magistrate, Bikaner. The brief facts of the case are that the respondent Nos.2 and 3 invited tendered for package of 2 diagnostic machines to install at PBM Hospital, Bikaner pertaining to MRI Machine and CT Scan Machine. The petitioner along with certain other persons and private respondent No.4 submitted their tenders. The first tender notice was issued on 29.2.2008. Thereafter, a corrigendum was issued on 24.4.2008 whereby dates were extended and fresh bidders were also granted opportunity to file their bids, so also, an opportunity was given to the old bidders to make fresh bids in case they did not submit bid. The petitioner's case is that new technical and financial bid was submitted by him and on consideration of the applications, the petitioner was declared the lowest bidder and firm – Indiana Nuclear Med. Centre was declared second lowest bidder and respondent No.4 – EMKAY Medicare Services was declared the third lowest bidder. Therefore, the petitioner was called for negotiation and finalization. After negotiation, the competent authority gave counter offer vide letter dated 24.6.2008. As per the petitioner, he has accepted the counter offer. The private respondent preferred a suit in which it was prayed that the plaintiff may also be called for negotiation and all the work of the tender should be assigned to him. Learned trial Court passed a temporary injunction on 8.8.2008 whereby a conclusion was given that the petitioner who was impleaded as respondent No.4 in the suit did not submit valid 3 tenders, therefore, the respondent should continue with the tender process while excluding the tenders of M/s Ganpati Diagnostic Centre (petitioner) and the petitioner immediately preferred an appeal against the said order. However, the appellate Court vide order dated 12.2.2009 dismissed the appeal and further ordered the concerned authorities to consider the respondent No.4 ACME Medicare Services in the tender process and assigned the work to the respondent No.4 because his bid is lowest in the tender. The petitioner by way of filing the present writ petition is challenging both the orders on various grounds under Articles 226 and 227 of the Constitution of India. As per learned counsel for the petitioner both the Courts below have committed an error in interfering with the tender process because the departmental authorities have exclusive right to determine the tender process, which cannot be interfered in a casual manner. It is submitted by learned counsel for the petitioner that both the Courts below were under obligation to appreciate that the order granted in the temporary injunction almost amounts to final relief in the suit and such order cannot be granted untill the suit is finally decided. As per learned counsel for the petitioner, 4 the competent authority had found the petitioner to be lowest bidder and therefore negotiated with it and gave a counter offer which is accepted for the larger benefit of the Society, therefore, interference made by trail Court as well as by appellate Court was totally unwarranted. In this case while issuing notice an interim order was granted on 18.2.2009 whereby it was directed that status quo as it exists today shall be maintained. Thereafter, an application under Article 226 (3) of the Constitution of India has been filed on behalf of respondent No.4 on 19.2.2009 in which it is stated by the answering respondents that by way of filing writ petition, the petitioner has concealed material facts from the knowledge of this Court that the work order in favor of respondent No.4 was already issued on 17.2.2009. He has placed on record the work order issued in his favor vide Annexure-A/1. It is also submitted in the application that bid given by the answering respondents has been finalized and answering respondents is now going to install diagnostic machines within a period of three months from the date of work order. The answering respondent is also required to furnish bank guarantee in the sum of Rs.35 Lakhs or F.D.R. Of the equal amount. Therefore, the interim order which is passed in this writ petition on the basis of concealment of fact deserves to be vacated. Further, it is submitted that 5 the petitioner cannot assail the concurrent finding given by two Courts below by way of filing this writ petition, so also, this Court will not interfere in the finding of fact recorded by both the Courts below. Further, it is submitted that the petitioner has tried to mis-lead this Court by projecting that the order passed by Courts below are in the nature of final relief. The said statement is mis-leading and mis- conceived. As a matter of fact as per answering respondents, the learned District Judge while modifying the order passed by Civil Judge (J.D.) has directed to consider the case of the answering respondent in accordance with law and in compliance of the said order passed by the District Judge, the answering respondent was called by the Society for negotiation and the answering respondent during the negotiation required to offer rates lower then the rates of the petitioner. The answering respondent agreed to the proposal given by the respondent No.2 Society in which so many senior doctors were included and the rates quoted by the answering respondent was much lower than the rates quoted by the petitioner. Therefore, no interference is required because the rates of the respondent No.4 is much less then the rates quoted by the petitioner, which is in the interest of public at large. It is also pointed by the respondents that the people coming from the lower income group will be 6 deprived of facilities of diagnosis at subsidized rate which is primary object of the State Government in allowing private participation in the matter of diagnostic machines and the equipments to be provided in public hospitals. The answering respondent No.4 has also placed an order for supply of MRI Machines and CT Scan Machines, costing about Rs.8 Crores and if the interim order will continue then the answering respondent and public at large in Bikaner District will suffer irreparable loss and injury inasmuch as the answering respondent will also suffer heavy financial losses. Therefore, it is prayed that stay order dated 18.12.2009 granted by this Court may be vacated and this writ petition may also be dismissed because larger public interest is involved in this case and somehow the petitioner is creating unnecessary hurdles in providing facilities of MRI and CT Scan in Bikaner area and somehow wants to get the tender on higher cost in his favor, which is not permissible under the law. In this case, one application has also been filed by M/s Subham Diagnostic Centre through its proprietor and in the application it is submitted that before the trial Court an application under Order 1 Rule 10 (2) of CPC was filed by the said firm but his application was rejected vide order dated 24.9.2008 and against the said order of rejection of his application, the applicant has preferred a writ 7 petition before this Court, which is pending. In my opinion, the applicant – M/s Subham Diagnostic Centre cannot be impleaded as party in this matter because his application was rejected by the trial Court for impleading as party and he is invoking writ jurisdiction by way of filing writ petition before this Court against the order of rejection dated 24.9.2008. Therefore, the application filed by the applicant cannot be accepted in this writ petition because the matter with regard to impleading him as party respondent is to be decided in the writ petition, which is filed by the applicant before this Court. Therefore, the application filed by applicant – M/s Subham Diagnostic Centre in this writ petition is hereby rejected without prejudice to his right which is sub-judice to agitate his matter in the writ petition filed against the rejection order dated 24.9.2008 passed by the trial court. With regard to the present controversy, no rejoinder has been filed to the application filed by the respondent No.4 for vacation of stay in which it is stated by respondent No.4 that the rates offered at the time of negotiation by the answering respondent No.4 was much lower than the rates offered by the petitioner. This fact is not disputed by the petitioner and both the Courts below have considered this aspect of the matter. Therefore, in my opinion, 8 the orders passed by Courts below does not require any interference by this Court because the main object of the State Government is to install MRI and CT Scan machines for those persons who are belonging to lower income group and if the answering respondent No.4 is providing those machines at lower rates than the petitioner, then, no case for interference is made out because this aspect of the matter has been considered by trial Court as well as by Appellate Court. Thus, in my opinion, no case is made out for interference under Articles 226 and 227 of the Constitution of India because both the Courts below gave concurrent finding that bid of the respondent No.4 is much less than the bid offered by the petitioner. Further, in my opinion, the order which is passed by the appellate Court is just and proper because no rejoinder has been filed by the petitioner, disputing the fact that contention of the respondent No.4 that his rates were much less than the rates quoted by the petitioner. In this view of the matter, the finding of fact recorded by trial Court and upheld by appellate Court while deciding the application under Order 39 Rule 1 and 2 read with Section 151 CPC does not require any interference by this Court. Hence, the writ petition is dismissed. No order to cost. (GOPAL KRISHAN VYAS), J. arun