1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR : O R D E R : S.B. Civil Writ Petition No.1391/2009. (Parth Net Work (P) Ltd. Vs. State of Rajasthan & Others) DATE OF ORDER : April 02, 2009 P R E S E N T HON’BLE MR. JUSTICE GOPAL KRISHAN VYAS ____________________________________ Mr. M. R. Singhvi, Mr. Sandeep Pathak and Mr. Rishab Sancheti, Advocates for the petitioner. Mr. R.L. Jangid, Addl. Advocate General. Mr. N.M. Lodha for the respondent(s). BY THE COURT : By this writ petition, the petitioner has prayed for direction to the respondents to furnish information as desired vide Annex.-12 and further for restraining the respondents from finalizing the contract in question while calling the entire proceedings drawn and, for that purpose, it is prayed that the entire record of the proceedings may be called and set aside. It is also prayed that respondent State may be directed to accept the offer of the petitioner for grant of contract of 2 collection of excess royalty and, in the alternative, this Court may call upon the persons who have submitted tenders and/or who have purchased the tender to give their offer and if it is higher than the amount as offered by the private respondent, then, the highest offer may be accepted in public interest. The case of the petitioner in this writ petition is that the petitioner is invoking jurisdiction of this Court under Article 226 of the Constitution of India because his fundamental right has been infringed due to illegal action of the respondents. The petitioner firm is registered private limited company and its registered office is at Udaipur and the said firm has been enghaged in collection of royalty etc. and has always been interested in carrying out contracts in this regard. The case of the petitioner firm is that in pursuance of the notification issued on 12.01.2009 inviting tenders for excess royalty collection in the revenue boundaries of Kumbhalgarh, Amet and Railmagra of Rajsamand district for the period from 01.04.2009 to 31.03.2011, reserve price was fixed at Rs.73.63 crore and the date for submission of tender was fixed 04.02.2009 in between 11.00 A.M. to 03.00 P.M. in the office of the Directorate. Since the petitioner was interested to submit its tender, therefore, he purchased the tender 3 form and filled up the same. As per the petitioner, the firm is registered with the respondent department according to Rule 32 (4) of the Rajasthan Mines and Minerals Concession Rules, 1986. After purchasing the tender form, the petitioner firm got prepared affidavits of sarva Shri Aazad Khanwar, Gamer Singh and Jitendera Pal Singh which were duly sworn on 03.02.2009 and 04.02.2009. Since the petitioner firm contemplated to offer bid of Rs.84 crores, in terms of the provisions of the rules, the petitioner was required to submit earnest money to the tune of Rs.1.02 crore; and, accordingly, the petitioner got prepared the demand draft in the name of the Mining Engineer for a sum of Rs.1.02 crore on 04.02.2009; meaning thereby, the form of the petitioner for submission of tender was complete in all respects on 04.02.2009 and the petitioner firm intended to submit the same. But, the petitioner was prevented from submitting this form and contention of the petitioner is that eight persons purchased the tender forms and, all of them could not submit the same for the simple reason that on account of resistance as was suffered by the petitioner all the persons could not submit their tenders. For the said purpose, the petitioner contends that the respondent department may be called for to make proper disclosure 4 about the total sale of the tender forms. It is the case of the petitioner that on the one hand the petitioner was prevented by the cartel of other interested tenderers with connivance of officers of the respondent department and, on the other hand, bid of M/s Ridhi Sidhi Associates for an amount of Rs.81.77 crores was accepted and the petitioner was not permitted to submit the tender by some persons who were otherwise interested in precluding the petitioner from participating in the proceedings. When the petitioner was prevented from submitting his tender, then, he gave a telegram to the Principal Secretary, Mining Department, Director, Mining & Geology Department, Udaipur and, so also, sent the text of the aforesaid telegram by speed post. But, neither the telegram nor the text of the telegram sent by speed post were acknowledged by the respondent department nor the matter was examined by the respondents in an objective manner. When the petitioner’s voice was not heard, then, again in order to show his bonafide, the petitioner submitted application to the Director, Mines & Geology Department and, again, submitted that he was ready and willing to submit offer of Rs.84 crore but he has been prevented from submitting his offer, therefore, in public interest, 5 his offer may be accepted because in the process of opening of tenders the highest bid received and accepted is that of Rs.81.77 crore. Thus it is ex facie clear that due to illegal action of the respondents the State Government has suffered loss of revenue. The petitioner filed representation and, in the representation, he has stated that he was required to submit earnest money, therefore, he got prepared demand draft of Rs.1.02 crore. The said representation was sent by speed post on 05.02.2009. The case of the petitioner is that first of all he was prevented from submitting the tender form in which he intended to offer bid of Rs.84 crore and, secondly, when he has mada all his efforts for acceptance of his application which the respondent department verbally refused, then, he sent notice for demand of justice through his Advocate Shri M.R. Singhvi on 10.02.2009 along with the aforesaid representation by speed post. Learned counsel for the petitioner vehemently argued that the petitioner firm was desirous to know the complete information with regard to number of persons who submitted their tenders and what was their rates and how the tenders were opened and who was found the highest bidder, therefore, the petitioner exercised his right to know the above information under the Right 6 to Information Act and submitted application before the authorities concerned on 17.02.2009. In this writ petition, the petitioner has prayed that he may be given the aforesaid information and, for the said purpose, a direction may be issued to the respondents and respondents may also be directed to permit the petitioner to inspect the record under Section 3, read with Section 2, Right to Information Act because this prayer of the petitioner has not been accepted by the respondents. The crux of the argument of the petitioner firm is that the firm was illegally prevented from participating in the tender proceedings though it had completed all the formalities including preparation of the demand draft on 04.02.2009; but, only to cause loss to the revenue and support the private respondent, the department has accepted lesser bid offered by the private respondent knowingly well that the petitioner firm is ready to offer Rs.84 crore bid for the said contract and made all efforts to pursue the department by way of filing representation and sending notice for demand of justice, therefore, it is a case in which this Court will certainly interfere because the government officials are causing financial loss to the State and unnecessarily supporting respondent No.5, therefore, the action of 7 respondent department may be declared unconstitutional and against public interest, so also, even if today the petitioner’s bid of Rs.84 crore can be accepted in view of the judgment rendered by this Court in H.U. Construction Company’s case, reported in 1993 (1) WLC 280, in which, similar set of facts were there and the co-ordinate Bench of this Court held that in the interest of revenue the highest bid can be accepted in public interest. Learned counsel for the petitioner invited attention of the Court towards para 62 to 69 of the said judgment and prayed that the respondents may be directed to accept the offer of the petitioner in public interest even though the tender has been finalized in favour of respondent No.5. Per contra, learned Addl. Advocate General Mr. R.L. Jangid as well as Mr. N.M. Lodha, learned counsel for respondent No.5 contended that all the allegations of the peititioner with regard to preventing him from submitting the tender are not sustainable in view of the fact that the department was conscious that some persons may cause trouble at the time of finalizing the tenders, therefore, before 04.02.2009, a communication was sent to the Superintendent of Police, Udaipur on 19.01.2009, in which, it was requested that proper security may be providedat the 8 time of filing of tenders by the tenderers and in response to the said communication dated 19.01.2009 the Superintendent of Police, Udaipur made all arrangement for security and, at two places, the tenderers were allowed to deposit their tenders, therefore, the allegation of the petitioner with regard to preventing him by cartel is totally unfounded. More so, at the time of consideration of the tenders which were received within time, they were considered and after due consideration, the bid of respondent No.5 for Rs.81.50 crore was accepted because he was found highest bidder. According to learned counsel for the respondents, no tender was filled in by the petitioner firm, therefore, all the allegations upon which this writ petition has been filed have no substance in the eye of law. It is also pointed out that if the petitioner is aggrieved with finalization of the contract, then, he is required to invoke the alternative remedy under Rule 47 of the Rajasthan Mines & Minerals Concession Rules, 1986, so also, several disputed questions of fact are involved in this matter and to prove these facts, documentary and other evidence is required to be produced and considered which cannot be done under Article 226 and 227 of the Constitution of India. It is 9 contended by the respondents that the petitioner has not approached this Court with clean hands and has made false and frivolous averments in the writ petition on the basis of concocted story that the petitioner did not submit tender before the authority concerned because of the obstruction made by the cartel of interested persons with connivance of the officers of the respondent department. As per the respondents’ reply, neither any resistance nor any kind of quarrel took place at the places where the tenders were submitted by the tenderers and, so also, adequate security was deployed by the police and no information whatsoever was received by the police nor any incident was reported to the authority, therefore, this fact itself clearly speaks that the petitioner has made a concocted story only to create hurdle in finalization of the contract of collection of excess royalty. It is submitted that the contract has already been finally approved by the Government on 16.02.2009 and the documents filed by the petitioner clearly speak that all the drafts submitted by the petitioner were not properly and legally prepared and, so also, when proper police arrangements were made, then, he was to make complaint to the police if any person or cartel prevented the petitioner from depositing the tender form. Now, at this stage, when 10 admittedly the petitioner’s tender form was not received, then, on the basis of all the tenders received, the department has finally granted tender to respondent No.5, then, there is no illegality in the proceedings held by the respondent department. Although several other grounds have been raised in the reply but for deciding this controversy, this Court is not inclined to interfere under Article 226 or 227 of the Constitution of India; but, at the same time, it is evident from communication Annex.-R/8 dated 10.02.2009 that a telegram was received on 06.02.2009 along with letter dated 04.02.2009 and, on that basis, the Superintending Mining Engineer sent the above communication to the Director and apprise this fact. Similarly, a pointed query was made by this Court whether any notice for demand of justice or communication was received by the department, then, it is informed by the learned Addl. Advocate General that the department received telegram on 06.02.2009 and, so also, a letter dated 04.02.2009 and both these communications were received on 06.02.2009 and 09.02.2009. Further, notice for demand of justice was also received but the same was sent to the Government; meaning thereby, the contention of the petitioner with regard to sending the communications 11 viz., telegram, representation and notice for demand of justice are not disputed by the respondents; but, admittedly, the matter was finalized by the respondents on 16.02.2009 and finally approved by the Government and before that the above communications were received by the department/ Government. Thus, the respondent department was under obligation to take final decision before finalizing the contract on 16.02.2009 and, admittedly, it was not decided. In this view of the matter, I am of the opinion that it is not a case in which any scanning of the facts can be made under Article 226 of the Constitution of India. It is for the Government to decide whether any genuine offer was made by any tenderer and it is for the Government to take decision in public interest and, for the same, before final approval, since the matter was agitated by the petitioner firm though its tender was not before the firm at the time of considering the tenders on 04.02.2009; but, at the same time, when bid of respondent No.5 was accepted provisionally and was sent to the Government for final approval, before that, vide Annex.-R/8 it was informed by the Superintending Mining Engineer that he has received certain communication, so also, as informed by the Addl. Advocate General, notice for demand of justice 12 was received by the department, then, the matter was to be decided by the department and it is not for this Court to interfere in the matter. In view of the aforesaid, the petitioner is directed to appear before the Secretary, Mining Department, Government of Rajasthan, Jaipur on 13.04.2009 and, on that date, the Secretary, Mining Department after providing opportunity of hearing to the petitioner firm shall take final decision and decide the grievance of the petitioner in the light of the judgment rendered by this Court in H.U. Construction Company’s case (supra). With aforesaid direction/observation, this writ petition is disposed of. There shall however be no order as to costs. (Gopal Krishan Vyas) J. Ojha, a.