Rajasthan High Court

M/S. Spml Infra Ltd vs State Of Rajasthan on 23 October, 2021

Bench: Inderjeet Singh

      HIGH COURT OF JUDICATURE FOR RAJASTHAN
                  BENCH AT JAIPUR

                S.B. Civil Writ Petition No. 9300/2021

1.     M/s. Spml Infra Ltd., Having Its Registered Office At 27/2,
       Okhla Industrial Area, Phase-II, New Delhi 110020
       Through Its Authorized Signatory Mr. Shalin Jain.
2.     M/s. Jwil Infra Ltd., Having Its Registered Office At A-1,
       Upsidc Industrial Area, Nandgaon Road, Kosi Kalan,
       Mathura, Uttar Pradesh-281403 Through Its Authorized
       Signatory Mr. Jai Prakash Gupta.
3.     Spml-Jwil Jv, (M/s. Spml Infra Ltd., New Delhi And M/s.
       Jwil Infra Ltd., U.p.) Through Its Partner-In-Charge - M/s.
       Spml Infra Ltd. Having Its Office At 27/2, Okhla Industrial
       Area, Phase-II, New Delhi 110020 Through Its Authorized
       Signatory Mr. Shalin Jain.
                                                                  ----Petitioners
                                    Versus
1.     State Of Rajasthan, Through Additional Chief Secretary,
       Public    Health       And   Engineering          Department        (Phed),
       Government         Of   Rajasthan,          Government       Secretariat,
       Jaipur, Rajasthan.
2.     The Chief Engineer (Special Projects), Public Health
       Engineering     Department,           Jal    Bhawan,      2-Civil    Lines,
       Jaipur-302006, Rajasthan.
3.     The Additional Chief Engineer Region Kota, Dababari, Kota
       - 324009, Rajasthan.
4.     Vrpl-Pel Jv, (M/s. Patel Engineering Ltd., Mumbai And M/s.
       Vishnu Prakash R Punglia Ltd., Jodhpur), Through Its
       Authorized Representative Mr. Sanjay Kumar Punglia
       Having Its Office At H-1, First Floor, Shivalik Complex,
       Near Gol Building Circle, Sardarpura, Jodhpur - 342001,
       Rajasthan.
                                                                ----Respondents

For Petitioner(s) : Mr. A.K. Bhandari, Senior Counsel assisted by Dr. R.K. Sharma & Mr. Bhrigu Sharma For Respondent(s) : Mr. M.S. Singhvi, Advocate General assisted by Mr. Sheetanshu Sharma, Mr. Rajendra Prasad, Senior Counsel

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assisted by Mr. Sushil Daga & Mr. Chitransh Mathur Mr. Anil Mehta, AAG with Ms. Archana

HON'BLE MR. JUSTICE INDERJEET SINGH

Order

23/10/2021

1. This writ petition was listed on 21.10.2021 and on the said

date following order was passed by this Court :-

"List on 23.10.2021.

Till next date, the interim order to continue."

2. As per the order dated 21.10.2021, the matter ought to have

been listed before the Court on 23.10.2021 but due to negligence

of the office bearers of the Registry, the matter was not listed

either in Daily or Supplementary list. Upon coming to know that

the matter has not been listed before the Court despite there

being order of its listing, the learned Additional Advocate General

Mr. Anil Mehta informed the Court that the matter has not been

listed despite order of the Court and made a request for listing of

the matter today in the Second Supplementary/Complimentary

Cause List.

3. Considering the request made, the matter was ordered to be

listed accordingly and thereafter has been taken up and with

consent of the parties it has been heard finally and being decided

by the present order.

4. This writ petition has been filed by the petitioners with the

following prayers :-

"It is, therefore, respectfully prayed that your Lordships may pleased to accept and allow the writ petition and by an appropriate writ, order or directions:-

i) the impugned order dated 13.08.2021 and 13.08.2021 and 16.08.2021 (Annexure-7) issued by the Respondent No. 3 to the extent of

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declaring the bid of the Respondent No.4 as Technically responsive may kindly be quashed and set aside;

ii) the respondent may kindly be directed the respondent No. 4 be treated as not eligible and the Financial Bids opened on 16.08.2021 (Annexure-8) in pursuance of the order dated 13.08.2021 & 16.08.2021 and consequential & subsequential orders and actions initiated thereto passed by the Respondent may kindly be quashed and set aside.

iii) the Respondent may kindly be directed to issue fresh result of Financial Bid as per due process of law and the petitioners bid being lower amongst the eligible bidders be declared as L1 Bidder.

iv) it is further prayed that the Respondents be restrained from taking any adverse or coercive steps against the petitioners.

v)Any prejudical order if passed during pendency of the writ petition, against the petitioners be taken on record and further be quashed and set aside.

vi) Any other order or direction which this Hon'ble Court deems just and proper and may also be passed in the facts and circumstances of the case in favour of the petitioners".

5. Learned Advocate General appearing on behalf of the State

of Rajasthan as well as Mr. Rajendra Prasad, Senior Counsel,

raised a preliminary objection with regard to maintainability of the

writ petition as the statutory alternative remedy of appeal is

available to the petitioners under the Rajasthan Transparency

Public Procurement Act, 2012 (hereinafter to be referred as the

"Act, 2012").

6. Learned Advocate General further submits that in this matter

the petitioners had filed first appeal under Section 38(1) of the

Act, 2012 which was dismissed by the First Appellate Authority on

27.09.2021 and being aggrieved by the order dated 27.09.2021,

the petitioners also filed second appeal under Section 38(4) of the

Act, 2012 which is still pending consideration before the Second

Appellate Authority and further submitted that as the petitioners

had already availed the remedy of statutory first appeal before the

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First Appellate Authority and presently pursuing with the second

appeal pending before the Second Appellate Authority, in view

thereof the writ petition be dismissed.

7. In support of submissions, they relied upon the judgment

passed by the Hon'ble Supreme Court in the matter of Bharat

Coaking Coal Limited and others Vs. AMR Dev Prabha and

others, reported in (2020) 16 SCC 759 where in Paras-30 &

33 it has been held as under;

"30. But merely because the accusations made are against the State or its instrumentalities doesn't mean that an aggrieved person can bypass established civil adjudicatory processes and directly seek writ relief. In determining whether to exercise their discretion, the writ courts ought not only confine themselves to the identity of the opposite party but also to the nature of the dispute and of the relief prayed for. Thus, although every wrong has a remedy, depending upon the nature of the wrong there would be different forums for redress.

33. Such conscious restraint is also necessary because judicial intervention by itself has effects of time and money, which if unchecked would have problematic ramifications on the State's ability to enter into contracts and trade with private entities. Further, it is not desirable or practicable for courts to review the thousands of contracts entered into by executive authorities every day. Courts also must be cognizant that often-a-times the private interest of a few can clash with public interest of the masses, and hence a requirement to demonstrate effect on 'public interest' has been evolved by this Court."

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8. On the other hand, learned Senior Counsel Mr.Bhandari,

appearing for the petitioners submitted that they have levelled the

allegation of mala fides against the official respondent(s) of

granting contract in favour of respondent No. 4. Counsel further

submits that mere availability of alternate remedy to the

petitioners is not a bar in seeking relief from this Court under

Article 226 of the Constitution of India.

9. In support of submissions, he relied upon the judgment

passed by the Hon'ble Supreme Court in the matter S.J.S.

Business Enterprises (P) Ltd. Vs. State of Bihar and others,

reported in (2004) 7 SCC 166, where in Paras-14 & 15 it has

been held as under :-

"14. Assuming that the explanation given by the appellant that the suit had been filed by one of the Directors of the Company without the knowledge of the Director who almost simultaneously approached the High Court under Article 226 is unbelievable (sic), the question still remains whether the filing of the suit can be said to be a fact material to the disposal of the writ petition on merits. We think not. The existence of an adequate or suitable alternative remedy available to a litigant is merely a factor which a Court entertaining an application under Article 226 will consider for exercising the discretion to issue a writ under Article 226. But the existence of such remedy does not impinge upon the jurisdiction of the High Court to deal with the matter itself if it is in a position to do so on the basis of the affidavits filed. If however a party has already availed of the alternative remedy while invoking the jurisdiction under Article 226, it would not be appropriate for the Court to

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entertain the writ petition. The Rule is based on public policy but the motivating factor is the existence of a parallel jurisdiction in another Court.

But this Court has also held in Chandra Bhan Gosain v. State of Orissa that even when an alternative remedy has been availed of by a party but not pursued that the party could prosecute proceedings under Article 226 for the same relief. This Court has also held that that when a party has already moved the High Court under Article 226 and failed to obtain relief and then moved an application under Article 32 before this Court for the same relief, normally the Court will not entertain the application under Article 32. But where in the parallel jurisdiction, the order is not a speaking one or the matter has been disposed of on some other ground, this Court has, in a suitable case, entertained the application under Article 32. Instead of dismissing the writ petition on the ground that the alternative remedy had been availed of the Court may call upon the party to elect whether it will proceed with the alternative remedy or with the application under Article 226. Therefore the fact that a suit had already been filed by the appellant was not such a fact the suppression of which could have affected the final disposal of the writ petition on merits.

15. In this case, admittedly the appellant has withdrawn the suit two weeks after the suit had been filed. In other words the appellant elected to pursue its remedies only under Article 226. The pleadings were also complete before the High Court. No doubt, the interim order which was passed by the High Court was obtained when the suit was pending. But by the time the writ petition was heard the suit had already been withdrawn a

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year earlier. Although the appellant could not, on the High Court's reasoning, take advantage of the interim order, it was not correct in rejecting the writ petition itself when the suit had admittedly been withdrawn, especially when the matter was ripe for hearing and all the facts necessary for determining the writ petition on merits were before the Court, and when the Court was not of the view that the writ petition was otherwise not maintainable."

10. Heard counsel for the parties and perused the record.

11. This writ petition filed by the petitioners deserves to be

dismissed for the reasons; firstly, the petitioners have already

availed the alternative statutory remedy of first appeal as provided

under Section 38 of the Act, 2012 and thereafter filed the second

appeal under the Act, 2012 which is still pending consideration

before the Second Appellate Authority, therefore, in my considered

view, during pendency of the second appeal before the Second

Appellate Authority, this writ petition is not maintainable;

secondly, although the petitioners have levelled the allegation of

mala fides against the official respondent(s) but no person by

name has been impleaded by the petitioners as party respondent