Rajasthan High Court - Jodhpur

M/S Satya Construction vs State Of Rajasthan ... on 16 October, 2023

Bench: Augustine George Masih, Vinit Kumar Mathur

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR D.B. Spl. Appl. Writ No. 741/2023

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 Khatri, Aged About 62 Years, R/o 673 Maharana Pratap Marg, Gandhi Colony, Jaisalmer.

----Appellant 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 Appellant(s)              :    Mr. Manas Ranchhor Khatri
For Respondent(s)             :

HON'BLE THE CHIEF JUSTICE AUGUSTINE GEORGE MASIH HON'BLE MR. JUSTICE VINIT KUMAR MATHUR

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Judgment

16/10/2023

1. The present appeal has been filed against the order dated

17.08.2023, whereby, the writ petition preferred by the petitioner

was dismissed by the learned Single Bench.

2. Briefly, the facts in the case are that aggrieved against

incorrect acceptance of the financial bid which was opened in

favour of respondent No.4 - M/s. Sunmax Corporation, the

appellant-petitioner preferred an appeal before Directorate, Local

Self Government, Rajasthan, Jaipur which came to be dismissed

on 04.05.2023. Aggrieved against the judgment dated

04.05.2023, the appellant-petitioner preferred a second appeal

before the Secretary, Local Self Government, Rajasthan, Jaipur,

wherein notices were issued but no interim relief was granted to

him. Being dissatisfied, the appellant-petitioner preferred a writ

petition before this court being SB Civil Writ Petition

No.7196/2023 ( M/s. Satya Construction vs. The Secretary, Local

Self Government Department, Secretariat, Rajasthan, Jaipur and

ors). The said writ petition was disposed of vide order dated

24.05.2023 with a direction to respondent No.1- Secretary, Local

Self Government to decide the second appeal of the petitioner

expeditiously, strictly in accordance with law. Therefore second

appeal preferred by the appellant - petitioner too was dismissed

by the Directorate, Local Self Government, Rajasthan, Jaipur vide

its judgment dated 03.08.2023.

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3. Learned counsel for the appellant vehemently submitted that

the Appellate Authority has not considered the matter in its true

perspective and has wrongly rejected the Second Appeal of the

appellant-petitioner. He submits that the order of the Second

Appellate Authority is in complete violation of Rule 80(1)(c) of the

Rajasthan Transparency in Public Procurement Act, 2012

(hereinafter referred to as "the Transparency Rules, 2012").

Learned counsel vehemently submitted that he has categorically

brought on record the fact that the Rules in the present case have

been blatantly violated and breached. He further submits that it

could not have been a mere coincidence that out of the 139 items,

rates for 133 items quoted by the appellant-petitioner were similar

to those quoted by the respondent No.4. He submits that this

could only happen unless the confidentiality of the documents has

been breached.Learned counsel on the strength of Rule 80(1)(c)of

the Transparency Rules, 2012 submits that the Second Appellate

Authority should have called for the evidence from the concerned

person on the subject that there was no breach of the information

of the documents rendered by the respective bidders. He,

therefore, submits that the learned Single Bench has not

appreciated the arguments in the correct perspective and has

committed an error while rejecting the writ petition of the

petitioner.

4. We have considered the submissions made at the Bar.

5. A bare perusal of Rule-80(1)(c) of the Transparency Rules,

2012 shows that the authority concerned should not have

disseminated the information before it is made public as per the

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Rules. In the present case, there is nothing on record to show

that the rates of the appellant/petitioner were within the

knowledge of the successful bidder in breach of the provisions of

Rule 80(1)(c) of the Transparency Rules, 2012

6. In the opinion of this Court, the Second Appellate Authority

has specifically dealt with the arguments of the learned counsel

for the appellant/petitioner and has rightly come to the conclusion

that there is no evidence on record which shows that there was

breach in the confidentiality of the documents submitted by the

appellant/petitioner or for that matter; any of the bidder. In the

present case, merely because the rates of 133 items, out of 139

items, provided by the respondent No.4 are similar to the rates

provided by the appellant-petitioner, in the opinion of this Court,

cannot be a ground to create doubt that the respondents have

breached the confidentiality in the tender process undertaken by

the respondents.

7. We are in complete agreement with the view taken by the

learned Single Bench which reads as under :-

"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,

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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, 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."

8. In view of the discussions made above, no interference is

warranted in the order passed by the learned Single Judge. The

Special Appeal (Writ) is, therefore, dismissed.