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2017 DIGILAW 863 (RAJ)

Kshitij Samuh Seva Sansthan v. State of Rajasthan

2017-04-03

M.N.BHANDARI

body2017
JUDGMENT : Mr. M.N. Bhandari, J. 1. By this writ petition, a challenge is made to the order dated 2nd March, 2017, whereby the petitioner-society was debarred to participate in the tender. The order aforesaid has been passed by invoking Section 46 of the Rajasthan Transparency in Public Procurement Act, 2012 (for short “the Act of 2012”). 2. Learned counsel for petitioner-society submits that no opportunity of hearing was given prior to passing of the adverse order affecting its business. In view of above, principles of natural justice have been violated. He further submits that case in hand does not fall under Section 46 of the Act of 2012 yet it has been invoked. Section 46 of the Act of 2012 can be invoked if it falls under sub-section (1)(a)(b). Taking into consideration the aforesaid also, impugned order deserves to be set aside. The prayer is to set aside the order moreso when it does not even specify the period of debarration. 3. Learned Additional Advocate General has contested the writ petition in reference to Section 46 of the Act of 2012. It is also submitted that notices prior to passing of the impugned order were given thus even compliance of principles of natural justice has been made. The detailed facts pertaining to the case have also been narrated forming the basis to debar the petitioner-society from participation in the tender proceedings. 4. I have considered the rival submissions made by learned counsel for the parties and perused the record. 5. The first argument to challenge the order dated 2nd March, 2017 is in reference to the principles of natural justice. To see as to whether petitioner-society was given prior notices before debarring it to participate in the tender proceedings, I have gone through the record and find that though notices were given but it was not for debarration of the petitioner-society to participate in the tender. The debarment from bidding can be after following the principles of natural justice, that too, a notice specifying as to why debarment from bidding may not be made. The requirement or procedure aforesaid has not been followed by the respondents. The notices given by the respondents were in relation to the default, etc. but not for debarment of the petitioner-society in future tenders. Accordingly, impugned order dated 2nd March, 2017 deserves to be set aside on the aforesaid ground. 6. The requirement or procedure aforesaid has not been followed by the respondents. The notices given by the respondents were in relation to the default, etc. but not for debarment of the petitioner-society in future tenders. Accordingly, impugned order dated 2nd March, 2017 deserves to be set aside on the aforesaid ground. 6. Learned Addition Advocate General submits that if impugned order is set aside on the ground urged by learned counsel for petitioner-society, it should be with liberty to pass a fresh order after complying the principles of natural justice. 7. The prayer aforesaid is justified and accordingly, while setting aside the order dated 2nd March, 2017 on the ground urged by learned counsel for petitioner-society in reference to the principles of natural justice, it would be with liberty to pass a fresh order after complying the principles of natural justice. 8. Learned counsel for petitioner-society has further raised argument in reference to Section 46 of the Act of 2012, however, it has been contested thus while giving liberty to pass a fresh order, it would be in accordance to the provisions of law and more specifically Section 46 of the Act of 2012 and not by going against it. The observation aforesaid has been made so that while any action is taken or a fresh order is passed, it should be in accordance with the provisions of law. Accordingly, the authority would be expected to consider all the issues raised by the parties. Therein, petitioner-society would be at liberty to contest the issue even on merit to justify their act. 9. The writ petition is allowed with the aforesaid.