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2019 DIGILAW 2367 (RAJ)

Kaler Construction Company v. State of Rajasthan

2019-09-04

DINESH MEHTA

body2019
JUDGMENT : Dinesh Mehta, J. 1. By way of the present writ petition, the petitioner has challenged the decision dated 28.08.2019 of the District Procurement Agency i.e. Collector and District Magistrate, Churu, vide which he has taken an in-principle decision to issue work order to the successful bidder-L1, which is reported to be M/s. R.R.K. Construction Company, Churu. 2. The precise facts are that in furtherance of the e-bid notice dated 17.01.2019, the technical bids were opened on 13.02.2019 and the District Collector has now (28.08.2019) decided to issue work order. 3. The basic argument of the petitioner is that since the technical bids were opened on 13.02.2019, the respondents cannot proceed to issue work order on 28.08.2019, as life of the bid had come to an end, upon passing of three months' time. He relied upon the provisions contained in Rule 48 of the Rajasthan Transparency in Public Procurement Rules, 2013 (hereinafter referred to as the 'Rules of 2013'). 4. Mr. Dave also argued that after opening of the bids on 13.02.2019, a fresh e-bid notice dated 04.06.2019 has been issued by the Rajasthan State Food & Civil Supplies Corporation Limited and as such the respondents were obliged/required to proceed in furtherance of e-bid notice dated 04.06.2019, instead of falling back to the earlier tender process, which has ceased to operate and/or it should be treated as having been dropped, as soon as the fresh e-bid notice came to be issued on 04.06.2019. 5. Learned counsel further contended that the Collector has no authority to issue work order, unless it is approved by the Rajasthan State Food & Civil Supplies Corporation Limited. 6. Heard. 7. Adverting to the submissions made by learned counsel for the petitioner, it is necessary to consider other relevant and antecedent facts: one M/s. Mukesh Kaler Construction Company had challenged the subject proceedings taken pursuant to e-auction notice dated 17.01.2019, by way of filing a writ petition being SB Civil Writ Petition No. 5024/2019, in which this Court has restrained the respondents from finalising the tender process, vide order dated 09.04.2019, which reads thus: "Learned counsel for the respondents submits that he is in the process of filing the reply, which may be taken on record. Learned counsel for the petitioner seeks some time to file rejoinder. Time prayed for is allowed. List after six weeks. Learned counsel for the petitioner seeks some time to file rejoinder. Time prayed for is allowed. List after six weeks. In the meanwhile, respondents are restrained from finalizing the tender process and issue work order only for District Churu in pursuance of e-tender notice dated 17.01.2019." 8. It is noteworthy that the writ petition filed by said M/s. Mukesh Kaler Construction Company came to be dismissed by this Court on 20.08.2019, as having been rendered infructuous, as the petitioner's (Mukesh Kaler) term of contract (which was valid upto 25.07.2019) had come to an end. 9. In considered opinion of this Court, the period during which the above referred interim order continued, i.e. 09.04.2019 to 20.08.2019 is required to be excluded from the period of life of the bid, prescribed in Rule 48 of the Rules of Rules of 2012. 10. If the period of bid has been extended, no person other than the successful bidder himself, can have a concern or grievance about the extension. The petitioner being an alien, who was not even a bidder during the earlier process, cannot raise grievance that the bid offered by the successful bidder - L1 has lived its life. 11. Petitioner's contention that the District Collector has no authority to issue work order is baseless. If the material available is considered, it is clear that Rajasthan State Food & Civil Supplies Corporation Limited is a Centralised Procurement Agency, which has issued e-bid for all the Districts and it is the District Collector, who has to take final call, may be after due approval of respondent No. 2. 12. The petitioner's other contention that before issuing work order, no requisite sanction has been taken from the respondent No. 2, is without any factual basis. The note-sheets placed by the petitioner till 28.08.2019 only shows that the Collector has taken an in-principle decision to issue work order. Neither the work order nor the proceedings thereafter are on record, to establish that the requisite approval has not been taken and work order has been issued. 13. That apart, the petitioner has challenged the order/action of the District Collector on the ground of his authority/jurisdiction, without impleading him as a party-respondent. 14. Neither the work order nor the proceedings thereafter are on record, to establish that the requisite approval has not been taken and work order has been issued. 13. That apart, the petitioner has challenged the order/action of the District Collector on the ground of his authority/jurisdiction, without impleading him as a party-respondent. 14. Curiously, counsel who filed the said writ petition (Mukesh Kaler Constructions supra) and in whose presence the interim order as well as the decision in the said writ petition was passed, was none other than Mr. Vineet Dave himself, who is the counsel in the present matter. 15. The petitioner has also chosen not to implead the successful bidder i.e. M/s. RKK Construction Company, in whose favour the work order is going to be issued. 16. Non-impleadment of Collector, Churu and successful bidder is fatal to the maintainability of the writ petition, as the reliefs claimed by the petitioner cannot be granted in their absence. 17. Mr. Dave, who has argued that successful bidder is not required to be impleaded as a party, as no rights have accrued to him in absence of a work order, failed to satisfy the Court about his own rights, locus in a tender process (launched vide e-bid notice dated 04.06.2019), which was in its infancy, when it was cancelled. 18. Petitioner is simply a bidder, having submitted his bid pursuant to e-bid notice dated 04.06.2019. Those bids have not even been opened. Even a successful bidder cannot claim any right of getting a work order or to continue with the process, if the awarder chooses to drop the process; let apart a bidder simplicitor. 19. For the reasons aforesaid, this Court neither finds any substance in the present writ petition nor does it find the petition to be competent. 20. The writ petition is, therefore, dismissed on all above counts. 21. The stay `.