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2023 DIGILAW 1025 (RAJ)

K. R. Associates v. State of Rajasthan

2023-05-05

PUSHPENDRA SINGH BHATI

body2023
JUDGMENT : PUSHPENDRA SINGH BHATI, J. 1. This writ petition under Articles 226 of the Constitution of India have been preferred claiming the following reliefs: “It is, therefore, most humbly and respectfully prayed as under: (1) This Hon’ble Court may by pleased to call for the entire record of the case pertaining to the NIT’s issued on 08.03.2023 (Annex-4) and 17.03.2023 (Annex-5) and judicially review the same, further: (i) By an appropriate writ order or direction, the E-auction advertisement dated 08.03.2023 (Annex-4), 17.03.2023 (Annex-5) and 31.03.2023 (Annex-6), as well as the corrigendum’ issued thereunder, may kindly be declared illegal and be quashed and set aside. (ii) By an appropriate writ order or direction, the respondents may kindly be directed to undertaken the fresh E-auction process of all the royalty collection contracts in question, after giving sufficient time to the bidder in due consonance with the Rules and regulations so formulated there under. (iii) Any other appropriate order or relief which this Hon’ble court may deem just and proper in the facts and circumstances of this case may kindly also be passed in favour of the humble petitioners.” 2. Brief facts of the case, as placed before this Court by learned counsel for the petitioner, are that the respondents issued a tender for awarding a contract pertaining to collection of Excess Royalty, DMFT, RSMET and Other fees (ERCC Contract); the petitioner was awarded such contract to undertake the work at, for a period of one year, which was to come an end on 31.03.2023. 2.1. The respondents issued an E-auction advertisement dated 08.03.2023 for grant of ERCC Contracts to various contractors; whereafter, the respondents issued another E-auction advertisement dated 17.03.2023 for allocation of 34 contracts. The respondents further issued an E-auction advertisement dated 31.03.2023 for allocation of 21 ERCC Contracts throughout the State of Rajasthan. 2.2. Thereafter, the respondents issued a corrigendum dated 22.03.2023 for incorporating certain amendments in the advertised contracts. The respondent issued a second corrigendum vide letter dated 10.04.2023 in pursuance of the E-auction advertisement dated 08.03.2023, whereby it was provided that in relation to contracts no. 1 to 23, the dates for depositing the earnest money shall be 19.04.2023, instead of 10.04.2023, on the same day, the reserve price of certain contracts under E-auction advertisement dated 17.03.2023 was also changed. 2.3. 1 to 23, the dates for depositing the earnest money shall be 19.04.2023, instead of 10.04.2023, on the same day, the reserve price of certain contracts under E-auction advertisement dated 17.03.2023 was also changed. 2.3. The respondents subsequently, vide order dated 11.04.2023 issued corrigendum-3 in pursuance of E-auction advertisement dated 08.03.2023, whereby the respondents substituted the dates for contracts no. 24 to 67. 2.4. The respondents again issued another corrigendum on 11.04.2023 in pursuance of E-auction advertisement dated 17.03.2023, whereby the auction schedule for contracts no. 27 to 34 was amended and the date for deposition of the earnest money was changed from 18.04.2023 to 28.04.2023. 2.5. The respondents issued another corrigendum dated 20.04.2023 to issue a cumulative corrigendum in pursuance of all aforementioned E-auction advertisements, amending the dates for deposition of the earnest money as well as dates of E-auction. On the same day i.e. 20.04.2023, the respondents issued another corrigendum, cancelling the corrigendum so issued earlier on the same day, and specified fresh schedule for the E-auction, while preponing the dates of E-auction. The respondents vide order dated 21.04.2023 increased the reserve price in regard to certain contracts so advertised in the E-auction advertisement dated 17.03.2023. 2.6. Subsequently, the respondents again issued a composite corrigendum-3 dated 25.04.2023 in pursuance of advertisements dated 08.03.2023 and 17.03.2023, whereby, as mentioned in the writ petition, the dates for deposition of the earnest money and the dates of E-auction were further changed as follows: S. No. in Advertisement Column No. 9 of Advertisement Date of deposition of Earnest Money Amended Date for deposition of Earnest Money Column No. 10 of Advertisement for auction of online Amended Date for auction online 1 to 23 19.04.2023 03.05.2023 20.04.2023 04.05.2023 24 to 46 20.04.2023 04.05.2023 21.04.2023 05.05.2023 58 to 67 24.04.2023 08.05.2023 25.04.2023 09.05.2023 27 to 34 27.04.2023 03.05.2023 28.04.2023 04.05.2023 1 to 6 24.04.2023 03.05.2023 25.04.2023 04.05.2023 7 to 13 25.04.2023 04.05.2023 26.04.2023 05.05.2023 14 to 20 26.04.2023 08.05.2023 27.04.2023 09.05.2023 2.7. Thus, being aggrieved by the impugned action of the respondents, as discernible from the afore-quoted reliefs, the petitioner has approached this Hon’ble Court seeking redress. 3. Thus, being aggrieved by the impugned action of the respondents, as discernible from the afore-quoted reliefs, the petitioner has approached this Hon’ble Court seeking redress. 3. Learned counsel for the petitioner submitted that the respondents again and again issued the various corrigendum and preponed the dates in relation to the E-auction advertisements; even the respondents on same day, changed the schedule for deposition of the earnest money, and auction dates, without due application of mind, which cannot be sustained in the eye of law. 3.1. Learned counsel further submitted that the respondents acted in clear violation of Rule 37 of the Rajasthan Minor Mineral Concessions Rules, 2017 (hereinafter referred as ‘Rules of 2017’), which provides, amongst others, that the notice inviting bid shall be published at least 30 days before the date fixed for submission of the bid; however, in the present case, the respondents have issued a corrigendum on 25.04.2023, fixing the date of bid to 04.05.2023, 05.05.2023 and 09.05.2023, which was less than the period prescribed under the Rules of 2017. 3.2. It was also submitted that the impugned action of the respondents in undertaking the process for changes in the dates of auction and changes in the reserve price are a clear violation of the mandatory provision contained in the Rules of 2017, as well as the Rajasthan Transparency in Public Procurement Rules, 2013. 3.3. Learned counsel also submitted that the corrigenda issued by the respondents, wherein the reserved price of the contracts for E-auction have been increased, while changing the dates of E-auction, deprived the petitioner of the opportunity to participate in the E-auction proceedings. 3.4. Learned counsel further submitted that the sudden and unwarranted changes in the dates of auction clearly indicate that the same was done to extend undue advantage to certain persons; the bid involved huge earnest money, and therefore, various changes in the dates of auction, is adversely affecting the fair chance of the petitioner, in relation to his participation in the auction proceedings in question. 3.5. 3.5. In support of his submissions, learned counsel relied upon the following judgments: (a) Union of India and Others vs. Mahendra Singh, Civil Appeal No. 4807 of 2022, decided by the Hon’ble Apex Court on 25.07.2022 (b) State of U.P. vs. Sudhir Kumar Singh and Others, Civil Appeal No. 3498 of 2020 decided by the Hon’ble Apex Court on 16.10.2020 (c) P. Ravishankar vs. State of Tamil Nadu, Writ Petition Nos. 13481 and 13488 of 2021 decided by the Hon’ble Madras High Court on 29.10.2021 (d) Sarat Padhi vs. State of Orissa and Others, Original Jurn. Case No. 2516 of 1985 decided by the Hon’ble High Court of Orissa on 23.12.1987 4. On the other hand, Mr. Sandeep Shah, learned Senior Advocate and Additional Advocate General assisted by Ms. Akshiti Singhvi, appearing on behalf of the respondents, while opposing the aforesaid submissions made on behalf of the petitioner, submitted that corrigendum-1 was issued in pursuance of the advertisement dated 08.03.2023, whereby total 23 auctions were to be held on 11.04.2023; however, on that date i.e. 11.04.2023, the State Government declared a public holiday on count of Jyoti Ba Phule Jayanti. 4.1. It was further submitted that the other corrigenda were issued in relation to the advertisements dated 08.03.2023, 17.03.2023 and 31.03.2023 for changing the dates for deposition of the earnest money and the auction proceedings, due to bank holidays at the end of the financial year. The aforementioned corrigenda also mentioned the reserve price of the bid in question. Therefore, the action of changing the dates of the auction was based on justifiable reason, which cannot be faulted with on any ground whatsoever; thus, he submitted that the allegations levelled by the petitioner to the effect that the impugned changes were made so as to extend undue advantage to certain persons are baseless and unfounded. 4.2. It was also submitted that the most of the Government Contracts are now being awarded through web portal (E-filing), in regard whereto the orders by the Department can be issued even beyond office timings, which cannot be said to be justified in law. 4.2. It was also submitted that the most of the Government Contracts are now being awarded through web portal (E-filing), in regard whereto the orders by the Department can be issued even beyond office timings, which cannot be said to be justified in law. It was further submitted that neither the petitioner in this petition has been able to show before this Court as to how on count of the impugned action of the respondents, its rights are being affected, nor he could be able to show, what locus standi he is having which persuaded him to challenge the impugned action on the part of the respondents, by preferring the present petition. 4.3. It was also submitted that the petitioner’s contract was extended for a further period of 90 days on 30.03.2023 and the deed was executed on 31.03.2023, as per Rule 36 (5) of the Rules of 2017, but despite that, the petitioner did not disclose the said material fact before this Hon’ble Court. 4.4. It was further submitted that the period of 30 days as per the Rule 37 of the Rules, 2017 was to be counted from the date of the original advertisement, and therefore in the present case, since the original advertisements were issued on 08.03.2023, 17.03.2023 and 31.03.2023, the petitioner was having requisite time to act in accordance with Rule 37 of the Rules of 2017. 4.5. It was also submitted that the State Government vide Gazette Notification dated 04.01.2017, notified that the provisions as contained in the Rajasthan Transparency in Public Procurement Act, 2012 shall not apply to the procurement of services for Royalty Collection Contracts and Excess Royalty Collection Contracts by the Department of Mines and Geology. 5. Heard learned counsel for the parties as well as perused the record of the case along with judgments cited at the Bar. 6. This Court observes that the respondents issued the advertisements dated 08.03.2023, 17.03.2023 and 31.03.2023 for E-auction pertaining to awarding the ERCC Contracts. Thereafter, vide various corrigendum, changes were made in the dates of auction and deposition of the earnest money, as well as in the reserve price of the bid. 7. 6. This Court observes that the respondents issued the advertisements dated 08.03.2023, 17.03.2023 and 31.03.2023 for E-auction pertaining to awarding the ERCC Contracts. Thereafter, vide various corrigendum, changes were made in the dates of auction and deposition of the earnest money, as well as in the reserve price of the bid. 7. This Court further observes that the dates for deposition of the earnest money and auction in pursuance of the aforesaid advertisements, have been changed on count of the fact that the State Government declared public holiday due to Jyoti Ba Phule Jayanti on 11.04.2023, and such changes were also made owing to the bank holidays at the end of the financial year. Therefore, the allegation levelled by the petitioner, that the same was done so as to put certain persons to undue advantageous position. 8. This Court also observes that as per Rule 37 of the Rules of 2017 “the notice invite bid shall be published at least thirty days before the date fixed for submission and shall upload particulars, terms and conditions on the web portal of the department and agency appointed by the Government. The period of thirty days shall be counted from the publication of the notice inviting bid on the departmental website or on the website of the agency appointed for auction, whichever earlier”. In present case, the original advertisements were issued on 08.03.2023, 17.03.2023 and 31.03.2023 for E-auction to award the ERCC Contracts, followed by issuance of various corrigenda by the respondents; but despite that, it clearly reveals that the respondents gave sufficient time, as prescribed under Rule 37 of the Rules of 2017, while counting the period from the date of issuance of the original advertisements, and not, from issuance of the corrigenda. 9. This Court further observes that the State Government vide Gazette Notification dated 04.01.2017, notified that the provisions of the Rajasthan Transparency in Public Procurement Act, 2012 shall not apply to the procurement of services for Royalty Collection Contracts and Excess Royalty Collection Contracts by the Department of Mines and Geology. 10. The judgments cited on behalf of the petitioner do not render any assistance to his case, in the present petition. 11. 10. The judgments cited on behalf of the petitioner do not render any assistance to his case, in the present petition. 11. In light of the aforesaid observations and looking into the factual matrix of the present case, this Court does not find it a fit case so as to grant any relief to the petitioner in the present petition. 12. Consequently, the present petition is dismissed. All pending applications stand disposed of.