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2020 Supreme(Raj) 473
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR
INDERJEET SINGH, J.
M/s. Ultratech Cement Ltd., (Utcl) - Petitioner
Versus
State of Rajasthan, Through Principal Secretary, Department of Energy, Government of Rajasthan & Ors. - Respondents
S.B. Civil Writ Petition No. 1713 of 2020
Decided On : 06-03-2020
For the Petitioner: Mr. Kamlakar Sharma, Senior Counsel assisted by Mr. Vivek Dangi, Mr. Hitesh Jatawat, Mr. James Bedi & Ms. Sommya Chaturvedi.
For the Respondent:Mr. M.S. Singhvi, Advocate General, assisted by Mr. Sheetanshu Sharma & Mr. Darsh.
Point of law:
The general terms and conditions of the auction shall be such as may be framed by the Chief Administrator from time to time and announced to the public before auction on the spot.
Headnote:
Constitution of India, 1950 - Article 6, 14 , 16 - Rajasthan Transparency in Public Procurement Rules, 2013 - Rule 69 - Rajasthan Transparency in Public Procurement Act,2012 - Section 26 (1) & (3) - Quash and set aside - E-procurement for sale/collection - Award of contract the respondents are free not to accept the highest or lowest offer and the scope of judicial review is confined to the scrutiny of the decision making process which can be interfered if the same is found to be arbitrary or malafide or unreasonable.
Facts of the case:
Petition has been filed by the petitioner Respondent-RRVUNL invited tender for e-procurement for sale/collection of ESP dry fly ash from its various coal based TPPs located at KSTPS (Kota), SSTPS (Suratgarh), CTPP (Chhabra), KaTPP (Jhalawar) and last date for submission which was time to time extended vide respective corrigendums - Petitioner as well as other companies submitted their tenders and participated in process.
Finding of the court:
Reflected from record that while cancelling NIT respondents RRVUNL have recorded reason in their board meeting and in my considered view respondents RRVUNL have not committed any illegality in cancelling NIT and issuing fresh NIT with modified PQR specifications for better participation and reason assigned by respondents RRVUNL seems to be reasonable as prior to cancelling NIT petitioner was given opportunity to offer their best price - Secondly in my considered view in matters of award of contract respondents are free not to accept highest or lowest offer and scope of judicial review is confined to scrutiny of decision making process which can be interfered if same is found to be arbitrary or malafide or unreasonable - While taking aforesaid view in the matter, Court have gone through judgments passed by Hon’ble Supreme Court from time to time - Lastly, since respondents RRVUNL have initiated fresh process of inviting tenders and as informed by parties petitioner has participated in fresh tender process, therefore in my considered view no case is made out to interfere in present matter.
Result : Petition stands Dismissed.
ORDER :
1. This writ petition has been filed by the petitioner with the following prayers :-
“It is, therefore, prayed that the Writ Petition filed by the Petitioner may kindly be allowed with costs and by an appropriate writ, order or direction this Hon’ble Court may be pleased to:
1. Call for entire record of Tender No.(TN-26/2019-20/SE/(Fuel)/Jaipur) dated 26.08.2019 including Note Sheets at para 98 to 103/N, 108 to 112/N, 120 to 130/N, 134 to 140/N and 142 to 153/N and Minutes of Meetings held on 23.12.2019.
2. Quash and set aside the impugned Office Order dated 06.01.2020 (ANNEXURE-16) for cancellation of Tender No.(TN-26/2019-20/SE/ (Fuel)/Jaipur) dated 26.08.2019 except for KSTPS unit no.7.
3. Direct the Respondents to accept the bid and issue Letter of Acceptance (LoI) to Petitioner Company for allocation of fly ash from KaTPP Jhalawar Unit 1 & 2 as per Tender No.(TN-26/2019-20/SE/(Fuel)/Jaipur) dated 26.08.2019.
4. Any other appropriate Writ, Order or Direction, in the present facts and circumstances of the case, which are deemed just and proper by this Hon’ble Court may also be passed in favour of the Petitioner.”
2. Brief facts of the case are that the respondent-RRVUNL invited tender no.(TN-26/2019-20/SE/(Fuel)/Jaipur) dated 26.08.2019 for e-procurement for sale/collection of ESP dry fly ash from its various coal based TPPs located at KSTPS (Kota), SSTPS (Suratgarh), CTPP (Chhabra), KaTPP (Jhalawar) and the last date for submission of the bid was 23.09.2019 which was time to time extended vide respective corrigendums upto 23.10.2019. The petitioner as well as other companies submitted their tenders and participated in the process.
3. Looking to the respective rates received from the various companies, the petitioner company was requested to depute its fully authorized representative to attend the meeting which was scheduled to be held on 16.12.2019 for techno-commercial discussions regarding sale of dry fly ash. On 16.12.2019 the authorized representative of the petitioner company participated in the aforesaid meeting where discussions were held for techno-commercial and on 17.12.2019 the petitioner company was requested by the respondent RRVUNL to offer their best price for sale/collection of ESP dry fly ash from KaTPP unit 1 & 2 and vide letter dated 20.12.2019 the petitioner company intimated to the respondent RRVUNL that they have already offered their best price. After discussion the respondent detailed work order was issued in favour of M/s. J.K. Cement Limited @ Rs.502/- per MT for KSTP Kota, Unit 7.
4. Subsequent to the offer submitted by the petitioner on 20.12.2019 a meeting was conducted by the Wholetime Directors of the respondent RRVUNL on 03.01.2020 and after detailed discussions it was decided to drop the NIT for sale collection of ESP dry fly ash from various coal based thermal power plants of RVUN against TN-26 2019-20/SE(Fuel-1)/Jaipur except for KSTP Unit no.7-for which order has been placed on M/s. J.K. Cement Ltd. @ Rs.502 PMT and accordingly final decision to cancel the NIT was taken on 03.01.2020 and it was decided to publish fresh NIT with modified PQR specification for better participation and communicated to the petitioner company vide office order dated 06.01.2020.
5. Learned Senior Counsel appearing on behalf of the petitioner submitted that the action of the respondents RRVUNL is in violation of Section 26 (1) & (3) of the Rajasthan Transparency in Public Procurement Act,2012 (hereinafter to be referred as the Act of 2012). Learned Senior Counsel further submitted that the respondent RRVUNL have also violated the provisiosn of Rule 69 of the Rajasthan Transparency in Public Procurement Rules, 2013 (hereinafter to be referred as the Rules of 2013) as the respondents while cancelling the tender have not applied their mind. Learned Senior Counsel further submits that the reason recorded for cancelling the tender is not a valid reason in the eye of law more particularly the said reason has not been c
