Mohammad Akram Khanday vs UT Of J&K & Another

Sanjeev Kumar, J

1) The petitioner is aggrieved of and has called in question the decision of respondents to arbitrarily and abruptly ending the e-bidding process at 18:29:35 on 23rd April, 2024, which, as per the petitioner, was closed before the time when the e-bid ought to have been closed. The petitioner prays for declaring the action of the respondents in awarding the contract to the highest bidder found at the time of closure of the bidding process as illegal. A Mandamus is also sought for directing the respondents to declare the petitioner as highest bidder at 18:30:12 on 23rd April, 2024.

2) Before adverting to the grounds of challenge urged and the precise grievance projected by the petitioner in this petition, it is necessary to notice few facts which are germane to the disposal of the controversy raised in this petition.

3) The Pahalgam Development Authority [“PDA”], issued an e-bid notice through GeM (Government e-Marketplace) portal on 2nd April, 2024, for outsourcing of Operation and Management of various assets of PDA on license basis. After completion of technical specifications of respective bidders, the petitioner along with few others was declared qualified to participate in the bidding process. The bidding process was initiated/commenced on 20th April, 2024 and continued till 23rd April, 2024. As is pleaded, the last bid of the petitioner registered by the system at 18:30:12 on 23rd April, 2024, was Rs.19.25 crores. This was the last highest bid received by the system. However, in the status column as against the bid of the petitioner, it was shown “rejected by the system with remarks that the auction has been stopped”. The penultimate bid registered by the system at 18:29:35 on 23rd April, 2024 was Rs.19,02,50,000/. The highest bid of the petitioner was rejected on the ground that pursuant to a decision taken by the respondents, the bidding process was closed at 18:30:00.

4) The grievance of the petitioner is that this arbitrary closure of the bid at 6.30 PM without any prior notice deprived the petitioner of the contract despite that he was the highest bidder at 18:30:12 on the last date of bidding i.e. 23rd April, 2024. And as a consequence, PDA declared the last bid of one Mohammad Shafi Malik, who had quoted 19.10 crores at 18:29:54 on 23rd April, 2024, as having been accepted. It is this decision of the PDA, whereby highest bid of Mohammad Shafi Malik quoted at 18:29:54 has been accepted, which is subject matter of challenge in this petition on multiple grounds.

5) Having heard learned counsel for the parties and perused the material on record, it is seen that Mohammad Shafi Malik, who has, admittedly, been declared as the highest bidder and his bid has been accepted, is not arrayed as party/respondent. It is true that neither formal acceptance of the bid is yet conveyed to Mohammad Shafi Malik nor any formal order of allotment has been issued by PDA in his favour. However, it cannot be denied that by indicating in the system that the highest bid of Mohammad Shafi Malik stands accepted, a vital right is created in Mohammad Shafi Malik.

6) Indisputably, the highest bidder, namely, Mohammad Shafi Malik is beneficiary of the impugned action of the respondents and, therefore, a necessary party to be heard in the matter. In the absence of Mohammad Shafi Malik being the party/respondent, the reliefs claimed by the petitioner cannot be granted. Without commenting upon merits of case of the petitioner, suffice it to say that this petition cannot proceed in the absence of Mohammad Shafi Malik being a necessary party and, therefore, is not maintainable. This petition is, accordingly, dismissed along with connected CM. It shall, however, remain open to the petitioner to file a fresh petition on the same cause of action after impleading Mohammad Shafi Malik as party/respondent.