S.S.Saron, J. - (1.) The petitioner in this petition under Articles 226/227 of the Constitution of India seeks quashing of the sub-section 2.3 of Section 3 of the Request for Proposal Document ('RFP Document' - for short) (Annexure-P.1) for selection of Private Sector Participants (PSP) whereby preferential treatment has been given to M/s Rohan & Rajdeep Infrastructure, Ahmednagar (respondent No.5) in the bidding process for the Ropar- Phagwara road as also for quashing the said preferential condition as mentioned in the advertisement dated 21.6.2005 (Annexure-P.2). A further prayer has been made for directing respondents No.1 to 4 to hold the bidding procedure as per the other provisions of the RFP Document and the provisions of the Punjab Infrastructure (Development and Regulation) Act, 2002 ('the Act' - for short). Besides, a direction is also sought for prohibiting respondents No.1 to 4 from proceeding further and initiating any step as per sub-section 2.3 of Section 3 of the RFP document (Annexure-P.1).
(2.) The State of Punjab with the avowed purpose of improving the road infrastructure in the State and with a view to operate and maintain the road infrastructure is seeking to involve the private sector for operation and maintenance of roads on a commercial format. The Act has been framed to provide for the partnership of private sector and public sector, participation of private sector in the development, operation and maintenance of infrastructure facilities and development and maintenance of infrastructure facilities through financial sources other than those provided by the State budget by following modern project management system and for matters connected therein or incidental therewith. In terms of the Act, the Punjab Infrastructure Development Board ('the Board' - for short) (respondent No.3) has been set up. The Board is a nodal agency for development of infrastructure by attracting private sector investment. The key objectives of the Board are:- i) Accelerate the process of infrastructure development & privatization; ii) Develop a shelf of investible projects through project identification and development; iii) Create a superior model for the privatization process; iv) Channelise international experience in project definition; v) Set objective/transparent criteria."
(3.) The Board has undertaken some road projects for developing a performance and toll base operation and maintenance strategy. The IL & FS Infrastructure Development Corporation ('the Corporation' - for short) (respondent No.4) is the Project Development Arm and is currently assisting the State Government for development infrastructure projects of Public Private Partnership firms (PPP) and accordingly, the Board has signed with the Corporation for the project, development and promotion partnership arrangements. Amongst the roads that have been identified for construction and maintenance are the Ropar-Phagwara road and Jagraon-Nakodar road with high level bridges across river Sutlej. The private sector parties are to undertake operation and maintenance activities and they have been allowed to recover the investment in operation and maintenance of the facilities through levy and toll collection at the rates as specified by the Punjab Government. The Board issued an advertisement dated 21.6.2005 (Annexure-P.2) regarding notice inviting proposal. It was indicated that the Board a nodal agency set up by the Government of Punjab for infrastructure development in the State on behalf of the Department of Public Works (B&R) (respondent No.2) invites proposals for operation and maintenance concessions for Ropar-Balachaur-Nawanshahr-Phagwara 80.7 kms. and Jagraon-Nakodar 38.2 kms. roads with high level bridges over Sutlej river. The offending clause in the said advertisement dated 21.6.2005 (Annexure- P.2) is that M/s Rohan & Rajdeep Infrastructure (respondent No.5) has been mentioned as a preferred bidder and it is indicated that the preferred bidder in the earlier bidding process shall be provided the right to match the bidder quoting the highest net toll. Besides, the earlier bidding process stands terminated. The petitioner M/s Kalthia Engineering and Construction Limited, Bhavnagar being interested to join the project applied for the RFP document for the above captioned project. The Board vide its letter dated 29.7.2005 (Annexure-P.3) supplied the RFP Document and also intimated that the last date for submission of the proposal was 2.9.2005 which had been extended to 12.9.2005. Section 3 of the RFP Document that has been supplied relates to; "Instructions to Bidders". Para-2 provides for the `Bidding Process' and para 2.3 is the offending clause of the RFP Document which gives preference to M/s Rohan & Rajdeep Infrastructure (respondent No.5) and it is mentioned that it is the preferred bidder in the earlier bidding process. It is to submit a fresh proposal in response to the RFP. Besides, it has been mentioned that it shall be provided the right to match the proposal of the bidder quoting the highest net toll and if it chooses to do so, their proposal shall be accepted and the award made in accordance with the provisions of RFP Document. In such event M/s Rohan & Rajdeep Infrastructure (respondent No.5) are to deposit a sum of Rs.10 lacs only with the Board (respondent No.3 ) which will be paid by the Board to the bidder whose toll of higher net toll was matched. The grievance of the petitioner is to the said offending clause in the RFP document and also in the advertisement dated 21.6.2005 (Annexure-P.2). It is submitted that from a reading of sub-section 2.1 it is clear that the earlier biding process has been annulled and from sub-section 2.3 it is clear that the prescribed bid is in favour of M/s Rohan & Rajdeep Infrastructure (respondent No.5) who is considered as the preferred bidder. The said conditions, it is stated, are in total violation of the spirit and provision of the Act as well as Article 14 of the Constitution of India and thus liable to be set aside being arbitrary, discriminatory, illegal, non est in the eyes of law and against the principles of natural justice.;