IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.1899 of 2011 M/S BANSIDHAR CONSTRUCTION PVT. LTD. AT PATILA, MANER PATNA THROUGH ITS DIRECTOR SUBHASH PRASAD YADAV, SON OF SRI PREMDHAR RAI, RESIDENT OF VILLAGE HETANPUR, POST MADHAWPUR, P.S. SAHPUR, DISTRICT PATNA……………………………………………...PETITIONER. Versus 1. THE STATE OF BIHAR THROUGH THE PRINCIPAL SECRETARY, WATER RESOURCES DEPARTMENT, GOVERNMENT OF BIHAR SICHAI BHAWAN, PATNA. 2. ENGINEER IN CHIEF-CUM-ADDITIONAL SECRETARY-CUM SPECIAL SECRETARY, WATER RESOURCES DEPARTMENT GOVERNMENT OF BIHAR, SICHAI BHAWAN, PATNA. 3. THE CHIEF ENGINEER, WATER RESOURCES DEPARTMENT, SIWAN. 4. SRI JITENDRA KUMAR NAME OF FATHER NOT KNOWN TO THE PETITIONER ESTIMATING OFFICER IN THE OFFICE OF CHIEF ENGINEER, WATER RESOURCES DEPARTMENT, SIWAN. 5. THE SUPERINTENDING ENGINEER FLOOD CONTROL CIRCLE, GOPALGANJ…………………...…….RESPONDENTS. For the petitioner : Mr. Naresh Kr. Malhotra, Sr. Advocate with Mr. Shivendra Kishore, Advocate. For the respondents : Ms. Nivedita Nirvikar, G.P.-3 P R E S E N T HON’BLE MR. JUSTICE S.N. HUSSAIN O R D E R 15/ 25.08.2011 This writ petition has been filed by the petitioner challenging order dated 22.01.2011 (Annexure-1) by which the Chief Engineer, Water Resources Department, Siwan (respondent no.3) disqualified the petitioner from participating in tender bearing NIT No.02 of 2010-11 so far Group 3 and Group 4 thereof were concerned and also for directing the respondents to consider the tender of the petitioner and in the event petitioner succeeds in the technical bid, to open financial bid so far Group 3 of the said tender was concerned - 2 - and also for directing the respondents to consider the tender document of the petitioner in accordance with law so far it relates to Group 4 of the said tender and further for restraining the respondents from issuing work order and executing an agreement with M/s Sanjay Construction with respect to Group 3 of the tender. 2. By I.A. No.1204 of 2011 filed on 11.02.2011 the petitioner has sought two more reliefs for quashing NIT No.08 of 2010-11 published in the daily newspaper ‘Hindustan’ dated 03.02.2011 inviting tender for the same work and to allow the petitioner to participate in NIT to be issued in future from Water Resources Department on the basis of registration in the said department to the extent of limit of 3.5 crore. 3. During the pendency of this writ petition, an interim order dated 14.02.2011 was passed staying operation of the impugned order dated 22.01.2011(Annexure-1) passed by the Chief Engineer, Water Resources Department, Siwan and the consequential orders (as detailed in the interlocutory application) till further orders of this court in this writ petition. 4. The petitioner is a construction company incorporated under the Companies Act 1956 and is also a registered Class-II contractor in the Water Resources Department having Registration No.141 of 2009 dated 14.07.2009. In response to NIT No.02 of 2010-11 issued on 14.12.2010 (Annexure-3) by which tenders were invited for four groups of work, the petitioner submitted his tender documents within time with respect to the work mentioned - 3 - in the Group 3 and 4 of the tender. For Group-3 works two tenders were submitted whereas for Group 4 petitioner was the only tenderer. 5. The Tender Committee held its meeting on 22.01.2011 in which tenders of all the group of tenderers were opened, but rejected the technical bids of the petitioner with respect to both Groups 3 and 4 of works of NIT in the light of letter dated 22.10.2010 (Annexure-4) issued by Engineer-In-Chief-cum-Additional Commissioner-Special Secretary, Water Resources Department, Government of Bihar, Patna (respondent no.2) which was produced by another tenderer, namely M/s Sanjay Construction, Musallahpur, Patna to the Estimating Officer at whose instance Tender Committee rejected the technical bid of the petitioner without making verification about the other tenderers, including the said M/s Sanjay Construction. However, the order of rejection of technical bid of the petitioner has not been communicated to him till date. 6. Learned counsel for the petitioner submitted that by the aforesaid order of the Road Construction Department dated 22.10.2010 (Annexure-4) 56 contractors including the petitioner were declared defaulter and were debarred from participating in any tender. Against the said order dated 22.10.2010 of the Road Construction Department, the petitioner has filed C.W.J.C. No.2107 of 2011, which has also been heard along with this writ petition. 7. Learned counsel for the petitioner further stated that the petitioner is also a registered Class-I contractor bearing Registration No.11 of 2007 (Road) in RCD dated 25.06.2007 - 4 - (Annexure-5) and the said order dated 22.10.2010 of the RCD is only with respect to petitioner’s above mentioned Registration No.11 of 2007 as Class-I contractor and is not with respect to petitioner’s Registration No.141 of 2009 dated 13.04.2009 as Class-II contractors. It is also stated that the nature of works to be executed under NIT No.02 of 2010-11 is completely different and distinct from work to be executed in RCD and even NIT No.02 of 2010-11 did not contain any term and condition that a contractor declared defaulter in Road Construction Department shall not be allowed to participate in NIT of Water Resources Department. Hence on that ground only the petitioner as Class II contractor cannot be legally debarred. 8. Learned counsel for the petitioner argued that in spite of the aforesaid facts and circumstances and in spite of having knowledge of the pendency of this writ petition, fresh NIT No.08 of 2010-11 was published on 03.02.2011 (Annexure-6) but the matter has remained stayed due to passing of the interim order by this court dated 14.02.2011. In these circumstances, learned counsel for the petitioner averred that the entire acts of the respondents were illegal and arbitrary and hence the petitioner was entitled to the reliefs claimed. 9. On the other hand, learned counsel for the respondents submitted that the petitioner participated in NIT No.02 of 2010-11 issued by the Water Resources Department, Siwan and his tender for Group 3 and Group 4 works was opened on 05.01.2011, but since the petitioner had already been debarred from participating in tender vide Water Resources Department’s letter dated 08.06.2009 on - 5 - the basis of letter received from the Road Construction Department dated 30.04.2009 which was again confirmed vide letter dated 22.10.2010 and was communicated to the petitioner also, the Tender Committee was quite justified in rejecting the technical bid of the petitioner in the meeting held on 22.01.2011 in the light of the aforesaid directions of the concerned department. 10. It is also stated that thereafter financial bid was opened and Group-3 work was allotted to M/s Sanjay Construction vide letter no.276 dated 24.01.2011 whereas NIT for Group-4 work was cancelled as the petitioner was single tenderer vide letter no.254 dated 22.01.2011. He further claimed that since the petitioner was debarred from participating in tender vide letter dated 22.10.2010, the authority concerned had no option but to reject the technical bid of the petitioner on the basis of instructions of the department. 11. Considering the respective arguments of learned counsel for the parties and the materials on record, it is quite apparent that the only ground for passing the impugned order dated 22.01.2011 disqualifying the petitioner from participating in tender bearing NIT No.02 of 2010-11 is letter no.4475 (E) dated 22.10.2010 by which the Engineer-In-Chief, Road Construction Department, Government of Bihar, Patna debarred the petitioner and others from participating in any NIT in any works of the department. The said order of the Engineer-In-Chief, Road Construction Department, vide letter no.4475 (E) dated 22.10.2010 (Annexure-4) along with other orders dated 17.04.2009 and 26.06.2009 of the concerned authorities were - 6 - challenged by the petitioner in another writ petition bearing C.W.J.C. No.2107 of 2011. In the said writ petition all the parties concerned were heard and by a detailed order the said writ petition bearing C.W.J.C. No.2107 of 2011 was allowed and orders dated 22.10.2010, 17.04.2009 and 26.06.2009 were quashed declaring them to be illegal and not sustainable in law so far the petitioner is concerned. 12. The said orders were the basis of order dated 22.01.2011 (Annexure-1) passed by the Chief Engineer, Water Resources Department, Siwan which is under challenge in this writ petition and hence when the said orders dated 22.10.2010 (Annexure-4) and others have been quashed by this court, the basis of the impugned order dated 22.01.2011 (Annexure-1) has gone and it cannot be legally allowed to remain. 13. Furthermore, it is an admitted fact that petitioner had submitted his tenders only for Group 3 and Group 4 of NIT No.02 of 2010-11 and out of them there were two tenderers for Group 3 works including petitioner, whereas for Group 4 petitioner was the only tenderer. It has also come to light that after the impugned order Group 3 work was allotted to the other tenderer M/s Sanjay Construction vide letter no.276 dated 24.01.2011. The petitioner has neither challenged the said allotment letter dated 24.01.2011 nor has impleaded the said allottee in the instant writ petition, hence the said allotment of Group 3 work to M/s Sanjay Construction cannot be legally interfered with. However, so far Group 4 work is concerned the petitioner was admittedly the single tenderer and hence it has remained - 7 - unaffected and has not been allotted to anyone. 14. Considering the facts and circumstances, the respective arguments of the parties and the materials on record, it is held that the impugned order dated 22.01.2011 (Annexure-1) passed by the Chief Engineer, Water Resources Department, Siwan disqualifying the petitioner from participating in the tender is hereby quashed and this writ petition is allowed directing the respondents to proceed with the tender submitted by the petitioner for Group 4 works in accordance with law. Harish (S.N. Hussain, J.)