IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.502 of 2010 1. ABHAY KUMAR SINGH S/O KRISHNA KUMAR SINGH R/O VILL- DEVARIA, P.O. DEVRIA, P.S. UDBANT NAGAR, DISTT. BHOJPUR Versus 1. THE STATE OF BIHAR 2. THE SECRETARY URBAN DEVELOPMENT DEPTT., GOVT. OF BIHAR, PATNA 3. THE DISTRICT MAGISTRATE BHOJPUR, ARRAH 4. THE MAYOR ARRAH NAGAR NIGAM, ARRAH 5. THE NAGAR AYUKT ARRAH NAGAR NIGAM, ARRAH 6. THE CHIEF ENGINEER ARRAH NAGAR NIGAM, ARRAH 7. MANOJ KUMAR SINGH S/O NOT KNOWN R/O VILL- PACHMA, P.S. PIRO, DISTT. BHOJPUR 8. SRI AMIT KUMAR KESHRI S/O SRI BISHESHWAR PRASAD R/O MAHANJAN TOLA, P.S. ARA NAGAR, DISTT. BHOJPUR 9. SRI DHIRAJ KUMAR S/O SRI KRISHNA SINGH R/O MAHATMA GANDHI NAGAR, ARA, P.S. ARA NAGAR, DISTT. BHOJPUR 10. SRI SHRIMAN NARAYAN SINGH S/O SRI ASHWANI KUMAR R/O RAUZA, PS. ARA NAGAR, P.O. CHAK ARA, DISTT. BHOJPUR 11. SRI KRISHNA KUMAR SINGH S/O SRI RAMANAND SINGH R/O MOH- JAGDEONAGAR, P.O. & P.S. NAWADA ARA, DISTT. BHOJPUR 12. SRI NARENDRA KUMAR S/O RAM BACHAN SINGH R/O MOH- VIR SINGH COLONY, KATIRA ARA, P.S. ARA NAWADA, P.O. ARA NAWADA, DISTT. BHOJPUR ----------- For the Petitioner :- Mr. Ramakant Sharma, Sr. Advocate, Mr. Brajesh Prasad Gupta & Mr. Raj Nandan Prasad. For the State :- Mr. A. Amanullah, SC XVII For Arrah Nagar Nigam:- M/S. Nityanand Mishra & Santosh Kumar. ------ 5 18/02/2010 Petitioner is one of the contractors who is registered with other departments of the State of Bihar and was not - 2 - barred from participation in tender which was invited by the respondent Arrah Nagar Nigam vide N.I.T. No. 4/09. 64 works had been indicated in that notice inviting tender. Many persons responded to the said notice which included contractors registered with Nagar Nigam as well as contractors registered with other departments. The petitioner bid for work nos. 5,7,14, 26,30 and 31. Tender papers were opened and evaluated. In majority of the tenders the price quoted by the tenderers was 10% below the estimated price of the work concerned. With the uniformity of rate having been quoted, it created an anomalous situation for the respondents because in none of the tenders there was a lowest bidder who could be awarded the contract. All these facts, therefore, came to be placed before a committee of three persons and the deliberations based on which the work have been awarded to various contractors have been meticulously recorded. The said decision dated 23.11.2009 has been brought on record as Annexure-F to the counter affidavit filed on behalf of respondent nos. 5 & 6 i.e. Nagar Nigam. For every work reason for the decision and award of the tender have been - 3 - discussed. The Court does not have to go through other work assigned to other contractors since we are concerned with the issue raised by the petitioner in the writ application. The petitioner has not been awarded work in any of the six works, namely, 5,7,14, 26, 30 and 31. Ouster of the petitioner compelled him to file the present writ application. First submission made on behalf of the petitioner is that the decision to award tender has been taken in adhoc and arbitrary manner without any uniform yard stick. Second submission is that P.W.D. Code Volume I Rule 163 envisages situation where there are more than one lowest tenderers. In situation of a tie, like the present one, a draw of lots is to be held in presence of the participants. This has not been done in the present case. Some work has been awarded to contractors who are registered with the Nagar Nigam. Some work has been awarded to outside contractors but on the ground that they had better work experience and there is a case also where work has been assigned to yet another registered contractor of the Nagar Nigam on the ground that one person had already been granted three works and it may - 4 - not be in the interest of the Nigam to assign all the responsibilities upon one contractor. The respondents, on the other hand, have justified their decision and it was to demonstrate their fairness in the decision making process that the entire minutes and decisions have been brought on record. Their stand is that they had to improvise and find ways and means of awarding contract in view of number of participants and the commonality of the price which came to be quoted by them. They do not deny that they had to work out modalities but that innovation is truly reflected in the decision. If there was any arbitrariness or favourites to be accommodated such a detailed reasoning would not have been recorded in the award of work. The Court has gone through the decisions and would like to certify that the manner in which the contracts have come to be awarded and in the background in which the decision has been taken was out of compulsion of the circumstances prevalent and the situation which the Committee faced. Since majority of these bodies are product of the 73rd Constitutional Amendment and are in place and made functional only recently, they do not have the kind of - 5 - expertise and exposure which other government departments have had over many a decades. There are situations where they are not even rendered proper guidance and advice by the people sitting in Patna on this issue. If only some body had brought to their notice the provision of Rule 163 of P.W.D. Code, may be the method of awarding work by draw of lots might have been adopted. But in the totality of the pleadings and the materials and looking at the volume of the work and the nature of the work, the Court is not willing to upset the award of tender even though for argument sake some infirmities here and there can be pointed out. The Court can only observe that Nagar Nigam will learn by experience and in future in the notice inviting tender they shall try to incorporate such terms and conditions which may be utilised in case similar situation arises or they will take recourse to Rule 163 of P.W.D. Code. No interference is required in this writ application. This writ application is accordingly dismissed. AMIN (Ajay Kumar Tripathi, J.)