IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.8935 of 2008 M/S AJAY ENGICON PVT.LTD. THROUGH ITS DIRECTOR AJAY KUMAR SINGH @ AJAY SUMAN, S/O MATHURA PD. SINGH, HAVING ITS REGISTERED OFFICE AT HARIHAR SINGH ROAD, MORABADI, PS-BARIATU, RANCHI,JHARKHAND ----------------------------------PETITIONER Versus 1. THE STATE OF BIHAR 2. THE PRINCIPAL SECRETARY, WATER RESOURCES DEPARTMENT, GOVT. OF BIHAR 3. THE ENGINEER-IN-CHIEF, WATER RESOURCES DEPARTMENT, GOVT. OF BIHAR 4. THE CHIEF ENGINEER WATERWAYS DIVISION, GAYA 5. THE S.E. WATERWAYS CIRCLE, BIHARSHARIF 6. THE EX-ENGINEER, WATERWAYS DIVISION BIHARSARIF 7. JKM INFRA PROJECT PVT. LTD. C-84 GREATER KAILASH, NEW DELHI-110048---------------------RESPONDENTS. ----------- For the Petitioner: Mr. Sanjay Kumar, Advocate For the State: Mr. H.S.Roy, AC ti AAG-2 For the Respondent Mr. Ambuj Nayan Chudhary, Advocate No.7 ---------- 9 10.5.2010 Heard learned counsel for the parties. The department of Water Resources, Government of Bihar issued NIT No.4 of 2007-08 for three groups of work on 19.2.2008. The last date of submission of tender was 27.2.2008. The work in question was for raising and strengthening of Zamindari bundh. Petitioner happens to be one of the persons who had participated in the tender but his effort was cut short by the respondent authority when his technical bid was rejected. Work came to be assigned to private respondent, namely, J.K.M. Infra Project Private Limited. When the writ application was filed and initially argued a Bench of this Court had certain observations to make which is reflected in the order dated 20.8.2008. Thereafter the original records were called for by the Court and on the outcome of the perusal of the original record and the impression gathered - 2 - by the Court is reflected in the order dated 23.9.2008. Further opinion of the Court has also been recorded in detail on 26.9.2008. It may also be noticed that in terms of the background and the observation of the Court a kind of stay order was passed and the private respondent was restrained from proceeding with the contract. Pleadings have been completed on behalf of the State. The private respondent has appeared through a counsel but had chosen not to file any affidavit in opposition to the writ application. The stand of the State is however available in the counter affidavit and in the supplementary counter affidavit which was filed justifying the action and the decision. Now the Court has gone through the original records and perused the various orders passed from time to time. It has clearly emerged that the two kinds of yard sticks have been adopted by the tender committee in relation to the tender filed by the petitioner viz the private respondent. The stand of the State as reflected in paragraph 8 of the counter affidavit is that the petitioner had submitted a bid capacity but did not submit the list of the works going on and the works in hand duly certified by the Engineer in-charge of the project. This according to them was breach of the terms and conditions. But the State has very authoritatively not asserted that this private respondent no.7 had not done the same. If the omission on the part of petitioner led to his disqualification then obviously there were extraneous reasons - 3 - for not applying the same yard stick against the private respondent no.7. This Court can very well understand the silence on the part of the private respondent and their reason for not filing any counter affidavit in opposition because the original records would show all and there is no scope for refutability Faced with the above position the Court has no hesitation in recording that the members who were at the helms of affairs and who decided the contract in question have not been fair to the petitioner and tilt in favour of private respondent no.7 is obvious from the record. Least the Court would like to do is to quash the tender which has been assigned in favour of respondent no.7 including the so called agreement entered between department and him with a direction that the Department will be fair to all in their decision in such matters. Another aspect which the Court must record before parting is that the Principal Secretary, Water Resources Department Government of Bihar is also required to look into the background to the award of the contract and the aberration which has been committed by the tender committee in this regard. This writ application is allowed. The original records are handed over to learned counsel for the State to be returned to the Department on receipt being obtained on the ordersheet. RPS (Ajay Kumar Tripathi,J.)