IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.575 of 2010 M/S Yadav Construction Through Its Proprietor, Shri Sudarson Prasad Yadav S/O Late Bhukhan Prasad Yadav R/O Vill- Shri Nagar, P.O-Siwan, P.S- Siwan Mufassil, Distt- Siwan … Petitioner Versus 1. The State Of Bihar 2. The Secretary Cum Commissioner Building Construction Department, Patna 3. The Chief Engineer Building Construction Department, Patna 4.The Superintending Engineer Building Construction Department Building Circle Siwan, Distt- Siwan 5.The Executive Engineer Building Construction Department Building Circle Siwan, Distt- Siwan ------- For the Petitioner : M/s Raghib Ahasan, Sr.Advocate and Chandra Kant, Advocate For the State : Mr. Abhinay Raj, A.C. to A.A.G. 2 ------ 07/ 09.08.2011 Heard learned counsel for the petitioner and learned counsel for the respondents. 2. This writ petition has been filed by the petitioner challenging letter dated 07.11.2009 (Annexure 6), by which the Superintending Engineer, Chapra cancelled the tender of the petitioner and others and directed for issuance of fresh notice inviting tender and also for directing the respondents to consider his financial bid and take steps accordingly. 3. During the pendency of this writ petition, the respondents were restrained from taking any steps for issuance of fresh tender for the work with respect to Sub-Divisional Veterinary Hospital, Siwan. - 2 - 4. The admitted case of the parties is that earlier notice inviting tender for construction of new building of Sub-Divisional Veterinary Hospital, Siwan was issued by the authorities on 17.07.2009, in response to which three persons including the petitioner sent their bids. It appears from letter dated 16.10.2009 (Annexure 3) that the technical bid was considered by the authorities concerned and 21.10.2009 was fixed for opening the financial bids and all the bidders were directed to appear on that date either themselves or through their representatives. 5. From the Chart prepared by the authorities dated 21.10.2009 (Annexure `A’ to the supplementary counter affidavit), it transpires that all the bidders either themselves or through their representatives appeared on 21.10.2009 before the authorities, who opened financial bids of only two bidders, including the petitioner and found their bids to be 10% and 20% above the estimated cost, respectively. However, thereafter no step was taken as it was noted in that chart that since the required papers were not supplied with the technical bid, no bidder could be declared to be successful and recommendation was made for issuance of a fresh notice inviting tender. It further transpires that in view of the said observation, the Superintending Engineer directed issuance of a fresh notice inviting tender vide impugned order dated 07.11.2009 (Annexure 6). 6 Learned counsel for the petitioner has specifically stated that all the required documents were filed by the petitioner, which is apparent from letter dated 21.06.2010 (Annexure 8), issued - 3 - by the Executive Engineer concerned and hence the said ground taken by the authorities concerned is not viable and justified. Learned counsel for the petitioner further submits that the impugned step has been taken by the authorities only when it was found that the financial bid of the other bidder was higher than the bid of the petitioner. 7. Learned counsel for the respondents has vehemently contested the claim of the petitioner and has relied upon a decision of the Apex Court in case of M/s Master Marine Services Pvt. Ltd. vs. Metcalfe & Hodgkinson Pvt. Ltd. and another, reported rted in A.I.R. 2005 S.C. 2299, in which it was held that the Government being the guardian of the finances of the State is expected to protect its financial interest and the right to refuse the lowest or any other tender is always available to the Government. Hence he submits that the authorities were justified in rejecting the aforesaid tender in the interest of the State. 8. From the aforesaid facts and circumstances of this case, it is apparent that the entire procedure adopted by the petitioner appears to be quite strange as financial bids are opened only after the technical bids are found to be satisfactory, fulfilling all the requirements including filing of the documents with the technical bids. In the instant case, the technical bids of three candidates were found to be satisfactory as is apparent from letter dated 16.10.2009 (Annexure 3) and only thereafter it was directed in the said letter that all the bidders should appear on 21.10.2009 for opening of financial bids. - 4 - From Annexure `A’ to the supplementary counter affidavit it appears that on 21.10.2009 financial bids of two persons including the petitioner were opened and only thereafter the authorities declined to publish any result or to open the financial bid of the third person on the ground that the required documents were not filed. This reasoning cannot be held to be legal and justified because if the bidders had not filed the required documents, their technical bids should have been rejected and there was no occasion for opening their financial bids. 9. From the materials on record, it is clear that the reasoning given by the authorities for rejecting the tender of the petitioner was not due to any loss caused to the State Government, rather the ground given was something else i.e. non-supply of the required documents, which ground has already been found to be wrong. In the said decision in case of M/s Master Marine Services Pvt. Ltd. (supra), the Apex Court has also held that in any view of the matter, principles laid down in Article 14 of the Constitution of India have to be kept in view while accepting or refusing a tender and if the right to choose is exercised for any collateral purpose, the exercise of that power has to be struck down. 10. Considering the matter in its entirety, the arguments of learned counsel for the parties, the materials on record and the principles of law applicable to the case, this writ petition is allowed. Impugned letter dated 07.11.2009 (Annexure 6) issued by the Superintending Engineer, Building Construction Department, Siwan, is quashed and the authorities are directed to open the financial bids of - 5 - all the three candidates and proceed thereafter in accordance with law selecting the lowest bidder. However, the authorities will be at liberty to ask any or all the bidders to supply the required papers if the same have already been taken away by them. MPS/ (S.N.Hussain, J.)