IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.14913 of 2009 1. M/S GHANSHYAM LAL THROUGH ITS MANAGING PARTNER G.L. MADHOGARIA @ GHANSHYAM LAL MADHOGARIA S/O LATE LAXMI NARAYAN MADHOGARIA R/O SIMRAHI BAZAR, P.O.- SIMRAHI BAZAR, P.S.- RAGHOPUR, DISTT- SUPAUL Versus 1. THE STATE OF BIHAR THROUGH THE CHIEF SECRETARY OLD SECRETARIAT, PATNA 2. THE PRINCIPAL SECRETARY, ROAD CONSTRUCTION DEPARTMENT VISHESHWARAIYA BHAWAN, BAILEY ROAD , PATNA 3. THE SECRETARY, ROAD CONSTRUCTION DEPARTMENT VISHESHWARAIYA BHAWAN, BAILEY ROAD , PATNA 4. THE ENGINEER - IN- CHIEF -CUM ADDITIONAL SECRETARY CUM -SPECIAL SECRETARY, ROAD CONSTRUCTION DEPARTMENT VISHESHWARAIYA BHAWAN, BAILEY ROAD , PATNA 5. THE CHIEF ENGINEER ,TRANSPORT, NORTH BIHAR SECTION, ROAD CONSTRUCTION DEPARTMENT DARBHANGA 6. THE SUPERINTENDING ENGINEER, ROAD CONSTRUCTION DEPARTMENT ROAD CIRCLE, SAHARSA 7. THE EXECUTIVE ENGINEER, ROAD CONSTRUCTION DEPARTMENT SUPAUL ----------- 03. 12.01.2010 There were many rounds of litigations carried out by the petitioner based on the origin of an enquiry and blacklisting for having violated clause 11(ka) of Bihar Contractors Registration Rule, 2007. The short facts which requires to be noticed is that a tender was invited on 29.11.2008 for carrying out some activity of providing cross drainage and road saving work on NH 57 on the kilometers indicated in paragraph 5 of the writ application. The notice inviting tender got response from the petitioner and three other contractors. On the opening of the technical bid and thereafter the financial bid, petitioner’s financial bid was found to be most responsive and therefore a recommendation for award of contract in his favour was made 2 at the local level. There was yet another bidder i.e. Vishal Builtech(I) Private Limited. The said contractor having failed to corner the contract made certain allegations about the manipulation in the bid documents submitted by this petitioner. It was alleged that the petitioner with the cooperation of the local authorities had managed to change the financial bid by bringing new documents along with the standard contract documents and cornered the contract. The complaint and the allegation was referred to the Vigilance, which carried out an enquiry by visiting the local office. Prima facie some substance was found in the allegation and petitioner along with Vishal Builtech(I) Private Limited came to be issued show causes as to why action should not be taken under the relevant rule of 2007 relating to registration of contractors in Bihar. Annexure 3 is the show cause issued to the petitioner and Annexure3/1 is the one issued to M/S Vishal Builtech (I) Private Limited. Petitioner had earlier approached the High Court by filing C.W.J.C. No. 7126 of 2009. The matter was then heard and vide order dated 06.08.2009 the writ application came to be rejected with liberty to the petitioner to claim refund of the earnest money and also participate in fresh tender if there was no other bar from his participation. This order is Annexure-7 to the writ application. Something more happened in the meanwhile. 3 Based on the show cause and the response of the petitioner to the said show cause, the Engineer-in-Chief passed an order of blacklisting against the petitioner, recording a finding with regard to manipulation in the bid documents. The said order is dated 19.08.2009 and is Annexure-9. Annexure-9 became a subject matter of challenge in C.W.J.C. No. 11412 of 2009. Vide Annexure-10 dated 07.09.2009 the said writ application was disposed of granting liberty to the petitioner to file an appeal since there is a provision in the rule by which he was blacklisted. The appeal lay to the Secretary of the Department. Petitioner filed his appeal. The appeal was heard so was the petitioner and a final order dated 24.09.2009 contained in Annexure12 came to be passed. Petitioner is again back to the High Court not only challenging the order of blacklisting but also the order passed in appeal by the Secretary of the Department. Submission of the learned senior counsel is that per-se there is a kind of discrimination in matter of blacklisting of the petitioner vis-a-vis Vishal Builtech(I) Private Limited, the company at whose behest the enquiry was conducted. He alleges that the said company has been exonerated by an order passed by the Engineer-in-Chief vide order dated 06.11.2009 which has been brought on record as Annexure-15 by way of a supplementary affidavit. The blacklisting of M/S Vishal Builtech (I) Private Limited has 4 been set aside for the reasons indicated therein. The contention of the learned senior counsel is that the show cause came to be issued in similar circumstance in terms of Annexure-3 and 3/1 to both the petitioner and the Vishal Builtech (I) Private Limited then how come Vishal Builtech(I) Private Limited has been exonerated and the blacklisting of the petitioner upheld. Other submission made at the bar is that not all points raised by the petitioner before the appellate authority in his memo of appeal has been considered and answered. He wants reconsideration of the matter in light of Annexure-15 which has exonerated Vishal Builtech (I) Private Limited. Learned Additional Advocate General No. 11 representing the State has also filed counter affidavit and made his submissions. His primary submission is that there is no similarity in the facts and circumstances which lead to blacklisting of the petitioner vis-à-vis Vishal Builtech(I) Private Limited. In the case of petitioner the order of blacklisting came to be challenged in an appeal on the direction of this Court and the appellate authority based on the findings arrived at has upheld the decision of the Engineer-in-Chief. Evidence had come that there was certain manipulation and change made in the bid document specially in the last few pages to corner the contract and this finding has not been dislodged at the level of appeal in any fashion by learned 5 counsel representing petitioner before the appellate authority. Another aspect which has been pointed out is that in case of Vishal Builtech(I) Private Limited a writ application was also filed by him. After a detailed consideration the order of blacklisting was set aside and matter remanded back for fresh consideration. The order in question is Annexure-14 to the writ application. After remanded the matter was examined and in absence of any clear finding of wrong doing by Vishal Builtech(I) Private Limited of any fraudulent activity, Annexure-15 came to be issued in his favour. There is nothing to show from records that the petitioner has been able to wash away the taint and the finding about the manipulation in the bid documents. Petitioner thereafter also contends that he was not given a fair opportunity. He was not provided relevant documents and that prevented his fair participation and defence in the proceeding. But there is material on record to show that the petitioner was granted indulgence to inspect all the records in the office and for obvious reasons those documents could not be handed over to the petitioner. In any case those documents had been filed by the petitioner before the authorities and even an inspection could have been good enough to prepare his defense. But to give yet another opportunity to the petitioner to demonstrate before the appellate authority that 6 there was no difference between the case of the petitioner vis- a-vis Vishal Builtech(I) Private Limited who stands exonerated, the Court is wiling to relegate the petitioner to the appellate authority to demonstrate the so called similarity. Without expressing any opinion on the merits of the two orders contained in Anexure-9 and Annexure-12, the writ application is disposed of with liberty to the petitioner to bring all these aspects to the notice of the Secretary. The appellate authority may pass an appropriate order if the petitioner succeeds in establishing parity with Vishal Builtech(I) Private Limited. Since the order of blacklisting has consequence for the petitioner, it is advisable that his matter is decided within a period of eight weeks from filing of such an application by the petitioner before the appellate authority. The writ application stands disposed off. Shageer (Ajay Kumar Tripathi, J)