IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.19057 of 2011 M/S Simanchal Construction, a partnership firm through its partner Sri Samar Nath Singh son of Sri Hari Mohan Singh, resident of Ashram Road, Ward No.16, Araria, P.S. & Distt- Araria…..Petitioner. Versus 1. Bihar Rajya Pul Nirman Nigam Ltd., Daroga Rai Path, Patna through its Managing Director. 2. The Managing Director, Bihar Rajya Pul Nirmal Nigam Ltd., Daroga Rai Path, Patna. 3. The Senior Project Engineer, Road Division, Bihar Rajya Pul Nirman Nigam Ltd., Daroga Rai Path, Patna. 4. M/s Shakti Shankar Construction Company Private Limited, Maharaja Building, Karman Tola, Ara (Bhojpur)………………………………………Respondents. For the petitioner : Mr. N.K. Malhotra, Sr. Advocate with M/s Raj Kishore Prasad, Tej Bahadur Roy and Mariya Fatma, Advocates. For the State : Mr. Sanjay Singh-II, Advocate. For respondent nos.1 – 3 : Mr. Gautam Saha, Advocate. For respondent no.4 : Mr. Raghib Ahsan, Sr. Advocate with Mr. Ashutosh Ranjan Pandey, Advocate. ---------------------------------- 05/ 05.12.2011 Heard learned counsel for the petitioner, learned counsel for respondent nos.1 to 3 and learned counsel for the private respondent no.4. 2. This writ petition has been filed by the petitioner for the following reliefs:- (i) To issue an appropriate writ(s), order(s), direction(s) in the nature of writ of mandamus directing the respondents to allot the tender for the work of upgradation of Manihari Amdabad Road from Kilometer 7 to 26 part in the District of Katihar to a person who has been declared successful in the technical bid and not to a person/contractor who has been declared disqualified/out of the race by the respondent authorities themselves. (ii) To any other relief or reliefs for which the petitioner is found to be entitled in the facts and circumstances of the case. - 2 - 3. The claim of the petitioner is that on 19.08.2011 NIT was published on the website as per E – Tendering Process whereafter five tenderers submitted their tenders and only the technical bid of the petitioner was found to be proper, whereas the others including respondent no.4 were found to be out of race due to the defect in their tenders. Learned counsel for the petitioner further claims that in spite of the aforesaid fact financial bids of three bidders including the petitioner and respondent no.4 were opened on 17.10.2011 (Annexure-3) and out of them respondent no.4 was selected on the assumption that he was the lowest bidder. 4. Learned counsel for the petitioner submits that the entire process was manipulated as when on 17.10.2011 the petitioner downloaded the result dated 10.10.2011 it was found to be changed as three firms including the petitioner and respondent no.4 were noted to be in the race. It is claimed that Annexure-G to the counter affidavit of respondent no.4 clearly showed that NOC was only with respect to debarment, whereas no affidavit regarding debarment was ever given by respondent no.4. Learned counsel for the petitioner also submits that admittedly respondent no.4 filed affidavit regarding rescinding only but for debarment he gave statement only on letter head presuming that affidavit regarding rescinding or debarment was to be given which was against the provision made in column-2 (iv) of the NIT. Learned counsel for the petitioner also argues that from Annexure-B/1 and B/2 it is quite apparent that objection to the earlier selection of - 3 - technical bid of the petitioner only, which were filed by respondent no.4 and the other concern, namely M/s Topline Infra Project Private Limited, were verbatim the same. He also states that although the order was passed by Managing Director on 13.10.2011 (Annexure-C) with respect to corrections made in the selection of the petitioner on 10.10.2011, but when it was downloaded (Annexure-D) it was found that on 10.10.2011 the said corrections had already been made without any order of the authority. In these circumstances learned counsel for the petitioner submits that all the persons concerned were hands in gloves against the petitioner. 5. On the other hand, learned counsel for respondent authorities (respondent nos.1 to 3) vehemently contests the claim of the petitioner giving the details of the chronology and also avers that Clause 10 of the NIT showed that all informations and corrections would be published on website and number of website was given in Clause 12. He also submits that Clause 11 showed that all informations for E – Tendering and Registration could be obtained from E – Procurement Help Desk 22. Hence if the petitioner required any information he should have obtained it from the website and should have immediately taken steps in that regard. He also argues that objection of the two objectors including respondent no.4 to the original selection of petitioner was considered by the authority as per the provision of NIT and was decided and published on website, but the petitioner having not taken any step in that regard his claim is absolutely frivolous - 4 - and misconceived. 6. Learned counsel for respondent no.4 also contests the claim of the petitioner emphasizing on Clause 2 (iv) of the NIT (Annexure-A) and affidavit of respondent no.4 dated 05.09.2011 (Annexure-B) and the evaluation of respondent no.4 in which NOC with regard to debarment was found to be present. He also relies upon Annexure-G of his counter affidavit with respect to NOC for debarment which was found to be not applicable. 7. Learned counsel for respondent no.4 relies upon the provision of section 24 of the Bihar General Clauses Act, 1917 according to which the authorities having power to do any thing has power to undo the same. A similar provision has been made vide section 21 of the Central General Clauses Act, 1897. He further relies upon a decision of the Apex Court in case of Amir Shad Khan vs. L. Hmingliana and others, reported in (1991) 4 Supreme Court Cases 39 and avers that nobody can legally be allowed to suffer due to wrong committed by others. 8. Considering the arguments of learned counsel for the parties and the materials on record, it is quite apparent that NIT was issued on 19.08.2011 through E–Tendering Process fixing 06.09.2011 as the last date for submission of tenders. It is also not in dispute that the last date for opening the technical bid was 07.09.2011 but the technical bids of all the five tenderers were opened on 08.09.2011, whereafter the Senior Project Engineer, Road Division, Bihar Rajya Pul Nirman Nigam Limited - 5 - (respondent no.3) put the tenders for verification by Deputy Chief Engineer, South Bihar Circle on 21.09.2011 and ultimately the petitioner was declared successful on 10.10.2011, whereafter respondent no.4 and another, namely M/s Topline Infra Project Private Limited filed objections on 11.10.2011. All these facts are not in dispute. 9. It transpires that thereafter the Managing Director considered the matter in detail including the claim of the objectors and vide order dated 13.10.2011 found that two of five tenderers had technically failed but the remaining three including the petitioner, respondent no.4 and M/s Topline Infra Project Private Limited technically qualified and hence Senior Project Engineer was directed to open the financial bid of the said three tenderers, who had qualified in their technical bids. This order has not been challenged by anyone. 10. It also transpires from the document produced by the respondents that E–Procurement Help Desk rectified the entries as per the said direction of the Managing Director accepting the technical bid of the above named three tenderers including the petitioner and respondent no.4 on 14.10.2011. Subsequently financial bids of all the three tenderers aforementioned were opened on 17.10.2011 and the financial bid of respondent no.4 being the lowest he was rightly declared successful. 11. So far the points raised by learned counsel for the petitioner regarding similarity in the objection of two - 6 - tenderers, who had challenged the selection of the petitioner, is concerned, this does not show that the authorities also were hands in gloves with the objectors. 12. So far the objection of learned counsel for the petitioner that website of 10.10.2011 (Annexure-D) showed entries as per the order of the authority dated 13.10.2011 is concerned, it is quite obvious that the authority which made entries in the website had corrected the earlier entries after subsequent developments without change in the dates. Hence, these objections do not hold good. 13. So far the objection of respondent no.4 is concerned, the NIT itself contained provisions according to which such objections could be raised and hence it cannot be said that objection raised by respondent no.4 was illegal. Furthermore the Managing Director had the authority of deciding the matter and he had decided the same legally. He was careful enough not to reject the technical bid of the petitioner, rather technical bids of two other tenderers which were found in order were also included for consideration of their financial bid. Furthermore, in the financial bid no illegality can be presumed as respondent no.4 was the lowest bidder and the authorities were bound to accept his bid, specially when no other infirmity was found. 14. In the aforesaid facts and circumstances, this court does not find any merit in this writ petition, which is accordingly dismissed. Harish (S.N. Hussain, J.)