IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.8630 of 2009 M/S JHA & COMPANY THROUGH ITS PROPRIETOR TARA SHANKAR JHA SON OF LATE JATA SHANKAR JHA, RESIDENT OF K. M. TANK (PHULWARI) P.S. LAHERIASARAI, DISTRICT DARBHANGA. Versus 1. THE STATE OF BIHAR 2. THE DISTRICT MASGISTRATE, DARBHANGA. 3. THE DARBHANGA MUNICIPAL CORPORATION, DARBHANGA. 4. THE COMMISSIONER, DARBHANGA RANGE, DARBHANGA. 5. THE MUNICIPAL COMMISSIONER, DARBHANGA MUNICIPAL CORPORATION, DARBHANGA. ----------- For the Petitioner :- Mr. Amish Kumar For the State :- Mr. A. Amanullah, S.C. XVII For Respondent no. 3 :- Mr. Shahnawaz Ali ------- 5 13/04/2010 Heard learned counsel for the petitioner, learned counsel for the State as well as learned counsel representing Darbhanga Municipal Corporation. Earlier a notice inviting tender was advertised by Darbhanga Municipal Corporation which is annexure-1 to the writ application. For various works the tenderers submitted their tender papers. When the tender was opened it appeared that most of the tenderers had quoted identical rates for the work in question. In that view of the matter a decision was taken to decide the issue by draw of lots in those cases where there were more than one tenderers with identical rate and go - 2 - for negotiated settlement in case of single tender. On a particular date and time i.e. 30.6.2009 in presence of certain members of Darbhanga Municipal Corporation a draw of lots was held and work in favour of the petitioner was allotted on three counts. But before the issue could be finalized, certain allegations were made and grievances were raised by certain quarters including the participants. Enquiry was held and culmination of the same is a finding contained in Annexure-7 to the writ application which is not challenged in the present writ application. By virtue of communication contained in Annexure- 7 dated 13.07.2009, the Divisional Commissioner, Darbhanga has directed for re-drawal of lots by following the procedure laid down by the Rural Development Department, Government of Bihar. Submission of the learned counsel for the petitioner is that there is no occasion for re-drawal of lots after the draw of lots has been held and the right has accrued in favour of the petitioner. It is also submitted by the learned counsel for the petitioner that the exercise of re-drawal of lots has been ordered to be carried out at the behest of the people who have - 3 - lost in the earlier draw of lots. Learned counsel representing the State of Bihar i.e. the Divisional Commissioner, Darbhanga has filed a counter affidavit and has stated that allegations were made and complaints were received. On verification, it was found to be true that the guidelines issued by the Rural Development Department, Annexure-A to the counter affidavit filed on his behalf was not followed. Rural Development Department is the nodal department advising and guiding the municipal bodies. They must follow the procedure of draw of lots. It was not denied that the procedure laid down was not followed in entirety and, therefore, in the eye of law whatever exercise was carried out, cannot be sustained or affirmed to be correct. Similar is the stand taken by Darbhanga Municipal Corporation. If a particular procedure was prescribed and laid down that procedure had to be followed. If it is not followed then the outcome of exercise is no exercise in the eye of law. The petitioner also does not deny that there could be some omission in this regard. That by itself will not help the petitioner retain the benefit of the draw since the lots was not - 4 - drawn in consonance with the guidelines issued by the Rural Development Department in this regard. It is also a fact that submission of the learned counsel is misplaced that it is an effort to re-tender in guise of drawal of lots. It is the categorical stand of the respondents that the petitioner has freedom to take part in re- drawal of lots which will now be carried out strictly in terms of the guidelines and no re-tender is going to be held. . The Court is not satisfied with the submission made that there is no wrong doing on the part of the respondents or the Municipal authorities. In fact the Court has reason to record that none of the tenderers or their representatives were present in the earlier draw of lots. This writ application is dismissed with a direction upon the respondents authorities that they shall ensure that fresh draw of lots is carried out strictly in accordance with Annexure-A or the guidelines issued by the Rural Development Department in this regard. AMIN (Ajay Kumar Tripathi, J.)