IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5003 of 2009 K.D.R.CONSTRUCTION PVT.LTD. through its Managing Director, Kashi Nath Mishra son of late Ram Roop Mishra, resident of village- Atarbalinya, P.S. Mohania, District- Kaimur (Bhabua) Versus 1. THE STATE OF BIHAR . 2. The Principal Secretary, Water Resources Department,Govt. of Bihar,Patna. 3. The Joint Secretary, Water Resources Department,Govt. of Bihar,Patna. 4. The Engineer –in- Chief (Middle), Water Resources Department, Sichai Bhawan,Bihar,Patna. 5. The Chief Engineer, Water Resources Department, Dehri-on- Sone, District- Rohtas. 6.The Executive Engineer, Sone High Level Canal Division, Water Resources Department, Bhabhua. 7. Tradewell Construction Private Limited, Pipradih, Aurangabad. 8. Darshita Builders and Developers Private Limited at Masrhi, P.O. Deohalia,Ramgarh (Kaimur) 9. M/s Maa Chandeshwari- Mundeshwari Construction Private Limited, VIP Colony, Bhabhua, Kaimur. ----------- For the Petitioner : Mr.Chitranjan Sinha, Sr.Adv. Mr. Satish Chandra Jha For Respondent no.7 : Mr. Y.V.Giri, Sr.Adv. Mr. Anil Kumar Singh no.6 For Respondent nos. 8 and 9 : Mr. Rajendra Pd.Singh, Sr.Adv. For the State : Mr. K.K.Jha, S.C.18. - - - - --- 4 14.5.2009 Petitioner along with respondents no. 7,8 and 9 ,apart from others, had applied in response to a notice inviting tender issued by the Water Resources Department in respect of Sone Canal related work. Respondent nos. 7,8 and 9 have been selected, whose selections have been challenged by the petitioner .Primarily , two grounds have been raised by Mr. Chitranjan Sinha, learned Senior Counsel appearing for the petitioner. He submits that as per notice inviting tender there were essential conditions of eligibility ; first that all tenderers had to supply photographs of plant and machinery and details thereof and second, they had to file an affidavit in support of 2 character certificate in the prescribed form. His grievance is that when the Chief Engineer, after opening of technical bid, drew up a comparative statement, he found that except the petitioner, no other tenderer had given photograph of plant and machinery. So far as affidavit is concerned, there were affidavits but affidavit did not comply the requirement thereof. The Chief Engineer sought guidelines from the Engineer-in-Chief. The Engineer-in-Chief called a meeting and in that it was decided that so far as furnishing information with regard to machinery plant is concerned, it is not mandatory as all tenderers have to be registered contractors with the Water Resources Department under the Contract Enlistment Rules which gives all particulars. All tenderers were registered as such.Coming to the affidavit in question, the Engineer- in-Chief in the meeting was of the opinion that all the applicants were Companies in corporated under the Companies Act.The form, as prescribed, for affidavit could not be applied to them as Company had no character of its own. Mr. Chitranjan Sinha submits that firstly the Engineer- in- Chief could not have taken this decision as the designated authority under the Notice Inviting Tender was the Chief Engineer. He then submits that these are the mandatory requirements and could not have been ignored. I am unable to persuade myself to accept the submission of Mr. Chitranjan Sinha. The Engineer- in Chief is an authority superior to that of the Chief Engineer. Even though it is a matter of contract but it is at a pre contractual stage that is the stage 3 of entry into an agreement had not yet come. The discussion is with regard to the terms and conditions of Notice Inviting Tender. None of the parties was bound by any of the terms and conditions of any agreement. There being a confusion with regard to understanding of a provision. It was competent for the Chief Engineer to seek guidelines from the Engineer- in- Chief and it was equally competent for the Engineer- in- Chief to call for a meeting and deliberate and decide the issue. In my view nothing wrong was done, which needs interference by this Court. In respect of photograph of plant and machinery, I may add that in the tender there is no specification of any minimum requirement of any plant and machinery or requirement of any particular plant or machinery. Mere failure to give photographs is not something which would disqualify a person. So far as affidavit is concerned, petitioner and the respondents are Companies incorporated under the Companies Act. From the chart produced by the petitioner, it is clears that all of them have given affidavit of their Managing Director which I think is sufficient compliance. Thus, in my view, no case is made out for interference in the matter. The writ petition stands dismissed. SINGH (Navaniti Prasad Singh, J.)