IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5633 of 2009 AKHIL BHARTIYA PARYAVARAN AVAM VIKAS SANSTHAN WITH ITS REGISTERED OFFICE AT 116, EXHIBITION ROAD, PATNA THROUGH ITS SECRETARY, SHRI PARAG PARIMAL, SON OF LATE B.P. SINHA, RESIDENT OF 204, RAVINDRA RESIDENCY, ANANDPURI, WEST BORING CANAL ROAD, P.S. – S.K. PURI, DISTRICT PATNA………………….PETITIONER. Versus 1. UNION OF INDIA THROUGH THE FINANCIAL COMMISSIONER, RAILWAY BOARD, MINISTRY OF RAILWAYS, NEW DELHI. 2. THE DIVISIONAL RAILWAY MANAGER (COMMERCIAL), EAST CENTRAL RAILWAY, DANAPUR. 3. SENIOR DIVISIONAL COMMERCIAL MANAGER, EAST CENTRAL RAILWAY, DANAPUR. 4. JAI MATA DEE INVESTMENT COMPANY PVT. LTD., WITH ITS OFFICE AT JAI MA DURGA HOTEL, NEW BYE PASS, VIJAY NAGAR, KANKERBAGH, PATNA – 20. 5. MOTHER INDIA CONSTRUCTION PVT. LTD., WITH ITS OFFICE AT SANJAY GANDHI NAGAR, ROAD NO.3, KANKERBAGH, PATNA-20 THROUGH ITS DIRECTOR……………………………………RESPONDENTS. For the petitioner : Mr. Alamdar Hussain, Advocate. For the railway : Mr. Bindhyachal Singh, Advocate. For respondent nos.4 & 5 : Mr. Prashant Kumar, Advocate. ----------- 12/ 03.05.2011 Heard learned counsel for the petitioner and learned counsel for the Railways (respondent nos.1 to 3) as well as learned counsel for the Joint Venture Company (respondent nos.4 and 5). 2. This writ petition has been filed by the petitioner challenging tender allotted on 20.04.2009 in favour of the Joint Venture of respondent nos.4 and 5 pursuant to advertisement dated 19.01.2007 issued by the Divisional Railway Manager (Commercial) East Central Railway, Danapur (respondent no.2) containing invitation for expression of interest for construction of deluxe type pay and use toilets at different locations as specified under the said advertisement. - 2 - The petitioner also challenges the tender allotted on 20.04.2009 in favour of the Joint Venture of respondent nos.4 and 5 pursuant to advertisement dated 20.03.2007 issued by the above mentioned Divisional Railway Manager (respondent no.2) inviting expression of interest for the work of renovation and construction of pay and use toilets at Platform No.1 of Patna Junction, Patna. The petitioner also seeks direction to the respondents authorities to allot the tender in accordance with law and in conformity with the various terms and conditions laid down in relation to the aforesaid works and to consider the case of the petitioner also for the said purpose and to initiate appropriate proceedings in accordance with law against the erring persons on account of whose connivance, as alleged, the present tenders in question had been allotted in favour of the Joint Venture between respondent nos.4 and 5 in blatant violation of the terms and conditions by the concerned respondents authorities as well as for other ancillary reliefs. 3. Learned counsel for the petitioner submits that in the advertisement the eligibility criteria fixed was - (i) the net worth of the bidder shall not be less than Rs.50 lakhs; (ii) the bidder should have minimum 5 years experience of construction, operation and maintenance of similar facilities; (iii) overall capacity and working standard of the firm by way of previous experience and their pre–bid presentation and (iv) the technical qualification of the officers and staffs employed by the bidder. 4. Learned counsel for the petitioner further submits - 3 - that respondent no.4 is the investment company whereas respondent no.5 is construction company and only for the said purpose they have formed the Joint Venture on 21.02.2007 i.e. just one day before the date of closing of tender i.e. 22.02.2007 which is apparent from Annexure-A to the counter affidavit of the said respondents themselves, but even jointly they do not fulfill the aforesaid eligibility criterion fixed for the purpose. 5. Learned counsel for the respondents Railways Authorities as well as learned counsel for respondent nos.4 and 5 vehemently oppose the contentions of learned counsel for the petitioner in view of their respective counter affidavits. However, learned counsel for the respondents Railway Authorities submits that no allotment has till date been made in favour of respondent nos.4 and 5 and in fact they are intending to issue fresh advertisement inviting fresh tender for the said purpose from candidates who fulfill the policies as per the existing guidelines. 6. In the said circumstances, the first and second reliefs claimed by the petitioner challenging the allotment as per the advertisement have automatically gone in his favour. 7. So far the third relief sought by the petitioner is concerned, it is quite apparent that public lavatories at all junctions within the East Central Railways are going to be opened for public welfare. In this connection a Bench of this court in case of Nalin Kumar Jha vs. The State of Bihar & Ors., reported in 1999 (2) PLJR 808 had specifically provided that it cannot be lost sight of that - 4 - a public lavatory does not only consist of building or structure but it also has a running system. Its maintenance, therefore, does not mean simply collecting tolls on charges from its users but requires sufficient skill to efficiently maintain the running system. The system of public lavatories may be irreparably damaged in the hands of some one without sufficient skill and know-how to manage the system. Hence the respondents authorities will be justified in giving the job only to the agency which has fulfilled the eligibility criteria mentioned above. Hence in all the advertisement of this nature the said aspect of the matter has to be clearly mentioned and followed as had been mentioned in the advertisement in question. 8. So far the last relief sought by the petitioner with respect to the initiation of appropriate proceeding in accordance with law against the erring persons on account of whose alleged connivance the present tenders in question have been allotted in favour of the Joint Venture between respondent nos.4 and 5 is concerned, it has been specifically stated that no allotment has till date been made. However, if there is any error or any connivance between any of the parties, the petitioner will be at liberty to raise such question before the appropriate authority and/or forum. 9. With the aforesaid observations/directions, this writ petition is disposed of. Harish (S.N.Hussain, J.)