IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No 15009 of 2008 M/S J S Company through one of its partner Sheo Nandan Singh, Son of Sri Ram Bilash Singh, resident of Village & P O – Bihat, District – Begusarai - Petitioner Versus 1 The Union of India through the General Manager, East Central Railway Hajipur, Bihar 2 The Chief Engineer (Const) North, E C Railway, Mahendrughat, Patna 3 The Dy CE/on/SHC/II at Samastipur, E C Railway, Samastipur 4 The Dy FA & CAO (Const), East Central Rilway, Mahendru Ghat, Patna - Respondents ----------- 4 10.03.2010 Pursuant to order dated 13.01.2010 passed in Civil Review No 264 of 2009, this writ petition has been taken up for hearing again. It may be mentioned that Mr P K Verma, learned counsel for the petitioner is present. Learned counsel for the Railways is also present. Mr S D Sanjay, counsel for M/s Surendra Prasad, at whose instance Civil Review No 264 of 2009 was filed and allowed by order dated 13.01.2010, is present. This writ petition was disposed of by judgment and order dated 01.04.2009. By the said judgment, this Court held that exclusion of the writ petitioner from consideration for award of the Tender No 19 of 2007 was not fair nor legal. Accordingly, the Court directed Railways to reconsider the matter treating the writ petitioner as technically qualified for the said tender. Railways filed Letters Patent Appeal against the said judgment which was dismissed. It appears while the writ application, which had been filed on 29.09.2008 was pending final adjudication, the writ petitioner had filed an interlocutory application for adding M/s 2 Surendra Prasad as a party-respondent. A similar plea was also taken by the Railways in their counter affidavit. This was so because in respect of the tender in question on 04.08.2008 that is more than a month prior to filing of the writ petition, letter of acceptance had already been issued to M/s Surendra Prasad who had started work also. Thus, even before the writ petition was filed, third party rights had been created and had crystallised but that third party was not before the Court and, hence, those applications and pleadings. Even though the final order in the writ petition was passed on 01.04.2009 in Court, due to mistake on part of the Court, M/s Surendra Prasad was not made a party in the writ proceedings and, as such, was not heard. Once this Court, oblivious of its mistake, passed the final order, Railways treated the matter as reopened again and treating petitioner to be duly qualified, stopped the working of M/s Surendra Prasad and ultimately upon reconsideration of the matter, took the work out of the hands of M/s Surendra Prasad and awarded it to the petitioner. This naturally seriously affected M/s Surendra Prasad whose work order had been closed pursuant to or as an effect of order of this Court and that too without being heard by this Court by an order passed behind his back. M/s Surendra Prasad then filed a review before the Letters Patent Appeal Bench which Bench left it to the said party to approach the writ Court in the matter and left it to the discretion of this Court to decide the course of action to be taken in such circumstances. It is under those facts that the review 3 application was filed before this Court and allowed. I have extensively heard all the parties. So far as the merit of the writ petition is concerned, I hold the same view for the reasons recorded in the writ order that the writ petitioner was wrongfully excluded from the competition. He was fully qualified and his financial bid had to be considered. To that extent, I do not intend to interfere in the earlier order but the facts, as noted above, would show that even before the writ petition was filed, M/s Surendra Prasad had started work. By the time, he was dislodged as an effect of order of this Court, he had done substantial work and invested substantial funds. By the time, this matter is now being taken up, he has been disengaged and now the petitioner has put in a lot of money and had started work. The result is both the parties are chunking lot of money in respect of the same singular work. This is now leading to inequitous results because of mistake of Court. If writ petitioner is allowed to continue with work then M/s Surendra Prasad would suffer irreparable injury and if work is restored to M/s Surendra Prasad, the writ petitioner would suffer injury and that would be not because of any fault of theirs but because of fault of the Court. In my view, it is well established principle of law that no body can be made to suffer for the fault of the Court. Thus, in my view, the only just and equitable solution would be that Railways closes the contract and retenders the balance work and award the same to any of the competing parties. Both would then 4 have a fair chance in the matter. It is only this way that equities can be now restored. Mr S D Sanjay, learned counsel appearing for M/s Surendra Prasad submits that upon the finding given by this Court that the writ petitioner was wrongly excluded, the remedy of the writ petitioner has to file a suit for damages but could not under any circumstance effect his rights. I am unable to appreciate and/or accept the said contention. The writ petitioner had a choice of remedies. He chose the writ remedy. He did get a relief but that relief became tainted because of fault of the Court. Considering all aspects, I, accordingly, direct the Railways to close the contract in question and retender the same for the balance work giving both the writ petitioner and M/s Surendra Prasad an equal opportunity to compete in the matter. Before that is done, Railways would be obliged to immediately assess the extent of work done by both the parties and ensure that for the work done, the parties are immediately paid and dues settled. The fresh tender, keeping the chequered history of the case, will be limited to the tenderers who had originally tendered. With the aforesaid observation, this writ petition is disposed of again. M.E.H./ (Navaniti Prasad Singh)