IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.829 of 2010 SURENDRA PRASAD, S/O LATE JANKI SHARAN, RESIDENT OF AT & P.O. PARAS NAGAR, P.S. BAGAHA,DISTRICT- WEST CHAMPARAN…………………APPELLANT Versus 1. THE UNION OF INDIA THROUGH THE GENERAL MANAGER, EAST CENTRAL RAILWAY, HAJIPUR, BIHAR. 2. THE CHIEF ENGINEER ( CONSTRUCJTION ) NORTH, EAST CENTRAL RAILWAY, MAHENDRU GHAT, PATNA 3. THE DEPUTY CE/CON/SHC/II AT SAMASTIPUR, EAST CENTRAL RAILWAY, SAMASTIPUR 4. THE DEPUTY FA & CAO ( CONSTRUCTION), EAST CENTRAL RAILWAY, MAHENDRU GHAT, PATNA… RESPONDENTS 5. M/S J.S. COMPA NY THROUGH ONE OF ITS PARTNERS, SHEO NANDAN SINGH, S/O SHRI RAM BILASH SINGH, RESIDENT OF VILLAGE+P.O. BIHAT, DISTT- BEGUSARAI… WRIT PETITIONER/RESPONDENT WITH LPA No.835 of 2010 1 THE UNION OF INDIA THROUGH THE GENERAL MANAGER, EAST CENTRAL RAILWAY, HAJIPUR, BIHAR 2. THE CHIEF ENGINEER ( CONSTRUCTION ) NORTH, EAST CENTRAL RAILWAY, MAHENDRU GHAT, PATNA. 3. THE DY. CE/ CON/SHC/II AT SAMASTIPUR, E.C. RAILWAY SAMASTIPUR 4. THE DY. FA & CAO ( CONSTRUCTION) NORTH, EAST CENTRAL RAILWAY, MAHENDRU GHAT, PATNA…………………….. RESPONDENTS/APPELLANTS Versus 1 M/S J.S.COMPANY THROUGH ONE OF ITS PARTNER SHEO NANDAN SINGH, SON OF SRI RAM BILASH SINGH, RESIDENT OF VILLAGE AND P.O. BIHAT, DIST— BEGUSARAI 2 SURENDRA PRASAD, SON OF LATE JANKI SHARAN, RESIDENT OF AT AND P.O. PARAS NAGAR, P.S. BAGAHA, DISTRICT- WEST CHAMPARAN…….. RESPONDENTS with LPA No.882 of 2010 M/S J.S.COMPANY, THROGH ONE OF ITS PARTNER SRI SHEO NANDAN SINGH, S/O LATE RAM BILAS SINGH, R/O VILL & PO BIHATL,P.S. BARAUNI,DIST BEGUSARAI Versus 1. THE UNION OF INDIA THROUGH THE GENERAL MANAGER, EAST CENTRAL RAILWAY, HAJIPUR, BIHAR 2. THE CHIEF ENGINEER ( CONSTRUCTION ) NORTH, EAST CENTRAL RAILWAY, MAHENDRU GHAT, PATNA 2 3. THE DY. CE/ CON/ SHC/II AT SAMASTIPUR, E.C. RAILWAY, SAMASTIPUR 4. THE DY. FA & CAO ( CONSTRUCJTION) NORTH, EAST CENTRAL RAILWAY, MAHENDRU GHAT.. PATNA 5 SURENDRA PRASAD, SON OF LATE JANKI SHARAN, RESIDENT OF AT AND P.O. PARAS NAGAR, P.S. BAGAHA, DISTRICT- WEST CHAMPARAN… RESPONDENT ----------- FOR THE APPELLANT:- MR. S.D. SANJAY, ADVOCATE FOR RESPONDENTS 1 TO 4 :- MR.SIDHARATH PD,ADVOCATE FOR RESPONDENT NO.5 :- MR. P.K. VERMA, ADVPCATE ( L.P.A. NO. 829 OF 2010 ) ------------ FOR THE APPELLANTS :- MR. SIDHARATH PD., ADVOCATE FOR RESPONDENT NO.1 :- MR. P.K. VERMA, ADVOCATE FOR RESPONDENT NO.2 :- MR. S.D.SANJAY, ADVOCATE ( L.P.A. NO. 835 OF 2010) ---------- FOR THE APPELLANT :- MR. P.K. VERMA, ADVOCATE FOR RESPONDENT NOS. 1 TO 4 :- MR. SIDHESHWAR PD. ADVOCATE FOR RESPONDENT NO.5 :- MR. S.D. SANJAY, ADVOCATE ( L.P.A. NO. 882 OF 2010) ------------- 3 21-05-2010 Heard limitation petitions preferred in all the three appeals. In the facts of the case the delay in preferring these appeals are condoned. These three appeals have been preferred by the three main parties to the writ petition. The writ petitioner M/s J.S. Company, as held by the writ court was wrongly excluded from the consideration for award of tender pursuant to tender notice no.19/07 by the Railways represented by the General Manager, East Central Railway, Hajipur. His writ petition was initially allowed in absence of the second lowest tenderer, M/S Surendra Prasad, represented by Mr. S.D. Sanjay, Advocate. Pursuant to direction by the Division Bench in Letters Patent Appeal,the writ 3 court allowed the review filed by M/s Surendra Prasad and re- heard the writ petition in presence of the necessary parties. At the present stage the issue is whether the writ court, by the order under appeal has chosen the correct course of action or not in directing the Railways to close the contract in question which had been re-allotted to the lowest tenderer. The Railways, after the initial order passed by the writ court in favour of M/s J.S. Company had already cancelled work order of M/S Surendra Prasad and allocated the work to M/S J.S. Company. But by the order under appeal a direction has been issued for retender for the balance work so that both the writ petitioner as well as M/s Surendera Prasad be given equal opportunity in competing for the work. The writ court has directed that the Railways should immediately assess the extent of work done by both the parties and ensure payment to the concerned parties for the work already done. The fresh tender is to be limited to the original two tenderers only. The writ petitioner was the lowest tenderer and M/s Surendera Prasad was the other tenderer. There was some suggestion for compromise but the parties could not agree to the division of the balance contract work in equal measure. On behalf of the writ petitioner, Mr. P.K. Verma, Advocate has strenuously argued that the writ petitioner was qualified and being the lowest tenderer has been rightly allotted the contract work after cancelling the work order issued to M/s Surendra Prasad, because such work order had been issued 4 after wrongly excluding the writ petitioner from the zone of consideration. On hearing the parties, we find no reason to interfere with the finding of the writ court that the writ petitioner was wrongly excluded from the zone of consideration. There is no dispute that the writ petitioner is qualified and is also the lowest tenderer. The only issue is how the second lowest tenderer M/s Surendra Prasad be compensated because he has done a part of contract work for which order was issued by the authority and it has been claimed on his behalf that men, machine and materials have been deployed in the field which has also caused substantial expenses to him. Learned counsel appearing for the Railways has taken a categorical stand that the direction of the writ court to issue a fresh tender will benefit both the contractors but cause great loss to the railways and public exchequer because the contractors are not agreeing to the division of the contract work. He has expressed the apprehension that in fact, both the contractors may form a cartel to the dis-advantage of the railways because only these two as per directions, are eligible for the retender. In fact, Mr. S.D. Sanjay, Advocate upon instructions from his client submitted that M/s Surendra Prasad is ready to execute the remaining work at the lowest rate. In the facts of the case, we find no good reason to deny full relief to the writ petitioner who is the lowest tenderer. 5 Accordingly, his appeal is allowed. There shall be now no necessity of closing the contract awarded to him by the railways and there shall be no retendering of the balance work. Learned counsel for the Railways has no objection to such a course of action. We order accordingly. This disposes of appeal of the Railways also. The next remaining issue is about losses which is claimed on behalf of M/s Surendera Prasad. According to learned counsel, Mr. S.D. Sanjay, there was no fault on the part of the second lowest tenderer since he got the work done in view of a work order of the Railways and though he will get cost of such work as per direction of the writ court, there should be further compensation determined and awarded in his favour for the loss on account of movement of men, machine and material. We are unable to quantify such a claim for compensation and hence liberty is granted to M/S Surendra Prasad, one of the appellants, that, if so advised, he may claim such compensation by filing a properly constituted suit before competent civil Court. With this liberty, the appeal preferred by M/s Surendra Prasad is dismissed. The other two appeals are allowed to the extent indicated earlier. There shall be no order as to costs. Naresh ( Shiva Kirti Singh, J.) ( C.M. Prasad, J) 6