IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No 14056 of 2008 M/s Dayanand Prasad Sinha & Company, a partnership firm having its office at Janta Path, Kankarbagh Road, Patna - 20, through its partner Dayanand Prasad Sinha, son of late Harbanshi Lal, resident of Janta Path, Kankarbagh, P S - Kankarbagh, Patna - 20, Bihar - Petitioner Versus 1 The State of Bihar through the Secretary, Building Construction Department, Government of Bihar, Patna 2 The Principal Secretary, Science and Technology Department, Government of Bihar, Patna 3 The Engineer in Chief, Building Construction Department, Government of Bihar, Patna 4 The Chief Engineer (South), Building Construction Department, Government of Bihar, Patna 5 The Superintending Engineer, Patna Building Circle, Building Construction Department, East Boring Canal Road, Patna 6 The Executive Engineer, Nalanda Building Division, Building Construction Department, Biharsharif. ----------- 9 22.12.2008 The State Government had allocated at the relevant time Rs 18.50 crores for construction of a new State Polytechnique at Asthawan in the district of Nalanda by Annexure-1. In pursuant thereto, tender notice dated 24.02.2008 was issued being National Competitive Bidding Invitation No 4 of 2007-2008. Petitioner responded and filed his tender alongwith earnest money of Rs 14.42 lacs. When the tender was opened, it was found that the petitioner was the only tenderer and he had quoted 21% above the estimated cost. Noticing this, the Tender Committee evaluated the technical bid and directed it to be placed before High Level Tender Committee consisting of Secretary, Special Secretary and Chief Engineer of the Department. They met on 14.05.2008 and noticing that the petitioner was sole tenderer and had tendered 21% above the scheduled rate, they rejected the tender of the petitioner without even calling the petitioner for negotiation and ordered 2 for retender. On 18.08.2008, retender was issued being National Competitive Bidding Invitation No 15 of 2008-2009 in which technical bids were to be opened on 28.08.2008. Petitioner filed his tender all over again with fresh earnest money of about Rs 18 lacs. The earlier earnest money deposited was yet to be returned. Again, the petitioner was the only tenderer and seeing that now the authorities were not proceeding any further in the matter, he came to this Court. Before this Court, it was specifically pleaded that in the same tender, there were other groups in which there were single tenderer who had quoted above the tender rates. The Department chose to “negotiate” with them and accepted their tender but so far as petitioner’s tender was concerned; it was consigned to the cold storage for reasons best known to the authorities. Specific instances were given for this arbitrary treatment of the petitioner. This Court noticed the aforesaid and directed the authorities to proceed to open the technical bid and proceed in accordance with law keeping the matter pending before this Court. It may be noted that each time, the matter was adjourned. A day before the matter was to be placed again, the matter was resurrected at the State Level and some formalities done and each time, it was prayed on behalf of the State to dispose of the writ petition itself as the matter is being considered by the State. It may be noted that in the deed aforesaid, petitioner had filed two tenders for two separate groups. Previous orders of this Court would show how reluctant the authorities were to proceed with petitioner’s tender but confronted with their own actions in accepting single tenders and that too at the cost of tender above the 3 tender value, they were unable to give any specific reason to reject the tender once again. I may note another various curious situation emanating in the Building Constructions Department. The same person has been working as Superintending Engineer, Patna Building Circle, Patna. He is also the Chief Engineer (South) Building Constructions Department, Government of Bihar and he is also the Technical Secretary to the Chief Engineer (South), Building Constructions Department, Government of Bihar and he occupies three positions in the Tender Committee accordingly. Such things happen only in Bihar. Ultimately an affidavit was filed on behalf of State stating that so far as Group-I tender is concerned, that has been settled with the petitioner and once again, on instructions, prayer was made to dispose of the writ petition on the plea that nothing remained. On being pointed out by the petitioner that under the same tender, another group was also there for which petitioner had tendered, the matter was again adjourned for a decision by the Tender Committee. At this stage, an affidavit was filed by the petitioner stating that even though representative of the petitioner-firm had appeared before the Tender Committee, the Tender Committee wanted the partner/proprietor to be personally present. Same controversy was sought to be raised in this regard but the Court chose not to take notice thereof because it felt that the Tender Committee should first act in accordance with law and decide the matter finally one way or the other. Today, an affidavit has been filed on behalf of respondent-State clearly stating that even the second group has been finally settled with the 4 petitioner. This Court only wishes to notice that this case has engaged the attention of this Court for such a long time only to ensure that the Tender Committee did its work and that too in accordance with law. At this stage, this matter should have ended but petitioner has filed another (third supplementary affidavit) bringing on record a letter issued by the Chief Engineer (South) being letter dated 19.12.2008 which reflects an extremely sorry state of affairs. The Chief Engineer seems to have arrogated himself the power of a Judge for purgery in Court. Let it be made clear that he has no power for that power vests in Court and he cannot usurp that power. The letter is threatening enough and ordinarily would have infected action for contempt against the author of the said letter suo motu by the Court but there are certain matters which are not be pursued and I am sure good sense on the authorities would prevail to concentrate on work to be done rather than join issues with one another on matters which are better forgotten especially when court has not chosen to proceed on those matters in any manner nor taken note of those matters. If authorities intended to join issue in those matters, that would only fortify petitioner’s stand but that surely is neither the scope of these proceedings nor for the authorities to get involved in these matters because they are there to get work done and not waste their time under such ego centric manner. Annexure-18 being communication No 2688 dated 19.12.2008 of the Chief Engineer (South), Building Constructions Department, Government of Bihar is, thus, set aside and no further action would be taken based on the contents thereof. 5 Petitioner still has one grievance. He states that though so far as the first group is concerned, till date, there is only an oral submission of the learned State Counsel that the tender of petitioner has finally been settled and so far as group-II is concerned, it is only of statement made by respondents on affidavit but the petitioner is still to receive any formal communication accepting the tender at scheduled rates from the authorities and, thus, has an apprehension that if the writ petitioner is disposed of today, those orders may never be issued. Mr Karn, learned counsel appearing for the State, and rightly so in my view, states that the apprehension is misconceived. Those letters, work orders etc are mere formalities which are to follow in due course and as the State has to get the work done immediately, the matter will not be delayed unreasonably. Learned counsel for the petitioner points out that as per tender notice, work had to be completed within eighteen months of the tender notice. Authorities themselves have taken over six months’ time in finalizing the tender. The work period available cannot be cut short. In my view, the submission is to be accepted. Because of delay on part of the State to finalize the tender, much time has been lost and the petitioner, whose tenders have now been accepted after six months of delay, cannot be put under pressure because there was no fault on his part in delaying the finalization of tender. The delay was entirely attributable to the State itself. Thus, I find and record that the work under the said tender would be liable to be completed within eighteen months of issuance of 6 the work order after agreements have been executed. With these directions and observations, the writ petition stands disposed of. Let a copy of this order be given to the learned State Counsel. M.E.H./ (Navaniti Prasad Singh)