IN THE HIGH COURT OF JUDICATURE AT PATNA (CIVIL WRIT JURISDICTION) CIVIL WRIT JURISDICTION CASE No.7566 OF 2008 *** MAA VAISHNO DEVI ENTERPRISES-------------------------------PETITIONER Versus THE STATE OF BIHAR & ORS-----------------------------------RESPONDENTS *** For the Petitioner :- Mr. Krishna Nandan Prasad, Senior Advocate Mr. Aditya Nath Pandey, Advocate For the Respondent :- Mr. P. K. Verma, Additional Advocate General No. III ***** P R E S E N T THE HON'BLE MR. JUSTICE MIHIR KUMAR JHA Mihir Kumar Jha, J. In this writ application, the petitioner has made a prayer for issuance of a direction to the respondents to receive the balance price of still rods from the writ petitioner who is said to have been found the highest bidder in terms of the auction notice dated 23.01.2008 as contained in Annexure-1 to the writ application. The petitioner has also sought a consequential relief that the petitioner should be handed over the said steel rods in question after accepting the aforesaid payment from him which according to him is the amount of the balance consideration for the said steel rods and that subsequent auction notice, dated 16.04.2008 published on 21.04.2008 again inviting quotation for the said rods vide Annexure-5 to the writ application be quashed. Mr. Krishna Nandan Prasad, learned Senior Advocate appearing on behalf of the writ petitioner has submitted that certain quantity of steel rods lying in the 2 godown/open storage area of Road Sub-Division, Biharsharif at Asthawan for a long number of years being of no use and infact found to be useless and not fit for use of construction were sought to be disposed of and for this purpose the Executive Engineer, Road Division, Biharsharif had invited quotation in sealed covers vide auction notice dated 23.01.2008 for sale of aforementioned steel scraps of 70.1659 metric tones of steel rods on a reserved jama price of Rs. 6,38,594/- Learned Counsel had further submitted that upon issuance of the said notice of sale, dated 23.01.2008 by respondent no. 5, the petitioner had submitted his sealed quotation with the requisite demand draft of Rs. 12,800/- and his offer by way of quotation for the said consignment of steel scrap was Rs. 6,42,103/- as against the reserved jama price of Rs. 6,38,594/-. It is the case of the petitioner that the said sealed quotation received by respondent no. 5 in his office were opened on 30.01.2008 and the petitioner’s quotation being the highest, only his demand draft of Rs. 12,800/- was retained whereas the demand drafts of other participating bidders were returned. It is claimed by the petitioner that when he was declared to be the highest bidder, he had requested the respondent no. 5 to complete the formalities and pass the necessary orders for sale of the steel scraps in favour of the petitioner so that he could deposit the balance price of the said steel rods and take its delivery. 3 From the reading of the writ application and the submissions of the Counsel for the petitioner, the grievance of the petitioner is that despite repeated requests, respondent no. 5, the Executive Engineer, Road Division, Biharsharif did not do the needful and infact he had not issued the orders declaring the petitioner to be the highest bidder and giving him offer to lift the stock of steel scraps. It is the case of the petitioner that he had thereafter approached the higher authorities of the department and infact his representation was filed up to the Minister of Roads but even then the work order (order for sale of steel scraps) in favour of the petitioner was not passed and the respondents all of a sudden had again issued a fresh auction notice, dated 21.04.2008 inviting offers for sale of the aforementioned steel scraps which was the subject matter of the earlier notice, dated 23.01.2008 as contained in Annexure-1. It has been alleged by the petitioner that such action was taken on a complaint of one Kuldeep Singh of Biharsharif received in the Office of the Secretary of the Road Construction Department. Counsel for the petitioner had submitted that once the petitioner was declared to be the highest bidder, respondent no. 5, the Executive Engineer was duty bound to complete the transaction by issuing the necessary orders and make offer to the petitioner for depositing the amount and lifting the stock as a consequence of his being declared the highest bidder;. He has further submitted that the decision to come out with a fresh advertisement (auction notice dated 21.04.2008 in 4 newspaper) would cause prejudice to the petitioner because his rates were already opened and now the participating bidders would be aware of the offer already made by the petitioner and the petitioner thus would be subjected to a substantial loss in the matter of his right to trade if the said consignment is re-auctioned and given to some other person on the artificial rise of the price beyond what was quoted by the petitioner, Thus, in nutshell, it is the case of the petitioner that not allowing him to lift the stock despite his being declared as the highest bidder and issuing a fresh sale notice is an arbitrary act which can not be countenanced under Article 14 of the Constitution of India. On the other hand, learned Counsel appearing for the State has questioned the very maintainability of the writ application on the ground that there was no valid order on the basis of which the petitioner can claim a right of being allowed to lift the stock of steel scraps after depositing the balance amount of reserve jama price. It has also been explained that nothing was done beyond the opening of the offers and no formal order was passed either holding the petitioner to be a successful auction bidder or accepting his offer. In this context, he has relied on the explanation furnished by the Executive Engineer which according to him is itself an evidence to the fact that the procedure of sale of steel scraps as laid down by the Government has not been followed. Reference in this connection has been made by the State Counsel on the provisions given in the PWD Code which 5 requires that every auction notice/tender notice must be published in the newspaper whereas in the present case, it stands admitted from the report submitted by the Executive Engineer, dated 07.02.2008 (Annexure-4) that the said auction/sale notice as contained in Annexure-1 vide letter no. 125, dated 23.01.2008 seeking to invite a short term quotation notice within a period of seven days i.e. 30th January, 2008 was circulated by way of pasting the same on the notice board of the Office of the Executive Engineer and by giving its copy to the Rural Works Department, Building Division and the Collector of Nalanda. He has therefore also submitted that there being no wide circulation much less publication in the newspaper, the same was contrary to the procedure laid down in the PWD Code and in any event, when this fatal irregularity came to the notice of the higher authorities immediately within a period of one week of opening of the offers, the Executive Engineer had rightly not issued the work order. He further submits that the matter was thereafter examined at length by the higher authorities who having arrived at a finding that the sale of steel scraps was sought to be made by the Executive Engineer in complete disobedience to a departmental circular/provisions in the PWD Act had directed both the Executive Engineer and the Superintending Engineer to take fresh steps for sale of the steel scraps in question by issuing an advertisement in the newspaper and the resultant advertisement was published in the newspaper on 21.04.2008 as contained in Annexure-1. 6 The sum and substance of the submission of the learned Counsel for the State is that when an order declaring the petitioner to be the highest bidder and an offer for sale in his favour was not passed, and at any point of time the petitioner had not vested with any right so as to seek any direction from this Court for commanding the departmental authorities to deliver the consignment of steel scraps after accepting the amount offered by the petitioner. Mr. Prasad, learned Senior Counsel appearing on behalf of the petitioner in reply has submitted that everything has been done on an application of one Kuldeep Singh dated 18.01.2008 as contained in Annexure-3 to the writ application. It is the case of the petitioner that it was Kuldeep Singh who was pulling strings behind the curtains and the authorities have taken a decision to re-advertise for sale of steel scraps at his instance. Upon hearing the parties, this Court is of the considered opinion that the first part of the relief of the petitioner for issuance of a direction to the effect of handing over the consignment of steel scraps after acceptance of the amount offered by the petitioner can not be granted because no formal order declaring the petitioner to be the highest bidder and consequential supply order had been issued by the Executive Engineer-respondent no. 5. The whole matter infact was still in embryo and remained only under active consideration of the respondents authorities and, therefore, merely because the petitioner had participated in a so-called 7 auction which was based on circulation of the auction notice only through pasting of the same on the notice board, no right had accrued in favour of the petitioner. As a matter of fact, the order for supply of the consignment of the steel scraps in favour of the petitioner was never issued so as to crystallize any right in favour of the petitioner. At this stage, it has to be noted here that even before the said short term quotation notice dated 23.01.2008 had been issued by the respondent no. 5, a complaint with regard to fixation of reserved jama price by the Executive Engineer was already brought to the notice of the Secretary of the Road Construction Department by one Kuldeep Singh on 18.01.2008 which as per the copy produced by the petitioner himself was received in the cell of the Secretary on 22.01.2008. In the said complaint, it was specifically alleged that the Executive Engineer and the Superintending Engineer were contemplating to auction a huge quantity of steel scraps without giving wide publicity and publishing it in newspaper and such action on their part could easily lead to substantial loss of government revenue. It appears that on the said complaint of Kuldeep Singh, the Secretary of the Department had asked the Engineer-in-chief to hold an enquiry and the office of the Engineer-in-chief thereafter had issued letter no. 448 dated 29.01.2008 seeking explanation from the Executive Engineer on the said complaint of Kuldeep Singh. It has to be kept in mind that all these developments had already taken place by 29.01.2008 whereas the last date of 8 submission of offer in view of the short term auction notice dated 23.01.2008 had to commence only w.e.f. on 30.01.2008. It thus becomes clear that the Government through its Secretary and the Engineer-in-chief were already conscious and made aware of the illegal design of the Superintending Engineer and the Executive Engineer in disposing of the huge quantity of steel scraps without even publishing the short term quotation notice in any newspaper and/or giving it a wide publicity. Thus, the statement of the learned Senior Counsel that the allegation of Kuldeep Singh was either aimed against him (the petitioner) or was actuated to disturb his right to trade after he had already been declared as the highest bidder on 30.01.2008 is contrary to the materials on record and must be rejected on the simple ground that even the offer of the petitioner having been submitted only on 30.01.2008, there was no question of the same being subjected to any sort of scrutiny or questioned by the complainant Kuldeep Singh when he had already filed application on 18.01.2008 which also as noted above was confined to the issue of the proposed design of the Executive Engineer and the Superintending Engineer in the disposal of the steel scraps without giving wide publicity. As a matter of fact on the basis of materials on record it must be held that at the time, Kuldeep Singh had submitted his complaint to the Secretary of the Department on 18.1.2008, neither the offer of the petitioner was not in existence nor even the auction notice had been issued in as much as the same came 9 into picture only on 23.01.2008 in pursuance whereof the offer of the petitioner for the first time was filed on 30.01.2008. Thus, the attack of the Counsel for the petitioner on the subsequent tender notice published in the newspaper on 21.04.2008 on the ground of its being actuated by the exercise of the complainant Kuldeep Singh is devoid of any merit and must be rejected. It must be taken into consideration that the petitioner has not even impleaded Kuldeep Singh as a party respondent and has chosen to make all sort of allegations against him by enclosing his complaint application. It is well settled that a plea of malafide and particularly malafide on fact must be specifically pleaded and the person against whom such allegation is made must be made a party to the writ application. Reference in this connection may be made to the case of State of Bihar Vs. P.P. Sharma , reported in AIR 1991 SC 1260 wherein the Apex Court had held that :- “It is well-settled law that the person against whom mala fides or bias was imputed should be impleaded eo nominee as a party respondent to the proceedings and given an opportunity to meet those allegations. In his/her absence no enquiry into those allegations would be made. Otherwise it itself is violative of the principles of natural justice as it amounts to condemning a person without an opportunity.” Amidst all the aforementioned admitted facts and 10 the law laid down by the Apex Court in P.P. Sharma case (supra) the plea of malafide raised by the Counsel for the petitioner must fail. Coming now to the second question as with regard to the issuance of a fresh advertisement in newspaper, this Court is of the opinion that when huge quantity of steel scrap of 71.1659 metric tones was sought to be auctioned on a reserved jama price of Rs. 6,38,594/-, it was incumbent upon the respondent no. 4, the Executive Engineer to give it wide publicity and publish it in newspaper. It is the admission of the Executive Engineer that he had only circulated such auction notice by getting it pasted on the notice board of his office and by sending its copies to the Office of the Rural Works Department and the Collector of Nalanda district. This Court is of the opinion that this mode of circulation of the tender notice was not in keeping with either the spirit of Article 14 of the Constitution of India read with the manner laid down in paragraph no. 159 of PWD Code which reads as follows:- 159. Tenders, which should-always be sealed, should invariably be invited in the most open and public manner possible, whether by advertisement in the Government Gazette, or local newspapers or by notice in English or in Hindi posted in public places. Mere sending of copies of notice to officials does not mean wide publicity and advertisement as was held by the Division bench of this court in the case of Girja Nandan Singh Vs. 11 State of Bihar reported in 1987 PLJR 95. Consequently, if the respondents have taken a decision to re-advertise the auction of steel scraps by now issuing the same in the newspaper, such decision being in conformity with Article 14 of the Constitution of India as well as PWD Code can not be faulted with. It has to be taken note of that the offer of the petitioner was only a hike of Rs. 3,509/- (Rs. 6,42,193.00 – Rs. 6,38,594.00) which only goes to show that it was a managed quotation in which the Government was being put to loss of revenue. If, therefore, the respondent-Secretary and the Engineer-in-chief of the Road Construction Department upon receipt of the explanation of the Executive Engineer, dated 07.02.2008 had directed for issuance of a fresh auction notice by way of advertisement, in newspaper, the same cannot be faulted with keeping in view the interest of the revenue of the Government. The last limb of submission of the counsel for the petitioner of the petition deprieved of his vested right on account of his being the highest tenderer in is equally misconceived and must be rejected on the ground that first of all he had never been declared the successful tenderer nor any concluded contract had been made in his favour. The Executive Engineer infact had merely opened the tender but had not issued any order in favour of the petitioner and as such the petitioner was not even clothed with semblance of any right only because he had participated in the tender 12 and was expecting to get an order in his favour in view of his highest bidder. This aspect of the matter is also well concluded by a series of judgment of Apex Court and this Court and a reference in this connection may be made to the following passage of judgment in the case of Kamal Kishore Pandey Vs. State of Bihar reported in 1998(1) PLJR 619. “……..It is admitted that an auction was held on 3.3.1997 in which the petitioner was the highest bidder. The authorities however, later realized that the reserve jama for the settlement of many stands, including the taxi stand in question, had been fixed at a very low rate and it was required to revise and re-evaluate the reserve jama for the settlement of the taxi stands. It was accordingly decided not to make any settlement on the basis of the previous auction and to hold fresh auction after due revision and re-determination of the reserve jama of each of the taxi stands. An order was accordingly issued by the District Engineer under his memo no. 9 dated 4.4.1997 (copy at Annexure-A). Later specific directions were issued under memo no. 6 dated 22.4.1997 concerning the taxi stand in question. In that letter it was directed to fix the reserve jama for the settlement of the taxi stand at Rs. 15,000/- and to ask the bidders to first deposit half of the reserve jama amount before participating in the auction. No fresh auction, however, could be held in view of the stay order passed by this Court. 6. Having thus heard counsel for 13 the parties and having perused the writ petition and the counter affidavit filed in this case I find that the action of the authorities does not suffer from any infirmity. It is well settled that by virtue of being the highest bidder in the auction no vested and enforceable right accrued to the petitioner and it was open to the authorities even at that stage not to accept the bid and to direct for a fresh auction for the settlement of the taxi stand……….” Thus for the reasons indicated above, this Court finds no merit in this writ application and it is accordingly dismissed. PATNA HIGH COURT Dated, The 20th August, 2008 A.F.R./ANAND/Rsh ( Mihir Kumar Jha, J. )