Kunal Structure India Pvt. ... vs Bihar Medical Services And ...
2021 Latest Caselaw 3970 Patna

                IN THE HIGH COURT OF JUDICATURE AT PATNA
                  Civil Writ Jurisdiction Case No.5502 of 2021
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Kunal Structure India Pvt. Ltd.(KSIPL-MCC(JV)), Gujarat having its Head Office at - Mondeal Heights, B-Wing, 15th Floor, besides Hotel Novoted, S.G. Highway Ahmadabad- Gujarat through its Director Kunal Arvindbhai Domadia, aged about 32 years, male, S/o Arvindbhai Domadia, R/o 802, Panchvati Tower, Bhaktidham Mandir, Rajkot-Gujarat.

... ... Petitioner Versus

1. Bihar Medical Services and Infrastructure Corporation Ltd. (BMSICL), through its Managing Director.

2. Managing Director, Bihar Medical Services and Infrastructure Corporation Ltd. (BMSICL).

... ... Respondents ====================================================== Appearance :

For the Petitioner/s : Mr. P.K. Shahi, Senior Advocate Mr.Satyam Shivam Sundaram, Advocate For the Respondent/s :Mr.Lalit Kishore, Senior Advocate Mr. Vikash Kumar, Advocate ====================================================== CORAM: HONOURABLE MR. JUSTICE VIKASH JAIN ORAL JUDGMENT Date : 05-08-2021

Heard Mr. P.K. Shahi, learned Senior counsel for the

petitioner and Mr. Lalit Kishore, learned Senior counsel for the

Bihar Medical Services and Infrastructure Corporation Ltd.

(BMSICAL) through video conference.

2. Learned counsel for the petitioner has filed an

undertaking that all defects pointed out by the stamp reporter shall

be removed, and compliance with the conditions of the notices of

this Court with regard to acceptance of e-filing shall be made, Patna High Court CWJC No.5502 of 2021 dt.05-08-2021

without delay immediately upon resumption of normal physical

functioning of the Court, and in any event within one month thereof.

3. The following reliefs as formulated by the petitioner

have been claimed in the writ petition-

"(i) For direction upon the concerned respondents to act

upon the decision of the Financial Bid Committee dated 01.12.2020

whereby and whereunder the Committee has decided to sent a

proposal to the Board of Directors to allot the tender work i.e., for

construction of Government Medical College & Hospital, Jamui to

the petitioner being qualified as lowest bidder (L1) in pursuance of

Notice inviting Tender being N.I.T. No. BMSICL/Infra/01/2020

dated 13.01.2020.

(ii) For a direction upon the concerned respondents to

issue Letter of Intent (LOI), in favour of the petitioner and execute

the agreement for construction of tender work i.e., construction of

Government Medical College & Hospital, Jamui.

(iii) For grant of any other relief/reliefs to which the

petitioner is found entitled to."

Further, the prayer made in I.A. No. 01 of 2021 "for

quashing of the decision taken in the 48th Board meeting dated

14.12.2020 of BMSICL vide Agenda No. 40/05 to cancel the tender

for construction of Govt. Medical College and Hospital, Jamui", has

been allowed to form part of the relief in the main writ application

in terms of the order dated 10.06.2021 passed by this Court. Patna High Court CWJC No.5502 of 2021 dt.05-08-2021

4. The short facts, according to the petitioner, are that

pursuant to a Notice inviting Tender No. BMSICL/Infra/01/2020

dated 13.01.2020 issued for construction of Government Medical

College & Hospital, Jamui, the petitioner participated in the tender

process. The technical bid of the petitioner was found to be

responsive and technically qualified along with two other bidders.

Upon the financial bid being opened on 10.08.2020, the petitioner

was declared as the lowest bidder (L1). In due course in its meeting

dated 02.12.2020, the Financial Bid Committee decided to send the

proposal to the Board of Directors to allot the tender work in favour

of the petitioner. However, the work was not awarded, while the

petitioner has made financial investments of considerable amount

in anticipation of being awarded the work.

5. Mr. P.K. Shahi, learned senior counsel representing the

petitioner submits that the respondents ought to have awarded the

contract in favour of the petitioner, who was admittedly the lowest

bidder (L1). He refers to the counter affidavit filed on behalf of the

respondents from which it transpires that the Board of Directors of

the respondent-BMSICL in its meeting held on 24.12.2020 had

subsequently decided to cancel the tender in question. The reason

for such cancellation was not stated in the counter affidavit, but the

same are available in the minutes of the meeting vide Agenda No.

40/05. It is submitted that such reasons are arbitrary and perverse

and could not have been made a ground for cancellation of the Patna High Court CWJC No.5502 of 2021 dt.05-08-2021

tender. Moreover, the communication of cancellation of the tender

vide Corrigendum Notice No. 09 dated 23.01.2021 (Annexure-4 to

I.A. No.01 of 2021) did not communicate any reasons.

6. Learned senior counsel for the petitioner further

invites reference to an earlier order dated 17.12.2019 passed in PIL

vide CWJC No. 21374 of 2018 and submits that this Court while

dismissing the PIL directed the respondent-State as well as the

Central Government to forthwith take steps for establishing the

hospital at the earliest. Despite considerable time having been

elapsed, however, no fresh tender has been issued nor the matter

taken forward by the respondents for construction of the hospital.

7. Mr. Lalit Kishore, learned senior counsel appears and

relies on the counter affidavit to submit that no legal or vested right

of the petitioner has been violated and the petitioner cannot claim

for issuance of Letters of Intent (LOI) in his favour. In any event and

in the peculiar circumstances of the case, if the petitioner is

aggrieved on account of non-communication of reasons for

cancellation of such tender, there can no serious objection for

reconsideration of the matter.

8. Having heard the parties and on consideration of the

materials on record, this Court is of the view that it may not be

necessary to go into the detailed merit of the claim of the petitioner.

It is not in dispute that the petitioner was the lowest bidder and the

Financial Bid Committee in its meeting dated 02.12.2020 forwarded Patna High Court CWJC No.5502 of 2021 dt.05-08-2021

the proposal to the Board of Directors for allotment of the tender

work in favour of the petitioner. Subsequently, the tender has been

cancelled, as communicated vide Corrigendum Notice No.09 dated

23.01.2021, but without assigning any reason for such cancellation.

The reasons are now sought to be supplied by the respondents in

their counter affidavit by enclosing a copy of the minutes of the

meeting vide Agenda No. 40/05. It is well settled that when a

statutory functionary makes an order based on certain grounds its

validity must be judged by the reasons mentioned therein and

cannot be supplemented by fresh reasons in the shape of an

affidavit or otherwise.

9. In the present case, no reason was communicated to

the petitioner for cancellation of the tender and the same, for the

first time, has been brought to light in the counter affidavit.

10. In the above circumstances, the impugned

Corrigendum Notice No.09 dated 23.01.2021 cancelling the tender

is hereby set aside and the matter is remanded with a direction that

the matter be reconsidered by the respondents afresh in accordance

with law.

11. The writ petition stands allowed pro tanto. It is made

clear that since the present judgment is being passed in the peculiar

facts of the present case and without going into the merits of the

rival claims of the parties, as such, it shall not be treated as

precedent.

Patna High Court CWJC No.5502 of 2021 dt.05-08-2021

12. Office shall follow-up to ensure that all defects are

removed and compliance with the notices of this Court are made by

the petitioner within the stipulated time provided in para 2

hereinabove, failing which the matter shall be brought to the notice

of this Court.

(Vikash Jain, J)

V.K.Pandey/-

AFR/NAFR                N.A.F.R.
CAV DATE                N/A
Uploading Date          06.08.2021
Transmission Date       N/A