Patna High Court
Avinash Kumar vs The State Of Bihar on 18 December, 2023
Bench: Chief Justice, Partha Sarthy
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.14497 of 2023
======================================================
Avinash Kumar S/o Sri Ashok Kumar Singh, R/o- Village, Post and P.S. -
Bikram, Dist- Patna, PIN- 801104, Aadhar No. - 812743699041.
... ... Petitioner/s
Versus
1. The State of Bihar through the Add. Chief Secretary, Minor Water Resources
department, Vikas Bhavan, Bailey Road, Patna- 1.
2. The Chief Engineer, Minor Water Resources department, Muzaffarpur.
3. The internal financial advisor, Minor Water Resources department, Vikas
Bhavan, Bailey road, Patna - 1.
4. The Superintending Engineer, (Anusrawan) Minor Water Resources Depat,
Vikas Bhavan, Bailey Road, Patna - 1.
5. The Ex. Engineer, Minor Irrigation division- Hajipur.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr.Shashi Bhushan Singh, Advocate
For the Respondent/s : Mr.Sarvesh Kumar Singh, AAG 13
======================================================
CORAM: HONOURABLE THE CHIEF JUSTICE
and
HONOURABLE MR. JUSTICE PARTHA SARTHY
ORAL JUDGMENT
(Per: HONOURABLE THE CHIEF JUSTICE)
Date : 18-12-2023
The petitioner is aggrieved with the cancellation
of a tender issued by the respondents and now re-notified.
2. The petitioner participated in the tender, NIT
No. 1/2022-23 dated 30.11.2022, with appropriate bid and
requisite documents, as on 27.12.2022 which was acknowledged
on the very same day. The tender was for the construction of
buildings to house Divisional and Sub-divisional Office at
Hajipur. The petitioner quoted 10.21% below the tender value of
Patna High Court CWJC No.14497 of 2023 dt.18-12-2023
2/5
Rs. 1,99,41,300/- and deposited the earnest money deposit
(EMD) of Rs. 3,99,000/- and also additional performance
guarantee. The petitioner was found qualified in the technical
bid along with the other bids in the proceedings dated
21.01.2023
, produced as Annexure-3. The financial bids were
opened on 09.02.2023 and the petitioner was found to be the
lowest bidder (L1), which is evident from Annexure-4, produced
along with the writ petition. Later on, when an objection was
filed by one of the bidders; based on an interim order dated
06.07.2023 in CWJC No. 9941 of 2022 the tender was
cancelled.
3. The petitioner contends that the objection
itself was time barred and there was no valid reason to cancel
the tender based on the interim order passed. The petitioner
issued a legal notice through his Advocate, produced as
Annexure-6, without consideration of which, a re-tender was
issued as NIT No. 3/2023-24 dated 08.08.2023, produced as
Annexure-7. The re-tender was without any justification is the
contention.
4. A counter affidavit has been filed wherein it
has been accepted that there was an objection filed by one of the
bidders pointing out the order dated 21.12.2022 passed in
Patna High Court CWJC No.14497 of 2023 dt.18-12-2023
CWJC No. 9941 of 2022. The subject tender was one which
clearly fell within the interim order passed by this Court, is the
contention. It is also admitted that the Executive Engineer,
Minor Irrigation Division, Hajipur has specifically informed the
Chief Engineer that the tender evaluation committee has
considered the objection raised and allowed the re-tender. The
Committee, headed by the Additional Chief Secretary, Minor
Water Resources Department, decided to cancel the tender
issued vide NIT No. 1/2022-23 and instructed for re-tendering
of the same in the light of interim order passed by this Court.
5. The interim order passed was in a writ petition
challenging the decision taken by the Principal Secretary, Road
Construction Department to remove the minimum rate limit in
percentage rate tenders with effect from 16.01.2020. It is true
that by order dated 21.12.2022, there was a stay of operation of
the impugned notification dated 16.01.2020. It was also clarified
in the interim order that it would operate only for such of those
tenders, for which bids are yet required to be submitted.
6. The petitioner had already submitted the
tender, but, however, the last date of submission of tender was
on 27.12.2022, as is revealed from Annexure-2. The respondents
do not state whether the bids evaluated were submitted before
Patna High Court CWJC No.14497 of 2023 dt.18-12-2023
the interim order or not. In any event, even the writ petition filed
was dismissed as is seen from the judgment dated 06.07.2023
produced along with this writ petition. We see from the
judgment that even the decision challenged was not produced in
the writ petition. The writ petition stood dismissed leaving
liberty to challenge the decision if required at the time when a
cause of action arises, by any fresh tender floated. Obviously, no
such challenge has been made.
7. The re-tender has been made by the State as
per Annexure-7. The date of notification is 08.08.2023 after the
writ petition stood dismissed. The contention of the petitioner is
that re-tender notification is exactly identical to the earlier
tender. The petitioner is prejudiced insofar as the bid is in the
public domain and the other bidders would quote lesser.
8. We have considered the matter and we are of
the opinion that no prejudice would be caused to the State by
awarding the work to the petitioner. The sole reason for
cancellation of the earlier tender was the interim order passed by
this Court, which writ petition stood dismissed later on; even
before the re-tender was notified. The conditions of tender
including the tender value is identical. In the interregnum,
almost a year has passed and there could be an escalation of
Patna High Court CWJC No.14497 of 2023 dt.18-12-2023
price. It would be beneficial for the State, if the earlier tender is
accepted and hence, we directed the petitioner to file an affidavit
undertaking to carry out the work as per the quote earlier made.
9. An affidavit has been placed on record today
undertaking that the work would be carried out as per the earlier
tender submitted and all the tender conditions would be abided
and the rates quoted or submitted at the rate of 10.21% below
the estimated cost, scrupulously complied with.
10. We hence set aside Annexure-5 and
Annexure-7, the cancellation of the earlier tender and the re-
tender issued by the State. We direct the work order to be issued
to the petitioner, if the petitioner is otherwise qualified.
11. The writ petition would stand allowed,
leaving the parties to suffer their respective costs.
(K. Vinod Chandran, CJ)
( Partha Sarthy, J)
Sujit/-
AFR/NAFR NAFR
CAV DATE
Uploading Date 20.12.2023
Transmission Date
