M/S R.K. Construction vs The State Of Bihar
2023 Latest Caselaw 925 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                   Civil Writ Jurisdiction Case No.13711 of 2022
     ======================================================

M/s R.K. Construction a proprietorship firm, having its registered office at M.G. Road, Bypass Chowk, Aurangabad, through its proprietor Sri Krishna Kumar Singh, aged about 60 years, Male, S/o Late Ram Trith Narayan Singh, residing at M.G. Road-2, near Bypass Chowk, Aurangabad, P.S. and District - Aurangabad, Bihar.

... ... Petitioner/s Versus

1. The State of Bihar through the Chief Secretary, Government of Bihar, Patna.

2. The Additional Chief Secretary, Road Construction Department, Government of Bihar, Patna.

3. The Principal Secretary, Rural Works Department, Government of Bihar, Patna.

4. The Engineer in Chief, Rural Works Department, Government of Bihar, Patna.

5. The Chief Engineer-2, Rural Works Department, Government of Bihar, Patna.

... ... Respondent/s ====================================================== Appearance :

For the Petitioner/s : Mr. Prabhat Ranjan, Advocate Mr. Chandan Kumar, Advocate For the Respondent/s : Mr. Anjani Kumar Singh, AAG-4 Mr. Deepak Sahay Jamuar, AC to AAG-4 Mr. Utkarsh Bhusan, Advocate Mr. Alok Kumar Rahi, AC to AAG-4 ====================================================== CORAM: HONOURABLE MR. JUSTICE P. B. BAJANTHRI and HONOURABLE MR. JUSTICE ARUN KUMAR JHA ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE P. B. BAJANTHRI)

Date : 25-02-2023

In the instant petition, petitioner has prayed for the

following relief(s):-

"1. (i) Quashing of the decision of the Engineer in Chief, Rural Works Department (Respondent No. 3) contained in Letter bearing Memo NO. 251 dated 27.01.2022, whereby exceeding the Patna High Court CWJC No.13711 of 2022 dt.25-02-2023

jurisdiction.

(a) A new disqualification for participating in the Tender under Pradhan Mantri Gramin Sarak Yojna (PMGSY) have been introduced and

(b) The term "Record of Poor Performance" under Clause 4.8 of the SBD and 4.7 (ii) of the MBD have been re-defined by disqualifying even those contractors against whom the ATR is pending.

(ii) A declaration to the effect that the impugned decision dated 27.01.2022 can not be given retrospective operation to the agreements which have been executed prior thereto or which agreements do not contain such stipulation; and

(iii) Restraining the Respondent from giving effect to the direction/ decision of the Engineer in Chief dated 27.01.2022 during the pendency of the present writ application without the leave of this Hon'ble Court."

Short question for consideration in the present lis is

whether Engineer in Chief could expand the scope of 4.8 of

SBD and 4.7(ii) of MBD under Pradhan Mantri Gramin Sarak

Yojna (PMGSY) or not? It is necessary to extract 4.7 of

PMGSY SBD/MBD which reads as under:-

"4.7 Even though the bidders meet the above qualifying criteria, they are subject to be disqualified if they have:

(i) made misleading or false representations in the forms, statements, affidavits and attachments submitted in proof of the qualification requirements;

and/or

(ii) record of poor performance such as abandoning the works, not properly completing the contract, inordinate delays in completion, litigation Patna High Court CWJC No.13711 of 2022 dt.25-02-2023

history, or financial failures etc; and/or (Underline supplied)

(iii) participated in the previous bidding for the same work and had quoted unreasonably high or low bid prices and could not furnish rational justification for it to the Employer."

The aforesaid clauses have been incorporated on the

approval of the Cabinet. Now the Engineer in Chief on

27.01.2022 issued a communication and in para 4 it is stated as

under:-

4. SBD/MBD [PMGSY SBD/MBD ds ITB dh dafMdk

4.7(ii) ,oa State SBD dh dafMdk 4.8] esa ;g Li'V fd;k x;k gS fd

laosnd ds [kjkc izn"kZu dk ररककरर jgus ij fufonk esa bUgsa rduhdh :i ls

vk;ksX; ?kksf'kr dj fn;k tk,xkA

of.kZr ifjis{; esa funs"k fn;k tkrk gS fd laosnd }kjk fuekZ.k/

vuqj{k.k dk;Z esa bafxr =qfV;ksa ds fujkdj.k dk ATR yafcr j[ks tkus vFkok 5-

o'khZ; #Vhu vuqj{k.k dk;Z ugha fd;s tkus dh fLFkfr esa bUgsa [kjkc izn"kZu dh

Js.kh (have record of poor performance) esa lfEefyr ekurs gq, bUgsa

rduhdh chM ds ewY;kadu esa rduhdh #i ls v;ksX; ?kksf'kr fd;k tk;A

;g rRdky izHkko ls lHkh ;kstukvksa ij ykxw gksxkA

fo"oklHkktu

(v"kksd dqekj feJk)

vfHk;ark izeq[k

Learned counsel for the petitioner has submitted that

from the reading of Para 4 of the Engineer in Chief's Patna High Court CWJC No.13711 of 2022 dt.25-02-2023

communication dated 27.01.2022, it is apparent that it is nothing

but expanding the scope of clause 4.7(ii) cited (supra). In other

words, incorporation of certain words in 4.7(ii) by Engineer in

Chief is without authority of law.

Per Contra, learned Senior counsel for the

respondents resisted the aforesaid contentions and submitted

that it is only an instruction whereby the clause 4.7 and 4.8 of

the ITB of PMGSY SBD/MBD has been clarified and

elaborated to the concerned competent Engineers. Since, it was

observed that due to misinterpretation of the clause 4.7 and 4.8 ,

the contractors against whom the ATR is pending on those who

have not completed the 5 years maintenance work were not

technically disqualified.

We are not convinced with the reasoning and

contention made on behalf of the respondents. Reading of Para

4.7(ii) of PMGSY SBD/MBD approved by the Cabinet read

with Engineer in Chief's communication dated 27.01.2022 (para

4), it is crystal clear that it is nothing but expanding the scope of

4.7(ii). If the respondents have already the option of bracketting

pending ATR and non performance of 5 years maintenance work

under record of poor performance, there was no need to issue

such letter adding these terms in clause 4.7(ii) and 4.8 (supra) of Patna High Court CWJC No.13711 of 2022 dt.25-02-2023

SBD/MBD document. The Engineer in Chief has no authority to

clarify 4.7(ii) or 4.8 for which he was not the competent

authority which in the present case in the State cabinet.

Accordingly, the petitioner has made out a prima

facie case, hence, Annexure-1 dated 27.01.2022 insofar as it

relates to pending ATR or non performance of 5 years

maintenance work is concerned stands quashed and writ petition

stands allowed.

(P. B. Bajanthri, J)

( Arun Kumar Jha, J) shoaib/-

AFR/NAFR                NAFR
CAV DATE                NA
Uploading Date          03.03.2023.
Transmission Date       NA