M/S M. K. Enterprises Through Its ... vs The State Of Bihar And Ors
2023 Latest Caselaw 2453 Patna

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                   Civil Writ Jurisdiction Case No.23948 of 2018
     ======================================================

M/s M. K. Enterprises, through its Proprietor Ashok Kumar Chopra, S/o Mangal Singh, Resident of House No. 396, Sector- 37, Amarnagar, District- Faridabad, State - Harayana -121003. Present Address- Exibhition Road Crossing, Near R.k Bhattacharya Road, P.S - Kotwali, District and Town Patna-800001

... ... Petitioner/s Versus

1. The State of Bihar through the Principal Secretary, Planning and Development Department, Government of Bihar, Patna.

2. The Principal Secretary, Planning and Development Department, Government of Bihar, Patna.

3. The Deputy Director, Planning and Development Department, Patna.

4. The District Magistrate, Saharsa.

5. The District Planning Officer, Saharsa.

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

For the Petitioner/s : Mr. Lal Babu Singh, Advocate For the Respondent/s : Mr. Deepak Sahay Jamuar, AC to AAG4 ====================================================== CORAM: HONOURABLE MR. JUSTICE P. B. BAJANTHRI and HONOURABLE MR. JUSTICE ARUN KUMAR JHA CAV JUDGMENT (Per: HONOURABLE MR. JUSTICE ARUN KUMAR JHA)

Date : 17-05-2023

In compliance of the direction contained in the first

paragraph of the previous order dated 18.04.2023 by which the

Joint Registrar (List), Patna High Court, Patna, was directed to

initiate action against the officials who were all involved in not

listing this matter on that day in spite of specific order dated

04.04.2023 whereby the District Magistrate, Saharsa, was

directed to appear in person with complete record and to submit Patna High Court CWJC No.23948 of 2018 dt.17-05-2023

action taken report on the next date of hearing, the Joint

Registrar (List) has submitted that the matter has been placed

before the learned Registrar General for necessary action in the

matter.

2. Under the circumstances, the learned Registrar

General is hereby directed to submit action taken report in the

matter within three months.

3. Heard learned counsel for the petitioner and learned

counsel for the respondents.

4. The present writ petition has been filed by the

petitioner, claiming the following reliefs :-

"(i) For quashing of the order dated 23.10.2018 contained in Memo No. 262-1 whereby and whereunder the respondent no. 4, the District Magistrate, Saharsa has cancelled the agreement dated 08.08.2017.

(ii) For a direction to the respondents to extend the agreement period so that the petitioner could perform his contractual obligations as per agreement.

(iii) For a direction to the respondents to provide the petitioner the list of the places for installation of the Solar Lights.

(iv) For a direction to the respondents not to act upon the impugned order of cancellation of the agreement dated 23.10.2018 contained in Memo No. 262-1 as if it never existed.

Patna High Court CWJC No.23948 of 2018 dt.17-05-2023

(v) For a declaration that -

(a) The impugned order dated 23.10.2018 contained in Memo No. 262-1 is without jurisdiction and as such, is nullity in the eye of law.

(b) The respondent District Magistrate has absolutely no jurisdiction to cancel the agreement.

(c) The respondent District Magistrate, Saharsa was obliged only to consider the grievance of the petitioner mentioned in the writ petition vide CWJC No. 4239 of 2018 in the light of the order passed by this Hon'ble Court dated 17.09.2018 and cancellation of the agreement which was never the issue in the said writ petition is without jurisdiction and the impugned order dated 23.10.2018 is designed to overreach the order of the Hon'ble Court.

(d) The respondents cannot be allowed to raise issue of rate after execution of the agreement between the parties and the rate, the terms and conditions of the agreement are binding on the parties.

(e) No notice was served upon the petitioner as to cancellation of the agreement and as such, the impugned order dated 23.10.2018 is in violation of principles of natural justice and fair play.

(f) The impugned order dated 23.10.2018 is arbitrary and malafide and designed to frustrate the direction of this Hon'ble Court Patna High Court CWJC No.23948 of 2018 dt.17-05-2023

vide order dated 17.09.2018 passed in CWJC No. 4239 of 2018.

(vi) For any other relief or consequential reliefs to which the Petitioner may be found entitled to in the facts and circumstances of this case".

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

the respondents floated advertisement for supply and

installation of Solar Semi High Mast Street Lights (hereinafter

referred to as "Solar Lights") in 10 units in Sonbarsa, 9 units in

Patarghat, 9 units in Banma Ithari. Pursuant to the aforesaid

advertisement, the petitioner participated in the tender along

with other five bidders. Thereafter, on 03.07.2017 a meeting of

purchase committee /tender committee was held under the

Chairmanship of the respondent District Magistrate in which

the petitioner was qualified in technical bid and subsequently,

he was also qualified in financial bid and, accordingly, the

petitioner was selected for the work of installation of Solar

Lights as the petitioner has quoted the rate of Rs. 3,85,000/- per

unit which was found the lowest. Thereafter, vide letter no.842-

2 dated 08.08.2017, the respondent no. 5 has communicated the

petitioner that he has been selected for the aforesaid work and

directed the petitioner to enter into the agreement. Accordingly,

on 08.08.2017, agreement was executed between the petitioner Patna High Court CWJC No.23948 of 2018 dt.17-05-2023

and the respondent no. 5 for supply and installation of 28 Four

Arm Solar Semi High Mast Light in Saharsa at the rate of Rs.

3,85,000/- per unit. After execution of the agreement, the

petitioner gave orders for manufacturing and supply of raw

materials/equipments from Philips Company for Rs.

36,00,000/- (Thirty Six Lacs) for the present work. The

petitioner made request several times to the respondent District

Planning Officer orally as well as in writing to provide him the

list of places for installation of Solar Lights, but unfortunately,

the respondent failed to provide the list of places. In place of

providing list of places for installation of Solar Lights, the

respondent District Planning Officer sent a letter dated

06.02.2018 to the petitioner stating therein that an instruction in

this regard has been sought from the department and action

would be taken after obtaining such instruction from the

department. When the respondent failed to provide the list of

places for installation of Solar Lights, the petitioner was

constraint to file CWJC No. 4239 of 2018 in this High Court

and prayed for issuance of writ in the nature of mandamus

directing the Respondent No. 3 to provide list of places to

install Solar Semi High Mast Street Lights at District - Saharsa

for the reason an agreement to this effect has already been Patna High Court CWJC No.23948 of 2018 dt.17-05-2023

entered into between petitioner and respondent no. 3 way back

on and installation was only pending due to not providing such

list of places. Further for issuance of writ/writs in the nature of

mandamus to extend the agreement period for further three

months for the reason the time of agreement due the fault on

the part of the respondent no. 3. Also for the issuance of

writ/writs commanding the respondent authority in the

alternative to compensate this petitioner against the investment

and loss incurred due to not performing his work to the tune of

Rs. 36 Lacs suffered due to negligence of the respondents. The

aforesaid CWJC No. 4239 of 2018 was disposed of vide order

dated 17.09.2018 by this Court with a liberty to the petitioner to

file a representation before the Respondent No. 2 (respondent

no.4 herein) regarding his grievances mentioned in the writ

petition within a period of two weeks and the respondent no. 2

was directed to dispose of the same by a reasoned and speaking

order within a period of four weeks thereafter. Thereafter, on

28.09.2018, the petitioner filed a representation before the

respondent no. 4 in the light of the aforesaid order dated

17.09.2018 and requested to direct the respondent District

Planning Officer to provide him the list of places for

installation of Solar Lights. The petitioner also requested to Patna High Court CWJC No.23948 of 2018 dt.17-05-2023

grant extension of time in the agreement. But unfortunately the

respondent District Magistrate without taking into

consideration of the grievance of the petitioner mentioned in

the writ petition cancelled the agreement vide Memo No. 262-1

dated 23.10.2018 annexed as Annexure-9. Being aggrieved by

the action of the respondent authority, the petitioner filed the

present Writ.

6. The learned counsel for the petitioner submitted that

the aforesaid letter dated 23.10.2018 of the respondent District

Planning Officer is very unfortunate as once the agreement has

been executed between the parties, the only action for the

parties is to perform the contractual obligations as per

agreement and there is no occasion of seeking instruction after

execution of the agreement with regard to the terms and

conditions of the agreement. The learned counsel further

submitted that on account of non-providing of list of places for

installation of Solar Lights, the petitioner could not install the

Solar Lights as per agreement as the obligation of the petitioner

was completely depended upon the reciprocal obligation of the

respondents and without allocation and demarcation of the

places, the petitioner could not perform his contractual

obligations. In the meantime, the stipulated period for the work Patna High Court CWJC No.23948 of 2018 dt.17-05-2023

expired due to laches on part of the respondents. The learned

counsel further submitted that this Court while disposing of

CWJC No. 4239 of 2018 directed the petitioner to file

representation regarding his grievance mentioned in the writ

petition and the respondent District Magistrate was directed to

dispose of the representation regarding grievance of the

petitioner mentioned in the writ petition and as such, the

respondent no. 4 was only required to consider the grievance of

the petitioner mentioned in the writ petition, but unfortunately,

the respondent District Magistrate without any jurisdiction

cancelled the agreement which was absolutely no issue in the

writ petition. The learned counsel further submitted that the

respondent District Magistrate has no jurisdiction to cancel the

agreement as it was neither an issue in the writ petition vide

CWJC No. 4239 of 2018 nor the District Magistrate has got

any jurisdiction to cancel the agreement. The District

Magistrate is not a party in the agreement nor the agreement

provides any power or jurisdiction to the District Magistrate to

cancel the agreement. The learned counsel further submitted

that no notice was given to the petitioner as to cancellation of

the agreement and as such, the cancellation of the agreement is

in violation of principles of natural justice and fair play. The Patna High Court CWJC No.23948 of 2018 dt.17-05-2023

learned counsel further submitted that the order of cancellation

of agreement is malafide, arbitrary and designed to frustrate the

direction/order of this Court dated 17.09.2018 passed in CWJC

No. 4239 of 2018. The learned counsel further submitted that

the agreement was cancelled by the respondent District

Magistrate taking into consideration the rate of other districts in

connection with installation of Solar Lights. The ground of

cancellation of agreement is also arbitrary and malafide as the

respondents have not got any jurisdiction for taking into the

consideration the rate of other districts particularly in the

present circumstance when the rate is agreed by the parties

including the respondents and the agreement has already been

executed at that rate and after agreement the issue of rate

cannot be raised rather the rate agreed and mentioned in the

agreement is binding on the parties. The learned counsel further

submitted that the rate quoted by the petitioner was found to be

the lowest and most responsive and duly considered by the

purchasing committee/tender committee headed by the

respondent District Magistrate himself and thereafter, on that

rate the petitioner was selected and agreement was executed

and therefore, the rate agreed by the parties are binding on the

parties and the action of cancellation of the agreement on the Patna High Court CWJC No.23948 of 2018 dt.17-05-2023

ground of comparison of rate with other District is highly

arbitrary, unreasonable and without jurisdiction. The learned

counsel also submitted that the ground of cancellation of

agreement is beyond the terms and conditions of the agreement

and there is no provision in the agreement to justify the

cancellation of the agreement.

7. On the other hand, the learned counsel for the

respondents while justifying the action of the respondents

submitted that the petitioner has quoted higher rate for

supplying of Solar Lights while compared to other districts as in

other districts the rates were quoted at Rs.2,96,000/-,

Rs.2,73,000/- and Rs.1,74,000/- whereas the petitioner had

quoted the rate of Rs.3,85,000/- and for this reason, the

respondent-authority has cancelled the agreement only with

reference to Clause 7 of the N.I.T. Hence, no interference is

required by this Court in this matter.

8. Having considered the material available on record

and further considering the submissions of the parties, it is

admitted position that the parties have entered into the

agreement on 08.08.2017 for supply and installation of 28 Four

Arm Solar Semi High Mast Light in the district of Saharsa at the

rate of Rs.3,85,000/-per unit. Thereafter, it appears, the Patna High Court CWJC No.23948 of 2018 dt.17-05-2023

petitioner requested several times the authorities to provide him

the list of places for installation of Solar Lights. But, when the

respondent failed to provide the list of places, the petitioner

filed CWJC No. 4239 of 2018 in this High Court, which was

disposed of by this Court vide order dated 17.09.2018 with a

liberty to the petitioner to file a representation before the

Respondent No. 2 (respondent no.4 herein) regarding his

grievances mentioned in the writ petition within a period of two

weeks and the respondent no. 2 was directed to dispose of the

same by a reasoned and speaking order within a period of four

weeks thereafter. In terms of aforesaid liberty, the petitioner

filed a representation on 28.09.2018. But the respondent District

Magistrate rejected the representation of the petitioner and also

cancelled the agreement vide Memo No. 262-1 dated

23.10.2018. It is to be noted that the respondents should have

filed review petition, if their intention was to cancel the tender

and other proceedings. On the other hand, they have cancelled

the tender process abruptly.

9. On 18.04.2023, this Court has passed the following

orders :

"This matter was mentioned to be taken. Hence, Court Master was asked to secure the file. Joint Registrar (List), Patna High Court, Patna, is Patna High Court CWJC No.23948 of 2018 dt.17-05-2023

hereby directed to initiate action against the officials who are all involved in not listing this matter today in spite of specific order dated 04.04.2023 whereby the District Magistrate, Saharsa, was directed to appear in person with complete record. It is to be taken note of that personal appearance's matter is required to be given priority in listing. Action taken shall be reported on the next date of hearing.

02. Pursuant to the previous order dated 04.04.2023, Mr. Vaibhav Chaudhary, District Magistrate, Saharsa, is present in the Court to assist in the matter.

03. Prima facie, the petitioner has made out a case. His work order has been cancelled after execution of agreement only with reference to Clause-7 of the Notice Inviting Tender (N.I.T.) read with the clause imposed in the agreement. The sole reason for cancellation of work order in the favour of the petitioner is that he has quoted higher rate insofar as supplying of Solar Lights while compared to other Districts. It is reliably learned that in other district the rates were quoted at Rs.2,96,000/-, Rs.2,73,000/- and Rs.1,74,000/-, whereas the petitioner had quoted Rs. 3,85,000/-. No doubt it is on a higher price, but at the same time, in all fairness, the petitioner was a successful bidder and agreement has been executed. The concerned authority instead of cancelling should have given a proposal for supply of solar lights at par with other districts.

04. Learned counsel for the petitioner is hereby Patna High Court CWJC No.23948 of 2018 dt.17-05-2023

directed to get instruction from petitioner/his client as to whether is he willing to supply Solar Lights on par with other districts like at the rate of Rs.2,96,000/- or not? Similarly, whether the official-respondents could accommodate the petitioner in supplying solar lights at the rate of Rs.2,96,000/- on par with the similarly situated districts, the successful bidder in another District is stated to have supplied solar lights at the rate of Rs.2,96,000/-.

05. We have also noticed that Annexure-9 annexed with the writ petition is a document dated 23.10.2018, which bears the signature of District Magistrate, Saharsha and it appears the order contained in this document has been passed with reference to Civil Writ Jurisdiction Case No. 4239 of 2018. Now certain documents have been placed for perusal of this Court by the District Magistrate, Saharsha, who has been directed to appear in person and this document, which contains the same order, has been signed by a Committee bearing members as District Magistrate, Deputy Development Commissioner and District Programme Officer. But the contents are all same. The District Magistrate, Saharsha, is directed to verify this issue by filing a personal affidavit and clarify prior to next date of hearing.

06. Re-list this matter on 02.05.2023.

07. It is made clear that no further time would be granted as the matter is pending consideration for last five years."

Patna High Court CWJC No.23948 of 2018 dt.17-05-2023

10. In terms of aforesaid order dated 18.04.2023, the

petitioner has filed a supplementary affidavit on 28.04.2023. In

paragraph nos. 3, 4 and 5 whereof, it has been stated as follows :

"3. That it is relevant to mention here that the specifications of the materials and works are different in each district for supply and installation of solar lights. The specifications of the present work have already been given in the agreement itself. The petitioner quoted his rate at the rate of Rs. 3,85,000/- per unit on the basis of the specifications of the work which was agreed by the parties and accordingly the agreement was executed. The rate may differ as per specifications in different districts.

4. That however, the petitioner is ready to execute the work at the rate of Rs. 2,96,000/- in terms of the order passed by this Hon'ble Court on 18.04.2023 and in view of huge investment of the petitioner in the present work.

5. That in the facts and circumstances and in terms of the order dated 18.04.2023 of this Hon'ble Court the petitioner is ready to execute the work at the rate of Rs. 2,96,000/-".

11. In terms of the aforesaid order, the District

Magistrate, Saharsa has also filed personal affidavit dated

29.04.2023. In para 4, it has been stated as follows :

"4. That in this regard it is stated that annexure no.

09 which was issued on dated 23.10.2018 signed by District Magistrate, Saharsa with reference to C.W.J.C No. 4239/2018 and similarly a document Patna High Court CWJC No.23948 of 2018 dt.17-05-2023

was produced for perusal of lordship by District Magistrate Saharsa during hearing on 18/04/2023 bearing signature of the District Magistrate, Deputy Development Commissioner, District Planning Officer Saharsa having the same contents. Here it is humbly submitted that in official working process. Letters or Orders are prepared in two heads namely office Copy and Final Copy. Office copy is signed by all the concerned officials and assistants, whereas Final Copy is signed by the concerned Final authority. The letter produced for perusal of the lordship was the office copy having signature of the District Magistrate, Deputy Development Commissioner, District Planning Officer Saharsa. Whereas document bearing single signature is Final Copy which has signature of only one officer i.e. District Magistrate, Saharsa".

12. It appears that the petitioner is willing to supply

Solar Lights at the rate of Rs.2,96,000/- per unit. But the District

Magistrate, Saharsa, who was present before this Court on the

last occasion, submitted that the scheme for installation of solar

lights was closed by the State Government in the year 2020

itself, so it can not be possible to accommodate the petitioner in

supplying solar lights at the rate of Rs.2,96,000/-, since the

tender was floated under the Chief Minister Area Development

Scheme after the MLA of the Assembly concerned

recommended for installation of total 28 Four Arm Solar Lights. Patna High Court CWJC No.23948 of 2018 dt.17-05-2023

13. Having regard to the facts of the case, it is not in

dispute that the petitioner was successful bidder for installation

of Four Arm Solar Lights and was awarded the contract by the

District Magistrate of Saharsa district who chaired the purchase

committee meeting. Thereafter, the agreement was entered into

by the petitioner and the District Planning Officer and the said

agreement contained the stipulation that any dispute arising out

of the compliance of the terms of the agreement would be

settled before the District Magistrate-cum-Chairman, Purchase

Committee, Saharsa. Thereafter, some dispute arose over pricing

as it was found by the respondent authority that there was much

variance in the price of the solar light to be installed in different

districts. Prior to that, the petitioner moved before this Court by

filing CWJC No.4239 of 2018, which was disposed of vide

order dated 17.09.2018 directing that the petitioner might file a

representation before the respondent no.2 within a period of two

weeks from the date of the order and the respondent no.2 was

further directed to dispose of the same by a reasoned and

speaking order within a period of four weeks thereafter. It

further appears that the said writ petition was filed with a prayer

to direct the District Programme Officer, Saharsa to make

available the list of sites where the solar lights were to be Patna High Court CWJC No.23948 of 2018 dt.17-05-2023

installed. However, the District Magistrate, Saharsa recorded his

finding that there was much difference between the rates for

installation of solar lights in different districts and if the same

was allowed to the petitioner, it would cause heavy revenue loss

to the State. In these circumstances, the District Magistrate,

Saharsa proceeded to cancel the contract and rejected the

representation of the petitioner.

14. Perusal of the order dated 23.10.2018 makes it

amply clear that the petitioner was not afforded any opportunity

of hearing prior to cancellation of its contract since the

petitioner made representation regarding providing it with sites

for installation of solar lights as is apparent from the first

paragraph of the order dated 23.10.2018 which is reproduced

below for reference.

सममाहरणमालय, सहरसमा

(जजिलमा ययोजिनमा कमायर्यालय, सहरसमा)

आददश

एम 0 कद0 इन्टर पमाईजिदजि, एग्जिजीजबिशन रयोड, पटनमा दमारमा ममाननजीय उच्च न्यमायमालय मद CWIC No. 4239/2018 दमाजखिल जकयमा गयमा। रजीट यमाजचकमा मम आवददनकरर्या दमारमा अननुरयोध जकयमा गयमा हह जक आवददनकरर्या एवव जजिलमा ययोजिनमा पदमाजधकमारजी, सहरसमा कद बिजीच जनष्पमाजदर एकरमारनमाममा कद आधमार पर जजिलमा ययोजिनमा पदमाजधकमारजी, सहरसमा कयो चमार बिबाँह वमालद सयोलर स्टजीट लमाईट अजधषमापन हदरनु चयजनर स्थललों कजी ससूचजी उपलब्ध करमानद हदरनु जनदर्देजशर जकयमा जिमाय।

ममाननजीय उच्च न्यमायमालय दमारमा उक्र जरट यमाजचकमा कमा जनष्पमादन कररद हएनु जदननांक 25.09.2018 कयो जनमनांजकर आददश पमाजरर जकयमा गयमा हह:-

Accordingly, it is directed that the petitioner may file Patna High Court CWJC No.23948 of 2018 dt.17-05-2023

a representation before the respondent no. 2 within a period of two weeks from today and the respondent no. 2 shall dispose of the same by a reasoned and speaking order within a period of four weeks thereafter.

The writ petition is disposed of on the aforesaid terms.

उक्र आददश कद अननुपमालन मम आददश पमाजरर जकयमा जिमा रहमा हह। ममाननजीय जवधमायक शजी रतदश समादमा कद दमारमा , चमार बिबाँह वमालद सयोलर स्टजीट लमाईट अजधषमापन हदरनु कजी गई अननुशवसमा कद आलयोक मम जदननांक 20.05.2017 कयो जनजवदमा आमवजत्रिर कजी गई। जदननांक 03.07.2017 कयो जनजवद कमा जनष्पमादन जकयमा गयमा, जजिसमम एम०कद० इन्टरपमाइजिदजि , एग्जिजीजबिशन रयोड, पटनमा कमा दर मयो 0- 385000/- (रजीन लमाखि पचमासजी हजिमार) न्यसूनरम पमायमा गयमा। जनजवदमा मम न्यसूनरम दर हयोनद कद आधमार पर जदननांक 08.08.2017 कयो एम०कद० इन्टरपमाईजिदजि , एग्जिजीजबिशन रयोड, पटनमा कद समाथ एकरमारनमाममा जकयमा गयमा। परन्रनु कमायर्याददश जनगर्गर नहहीं हआ नु ।

कमायर्याददश जनगर्गर हयोनद कद पसूवर्ग जमार हआ नु जक सममान जवजशष्टरमाए कद चमार बिबाँह वमालद सयोलर स्टजीट लमाईट कमा दर बिक्सर जजिलमा मम मयो 0-296663 /- (दयो लमाखि जछियमानवद हजिमार छि: ससौ जररसठ), कहमसूर (भभनुआ) मद 272000/- (दयो लमाखि बिहत्तर हजिमार) रू० एवव समस्रजीपनुर जजिलमा मम 171954/- (एक लमाखि एकहत्तर हजिमार नसौ ससौ चसौवन) रू० जनधर्याजरर हह। जिबिजक सहरसमा मम न्यसूनरम दर मयो 0-385000/- (रजीन लमाखि पचमासजी हजिमार ) पमायमा गयमा। जवजभन्न जजिलमा कद दरलों मम अत्यजधक अन्रर कद कमारण पधमान सजचव ययोजिनमा एवव जवकमास जवभमाग , जबिहमार पटनमा सद पत्रिनांक 1044-2/ जजि०ययो० जदननांक 17.10.2017 दमारमा ममागर्गदशर्गन कजी मनांग कजी गयजी। इस पत्रि कजी पजर एम०कद० इन्टर पमाईजिदजि , एक्जिजीजवशन रयोड, पटनमा कयो भजी पदजषिर कजी गयजी। रत्पशमार जवभमाग सद ममागर्गदशर्गन पमाप्र नहहीं हयोनद कद उपरमान्र अधयोहस्रमाक्षरजी कद स्रर सद पत्रिनांक 1161-2 / जजि०ययो० जदननांक 20.11.2017 सद पनुन : ममागर्गदशर्गन कजी ममाग कजी गई।

इसजी बिजीच एम 0 कद0 इन्टर पमाईजिदजि, एक्जिजीजबिशन रयोड, पटनमा दमारमा चमार बिमाह वमालद सयोलर स्टजीट लमाईट अजधषमापन हदरनु चयजनर स्थललों कजी ससूजच कजी मनांग कजी व मम उन्हम पत्रिमाक 1214-2 / जजि०ययो० जदननांक 30.11.2017 जिमारजी रहजी, जजिस सवबिध व जी ससूचनमा दजी गयजी। पसूवर्ग मम भजी जवभमाग सद दमारमा जवभमाग सद ममागर्गदशर्गन मनांगद जिमानद , सवबिध व जी पत्रि कजी पजर एम०कद० इन्टर पमाईजिदजि , एक्जिजीजवशन रयोड, मनांगजी गयजी ममागर्गदशर्गन सवबिध पटनमा कयो दजी गयजीथजी।

पनुननः पत्रिनांक 36-1 जदननांक 06.02.2018 एवव 86-1 जदननांक 13.03.2018 दमारमा ममागर्गदशर्गन हदरनु प 0 सजचव, ययोजिनमा एवव जवकमास जवभमाग कयो स्ममाजरर जकयमा गयमा।

ययोजिनमा एवव जवकमास जवभमाग , जबिहमार पटनमा कजी जदनमाक 19.02.2018 एवव 20.02.2018 कयो सम्पन्न क्षदत्रिजीय पदमाजधकमाजरयलों कजी बिहठक मम जलयद गयद जनणर्गय कद अननुसमार सयोलर स्टजीट लमाईट कद अजधषमापन सवबिध व जी ययोजिनमा पर अगदरर कमारर्गवमाई Patna High Court CWJC No.23948 of 2018 dt.17-05-2023

स्थजगर रखिनद कमा जनददश जदयमा गयमा।

जवभमाग सद मनांगजी गयजी ममागर्गदशर्गन मम सवयनुक्र सजचव , ययोजिनमा एवव जवकमास जवभमाग, जबिहमार पटनमा कद पत्रिनांक 1088 जदननांक 06.03.2018 दमारमा ससूजचर जकयमा गयमा जक जवभमागजीय पत्रिनांक 1929 जदननांक 20.04.2015 कद दमारमा जनगर्गर जनदर्देश कद आलयोक मम कमारर्गवमाई कजी जिमाय। उक्र पत्रि मम अन्य जजिललों एवव इस जजिलद कद दर मम जभन्नरमा कद सवबिध व मम अपदजक्षर अगदरर कमारर्गवमाई कद सवबिध व मम जस्थजर स्पष्ट नहहीं कजी गयजी हह।

जवभमाग दमारमा जदयद गयद जनदर्देश मम दर जभन्नरमा कद सवबिध व मम जस्थजर स्पष्ट नहहीं हयोनद कद कमारण पनुन पत्रिनांक 80-1/ जजि.ययो. जदननांक 13.03.2018 दमारमा स्पष्ट ममागर्गदशर्गन कजी मनांग कजी गयजी जियो सम्पजर अपमाप्र हह।

इस बिजीच ए०ए०जिजी-4 दमारमा CWJC No.4239/2018 दमाजखिल हयोनद कजी ससूचनमा दजी गई एवव इससद सवबिजव धर SOF दमाजखिल करनद कमा जनदर्देश पमाप्र हआ नु ।

ममाननजीय उच्च न्यमायमालय मम ममामलमा जवचमारमाजधन हयोनद कद कमारण अगदरर कमारर्गवमाई स्थजगर रहजी।

उपरयोक्र रथ्यलों सद स्पष्ट हह जक सममान जवजशष्टरमाए कद चमार बिबाँह वमालद सयोलर स्टजीट लमाईट कजी जकमर बिक्सर जजिलमा मम मयो० -296663 /- (दयो लमाखि जछियमानवम हजिमार छि: ससौ जररसठ), कहमसूर (भभनुआ) मद 272000/- (दयो लमाखि बिहत्तर हजिमार) रू० एवव समस्रजीपनुर जजिलमा मम 171954/- (एक लमाखि एकहत्तर हजिमार नसौ ससौ चसौवन) रू० हह। एम० कद० इन्टरपमाईजिदजि एग्जिजीजवशन रयोड, पटनमा दमारमा सहरसमा जजिलद कद जलए पस्रनुर दर मयो०-385000/- (रजीन लमाखि पचमासजी हजिमार) रू० हह। इस पकमार सहरसमा जजिलद एवव अन्य जजिललों कद दर मम कमाफजी जभन्नरमा हह। इस जस्थजर मम एम०कद० इन्टरपमाईजिदजि एक्जिजीजबिशन रयोड, पटनमा दमारमा पस्रनुर दर पर चमार बिमाह वमालद सयोलर स्टजीट लमाईट क्रय मम बिडद पहममानद पर रमाजिस्व कजी हमानजी हयोगजी। यह कमायर्ग जवजत्तय अननुशमासन कद अननुरूप भजी नहहीं हयोगमा रथमा भजवष्य मम जवजत्तय अजनयजमररमा कमा आधमार बिन सकरमा हह। एम०कद० इन्टर पमाईजिदजि , एक्जिजीजवशन रयोड, पटनमा कद समाथ जदननांक 08.08.2017 कयो जनष्पमाजदर एकरमारनमाममा मम पमावधमाजनर हह जक एकरमारनमाममा कद अननुपमालन मम उत्पन्न जववमादलों कमा जनपटमारमा अधयोहस्रमाक्षरजी कद समक्ष जकयमा जिमाएगमा। जवजभन्न जजिललों एवव सहरसमा हदरनु पस्रनुर दर मम कमाफजी जमन्नरमा हयोनद कद कमारण एकरमारनमाममा मम वजणर्गर शररव कद आलयोक मम एम 0 कद0 इन्टरपमाईजिदजि, एग्जिजीजबिशन रयोड, पटनमा एवव जजिलमा ययोजिनमा पदमाजधकमारजी , सहरसमा कद बिजीच जदननांक 08.08.2017 कयो जनष्पमाजदर एकरमारनमाममा कयो रद जकयमा जिमारमा हह रथमा एम 0 कद0 इन्टरपमाईजिदजि एग्जिजीजवशन रयोड, पटनमा दमारमा पस्रनुर आवददन कयो खिमाजरजि जकयमा जिमारमा हह।

इसकजी ससूचनमा सवबिजव धर कयो दजी जिमाय।

ह० /-

जजिलमा पदमाजधकमारजी सहरसमा जदननांक: 23/10/18 जमापनांक 262-1/ जजि.ययो.

Patna High Court CWJC No.23948 of 2018 dt.17-05-2023

पजरजलजप:-एम०कद० इन्टरपमाईजिदजि एक्जिजीजवशन रयोड, पटनमा कयो ससूचनमाथर्ग पदजषिर ।

पजरजलजप :- जजिलमा ययोजिनमा पदमाजधकमारजी , सहरसमा कयो अगदरर कमारर्गवमाई हदरनु ससूचनमाथर्ग पदजषिर ।

पजरजलजप :- क्षदत्रिजीय ययोजिनमा पदमाजधकमारजी , कयोशजी पमवडल , सहरसमा कयो ससूचनमाथर्ग पदजषिर।

पजरजलजप :- सवयनुक्र सजचव, ययोजिनमा एवव जवकमास जवभमाग, जबिहमार पटनमा कयो ससूचनमाथर्ग पदजषिर।

ह० /-

जजिलमा पदमाजधकमारजी सहरसमा जदननांक: 22/10/18

15. Not providing opportunity to the petitioner before

cancelling its contract amounts to violation of the principles of

natural justice as well as it smacks of arbitrariness. The Hon'ble

Apex Court in the case of UMC Technologies (P) Ltd. v. Food

Corpn. of India, (2021) 2 SCC 551, in paragraph 13, held as

under :

"13. At the outset, it must be noted that it is the first principle of civilised jurisprudence that a person against whom any action is sought to be taken or whose right or interests are being affected should be given a reasonable opportunity to defend himself. The basic principle of natural justice is that before adjudication starts, the authority concerned should give to the affected party a notice of the case against him so that he can defend himself. Such notice should be adequate and the grounds necessitating action and the penalty/action proposed should be mentioned Patna High Court CWJC No.23948 of 2018 dt.17-05-2023

specifically and unambiguously. An order travelling beyond the bounds of notice is impermissible and without jurisdiction to that extent. This Court in Nasir Ahmad v. Custodian General, Evacuee Property [Nasir Ahmad v. Custodian General, Evacuee Property, (1980) 3 SCC 1] has held that it is essential for the notice to specify the particular grounds on the basis of which an action is proposed to be taken so as to enable the noticee to answer the case against him. If these conditions are not satisfied, the person cannot be said to have been granted any reasonable opportunity of being heard".

On this account, the order dated 23.10.2018 of the

District Magistrate, Saharsa is bad in the eyes of law.

16. There is another aspect of the matter which is

whether the District Magistrate has got power to cancel the

agreement. Admittedly, the contract was awarded by the

Purchase Committee headed by the District Magistrate, but

nothing has been brought on record to show that the District

Magistrate was himself competent to cancel the contract. During

the course of hearing, certain documents were produced from

the official file which shows the another document dated

23.10.2018, having same contents as Annexure-9, was having

signatures of the District Magistrate, Deputy Development Patna High Court CWJC No.23948 of 2018 dt.17-05-2023

Commissioner and the District Planning Officer, Saharsa. By

filing his personal affidavit, the District Magistrate, Saharsa has

tried to pass the preparation of two documents bearing different

signatures in the official working process submitting that letters

or orders are prepared in two heads namely, office copy and

final copy. Office copy is signed by all the concerned officials

and assistants whereas the final copy is signed by the concerned

final authority and in this manner discrepancy has been tried to

be explained. If this reasoning of the District Magistrate is to be

accepted, there must be mentioning of this fact that the office

copy was signed by the three officials whereas the final copy

was signed by the final authority, in the present case, the District

Magistrate. No such explanation is forthcoming. However, this

discrepancy is not of our concern for the present since we are

dealing with the issue whether the District Magistrate has

competence to cancel the contract. No doubt the clause of the

contract provides for settlement of dispute by the District

Magistrate as the Chairman of the Purchase Committee, but the

present case is not for the resolution of any dispute by the

settlement authority, rather it is cancellation of contract and if

the contract was awarded by the district purchase committee, it

ought to be cancelled by the same committee in absence of any Patna High Court CWJC No.23948 of 2018 dt.17-05-2023

specific provision to this effect. But in no way, the District

Magistrate was empowered to cancel the contract.

On both the counts, the order dated 23.10.2018 is not

sustainable.

17. However, as already discussed, at this point of time

the scheme under which the petitioner was awarded the contract

has been closed and the official respondents are not in a position

to revive the contract entered into by the parties. So, no useful

purpose would be served even if the order dated 23.10.2018 is

set aside. At the same time, the respondent no.4 by arbitrary and

illegal act forced the petitioner in such a hapless condition that

he has no option but to approach this Court for redressal of his

grievance on two occasions. Under these circumstances, it is

proper and justified to impose cost upon the official respondents

which is quantified at Rs.2,00,000/- (two lacs) to be paid to the

petitioner within a period of three months from today, failing

which further cost quantified at Rs.1,00,000/- (one lac) will be

paid by the respondent no.4 to the petitioner. Imposition of cost

is warranted for the reasons that the petitioner was successful

bidders, agreement was executed, the petitioner had invested on

materials and he was compelled to file two writ petitions.

18. With the aforesaid observations and directions, this Patna High Court CWJC No.23948 of 2018 dt.17-05-2023

writ petition stands disposed of.

(P. B. Bajanthri, J)

( Arun Kumar Jha, J) V.K.Pandey/-

AFR/NAFR                AFR
CAV DATE                02.05.2023
Uploading Date          17.05.2023
Transmission Date       N.A