Patna High Court
Lalit Kishore Khurana vs The State Of Bihar on 5 March, 2024
Bench: Chief Justice, Harish Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.17776 of 2023
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Lalit Kishore Khurana Son of Lt Sh. Yash Pal Khurana Resident of 0/326,
Sunder Vihar, Paschim Vihar, New Delhi - 110087 proprietor of M/s Yash
enterprises having its place of business at Plot No. 68, Badli Industrial Area,
New Delhi - 110042.
... ... Petitioner/s
Versus
1. The State of Bihar through the Additional Chief Secretary, Disaster
Management Department, Government of Bihar Patna.
2. The Joint Secretary, Disaster Management Department, Government of
Bihar, Patna.
3. District Magistrate, Disaster Management Branch, Munger, Bihar - 811201.
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr.Gautam Kejriwal, Advocate
Mr.Alok Kumar Jha, Advocate
Mr.Mukund Kumar, Advocate
Mr.Aditya Raman, Advocate
For the Respondent/s : Mr.P.K. Shahi (AG)
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CORAM: HONOURABLE THE CHIEF JUSTICE
and
HONOURABLE MR. JUSTICE HARISH KUMAR
ORAL JUDGMENT
(Per: HONOURABLE THE CHIEF JUSTICE)
Date : 05-03-2024
The petitioner, a successful bidder, pursuant to a
Notice Inviting Tender (for brevity "NIT") for supply of
Patna High Court CWJC No.17776 of 2023 dt.05-03-2024
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polythene sheets in the Districts of Munger, Jamui, Sheikhpura
and Khagaria is aggrieved with the order issued by the District
Magistrate, Disaster Management Branch, Munger, Bihar
cancelling his work order by Annexure- P/14 dated 26.09.2023.
The petitioner also seeks a mandamus to direct payment for the
41,000 polythene sheets supplied to Districts of Khagaria,
Sheikpura, Jamui and Munger pursuant to the purchase order
dated 28.05.2022. The petitioner has also been blacklisted which
too is challenged in the aforesaid writ petition.
2. We have heard learned counsel for the petitioner
and the learned Government Advocate.
3. The petitioner is a manufacturer and dealer of
LDPE polythene sheets, cross laminated films and such other
similar articles. The Disaster Management Authority, Munger
which is headed by the District Magistrate of Munger, notified
as the Nodal Officer, had issued a NIT for purchase of Low
Density Polythene Black Sheets for not only the District of
Munger, but also Jamui, Sheikpura and Khagaria; which are
flood prone. The petitioner's tender was accepted and the
purchase order was placed on 28.05.2022 for supply of 41,000
polythene sheets; different numbers to the various districts. The
polythene sheets were also to be certified by the Central
Patna High Court CWJC No.17776 of 2023 dt.05-03-2024
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Institute of Plastic Engineering and Technology, Hajipur (for
brevity "C.I.P.E.T"); as per the specification in the purchase
order itself. The quality and quantity was also to be tested by the
Committee formed at the district level. The purchase order
stipulated that when the supply is made, a sample would be
taken and send for testing to the C.I.P.E.T. Only on receipt of the
quality verification report as also the weighment of the material
supplied; by the Inspector of Weights and Measures, the
payment would be released. So much is evident from the
purchase orders produced as Annexure-P/2 by the petitioner in
the writ petition.
4. The petitioner had made the supplies to the various
districts and on sampling and sending it for testing, they were
found to be not in consonance with the specifications, by the
C.I.P.E.T. The petitioner was also supplied with the C.I.P.E.T
reports. The petitioner's contention is that the samples were
taken not immediately after delivery, but after two months and
this led to deterioration in the quality of the supplied materials.
It is also the contention of the petitioner that the C.I.P.E.T
reports were only supplied on 31.03.2023 along with the office
order dated 25.03.2023.
5. A detailed counter affidavit has been filed by the
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respondent wherein the procedure of sampling, transmission for
testing and receipt of the reports is explained in detail. We
would first look at the order impugned which is produced as
Annexure-P/14. The District Magistrate, Munger has
specifically referred to the random selection of the polythene
sheets supplied by the petitioner which was sent to C.I.P.E.T,
Hajipur for quality testing. The discrepancies with respect to the
report was also detailed, with reference to the standard
specifications in a tabular form in the order. It was noticed that
earlier also such defective supplies were made by the petitioner
which was returned vide an office letter no. 1137/AP, dated
01.07.2022
. The petitioner was directed to supply polythene
sheets in accordance with the specifications to Munger and
Jamui districts from where the supplied sheets were returned for
being not in accordance with the specifications. The request of
the petitioner for re-examination of the polythene sheets was
acceded to and the C.I.P.E.T, Hajipur again examined the same
wherein also glaring discrepancies were noticed. This is the
reason for cancellation of the work order issued to the petitioner.
6. We do not find any reason to interfere with the
same at this point since the rejection has been done by the
District Magistrate, Munger who heads the Disaster
Patna High Court CWJC No.17776 of 2023 dt.05-03-2024
Management Branch at the Collectorate, Munger after getting
technical report from an expert institute which revealed the
supplied material not being in accordance with the
specifications of the purchase order.
7. As we noticed the counter affidavit specifically
indicates that the District Magistrate, Munger had issued the
short term tender for purchase of Low Density Polythene
Sheets, the specifications of which were available in the tender
itself. Munger was designated as the Nodal district for purchase
of polythene sheets for all the districts coming within the
Munger division vide order dated 20.04.2018 which is produced
as Annexure-A. The first supply was made of a quantity of 500
packets on 17.06.2022 which was checked randomly and found
it to have not met the required specifications. The In-Charge
Officer of the District Management Section, Munger had
immediately issued a letter on 01.07.2022, with a direction to
take back the supplied polythene sheets and to replace them
with material in accordance with the specification. The rejected
materials were also taken by the petitioner on 05.07.2022. Later
to that also the petitioner had supplied defective material, which
defects were also noticed specifically in the report of the
C.I.P.E.T.
Patna High Court CWJC No.17776 of 2023 dt.05-03-2024
8. As we observed, when an expert body has tested
the material and submitted a report clearly finding the supplied
material to be not in accordance with the specification in the
purchase order, there can be no invocation of Article 226 of the
Constitution of India either against the cancellation or for
payment of the amounts for the supplies made. The petitioner
would have to approach the Civil Court and lead evidence
insofar as the assertion of quality and compliance with the
standards as indicated in the purchase order or request for an
arbitration. We absolutely find no reason to interfere with the
order of the District Magistrate which was based on the test
report of the C.I.P.E.T.
9. As far as the blacklisting is concerned, we notice
that there is no period specified which is against the dictum of
the Hon'ble Supreme Court in Kulja Industries Ltd. v. Western
Telecom Project BSNL, (2014) 14 SCC 731. In such
circumstances, insofar as the blacklisting is concerned, the
petitioner would be entitled to make a representation, in which
eventuality, the authority shall consider the same and issue a
speaking order, fixing a period in consonance with the gravity of
the misconduct; subject of course to any legal proceeding taken
by the petitioner; by way of a civil suit or an arbitration.
Patna High Court CWJC No.17776 of 2023 dt.05-03-2024
10. The writ petition hence, would stand dismissed
reserving the above liberty to the petitioner.
(K. Vinod Chandran, CJ)
( Harish Kumar, J)
Anushka/-
AFR/NAFR
CAV DATE
Uploading Date 14.03.2024
Transmission Date
