Patna High Court
M/S Topline Infra Projects Pvt. Ltd vs The State Of Bihar on 27 August, 2025
Author: Partha Sarthy
Bench: Partha Sarthy
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.19036 of 2024
======================================================
M/s Topline Infra Projects Pvt. Ltd. through its Authorized Signatory Sonu
Kumar, Gender-Male, aged about 29 years, Son of Harilal Agarwal, Resident
of Mill Road, Ward No.- 08, P.S. Town, District - Khagaria.
... ... Petitioner/s
Versus
1. The State of Bihar through the Additional Chief Secretary, Road
Construction Department, Visheweshraiya Bhawan, Bailey Road, Patna.
2. The Additional Chief Secretary, Road Construction Department,
Visheweshraiya Bhawan, Bailey Road, Patna.
3. The Departmental Tender Committee, Road Construction Department,
Patna.
4. The Engineer-in-Chief (Works Management), Road Construction
Department, Visheweshraiya Bhawan, Bailey Road, Patna.
5. The Chief Engineer, Seemanchal Wing, Road Construction Department,
Bihar, Patna.
6. The Technical Bid Evaluation Committee, Office of Chief Engineer,
Seemanchal Wing, Road Construction Department, Patna.
7. The Superintending Engineer, Road Circle, Purnea.
8. The Executive Engineer, Road Construction Department, Road Division,
Kishanganj.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. Y.V. Giri, Sr. Advocate
Mr. Anil Kumar Singh, Advocate
For the Respondent/s : Mr. P.K. Shahi, Advocate General
Mr. Madanjeet Kumar, G.P.-20
Mr. Samir Kumar, AC to GP-20
======================================================
CORAM: HONOURABLE THE CHIEF JUSTICE
and
HONOURABLE MR. JUSTICE PARTHA SARTHY
CAV JUDGMENT
(Per: HONOURABLE THE CHIEF JUSTICE)
Date : 27-08-2025
The present petition has been filed by the petitioner
under Article 226 of the Constitution of India in which the
petitioner has prayed for the following relief(s):-
Patna High Court CWJC No.19036 of 2024 dt.27-08-2025
2/21
"(i) For quashing of the order dated
22.11.2024
contained in Letter No. 5876(E)
(Annexure- P/5) whereby and whereunder the
Respondent Engineer-in-Chief, (Works
Management) directed the Respondent Chief
Engineer, Seemanchal Wing, RCD to re-tender in
connection with the work of "strengthening and
widening/ reconstruction with two lane with
hard shoulder from Bahadurganj to
Terhagach Road in the State of Bihar under
work division of Kishanganj" on SBD Mode.
(ii) For a direction to the respondents
to award the aforesaid work in favour of the
petitioner and issue Letter of Acceptance (LOA)
to him as the BID of the petitioner has been
found the lowest (L1) and the most responsive in
tender vide NIT No.- 02/ RCD/KISHANGANJ/
RE-TENDER/EPC/2023-24.
(iii) For appropriate declaration that :-
I. The impugned order for re-
tender dated 22.11.2024 is
on non-est ground, without
jurisdiction, arbitrary,
discriminatory,
unreasonable, unfair,
malafide and violative of
principles of natural justice
and fair play.
II. The impugned decision to
re-tender is without
Patna High Court CWJC No.19036 of 2024 dt.27-08-2025
cancellation of tender vide
NIT No.- 02/ RCD/
KISHANGANJ/ RE-
TENDER/EPC /2023-24
and as such, is not
sustainable either on fact or
on law.
III. The petitioner fulfills all
terms and conditions of the
tender which is on EPC
mode and being L1 he is
entitled to award the
aforesaid work.
(iv) For a direction to the respondents
not to act upon the impugned order dated
22.11.2024 (Annexure - P/5) and not to take any
further action in the matter of re-tender in
connection with the aforesaid work till the
disposal of the present writ.
(v) For any other relief(s) or
consequential relief(s) to which the petitioner
may be found entitled to in the facts and
circumstances of this case."
2. The facts leading to filing of the present petition are
as under:-
2.1. It is the case of the petitioner that it is a private
limited company and a registered and reputed contractor under
Patna High Court CWJC No.19036 of 2024 dt.27-08-2025
the respondents department and other works departments. The
petitioner is engaged in construction works for several decades.
It is stated that on 19.02.2024, the respondents issued Notice
Inviting Re-Tender on EPC mode vide NIT No.-
02/RCD/KISHANGANJ/RE-TENDER/EPC/2023-24 through e-
procurement mode on their website. The said NIT was with
regard to the work of "strengthening and widening/
reconstruction with two lane with hard shoulder from
Bahadurganj to Terhagach Road in the State of Bihar under
work division of Kishanganj".
2.2. It is the case of the petitioner that petitioner
participated in the said tender process and submitted its bid.
Petitioner also deposited an amount of Rs. 3.08 Crore in the
form of Bank Guarantee. On 26.06.2024, the Technical Bid
Evaluation Committee examined the technical bid of the bidders
and after scrutiny, the petitioner as well as other six
contractors/bidders were declared qualified in the technical bid.
Thereafter, some complaints were made against successful
contractor of the technical bid and one company was debarred
from participating in the bid.
2.3. Thereafter, on 19.09.2024, financial bid was
opened and the petitioner was found as lowest bidder (L-1).
Patna High Court CWJC No.19036 of 2024 dt.27-08-2025
Thus, the contract was required to be executed with the
petitioner.
2.4. However, the grievance of the petitioner is that
the respondent Engineer-in-Chief (Works Management) wrote
letter dated 22.11.2024 to respondent Chief Engineer and
directed him to re-tender of the work by SBD Mode. Petitioner
has, therefore, challenged the aforesaid action on the part of the
respondent authority of cancelling the tender process and
issuance of re-tender process on SBD Mode.
2.5. Petitioner has, therefore, challenged the aforesaid
decision by filing the present petition.
3. Heard Mr. Y.V. Giri, learned Senior Advocate
assisted by Mr. Anil Kumar Singh, learned counsel appearing on
behalf of the petitioner and Mr. P.K. Shahi, learned Advocate
General assisted by Mr. Madanjeet Kumar, learned Government
Pleader No. 20 and Mr. Samir Kumar, learned Assistant Counsel
to learned Government Pleader No. 20 for the respondents.
4. Mr. Y.V. Giri, learned Senior Advocate appearing
on behalf of the petitioner has referred to the averments made in
the memo of petition and also referred to the documents which
are annexed with the same. Thereafter, it has been contended
that the respondent authority issued Notice Inviting Re-Tender
Patna High Court CWJC No.19036 of 2024 dt.27-08-2025
on EPC Mode. However, subsequently, such decision has been
changed after opening of the financial bid. The reason assigned
by the respondent authority is that if the time of completion of
the work is 18 months, the tender is required to be issued in the
form of SBD whereas, the respondent authority by mistake
issued the tender on EPC Mode. It is submitted that in fact the
respondent authority has failed to consider the aspect that after
issuance of Notice Inviting Re-Tender on EPC Mode,
corrigendum was issued and time of completion of the work was
fixed at 20 months. Thus, if the time of completion is now 20
months, the respondent authority has rightly issued the tender on
EPC Mode. It is also submitted that after opening of the
financial bid of the bidders, it was not open for the respondent
authority to cancel the entire process on the foresaid ground. It
is also contended that the decision of cancellation of the tender
has been taken by the officer who is having no authority to
cancel the same and, therefore, on this ground also the
cancellation of the tender process is required to be set aside.
5. Learned Senior Advocate has also referred to the
policy of the State dated 31.05.2023 for issuance of tender on
EPC Mode, copy of which is placed at Page- 77 of the
compilation of the petition. It is submitted that the respondent
Patna High Court CWJC No.19036 of 2024 dt.27-08-2025
authority taken policy decision to issue the tender process by
EPC Mode if the amount involved is Rs. 50 Crores or more and
the time for completion of the project is more than 18 months.
However, the said policy has been framed by the respondents
because there are certain defects while issuing the tender on
SBD Mode. Thus, merely because in the present case the initial
NIT was for completion of the contract within 18 months, and if
it has been issued on EPC Mode, it is always open for the
respondent authority to issue the tender even when the time for
completion of work is 18 months. Thus, the process of
cancellation of the tender is required to be set aside.
6. Learned Senior Advocate, therefore, contended that
the decision taken by the respondent authority is arbitrary and
violative of Article 14 of the Constitution of India. This Court,
therefore, can exercise the powers under Article 226 of the
Constitution of India and thereby set aside the impugned
decision.
7. At this stage, learned Senior Advocate further
submits that even after cancellation of the tender process, the
respondent authority has issued Notice Inviting Re-Tender by
SBD Mode. The petitioner participated in the same. However,
the respondents have rejected the technical bid of the petitioner
Patna High Court CWJC No.19036 of 2024 dt.27-08-2025
on hyper technical ground that the petitioner has not revealed
about the pendency of the present case in the bid document,
although the respondents were party in the present case. Thus,
aforesaid disqualification of the petitioner in the re-tender
process is also challenged by the petitioner by filing I.A. No. 2
of 2025. However, at this stage, learned Senior Advocate
submits that if the main petition is allowed, there is no need to
consider I.A. No. 2 of 2025.
8. Learned Senior Advocate has placed reliance upon
decision rendered by the Hon'ble Supreme Court in the case of
Subodh Kumar Singh Rathour vs. Chief Executive Officer
and Others, reported in 2024 SCC OnLine SC 1682. Learned
Senior Advocate has, more particularly, placed reliance upon
Paragraphs 123, 129 and 132 of the said decision.
9. Learned Senior Advocate, therefore, urged that the
present petition be allowed.
10. On the other hand, learned Advocate General has
vehemently opposed the present petition. Learned Advocate
General would mainly submit that the NIT in question was
issued on EPC Mode for the work, and time of completion for
the same was 18 months. On 19.02.2024, the petitioner and
other bidders participated in the said tender process. However,
Patna High Court CWJC No.19036 of 2024 dt.27-08-2025
thereafter, it was noticed by the respondent authority that
issuance of the NIT in question on EPC Mode is not as per the
policy dated 31.05.2023. It is submitted that the said policy is
placed at Page-77 of the compilation of the petition. Learned
Advocate General would submit that if the tender for work costs
more than Rs. 50 Crores having time for completion of work
being more than 18 months, then the tender is required to be
issued by EPC Mode. In the present case, time for completion of
the work was only 18 months and, therefore, the tender was
required to be floated on model document of SBD as per
guidelines dated 31.05.2023. When the aforesaid aspect was
noticed by the respondent authority, the tender process in
question was cancelled and the department issued re-tender
process in which the petitioner also participated. However, in
the said process, petitioner did not disclose about the pendency
of the present case and, therefore, his technical bid was rightly
rejected by the respondent authority. It is submitted that merely
because the corrigendum has been issued subsequent to issuance
of the tender by EPC Mode, it is not open for the petitioner to
contend that the initial process of issuance of the tender itself
was correct. Learned Advocate General pointed out difference
between the procedure of SBD and EPC Mode.
Patna High Court CWJC No.19036 of 2024 dt.27-08-2025
11. Learned Advocate General has placed reliance
upon the decision rendered by the Hon'ble Supreme Court in the
case of Jagdish Mandal vs. State of Orissa and Others,
reported in (2007) 14 SCC 517. Learned Advocate General also
placed reliance upon the decision rendered by the Hon'ble
Supreme Court in the case of The Principal Chief Conservator
of Forest & Ors. vs. Suresh Mathew & Ors. passed on
25.04.2025 in Special Leave Petition (C) No(s). 12353-12355
of 2021.
12. Learned Advocate General, therefore, urged that
the present petition be dismissed.
13. Having heard learned Advocates appearing for the
parties and having gone through the materials placed on record,
it transpires that the controversy involved in the present matter
is in a very narrow compass. It is not in dispute that the Notice
Inviting Re-Tender was issued on 19.02.2024 for the works
stated in the said NIT on EPC Mode. Copy of the same is
produced at Page-23 of the compilation of the petition. If the
said document is carefully examined, it is revealed that it has
been specifically stated in the said document that time of
completion of work is 18 months. Keeping in view the aforesaid
NIT, if the policy of the State Government framed vide
Patna High Court CWJC No.19036 of 2024 dt.27-08-2025
communication dated 31.05.2023 is carefully examined (copy of
which is placed on record at Page-77 of the compilation of the
petition), it is revealed that it has been specifically stated in the
said policy/communication that if the cost of the work is more
than Rs. 50 Crores and time for completion of the work is more
than 18 months, then the tender is required to be issued by EPC
Mode. Thus, it can be said that if the time for completion of
work is 18 months, the NIT is required to be issued by way of
SBD Mode. In the present case, it is not in dispute that when the
NIT was issued on 19.02.2024, time for completion of work was
18 months and, therefore, the respondent authority was required
to issue tender by way of SBD Mode and not by EPC Mode.
14. Now, it is the contention of learned Senior
Advocate appearing for the petitioner that the corrigendum has
been issued, by which, time of completion of work is provided
as 20 months and, therefore, no error is committed by the
respondent authority while issuing the tender by EPC Mode.
15. We are of the view that the aforesaid contention is
misconceived. On the date of issuance of NIT on 19.02.2024,
the time of completion of work provided in the said NIT was 18
months. Merely because subsequently corrigendum was issued,
the tender process issued from beginning cannot be termed as
Patna High Court CWJC No.19036 of 2024 dt.27-08-2025
correct process in view of the policy of the respondent-State,
contained in communication dated 31.05.2023.
16. Thus, in the facts and circumstances of the present
case, when the respondent authority came to know about the
aforesaid mistake committed by it by issuing tender process in
February, 2024, same has been corrected by cancelling the entire
tender process and thereby issuing a fresh NIT as per the policy
dated 31.05.2023. Looking to the facts of the present case, it
cannot be said that the officer who has cancelled the tender
process was not authorized to cancel the same as the issuance of
tender process from the beginning itself was not as per the
policy.
17. In the case of Subodh Kumar Singh Rathour
(supra), the Hon'ble Supreme Court has observed in Paragraphs
123, 125, 126, 128, 129 and 132 as under:-
"123. Before we close this judgment,
we must also address one very important aspect
as regards the importance of maintaining the
sanctity of tenders in public private procurement
processes.
125. Public tenders are designed to
provide a level playing field for all potential
Patna High Court CWJC No.19036 of 2024 dt.27-08-2025
bidders, fostering an environment where
competition thrives, and the best value is
obtained for public funds. The integrity of this
process ensures that public projects and services
are delivered efficiently and effectively,
benefiting society at large. The principles of
transparency and fairness embedded in public
tender processes also help to prevent corruption
and misuse of public resources. In this regard we
may refer to the observations made by this Court
in Nagar Nigam v. Al. Farheem Meat Exporters
Pvt. Ltd. reported in (2006) 13 SCC 382, which
reads as under:--
"16. The law is well settled that
contracts by the State, its corporations,
instrumentalities and agencies must be
normally granted through public
auction/public tender by inviting tenders
from eligible persons and the notification of
the public auction or inviting tenders
should be advertised in well-known dailies
having wide circulation in the locality with
all relevant details such as date, time and
place of auction, subject-matter of auction,
technical specifications, estimated cost,
earnest money deposit, etc. The award of
government contracts through public
auction/public tender is to ensure
transparency in the public procurement, to
Patna High Court CWJC No.19036 of 2024 dt.27-08-2025
maximise economy and efficiency in
government procurement, to promote
healthy competition among the tenderers, to
provide for fair and equitable treatment of
all tenderers, and to eliminate
irregularities, interference and corrupt
practices by the authorities concerned. This
is required by Article 14 of the
Constitution."
(Emphasis supplied)
126. The sanctity of public tenders lies in
their role in upholding the principles of equal
opportunity and fairness. Once a contract has
come into existence through a valid tendering
process, its termination must adhere strictly to
the terms of the contract, with the executive
powers to be exercised only in exceptional cases
by the public authorities and that too in loathe.
The courts are duty bound to zealously protect
the sanctity of any tender that has been duly
conducted and concluded by ensuring that the
larger public interest of upholding bindingness
of contracts are not sidelined by a capricious or
arbitrary exercise of power by the State. It is the
duty of the courts to interfere in contractual
matters that have fallen prey to an arbitrary
action of the authorities in the guise of technical
faults, policy change or public interest etc.
128. Cancellation of a contract deprives a
person of his very valuable rights and is a very
drastic step, often due to significant investments
Patna High Court CWJC No.19036 of 2024 dt.27-08-2025
having already been made by the parties
involved during the subsistence of the contract.
Failure on the part of the courts to zealously
protect the binding nature of a lawful and valid
tender, would erode public faith in contracts and
tenders. Arbitrary terminations of contract
create uncertainty and unpredictability, thereby
discouraging public participation in the
tendering process. When private parties
perceive that their contractual rights can be
easily trampled by the State, they would be
dissuaded from participating in public
procurement processes which may have a
negative impact on such other public-private
partnership ventures and ultimately it is the
public who would have to bear the brunt
thereby frustrating the very object of public
interest.
129. We caution the public authorities to
be circumspect in disturbing or wriggling out of
its contractual obligations through means
beyond the terms of the contract in exercise of
their executive powers. We do not say for a
moment that the State has no power to alter or
cancel a contract that it has entered into.
However, if the State deems it necessary to alter
or cancel a contract on the ground of public
interest or change in policy then such
considerations must be bona-fide and should be
earnestly reflected in the decision-making
Patna High Court CWJC No.19036 of 2024 dt.27-08-2025
process and also in the final decision itself. We
say so because otherwise, it would have a very
chilling effect as participating and winning a
tender would tend to be viewed as a situation
worse than losing one at the threshold.
132. As, we have held the Notice of
Cancellation dated 07.02.2023 to be non-est, the
issuance of a fresh tender to any third-party in
respect of the same work would not defeat the
vested rights that accrued in favour of the
appellant. Similarly, the handing over of the
operation and maintenance of the E.M. Bypass
to the KMC also would have no bearing
whatsoever, on the rights that stood vested in
the appellant as on the date of cancellation of
the tender. Such vested rights would continue to
operate notwithstanding any change in the
control and maintenance of the underpasses."
18. We cannot dispute the proposition of law laid
down by the Hon'ble Supreme Court in the said case. However,
we are of the view that in view of the facts and circumstances of
the present case, as discussed hereinabove, the aforesaid
judgment would not render any assistance to the case of the
petitioner.
18.1. It is required to be observed that the decision
taken by the respondent authority of cancelling the initial tender
Patna High Court CWJC No.19036 of 2024 dt.27-08-2025
process dated 19.02.2024 was as per the policy of the State
Government dated 31.05.2023 and, therefore, the impugned
decision taken by the respondent authority cannot be termed as
arbitrary decision. Thus, the same is not violative of Article 14
of the Constitution of India, as contended by learned Senior
Counsel for the petitioner.
19. At this stage, we would like to refer to the
decision rendered by the Hon'ble Supreme Court in the case of
Jagdish Mandal (supra). The Hon'ble Supreme Court has
observed in Para-22 as under:-
"22. Judicial review of administrative
action is intended to prevent arbitrariness,
irrationality, unreasonableness, bias and mala
fides. Its purpose is to check whether choice or
decision is made "lawfully" and not to check
whether choice or decision is "sound". When
the power of judicial review is invoked in
matters relating to tenders or award of contracts,
certain special features should be borne in mind.
A contract is a commercial transaction.
Evaluating tenders and awarding contracts are
essentially commercial functions. Principles of
equity and natural justice stay at a distance. If
the decision relating to award of contract is
bona fide and is in public interest, courts will
not, in exercise of power of judicial review,
Patna High Court CWJC No.19036 of 2024 dt.27-08-2025
interfere even if a procedural aberration or error
in assessment or prejudice to a tenderer, is made
out. The power of judicial review will not be
permitted to be invoked to protect private
interest at the cost of public interest, or to
decide contractual disputes. The tenderer or
contractor with a grievance can always seek
damages in a civil court. Attempts by
unsuccessful tenderers with imaginary
grievances, wounded pride and business rivalry,
to make mountains out of molehills of some
technical/procedural violation or some prejudice
to self, and persuade courts to interfere by
exercising power of judicial review, should be
resisted. Such interferences, either interim or
final, may hold up public works for years, or
delay relief and succour to thousands and
millions and may increase the project cost
manifold. Therefore, a court before interfering
in tender or contractual matters in exercise of
power of judicial review, should pose to itself
the following questions:
(i) Whether the process adopted or
decision made by the authority is mala
fide or intended to favour someone;
OR
Whether the process adopted or
decision made is so arbitrary and
irrational that the court can say: "the
decision is such that no responsible
authority acting reasonably and in
Patna High Court CWJC No.19036 of 2024 dt.27-08-2025
accordance with relevant law could
have reached";
(ii) Whether public interest is
affected.
If the answers are in the negative, there should
be no interference under Article 226. Cases
involving blacklisting or imposition of penal
consequences on a tenderer/contractor or
distribution of State largesse (allotment of
sites/shops, grant of licences, dealerships and
franchises) stand on a different footing as they
may require a higher degree of fairness in
action."
20. In the case of Suresh Mathew & Ors. (supra), the
Hon'ble Supreme Court has referred to and relied upon the
decision rendered by the Hon'ble Supreme Court in the case of
Jagdish Mandal (supra) and thereafter observed in Para-23 as
under:-
"23. We may state here that if our
observations are seen qua the touchstone of
questions framed by this Court in the judgment
of Jagdish Mandal (supra) the answer would be
in negative, therefore the decision taken by the
authorities cannot be termed as a mala fide
decision or a decision to favour someone. At the
cost of repetition, we may state that the decision
of the authority is giving a fresh opportunity to
Patna High Court CWJC No.19036 of 2024 dt.27-08-2025
all interested bidders to compete with each other
in the process of the fresh selection. In our
opinion, the decision taken by the authority is
not affecting the public interest, on the contrary
it furthers the cause of the public interest and
fair play."
21. From the aforesaid decisions rendered by the
Hon'ble Supreme Court, it can be said that if the decision made
by the authority is mala fide or intended to favour someone or if
the said decision is arbitrary and irrational or against the public
interest, the Court can interfere with said administrative action
while exercising power of judicial review.
22. Keeping in view the aforesaid decisions, the facts
of the present case, as discussed hereinabove, are again
examined. We are of the view that the impugned decision taken
by the respondent authority cannot be termed as arbitrary or
irrational. In fact, the said decision is as per the policy dated
31.05.2023. Further, the petitioner has not made any allegation
against the respondent authority with regard to mala fide or it is
not the case of the petitioner that the decision has been taken to
favour someone.
23. So far as I.A. No. 2 of 2025 filed by the petitioner
is concerned, it is required to be observed that the petitioner has
Patna High Court CWJC No.19036 of 2024 dt.27-08-2025
participated in the re-tender process, though the present petition
is pending. In the said tender process, the petitioner has failed to
point out about the pendency of the proceedings before the
Court and, therefore, the respondent authority has rejected the
technical bid of the petitioner. We are of the view that while
rejecting the technical bid of the petitioner in the re-tender
process also the respondent authority has not committed any
error.
24. In view of the aforesaid discussions, we are not
inclined to exercise powers of judicial review under Article 226
of the Constitution of India.
25. Accordingly, the writ petition stands dismissed.
(Vipul M. Pancholi, CJ)
Partha Sarthy, J : I agree.
(Partha Sarthy, J)
P.K.P./-
AFR/NAFR
CAV DATE 12.08.2025.
Uploading Date 27.08.2025
Transmission Date
