Patna High Court
M/S Nirman Engicons Pvt. Ltd vs The Chairman Cum Managing Director Cum ... on 9 October, 2025
Author: P. B. Bajanthri
Bench: Alok Kumar Sinha, P. B. Bajanthri
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.19226 of 2024
======================================================
M/S Nirman Engicons Pvt. Ltd. through its Director, Subodh Kumar aged
about 36 years (Male), son of Bipin Singh, resident of Village-Ward No. 14,
Barauni, Police Station-Barauni, District-Begusarai.
... ... Petitioner/s
Versus
1. The Chairman cum Managing Director cum Appellate Authority Bihar
Police Building Construction Corporaration, Kautilya Nagar, Patna-14.
2. The Chief Engineer, Bihar Police Building Construction Corporaration,
Kautilya Nagar, Patna-14.
3. The Executive Engineer, Bihar Police Building Construction Corporaration,
Kautilya Nagar, Patna-14.
... ... Respondent/s
======================================================
with
Civil Writ Jurisdiction Case No. 19173 of 2024
======================================================
Chandan Kumar son of Kartik Singh, Resident of village- Pipra, P.O. Dumri,
Police Station- Ratanpur, O.P. District- Begusarai.
... ... Petitioner/s
Versus
1. The Chairman-cum-Managing Director-cum-Appellate Authority, Bihar
Police Building Construction Corporation, Kautilya Nagar, Patna-14.
2. The Chief Engineer, Bihar Police Building Construction Corporation,
Kautilya Nagar, Patna-14.
3. The Executive Engineer, Bihar Police Building Construction Corporation,
Bhagalpur Division, Bhagalpur.
... ... Respondent/s
======================================================
Appearance :
(In Civil Writ Jurisdiction Case No. 19226 of 2024)
For the Petitioner/s : Mr. Aditya Narain Singh, Advocate
: Mr. Kundan Kumar Sinha, Advocate
For the Respondent/s : Mr. Prasoon Sinha, Sr. Advocate
: Mr. Prabhat Kumar, Advocate
(In Civil Writ Jurisdiction Case No. 19173 of 2024)
For the Petitioner/s : Mr. Aditya Narain Singh, Advocate
: Mr. Kundan Kumar Sinha, Advocate
For the Respondent/s : Mr. Prasoon Sinha, Sr. Advocate
: Mr. Prabhat Kumar, Advocate
======================================================
Patna High Court CWJC No.19226 of 2024 dt.09-10-2025
2/38
CORAM: HONOURABLE THE CHIEF JUSTICE
and
HONOURABLE MR. JUSTICE ALOK KUMAR SINHA
CAV JUDGMENT
(Per: HONOURABLE MR. JUSTICE ALOK KUMAR SINHA)
Date : 09-10-2025
From a comprehensive perusal of records of both the
cases, it is found that the facts of both the cases are similar and
common issues arise for consideration. Therefore, both the cases
are being disposed of by this common judgment.
CWJC No. 19226 OF 2024
FACTS OF THE CASE:
Heard the parties.
2. The petitioner in the present writ application seeks the
following main relief:
"(i) To issue an appropriate writ/
order/ direction in the nature of certiorari for
setting aside/ quashing of the order passed by
the Respondent Chief Engineer, Bihar Police
Building Construction Corporation, Patna
(BPBCC) dated 17.08.2024 contained in
memo no. HQ3310 as well as the Appellate
order dated 13.11.2024 bearing memo no.
HQ4625 by which the petitioner's firm/
company M/S Nirman Engicons Pvt. Ltd. has
been imposed a penalty of blacklisting for two
years and further for a direction to the
Respondent Corporation to return the security
money of Rs. 11,15,000 deposited at the time of
submitting the tender paper."
Patna High Court CWJC No.19226 of 2024 dt.09-10-2025
3/38
3. Learned counsel for the petitioner respectfully
submits that the present writ petition has been preferred
challenging the order dated 17.08.2024 contained in Memo No.
HQ-3310 passed by the Respondent Chief Engineer, Bihar Police
Building Construction Corporation (hereinafter referred to as the
"BPBCC"), Patna, whereby the petitioner's firm, M/s Nirman
Engicons Pvt. Ltd., has been blacklisted for a period of two years,
as also the appellate order dated 13.11.2024 contained in Memo
No. HQ-4625, by which the said order of blacklisting has been
affirmed. The petitioner has further prayed for a direction upon the
respondent Corporation to refund the security deposit of Rs.
11,15,000/- which was submitted at the time of tender
participation.
4. The learned counsel for the petitioner submits that the
controversy arises out of E-Tender Notice No. 05/SBD/2022-23
published on 18.05.2022 by the respondent Corporation, wherein
the petitioner's firm was one of the bidders with respect to item
No. 17 of the said tender. It is submitted that as per the tender
notice, the technical bid was initially scheduled to be opened on
01.07.2022
, but subsequently corrigenda dated 23.06.2022 and
28.06.2022 extended the dates for uploading the bid papers and for
opening of the technical bid. However, despite such corrigenda,
Patna High Court CWJC No.19226 of 2024 dt.09-10-2025
the entire bid process was mandatorily required to be completed
within 120 days from 18.05.2022, i.e. on or before 17.09.2022.
5. Learned counsel submits that contrary to the
conditions of the tender, the technical bid was in fact opened on
25.04.2023, i.e., after a delay of more than seven months,
rendering the entire tender process infructuous. In view of such
prolonged delay, the petitioner's firm duly withdrew its tender by
submitting a withdrawal letter dated 24.04.2023, which was
received and acknowledged by the office of the respondent
Corporation. Consequently, the bid of the petitioner stood declared
as non-responsive.
6. It is further submitted that the petitioner had deposited
security money of Rs. 11,15,000/- in terms of the NIT, but without
issuing any notice or affording opportunity, the said deposit, along
with accrued interest, was forfeited and encashed by the
respondent Corporation. Learned counsel points out that Clause
16.6 of the Standard Bidding Document (SBD) clearly specifies
the limited conditions under which earnest money may be
forfeited, and none of those conditions are attracted in the present
case since the petitioner had withdrawn the tender prior to the
opening of technical bids and was not a valid bidder thereafter.
Patna High Court CWJC No.19226 of 2024 dt.09-10-2025
7. Learned counsel for the petitioner further submits that
the basis for the impugned blacklisting order lies in the allegation
that the petitioner had submitted a forged experience certificate
dated 22.06.2018 purportedly issued by the office of the Dy. Chief
Engineer, East Central Railway, Samastipur. It is the case of the
respondents that upon verification, the said authority denied
issuance of such a certificate. On this premise, a show cause notice
dated 03.06.2024 was issued to the petitioner.
8. The petitioner in his reply dated 14.06.2024
categorically denied the allegations, submitting details of prior
work executed by the petitioner's firm for the East Central
Railway, including substantial works under Agreement No. 561
dated 19.05.2011 for Rs. 1,74,00,797.18 and Agreement dated
29.07.2010 for Rs. 6,02,48,900.27. It was also clarified that the
experience certificate issued by the Railways covered quantities of
two different works but bore an error in date. Furthermore, it was
emphasized that since the petitioner had already withdrawn from
the tender process prior to the opening of the technical bid, there
was no occasion or authority for the respondent Corporation to
examine the bid documents, much less to scrutinize the experience
certificate.
Patna High Court CWJC No.19226 of 2024 dt.09-10-2025
9. Learned counsel further submits that Rule 11 of the
Bihar Contractors Registration Rules, 2007 prescribes specific
grounds upon which a contractor may be blacklisted. A plain
reading of the said rule makes it evident that blacklisting can only
be imposed after the allotment of work and subsequent breach or
misconduct by the contractor. In the instant case, since the
petitioner had withdrawn from the bid process much before the
stage of consideration or allotment of work, invocation of Rule 11
against the petitioner is wholly arbitrary, misconceived, and
unsustainable in law.
10. It is also urged that in a number of cases arising out
of the same tender process, FIRs were lodged against other
contractors under serious criminal allegations, yet those
contractors have not been blacklisted by the respondent
Corporation. However, the petitioner alone has been singled out
for the penalty of blacklisting, which demonstrates discrimination
and lack of uniformity in the decision-making process.
11. The learned counsel submits that the Appellate
Authority, instead of independently considering the petitioner's
grounds of challenge, merely reiterated the findings of the Chief
Engineer in a mechanical manner. The appellate order suffers from
complete non-application of mind as it fails to deal with the
Patna High Court CWJC No.19226 of 2024 dt.09-10-2025
specific points raised by the petitioner, including the fact that the
bid stood withdrawn, and that the alleged forged certificate could
not have had any impact upon a non-existent or lapsed tender
process. It is further contended that the impugned orders are vague
and indefinite even with respect to the period of blacklisting,
merely stating "for two years" without specifying the
commencement date or operative period of the penalty. Such
vagueness renders the orders arbitrary and unenforceable in law.
12. Learned counsel finally submits that the impugned
orders of blacklisting and forfeiture of security deposit are without
jurisdiction, violative of principles of natural justice, arbitrary,
discriminatory, and contrary to the statutory provisions under the
Bihar Contractors Registration Rules, 2007 as well as the terms of
the tender document. Hence, the impugned orders contained in
Annexures-P/1 and P/2 deserve to be quashed and the security
money of Rs. 11,15,000/- with interest be directed to be refunded
to the petitioner.
13. During the pendency of the writ petition, the
petitioner filed an Interlocutory Application bringing on record
subsequent events and documents, and further sought leave to
amend the relief clause of the main writ petition to challenge
Office Order No.3/2025 bearing Memo No.138 dated 04.02.2025
Patna High Court CWJC No.19226 of 2024 dt.09-10-2025
issued by the Respondent No.3, whereby the earnest money
deposit (EMD) of Rs.11,15,000/- deposited against E-Tender
No.05/SBD/2022-23, Item No.17, was forfeited on the ground that
the petitioner had withdrawn the tender after opening of the
technical bid. The petitioner contended that the withdrawal letter
was submitted on 24.04.2023, prior to the technical bid opening
dated 25.04.2023, and hence invocation of Clause 16.6(a) of the
Standard Bidding Document was unjustified. It was further
submitted that the EMD amount had already been foefeited much
prior to the impugned order dated 04.02.2025, rendering the
subsequent forfeiture order redundant and unsustainable.
FACTS OF THE CASE:
14. The petitioner in the present writ application seeks
the following main relief:
"(i) To issue an appropriate writ/
order/ direction in the nature of certiorari for
setting aside/ quashing of the order passed by
the Respondent Chief Engineer, Bihar Police
Building Construction Corporation, Patna
(BPBCC) dated 03.08.2024 contained in
memo no. HQ3310 as well as the Appellate
order dated 13.11.2024 bearing memo no.
HQ4579 by which the petitioner's firm has
been imposed a penalty of debarment until
21.02.2026 and further for a direction to the
Respondent Corporation to return the security
Patna High Court CWJC No.19226 of 2024 dt.09-10-2025
money of Rs. 11,15,000 deposited at the time of
submitting the tender paper."
15. Learned counsel for the petitioner submits that the
petitioner preferred an appeal against the said order before the
Appellate Authority, bearing Memo No. HQ4579 dated
06.11.2024, which was dismissed without consideration of the
factual and legal grounds raised in the appeal. Consequently, both
the orders impugned herein are liable to be set aside. True copies
of the aforementioned orders are annexed as Annexures P/1 and
P/2 to this writ petition.
16. Learned counsel further submits that the impugned
order dated 03.08.2024 is merely a culmination of a decision taken
by the Respondent Chief Engineer on 02.08.2024, whereby,
invoking Rule 11 of the Bihar Contractor Registration Rules, 2007,
the Chief Engineer passed a penal order of debarment until
21.02.2026. It is submitted that the issuance of two separate orders
by the same authority in respect of the same subject-matter is
redundant and arbitrary. Further, the Chief Engineer, while
rejecting the show-cause reply filed by the petitioner, failed to
provide any cogent reason or rationale.
17. It is further submitted that the petitioner's firm was
not a registered contractor of the Respondent Corporation, and
therefore, the bid submitted against Item No.17 of the E-Tender
Patna High Court CWJC No.19226 of 2024 dt.09-10-2025
notice dated 18.05.2022 was in any view of the matter
meaningless. Moreover, the petitioner was never provided with the
report of the Executive Engineer, Jharkhand Industrial
Infrastructure Development Corporation (JIIDCO), Ranchi, dated
24.04.2023, which formed the basis of the punitive action, thereby
resulting in an ex-parte order which deserves to be set aside.
18. Learned counsel further submits that the tender
process, pursuant to E-Tender Notice No. 05/SBD/2022-23, was to
be completed and the final bid opened within 120 days from
18.05.2022, i.e., by 17.09.2022. However, the technical bid was
only opened on 25.04.2023, after an inordinate delay of more than
seven months, rendering the tender notice infructuous. The
petitioner's firm had already withdrawn its bid on 24.04.2023, as
evidenced by Annexure P/6, well before the opening of the
technical bid.
19. Learned counsel for the petitioner submits that the
petitioner's consent to extend the bid validity till 31.03.2023, as
per email dated 12.01.2023 (Annexure P/7), became inoperative as
the technical bid was not opened even by the stipulated extended
period. Consequently, the petitioner's withdrawal renders it legally
non-viable to proceed against the petitioner. The Respondent
Corporation forfeited the Earnest Money Deposit of
Patna High Court CWJC No.19226 of 2024 dt.09-10-2025
Rs.11,15,000/- deposited by the petitioner's firm, without issuing
any notice, and notwithstanding the fact that the petitioner had
already withdrawn from the tender process. As per Clause 16.6 of
the Standard Bidding Document (SBD, Annexure P/8), forfeiture
of the earnest money is permissible only under specific conditions,
none of which are applicable to the petitioner.
20. Learned counsel submits that the alleged grounds for
blacklisting pertain to an experience certificate dated 10.02.2022,
purportedly issued by the Executive Engineer, JIIDCO, Namkum,
Ranchi, which was allegedly found to be forged. However, it is
submitted that the petitioner had withdrawn its bid prior to the
opening of the technical bid, and therefore, the alleged irregularity
could not have caused any prejudice or advantage, rendering the
punitive action under Rule 11(क) of Bihar Contractor Registration
Rules, 2007, inapplicable and unjust.
21. It is further contended that the Appellate Authority
failed to consider the grounds raised in the appeal and, without
application of mind, reiterated the same order of debarment. The
petitioner's firm has thus been subjected to disproportionate and
illegal penal action, without affording an opportunity of hearing,
thereby violating the principles of natural justice. In view of the
facts stated above, learned counsel for the petitioner submits that
Patna High Court CWJC No.19226 of 2024 dt.09-10-2025
the impugned orders, Annexures P/1 and P/2, are illegal, arbitrary,
and unsustainable in law, and are liable to be quashed and set aside
by this Hon'ble Court.
22. Learned counsel for the petitioner further submits
that, by way of Interlocutory Application, the petitioner seeks to
incorporate an additional prayer in the main writ petition for
quashing of Office Order No. 02/2025 dated 28.01.2025 issued by
Respondent No.3, whereby the Earnest Money Deposit of
Rs.11,15,000/- deposited against E-Tender No.05/SBD/2022-23,
Item No.17 was forfeited on the ground of withdrawal of the
tender paper after the technical bid was opened. It is submitted that
the tender paper was withdrawn on 24.04.2023, whereas the
technical bid was opened on 25.04.2023 and had already lost its
validity on 31.03.2023. Accordingly, the forfeiture under Clause
16.6(a) of the SBD is legally untenable, and the said order
deserves to be quashed along with the main writ petition.
RESPONDENT'S SUBMISSIONS:
23. Learned counsel for the respondents in both matters
being similar in nature submitted that the writ petition is wholly
misconceived and devoid of merit, having been filed by the
petitioner with the deliberate intent to mislead this Hon'ble Court
by suppressing material facts. It is contended that E-Tender Notice
Patna High Court CWJC No.19226 of 2024 dt.09-10-2025
No. 05/SBD/2022-23, contained in Memo No. HQ-1410 dated
18.05.2022, was duly issued under the signature of the Chief
Engineer, Bihar Police Building Construction Corporation
(BPBCC), inviting bids for several works, including the
construction and electrification of a Model Police Station (G+3)
with outhouse at Habibpur, Bhagalpur.
24. It is stated that, in terms of Clause 35 of the Notice
Inviting Tender (NIT), bidders were required to upload
documentary proof of experience in executing similar nature of
works under any Government or Public Sector Undertaking. The
petitioner, M/s Nirman Engicon Pvt. Ltd., submitted an experience
certificate bearing No. W/Con/247/Dy.CE/Con/II/SPJ/CA-17
dated 22.06.2018, purportedly issued by the Deputy Chief
Engineer, East Central Railway, Samastipur. The petitioner
Chandan Kumar submitted an experience certificate bearing letter
no. 235 dated 10.02.2022, purported to have been issued under the
signature of the Executive Engineer, JIIDCO, Ranchi, Jharkhand.
Upon verification of M/S Nirman Engicons Pvt. Ltd. by the
BPBCC through letter dated 03.04.2023, and verification of
Chandan Kumar by the Executive Engineer, JIIDCO, Ranchi and
further the East Central Railway, vide its letter dated 19.04.2023,
and the Executive Engineer, JIIDCO via letter no. 303 dated
Patna High Court CWJC No.19226 of 2024 dt.09-10-2025
24.04.2023 categorically informed that the said certificate had
never been issued by its office and that the signature appearing
thereon was forged.
25. The respondents further submitted that, as per Clause
41 of the NIT, the petitioner had submitted a sworn affidavit
affirming that all uploaded documents were genuine and that, in
the event of any document being found to be false or fabricated,
the Corporation would be at liberty to blacklist the firm and
initiate criminal proceedings. On receipt of the verification report
from the East Central Railway and JIIDCO, the Technical Bid
Evaluation Committee, in its meeting held on 25.04.2023, found
the petitioner's bid to be non-responsive, having relied upon a
forged experience certificate. The Committee's decision was
uploaded on the Corporation's website and communicated to all
bidders vide email dated 27.04.2023, inviting objections within
five working days.
26. It is further stated that instead of submitting any
clarification or objection, the petitioner sought to withdraw its bid
through letter dated 24.04.2023--one day prior to the meeting of
the Technical Bid Evaluation Committee--evidently as a
calculated attempt to evade the consequences of having submitted
forged documents. As per Clause 16.6(a) of the Standard Bidding
Patna High Court CWJC No.19226 of 2024 dt.09-10-2025
Document (SBD), the Corporation is entitled to forfeit the Earnest
Money Deposit (EMD) where a bidder withdraws its bid during
the period of bid validity. Since the petitioner had earlier extended
its bid validity till the final disposal, vide letter dated 06.03.2023,
the withdrawal on 24.04.2023 squarely attracted the consequences
under Clause 16.6(a).
27. Accordingly, a show cause notice dated 16.01.2025
was issued to M/S Nirmaan Engicons Pvt. Ltd. and a show cause
notice dated 09.01.2025 was issued to Chandan Kumar, to which a
reply was submitted but found unsatisfactory. Consequently, a
reasoned order bearing No. 03/2025, Memo No. 138 dated
04.02.2025 for M/S Nirmaan Engicons Pvt. Ltd. and a reasoned
order bearing No. 02/2025, Memo No. 122 dated 28.01.2025 for
Chandan Kumar, was passed by Respondent No. 3 forfeiting the
petitioner's EMD amounting to ₹11,15,000/-. The respondents
also submitted that on the basis of a written report by the
Executive Engineer, Bhagalpur Division, Hawai Adda P.S. Case
No. 151/2023 was registered against the Directors of the petitioner
company under Sections 467, 468, 471, 420, 120B, and 511 of the
Indian Penal Code for use of a forged experience certificate in a
public tender.
Patna High Court CWJC No.19226 of 2024 dt.09-10-2025
28. It is further submitted that in light of the aforesaid
developments, a show cause notice dated 03.06.2024 was issued
under Clause 11(क)(7) of the Bihar Contractor Registration Rules,
2007, calling upon the petitioner to explain why its registration
should not be blacklisted. After due consideration of the reply, the
registration of the petitioner company M/S Nirmaan Engicons Pvt.
Ltd. was blacklisted for two years vide Office Order No. 318/2024,
Memo No. HQ-3310 dated 17.08.2024 and the petitioner Chandan
Kumar was debared from participating in any future tender till his
registration is valid, i.e., 21.02.2026 vide office order no.
298/2024, Memo no. HQ-3020 dated 03.08.2024. The petitioner
M/S Nirmaan Engicons Pvt. Ltd. thereafter preferred Appeal No.
09/2024 and the petitioner Chandan Kumar preferred Appeal No.
34/2024 under Clause 11(घ) of the said Rules, which was duly
heard by the Chairman-cum-Managing Director of BPBCC. The
Appellate Authority, after affording full opportunity of hearing,
passed a detailed order vide Memo No. HQ-4625 dated 13.11.2024
for M/S Nirmaan Engicons Pvt. Ltd. and Memo No. HQ-4579
dated 06.11.2024, affirming the order of blacklisting/debarment.
29. The learned counsel for the respondents therefore
contended that the actions taken by the Corporation were in strict
conformity with law and the principles of natural justice. The
Patna High Court CWJC No.19226 of 2024 dt.09-10-2025
petitioner has nowhere denied having submitted the impugned
experience certificate, nor has it produced any material to establish
its authenticity. It is asserted that the plea of violation of natural
justice is baseless, as all relevant documents were supplied and
due opportunity of hearing was granted at both the departmental
and appellate stages. The orders impugned are reasoned, based on
cogent evidence, and passed by competent authorities. Hence, the
petitioner, having been found guilty of submitting forged
documents in a public tender, is not entitled to any relief from this
Hon'ble Court.
30. The petitioner M/S Nirmaan Engicons Pvt. Ltd. has
also filed a supplementary affidavit pursuant to the direction of
this Hon'ble Court dated 19.04.2025, bringing on record certain
documents in support of his claim that the experience certificate
dated 22.06.2018, issued by the office of the Dy. Chief Engineer
(Construction), East Central Railway, Samastipur, is genuine and
not forged. It has been stated that the petitioner's firm had in fact
executed substantial construction work under Agreement dated
15.01.2009 against Tender No. 05 of 2008-09 for a total value of
₹4,79,95,710.89, which was subsequently enhanced to
₹6,02,48,900.27 pursuant to a supplementary agreement dated
29.09.2010. The petitioner has placed on record copies of both
Patna High Court CWJC No.19226 of 2024 dt.09-10-2025
agreements, along with contemporaneous correspondence and
payment letters, to show that the East Central Railway had paid
₹4,48,48,917/- on 21.01.2011 for the said work, and that certain
additional works were also executed and paid for. It is further
averred that the construction work continued till 2013 and the
petitioner's communications with the Dy. Chief Engineer, E.C.
Railway, during this period reflect that the contract had not been
closed. On this basis, the petitioner asserts that the experience
certificate dated 22.06.2018 was duly issued by the then Dy. Chief
Engineer, Mr. Murari Lal, and that there is no forgery involved. It
is further submitted that the petitioner was never provided with the
verification report relied upon by the respondents, and had such
report been furnished, he would have been in a position to clarify
any discrepancy regarding the signature or issuance of the said
certificate.
31. The petitioners M/S Nirmaan Engicons Pvt. Ltd. and
Chandan Kumar have individually filed a consolidated reply to
the counter affidavit submitted by the Bihar Police Building
Construction Corporation, challenging both its maintainability and
the legality of the respondent's actions. At the outset, the petitioner
questions the competency of the deponent of the counter affidavit,
contending that the individual claiming to be posted as Executive
Patna High Court CWJC No.19226 of 2024 dt.09-10-2025
Engineer is over 62 years of age and, therefore, beyond the
permissible age of superannuation under the State Government
service rules, rendering the affidavit unsworn by a competent
person and liable to be rejected on that ground alone.
32. On merits, the petitioners reiterate that the
blacklisting/debarment order and forfeiture of security money are
unsustainable in law as the tender in question had lost its validity
on 31.03.2023, pursuant to the last corrigendum dated 12.01.2023,
which extended bid validity only up to that date. It is urged that
since the technical bid was opened on 25.04.2023--nearly a month
after expiry of the bid validity--any proceeding or penal action
based thereon is void ab initio. The petitioner asserts that the
withdrawal of the tender paper was made on 24.04.2023, prior to
the opening of the technical bid, and thus, the petitioner had
ceased to be a bidder at the relevant time. Consequently, invoking
Clause 16.6(a) of the Standard Bidding Document for forfeiture of
EMD or for initiating blacklisting proceedings was wholly without
jurisdiction.
It is further submitted that the respondents have
deliberately suppressed the material fact regarding the expiry of
bid validity and have proceeded to act on an expired tender, which
is arbitrary, mala fide, and contrary to settled principles of law.
Patna High Court CWJC No.19226 of 2024 dt.09-10-2025
The petitioner also contends that the impugned orders of
blacklisting were passed without furnishing the verification report
relied upon by the Corporation, thereby violating the principles of
natural justice and depriving the petitioner of an effective
opportunity to rebut the allegations.
33. Learned counsel for Respondent No.3 via. Personal
Affidavit submits that the tenders were initially invited on E-
Proc1.0, but from 01.08.2022 all submissions were required on E-
Proc2.0, which ensured enhanced security and transparency. E-
Tender No.05/SBD/2022-23 (GR No.17) was floated on E-
Proc2.0, with the last date for bid submission as 21.07.2022 and
technical bid opening on 22.07.2022. All bids, including that of the
petitioner, were uploaded within the prescribed time and evaluated
through a Technical Evaluation Sheet. The petitioner, though
having initially consented to the bid validity, withdrew his tender
on 24.04.2023 after the technical bid was opened on 25.07.2022.
Verification revealed that the experience certificate submitted by
the petitioner was forged/fabricated, and accordingly, the Earnest
Money Deposit was forfeited under Clause 16.6(a) of the SBD.
34. The petitioners M/S Nirmaan Engicons Pvt. Ltd. and
Chandan Kumar individually, in the rejoinder filed subsequent to
the series of counter affidavits submitted by the respondents both
Patna High Court CWJC No.19226 of 2024 dt.09-10-2025
collectively and individually, has specifically questioned the
opening of the Technical Bid by Mr. Arun Kumar, Superintending
Engineer, Works Circle 1 on the ground that he was not authorized
to open the technical bid. It has been contended that, as per Clause
19.1 of the Standard Bidding Document (SBD), the technical bid
was required to be opened in the presence of the Evaluation
Committee or duly authorized officers. However, in the present
case, the said Superintending Engineer, Works Circle 1, who is not
shown to be an authorized person in any official communication or
record, has admittedly opened the technical bid. The petitioner has
further argued that no authorization was ever issued in favour of
the said Superintending Engineer by any competent authority, and
even the Chief Account Officer's subsequent signature dated
13.02.2023, as referred to in Annexure-R/M, does not cure this
procedural irregularity. The petitioner has thus alleged that the act
of opening the bid by an unauthorized person vitiates the entire
tender process and raises serious doubts regarding the authenticity
and transparency of the documents subsequently produced by the
respondents, including Annexure-R/M, which has been described
as a comparison chart.
Based on the arguments raised by the learned counsel
for the petitioners and respondents and upon perusal of records in
Patna High Court CWJC No.19226 of 2024 dt.09-10-2025
CWJC No. 19173 of 2024 and CWJC No. 19226 of 2024, it is
observed that the facts of both the cases are of similar nature and
thus, can be dealt together. The common issues in question are
listed and dealt as under.
ISSUES IN QUESTION:
1. Whether the impugned orders of blacklisting the
petitioner's firm, M/s Nirman Engicons Pvt. Ltd., and the
individual petitioner, Chandan Kumar, under Rule 11 of the Bihar
Contractors Registration Rules, 2007, are legally sustainable, in
light of the petitioner having withdrawn its tender prior to the
opening of the technical bid?
2. Whether the forfeiture of the Earnest Money Deposit
of ₹11,15,000/- under Clause 16.6(a) of the Standard Bidding
Document is justified, particularly when the petitioner had
withdrawn its bid prior to the opening of the technical bid, and
whether the technical bid being opened after the stipulated tender
validity period renders the tender process infructuous and any
penal action thereon void ab initio?
3. Whether the technical bid, which formed the basis of
the punitive action, was validly opened by Mr. Arun Kumar,
Superintending Engineer, Works Circle 1, and whether such officer
was competent under Clause 19.1 of the Standard Bidding
Patna High Court CWJC No.19226 of 2024 dt.09-10-2025
Document to open the technical bid, failing which the tender
process and subsequent actions would be vitiated?
4. Whether the absence of any official document
specifying the date of technical bid opening casts doubt on the
validity, transparency, and authenticity of the tender process and
the consequential actions taken by the respondents?
5. Whether the impugned orders were passed without
furnishing the verification reports relied upon by the respondents,
without affording a meaningful opportunity of hearing to the
petitioner, and whether punitive action on the ground of allegedly
forged experience certificates is justified when the petitioner had
ceased to be a valid bidder, thereby raising questions of
arbitrariness and violation of principles of natural justice?
FINDINGS:
Issue 1: Whether the impugned orders of
blacklisting the petitioner's firm, M/s Nirman Engicons Pvt.
Ltd., and the individual petitioner, Chandan Kumar, under
Rule 11 of the Bihar Contractors Registration Rules, 2007, are
legally sustainable, in light of the petitioner having withdrawn
its tender prior to the opening of the technical bid?
Upon a comprehensive examination of the pleadings,
counter affidavits, rejoinders, and the documents placed on record,
Patna High Court CWJC No.19226 of 2024 dt.09-10-2025
this Court is of the considered view that the impugned orders of
blacklisting the petitioner's firm, M/s Nirman Engicons Pvt. Ltd.,
and the petitioner, Chandan Kumar, under Rule 11 of the Bihar
Contractors Registration Rules, 2007, are not legally sustainable in
the facts and circumstances of the present case. The admitted
factual matrix reveals that the petitioner had withdrawn its tender
prior to the opening of the technical bid. The communication
evidencing such withdrawal was duly received and acknowledged
by the respondent department before any technical evaluation
commenced. Once the withdrawal was effected, the petitioner
ceased to have any locus in the ongoing tender process, and the bid
documents submitted by it lost their operative character in law.
Any action taken thereafter, treating the petitioner as a continuing
participant in the tender, would therefore be dehors the governing
tender conditions and beyond the authority vested in the
respondents under the applicable statutory rules.
It is further noteworthy that the respondents have failed
to produce any contemporaneous document or record indicating
the actual date and time of opening of the technical bid. No
proceedings of the bid opening committee, nor any authenticated
record evidencing such opening has been placed before the Court.
The absence of such material documents creates a serious doubt
Patna High Court CWJC No.19226 of 2024 dt.09-10-2025
regarding the transparency and procedural propriety of the tender
process. In such a situation, when the very date and process of bid
opening remain unsubstantiated, the consequential reliance on the
petitioner's bid documents for initiating penal action becomes
legally untenable. The principle that administrative orders
affecting civil consequences must be founded upon verifiable and
contemporaneous records stands clearly violated in this case.
The blacklisting order has been primarily founded upon
the allegation that the petitioner submitted a forged experience
certificate. However, such allegation cannot, by itself, sustain a
punitive action of blacklisting when the petitioner had already
withdrawn from the tender before evaluation and before any
contract was awarded. The power under Rule 11 of the Bihar
Contractors Registration Rules, 2007, though wide, cannot be
invoked mechanically or retrospectively against a party who was
no longer a part of the procurement process at the relevant time.
The said Rule contemplates action in cases where a registered
contractor commits misconduct in the execution of a work or
indulges in fraudulent practices during a subsisting tender or
contract. In the present case, no such contractual relationship ever
came into existence, and hence, invocation of Rule 11 against the
petitioner is without jurisdiction.
Patna High Court CWJC No.19226 of 2024 dt.09-10-2025
Moreover, the respondents have failed to establish any
causal nexus between the alleged irregularity and prejudice to the
tender process. There is nothing on record to demonstrate that the
purported experience certificate influenced the evaluation process.
The impugned orders are also conspicuously silent on this aspect.
Administrative action of blacklisting and having civil
consequences of far-reaching impact, must be exercised with due
caution and based on substantive evidence. It is trite law that
blacklisting affects not only the present rights of a contractor but
also casts a shadow on their professional reputation and future
business prospects and it is in violation of Article 14,19(1)(g) & 21
of Constitution. Therefore, such an order must reflect application
of mind to all relevant facts and a clear finding of wilful
misconduct.
It is also pertinent to note that while the respondents
have relied upon certain verification reports to substantiate the
allegation of forgery, those reports were never supplied to the
petitioner prior to the passing of the impugned order. The
petitioner was thus deprived of a fair opportunity to rebut the
same.
In view of the aforesaid discussion, this Court is
constrained to hold that the foundational facts necessary to justify
Patna High Court CWJC No.19226 of 2024 dt.09-10-2025
exercise of power under Rule 11 are wholly absent. The
respondents cannot validly sustain a punitive order against a
bidder who had lawfully withdrawn before the stage of evaluation.
Consequently, the orders of blacklisting passed against the
petitioners are held to be unsustainable in law.
Issue 2: Whether the forfeiture of the Earnest Money
Deposit of ₹11,15,000/- under Clause 16.6(a) of the Standard
Bidding Document is justified, particularly when the petitioner
had withdrawn its bid prior to the opening of the technical bid,
and whether the technical bid being opened after the stipulated
tender validity period renders the tender process infructuous
and any penal action thereon void ab initio?
Upon consideration of the rival submissions and the
materials available on record, this Court finds that the forfeiture of
the Earnest Money Deposit (EMD) amounting to ₹11,15,000/-
under Clause 16.6(a) of the Standard Bidding Document (SBD) is
not legally justified in the facts and circumstances of the present
case. It is an admitted position that the petitioner had formally
withdrawn its tender prior to the Technical Bid Evaluation, and
such withdrawal was communicated to the respondent authorities
before the commencement of any evaluation process. Once the
tender stood withdrawn in accordance with the procedure
Patna High Court CWJC No.19226 of 2024 dt.09-10-2025
prescribed, the petitioner ceased to have any participation or
interest in the tender process. Therefore, any subsequent action
taken by the respondents treating the petitioner's bid as subsisting
and proceeding to forfeit the EMD would be beyond the scope of
the contractual terms and inconsistent with settled principles of
tender law.
Clause 16.6(a) of the SBD empowers the employer to
forfeit the EMD only in cases where a bidder withdraws its bid
during the period of bid validity or fails to execute the agreement
after being declared successful. The term "period of bid validity"
assumes critical importance, as it defines the timeframe within
which withdrawal attracts forfeiture. In the present case, the record
indicates that the bid validity period had already expired prior to
the purported opening of the technical bid. The respondents have
failed to produce any material document or record showing either
the extension of bid validity by mutual consent or the precise date
and manner of bid opening within the prescribed validity period.
In absence of such evidence, the legal presumption must be drawn
that the bid validity had lapsed, thereby rendering the tender
process infructuous. Consequently, any forfeiture of the EMD after
expiry of bid validity stands on an untenable footing and cannot be
sustained in law.
Patna High Court CWJC No.19226 of 2024 dt.09-10-2025
Furthermore, the forfeiture clause in a tender document
is penal in nature and must, therefore, be construed strictly. It can
only be invoked upon clear proof that the conditions precedent for
such forfeiture were satisfied. The withdrawal of the bid prior to
its opening merely amounted to an exercise of the petitioner's
contractual right, and such withdrawal, in itself, cannot be treated
as a default attracting penal consequences, particularly when the
tender process had become non-functional due to lapse of validity.
It also deserves mention that forfeiture of earnest money
is a drastic measure carrying civil consequences. The absence of
any authenticated record of bid opening or of any extension of bid
validity leads to the irresistible conclusion that the forfeiture of the
petitioner's EMD was arbitrary and unsustainable. The
respondents, having failed to adhere to the procedural safeguards
and contractual conditions governing bid validity and withdrawal,
cannot derive benefit from their own procedural lapses.
In view of the above discussion, this Court holds that the
forfeiture of the petitioner's Earnest Money Deposit under Clause
16.6(a) of the Standard Bidding Document was in violation of the
principles of fairness and reasonableness. The tender process
having become infructuous upon expiry of the bid validity period,
Patna High Court CWJC No.19226 of 2024 dt.09-10-2025
all consequential actions, including forfeiture of EMD, stand
vitiated and are liable to be set aside.
Issue 3: Whether the technical bid, which formed the
basis of the punitive action, was validly opened by Mr. Arun
Kumar, Superintending Engineer, Works Circle 1, and
whether such officer was competent under Clause 19.1 of the
Standard Bidding Document to open the technical bid, failing
which the tender process and subsequent actions would be
vitiated?
Upon examination of the pleadings and the documentary
materials brought on record, this Court finds that a serious doubt
arises with respect to the validity of the technical bid opening and
the competence of the officer who undertook such action. The
petitioner has consistently asserted, and the respondents have not
effectively rebutted, that the technical bid was opened by an
Superintending Engineer, Works Circle 1 who, under the
provisions of Clause 19.1 of the Standard Bidding Document
(SBD), was not authorized to do so. Clause 19.1 clearly stipulates
that the technical bid shall be opened by the duly constituted
Tender Opening Committee or by such officer as may be expressly
empowered by the competent authority in accordance with the
prescribed e-procurement protocol. The respondents, despite
Patna High Court CWJC No.19226 of 2024 dt.09-10-2025
specific challenge, have not produced any order, notification, or
delegation of authority evidencing that the said Superintending
Engineer, Works Circle 1 was ever authorized or designated to
perform this function.
In the absence of such authorization, the act of opening
the technical bid by an officer not vested with such competence
constitutes a material irregularity going to the root of the tender
process. The sanctity of tender proceedings depends upon
adherence to prescribed procedures ensuring transparency,
fairness, and accountability. Where the technical bid--the
foundational stage for evaluation--is opened by an unauthorized
individual, the entire process that follows, including any
evaluation, verification, or consequential punitive action, becomes
tainted with illegality. Such deviation cannot be treated as a mere
procedural lapse, as it affects the very jurisdiction and validity of
the administrative action. In matters of public procurement, where
public funds and contractual rights are involved, strict adherence
to the procedure prescribed by the tender document is not an
empty formality but a mandatory requirement ensuring fairness
and transparency.
The respondents' subsequent reliance on the outcome of
such a procedurally defective bid opening to initiate penal action,
Patna High Court CWJC No.19226 of 2024 dt.09-10-2025
including forfeiture of EMD and blacklisting, further compounds
the illegality. Once the foundational act--the opening of the
technical bid--stands vitiated by lack of authority, all subsequent
actions flowing therefrom lose their legal validity. It is well-settled
that an administrative act performed without jurisdiction cannot be
validated by subsequent ratification unless the authority was
inherently empowered to delegate such functions, which has not
been shown in the present case.
In view of the foregoing discussion, this Court holds that
the technical bid, which formed the basis of the punitive measures
against the petitioner, was not validly opened in accordance with
Clause 19.1 of the Standard Bidding Document. Mr. Arun Kumar,
Superintending Engineer, Works Circle 1, not being a competent
authority to open the bid, acted without jurisdiction, thereby
rendering the tender opening process and all consequential
proceedings, including blacklisting and forfeiture of earnest
money, legally unsustainable. The tender process, having been
vitiated at its inception, cannot form a lawful basis for any penal or
administrative action against the petitioner.
Issue 4: Whether the absence of any official
document specifying the date of technical bid opening casts
doubt on the validity, transparency, and authenticity of the
Patna High Court CWJC No.19226 of 2024 dt.09-10-2025
tender process and the consequential actions taken by the
respondents?
This Court finds that the absence of any official record
specifying the exact date and proceedings of the technical bid
opening casts a serious doubt on the validity, transparency, and
authenticity of the tender process. In a public tender governed by
statutory and procedural safeguards, the maintenance of
contemporaneous records such as bid opening registers and
system-generated logs is not a mere administrative formality but a
mandatory requirement to ensure fairness and verifiability. The
respondents, despite specific challenge by the petitioners, have
failed to produce any such document evidencing the precise date,
time, or the presence of authorized officials during the bid
opening.
In the absence of such documentary proof, it becomes
impossible for the Court to ascertain whether the technical bid was
opened within the prescribed validity period in accordance with
the tender conditions. The lack of such evidence undermines the
presumption of regularity that would otherwise attach to official
acts. On the contrary, it raises a legitimate inference that the
process may not have been conducted in conformity with the
Patna High Court CWJC No.19226 of 2024 dt.09-10-2025
mandatory provisions of the Standard Bidding Document and the
principles of transparency that govern public procurement.
This omission assumes greater significance since the
alleged date of technical bid opening forms the very foundation for
subsequent actions, including the declaration of the petitioner's bid
as non-responsive, the forfeiture of the Earnest Money Deposit,
and the blacklisting orders. When the basic event giving rise to
these penal consequences is itself uncertain and unsupported by
any contemporaneous record, the entire chain of actions becomes
suspect and legally unsustainable.
Accordingly, this Court holds that the non-availability of
any official document specifying the date of technical bid opening
vitiates the credibility and transparency of the tender process,
rendering the consequential actions taken by the respondents--
based upon such indeterminate proceedings--unsound in law and
contrary to the settled principles of fairness and procedural
propriety.
Issue 5. Whether the impugned orders were passed
without furnishing the verification reports relied upon by the
respondents, without affording a meaningful opportunity of
hearing to the petitioner, and whether punitive action on the
ground of allegedly forged experience certificates is justified
Patna High Court CWJC No.19226 of 2024 dt.09-10-2025
when the petitioner had ceased to be a valid bidder, thereby
raising questions of arbitrariness and violation of principles of
natural justice?
Upon consideration of the materials available on record,
this Court finds substantial force in the contention of the petitioner
that the impugned orders were passed in contravention of the
settled principles of natural justice and procedural fairness. It is
undisputed that the respondents relied upon certain verification
reports pertaining to the authenticity of the petitioner's experience
certificates while imposing the penal consequences of blacklisting
and forfeiture of Earnest Money Deposit. However, it is equally
undisputed that such verification reports were never supplied to
the petitioner at any stage of the proceedings. The non-supply of
documents forming the basis of adverse findings amounts to a
clear denial of reasonable opportunity to defend, thereby violating
the fundamental principle of audi alteram partem--that no one
should be condemned unheard.
The petitioner's grievance is further reinforced by the
admitted fact that by the time such verification exercise was
undertaken and penal action initiated, the petitioner had already
withdrawn its bid prior to the technical bid evaluation.
Consequently, the petitioner had ceased to be a valid bidder, and
Patna High Court CWJC No.19226 of 2024 dt.09-10-2025
its participation in the tender process stood effectively terminated.
Once the petitioner was no longer in the fray, any subsequent
inquiry or verification pertaining to its bid or documents lost legal
relevance. Proceeding against a non-participating bidder on
grounds of alleged document forgery, when the tender relationship
itself had ceased, is not only arbitrary but also contrary to the
principles of proportionality and fairness.
The respondents' action, based on undisclosed reports
and without granting an effective opportunity of rebuttal, reveals
procedural impropriety of a serious nature. It is a settled
proposition that even in cases involving allegations of fraud or
misconduct, the affected party must be furnished with the
materials relied upon and given an adequate chance to present its
explanation before any punitive measure is imposed. The absence
of such procedural safeguards renders the impugned orders
vulnerable to challenge on the ground of arbitrariness under
Article 14 of the Constitution of India.
35. In view of the foregoing discussion and upon a
holistic appreciation of the facts and circumstances of the case,
this Court is constrained to hold that the tender process and the
consequential actions undertaken by the respondents suffer from
multiple procedural and legal infirmities. The petitioner had
Patna High Court CWJC No.19226 of 2024 dt.09-10-2025
lawfully withdrawn from the tender prior to the opening of the
Technical Bid or most certainly prior to Technical Bid Evaluation,
and there exists no credible material on record to show that the
technical bid was either opened within the prescribed validity
period or by a duly authorized officer in accordance with Clause
19.1 of the Standard Bidding Document. The absence of any
contemporaneous record specifying the date of bid opening,
coupled with the reliance on undisclosed verification reports and
the denial of meaningful opportunity of hearing, demonstrates a
clear departure from the settled principles of natural justice and
transparency which form the cornerstone of fair administrative
procedure.
36. This Court, therefore, finds that the impugned orders
of forfeiture of Earnest Money Deposit and blacklisting of the
petitioner's firm and its Director are unsustainable in law. The
same are vitiated by lack of jurisdiction, procedural irregularities,
and violation of fundamental principles of fairness and
reasonableness. The actions of the respondents, being arbitrary and
devoid of legal foundation, cannot be permitted to stand. The
impugned orders are, therefore, quashed and set aside.
Accordingly, the writ petitions are allowed. The impugned orders
of blacklisting and forfeiture of the Earnest Money Deposit of
Patna High Court CWJC No.19226 of 2024 dt.09-10-2025
₹11,15,000/- along with any accrued interest are hereby quashed.
The respondents are directed to refund the entire EMD amount to
the petitioners within a period of six weeks from the date of this
order. All I.As, if any, shall stand disposed of. There shall be no
order as to costs.
(P. B. Bajanthri, CJ)
( Alok Kumar Sinha, J)
Prakash Narayan
AFR/NAFR AFR
CAV DATE 26.09.2025
Uploading Date 09.10.2025
Transmission Date NA
