Patna High Court
Balwant Construction Pvt. Ltd vs The State Of Bihar on 4 September, 2025
Author: Alok Kumar Sinha
Bench: Alok Kumar Sinha
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.9716 of 2025
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Balwant Construction Pvt. Ltd. having its registered office at Village Sarai,
P.O. Mashoudha (Jandaha), P.S. Ramgarh, District- Kaimur, Bihar through its
Director Veer Raghawan, Male, aged about 31 years, Son of Ramji Singh,
Resident of New Area Jora Mandir, Dehri, P.S. Dehri Nagar, District Rohtas,
Bihar.
... ... Petitioner/s
Versus
1. The State of Bihar through Additional Chief Secretary, Rural Works
Department, Government of Bihar, Patna.
2. The Engineer In-Chief, Rural Works Department, Government of Bihar,
Patna.
3. The Chief Engineer-2, Rural Works Department (Gaya), Government of
Bihar, Patna.
4. The Superintending Engineer, Work Circle- Sasaram, Rural Works
Department, Government of Bihar, Patna.
5. The Nodal Officer, MMGSUY, Rural Works Department, Government of
Bihar, Patna.
6. The Executive Engineer, Rural Works Department, Works Division -
Bhabhua.
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Prabhat Ranjan, Advocate
Mr. Shubham Prakash, Advocate
For the Respondent/s : Advocate General
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CORAM: HONOURABLE THE ACTING CHIEF JUSTICE
and
HONOURABLE MR. JUSTICE ALOK KUMAR SINHA
ORAL JUDGMENT
(Per: HONOURABLE THE ACTING CHIEF JUSTICE)
Date : 04-09-2025
In the instant writ petition, petitioner has prayed for the
following reliefs :
"(i) Quashing of the Letter No. 701 dated
07.05.2025
(Annexure P/5) by which the Executive
Engineer without any jurisdiction and contrary to
Patna High Court CWJC No.9716 of 2025 dt.04-09-2025
the express mandate of the Clause 27 of the
Instructions to Bidders has directed the petitioner
to submit the rate justification on account of having
quoted seriously unbalanced rate;
(ii) Quashing of the consequential
Letter No. 801 dated 29.05.2025 (Annexure P/6) by
which, the Executive Engineer without any
authority of law and contrary to the stipulations
under Clause 31.1 and 32.1 of the ITB has issued
the Letter of Acceptance with other consequential
directions to furnish performance and additional
performance guarantee; and
(iii) Restraining the Respondents from
proceeding further and giving effect to the Letter
No. 701 dated 07.05.2025 and Letter No. 801 dated
29.05.2025 during the pendency of the present writ
application and/or the without the leave of this
Hon'ble Court."
2. Learned counsel for the petitioner submitted that
impugned action is taken by the Executive Engineer who is not
the competent authority in the light of the Notice Inviting Tender
read with bidding procedures, in particularly Clause 27.4 and
further submitted that relevant Clause should have been with
reference to 34.1 and not 17.6 of ITB. It is also submitted that
time period mentioned is 21 days for certain procedure whereas
that has been reduced to 15 days.
3. Per contra, learned Advocate General submitted that
Engineer-in-Chief has requested the Executive Engineer to secure
Patna High Court CWJC No.9716 of 2025 dt.04-09-2025
rate justification from the petitioner vide communication dated
03.05.2025 (Annexure P/4). Resultantly, the Executive Engineer
sought rate justification from the petitioner on 07.05.2025. The
petitioner failed to submit rate justification as demanded by the
Executive Engineer, thereafter, the Executive Engineer has
proceeded to pass order on 29.05.2025 (Annexure P/6).
Therefore, there is no infirmity in the impugned action of the
respondents for the reasons that Executive Engineer has been
asked to take a decision by the Engineer-in-Chief. That apart,
there is public interest involved, therefore, trivial issue like
whether Executive Engineer or Engineer-in-Chief takes decision,
it does not matter.
4. Heard the learned counsels for the respective parties.
5. Facts are not disputed. Learned counsel for the
petitioner vehemently contended that Executive Engineer is not
the competent authority to take a decision in respect of rates from
the petitioner and proceed to pass further consequential order,
issuance of letter of acceptance vide communication dated
29.05.2025. It is necessary to reproduce paragraph 27.4 of the
Notice Inviting Tender read with bidding procedures, it reads as
under :
"27.4 If the bid, which results in the
lowest Evaluated Bid Price, is unbalanced or
Patna High Court CWJC No.9716 of 2025 dt.04-09-2025
front loaded in the opinion of the Engineer-in-
Chief -cum-Additional Commissioner-cum-
Special Secretary / Engineer-in-Chief, the
Engineer-in-Chief-cum Additional
Commissioner-cum-Special Secretary /
Engineer-in-Chief may required the Bidder to
produce detailed price analysis for any or all
items of the Schedule of Prices, to demonstrate
the internal consistency of those prices with the
construction methods and schedule proposed.
After evaluation of the price analysis, taking into
the consideration the schedule of estimated
Contract payments, the Engineer-in-chief-cum
Additional Commissioner-cum-Special
Secretary / Engineer - in-Chief may require that
the amount of the performance security be
increased as per the RCD Notification No.
447(s)-cum-Memo No.-448 (s), dated 16.01.2020
and RWD Letter No. 292 (WE) Dated 17.01.2020
at the expense of the Bidder to a level sufficient
to protect the Engineer-in-chief-cum- Additional
Commissioner-cum-Special Secretary / Engineer
- in - chief against financial loss in the event of
default of the successful Bidder under the
Contract."
6. Reading of the aforementioned Clause, it is crystal
clear that certain authorities have been assigned to take necessary
steps or procedures. One of the official is Engineer-in-Chief-cum-
Additional Commissioner-cum-Special Secretary / Engineer-in-
Chief. Therefore, there is no reference to Executive Engineer. On
Patna High Court CWJC No.9716 of 2025 dt.04-09-2025
the other hand, it is to be noted that Engineer-in-Chief should
have taken suo motu action insofar as seeking rate justification
from the petitioner. On the other hand, he has asked the Executive
Engineer to take rate justification from the petitioner.
Consequently, Executive Engineer sought information from the
petitioner relating to rate justification. For having not furnished
rate justification, the Executive Engineer had taken a decision in
respect of letter of acceptance on 29.05.2025. In the light of these
facts and circumstances, it is crystal clear that Executive Engineer
is not the competent authority to seek justification of rate from
the petitioner and further passing letter of acceptance. The
Hon'ble Supreme Court has held that if authority has been
assigned a particular duty or a role, he alone is required to
exercise such powers. If there is any deviation, one has to draw
inference that incompetent authority has passed order. The
Hon'ble Supreme Court in the case of Dharani Sugars and
Chemicals Ltd. vs. Union of India reported in (2019) 5 SCC
480, Paragraph Nos. 47 and 53, it is held as under :
"47. Section 35-AA makes it clear
that the Central Government may, by order,
authorise RBI to issue directions to any
banking company or banking companies when
it comes to initiating the insolvency resolution
process under the provisions of the Insolvency
Code. The first thing to be noted is that without
such authorisation, RBI would have no such
Patna High Court CWJC No.9716 of 2025 dt.04-09-2025
power. There are many sections in the Banking
Regulation Act which enumerate the powers of
the Central Government vis-à-vis the powers of
RBI. Thus, Section 36-ACA(1) provides as
follows:
"36-ACA. Supersession of Board
of Directors in certain cases.--(1) Where
Reserve Bank is satisfied, in consultation with
the Central Government, that in the public
interest or for preventing the affairs of any
banking company being conducted in a manner
detrimental to the interest of the depositors or
any banking company or for securing the
proper management of any banking company, it
is necessary so to do, Reserve Bank may, for
reasons to be recorded in writing, by order,
supersede the Board of Directors of such
banking company for a period not exceeding
six months as may be specified in the order:
Provided that the period of
supersession of the Board of Directors may be
extended from time to time, so, however, that
the total period shall not exceed twelve
months."
This Section makes it clear that
RBI's satisfaction in superseding the board of
directors of banking companies can only be
exercised in consultation with the Central
Government, and not otherwise.
53. A conspectus of all these
provisions shows that the Banking Regulation
Act specifies that the Central Government is
either to exercise powers along with RBI or by
itself. The role assigned, therefore, by Section
35-AA, when it comes to initiating the
insolvency resolution process under the
Insolvency Code, is thus, important. Without
authorisation of the Central Government,
obviously, no such directions can be issued."
Patna High Court CWJC No.9716 of 2025 dt.04-09-2025
The Hon'ble Supreme Court in the case of Avtar Singh
and Another vs. State of Bihar reported in (2023) 18 SCC 717,
in paragraph Nos. 13 to 16, it is held as under :
13. The facts in the case as noticed above as
such, are not in dispute. The only argument raised
is about the power of the person who had seized
cylinder on the basis of which the appellants were
prosecuted. Clause 7 of the Order, which is
reproduced hereunder, prescribes officers who have
the power.
"7. Power of entry, search and
seizure.--(1) an officer or the Department
of Food and Civil Supplies of the
Government, not below the rank of an
Inspector authorised by such Government
and notified by Central Government or any
officer not below the rank of a Sales Officer
of an Oil Company, or a person authorised
by the Central Government or a State
Government and notified by the Central
Government may, with a view to ensuring
compliance with the provisions of this order,
for the purpose of satisfying herself that this
order or any order made thereunder has
been complied with:
(a) Stop and search any vessel or
vehicle which the Officer has reason to
believe has been, or is being or is about to
be, used in the contravention of this order;
(b) Enter or search any place with
such aid or assistance as may be necessary;
(c) Seize and remove with such aid
or assistance as may be necessary, the
entire quantity of any stock of liquefied
petroleum gas in cylinders, cylinder valves
and pressure regulators, along with the
vehicles, vessels or any other conveyances
used in carrying such stock if he has reason
to suspect that any provision of this order
Patna High Court CWJC No.9716 of 2025 dt.04-09-2025
has been or is being or is about to be,
contravened in respect of such stock and
thereafter take or authorise the taking of all
measures necessary for securing the
production of the stock of liquefied
petroleum gas in cylinder, cylinders, gas
cylinder valves, pressure regulators,
vehicles, vessels or other conveyances so
seized before the Collector having
jurisdiction under the provisions of section
of the Essential Commodities Act, 1955 (10
of 1955) and for their safe custody pending
such production...."
14. It nowhere prescribes that a Sub-
Inspector of the Police can take action. No doubt,
the aforesaid clause provides that in addition to the
specified officers, the persons authorised by the
Central or State Government may take action
under the Order. However, nothing has been placed
on record to support the argument that the Sub-
Inspector of Police was authorised to take action
under the aforesaid Order.
15. It is a settled law that where a power is
given to do a certain thing in a certain way, the
thing must be done in that way or not at all. Other
methods are necessarily forbidden. Reference can
be made to Dharani Sugars & Chemicals Ltd. v.
Union of India [Dharani Sugars & Chemicals Ltd.
v. Union of India, (2019) 5 SCC 480]
16. In the absence of the authority and
power with the Sub-Inspector to take action as per
the Order, the proceedings initiated by him will be
totally unauthorised and have to be struck down."
In yet another case namely Captain Sube Singh vs. Lt.
Governor of Delhi reported in (2004) 6 SCC 440, Paragraph No.
30, the Hon'ble Supreme Court held as follows :
"30. The contention of the
respondents is that the power to enforce the
binding nature of the concessional passes issued
by DTC on the private stage carriage operators
Patna High Court CWJC No.9716 of 2025 dt.04-09-2025
can be spelled from the provisions of Section
67(1)(d) of the Act. In our view, such a power
cannot be subsumed under the powers of the
State Government to fix fares and freights for
stage carriages having regard to the desirability
of preventing uneconomic competition among
holders of permits. Permit condition 13 merely
stipulates that the permit-holder shall ensure that
concessional passes issued to various sections
authorised for these buses shall be honoured.
The authorisation has to come from STA. In other
words, only concessional passes which are
authorised by STA would be binding on the
operators. We see no power in Section 67(1)(d)
of the Act or otherwise by which a concessional
pass issued by DTC could be made binding upon
private stage carriage operators, particularly
when there was no such condition imposed in the
permit issued. Hence, we are of the view that
paragraph 3(b) of the impugned notification is
clearly ultra vires the powers of the State
Government under Section 67 of the Act and,
therefore, liable to be quashed and set aside."
7. Taking note of the principles laid down by the
Hon'ble Supreme Court, the Executive Engineer is not authorized
under this Notice Inviting Tender read with bidding procedure,
therefore, petitioner has made out a case. Accordingly, Letter No.
701 dated 07.05.2025 (Annexure P/5) and Letter No. 801 dated
29.05.2025 (Annexure P/6) are set aside. Writ petition stands
allowed.
8. At this stage learned Advocate General relies on
definitions of contracts and interpretation. It reads as follows :
"The Employer is the party who employs the
Contractor to carryout the Work and Services. The
Patna High Court CWJC No.9716 of 2025 dt.04-09-2025
Employer may delegate any or all functions to a person or
body nominated by him for specified functions."
Therefore, the Executive Engineer is the competent
authority. It is to be noted that by virtue of communication dated
03.05.2025, on behalf of the Engineer-in-Chief, he has delegated
the power to the Executive Engineer to secure detailed rate of
justification. So limited delegation is only for securing details of
rate of justification from the petitioner. In that event, it is
restricted in seeking detailed rate of justification from the
petitioner, the Executive Engineer should have remitted back to
the Engineer in Chief for issuance of letter of acceptance,
therefore, there is no delegation to the Executive Engineer by the
Engine-in-Chief insofar a passing order relating to letter of
acceptance. Accordingly, aforementioned contention stands
rejected, reserving liberty to ensure the competent authority to
take action strictly in accordance with law.
(P. B. Bajanthri, ACJ)
(Alok Kumar Sinha, J)
GAURAV S./-
AFR/NAFR AFR
CAV DATE
Uploading Date 11.09.2025
Transmission Date
