Patna High Court - Orders
Kashish Developers Limited vs The State Of Bihar And Ors on 22 February, 2019
Author: Rajeev Ranjan Prasad
Bench: Rajeev Ranjan Prasad
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.3568 of 2019
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Kashish Developers Limited Registered office at- 87 Old AG Colony, Kardu,
Ranchi, Jharkhand- 834002, Local address at- 201, Kamla Sadan Apartment,
Punia Chak, District- Patna, through Chandan Kumar, aged about 41 years
(Male), DGM Administration, Son of Sri Indradev Singh, Resident of Village-
Barauni, P.O. and P.S.- Teghra, District- Begusarai.
... ... Petitioner/s
Versus
1. The State of Bihar through the Principal Secretary cum Commissioner,
Building Construction Department, Government of Bihar, Patna.
2. The Engineer-in- Chief-cum- Additional Commissioner-cum- Special
Secretary, Building Construction Department, Government of Bihar, Patna.
3. The Chief Engineer, Building Construction Department, Government of
Bihar, Patna.
4. The Superintending Engineer, Building Division Katihar, Building
Construction Department, Bihar, Patna.
5. The Executive Engineer, Building Division No. 1 Building Construction
Department, Bihar, Patna.
6. The Executive Engineer, Building Division, Katihar, Building Construction
Department, Bihar, Patna.
7. The Executive Engineer, Building Construction Division Gaya Building
Construction Department, Government of Bihar, Patna.
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr. P. K. Shahi, Sr.Adv.
Mr.Ranjeet Kumar, Adv.
Ms. Ranjeeta Singh, Adv.
Mr. Kundan Kumar, Adv.
For the Respondent/s : Mr.R.K.Chandram, AC to GP-19
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CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
ORAL ORDER
2 22-02-2019This writ application has been notified on urgent motion having been made by learned senior counsel representing the petitioner yesterday.
The writ application has been filed for a direction to the respondent authorities to consider the technical bids of the petitioner submitted in NIT No.12/2018-19 and NIT Patna High Court CWJC No.3568 of 2019(2) dt.22-02-2019 2/6 No.14/2018-19 issued under the signature of the Executive Engineer, Building Construction Division No.1, Building Construction Department, Bihar, Patna.
I.A.No.1 of 2019 has been filed praying for ad-interim stay of further proceeding of the abovesaid NITs.
The petitioner has also preferred I.A. No.2 of 2019 seeking amendment in the prayer portion of the writ application. By I.A. No.2 of 2019, the petitioner has challenged the decision of the technical bid committee dated 18.02.2019 by which the petitioner has been held non-responsive and his bids have not been opened in view of the debarment order contained in memo no.71 dated 21.01.2019. It is worth mentioning that in the writ application the petitioner has also prayed for quashing of the said debarment order, as contained in memo no.71 dated 21.01.2019, present at Annexure-8 to the writ application.
Learned senior counsel representing the petitioner submits that the debarment order has been issued with malafide intention to keep this petitioner away from being considered for the present tenders. It is also by way of back dating and without communication to the petitioner.
The attention of this Court has been drawn towards the order dated 11.01.2019 passed by this Court in CWJC Patna High Court CWJC No.3568 of 2019(2) dt.22-02-2019 3/6 No.318 of 2019 which was earlier preferred by the petitioner challenging the debarment order as contained in memo no.3822 Gaya/Dated 17.12.2018. A copy of the order dated 11.01.2019 is available on the record as Annexure-9 to the present writ application. A perusal of the said order would show that earlier the petitioner was debarred from participating in future tender due to slow progress of work under Agreement No.13 SBD/15-
16. When the said order was challenged before this Court, this Court found that debarment order was liable to be set aside on the solitry ground that the Executive Engineer, Building Division, Gaya had passed the order of debarment without looking into the reply of the petitioner submitted on 30.11.2018 in the office of the Executive Engineer where he had explained the circumstances which were mainly responsible for slow progress of the work. This Court dealt with the facts of the case and then came out with opinion that non-consideration of the reply of the petitioner alone is a sufficient ground to hold and declare that the impugned order of the said case as contained in Annexure-1 suffered from an inherent defect and is in violation of the principles of natural justice. The order was, thus, set aside by this Court with a direction to the authorities concerned to look into the reply of the petitioner, consider the same with the Patna High Court CWJC No.3568 of 2019(2) dt.22-02-2019 4/6 materials available on the record and take an appropriate decision afresh thereon.
Learned senior counsel submits that though the order dated 11.01.2019 was passed by this Court, the petitioner was never communicated about any further order of debarment. He, therefore, participated in the two NITs but when technical bids were opened on 13.02.2019 and was being considered on 18.02.2019, the petitioner's bids were held non-responsive for the reason that he had been under debarment vide letter no.71 dated 21.01.2019 issued under the signature of the Executive Engineer, Building Division, Katihar. Learned senior counsel submits that a perusal of the debarment order dated 21.01.2019 present at Annexure-8 would show that this debarment letter was not communicated to any of the authorities, moreover the letter itself was uploaded on the website of the Department on 18.02.2019. It was never communicated to the petitioner before uploading on the website on 18.02.2019. Thereafter, learned senior counsel has taken this Court through the contents of the letter no.71 dated 21.01.2019 to submit that the letter is apparenlty drafted in hurry without issuing any show cause notice to the petitioner calling upon him as to why he should not be debarred.
Learned senior counsel has drawn the attention of this Patna High Court CWJC No.3568 of 2019(2) dt.22-02-2019 5/6 Court towards the statements made in paragraph 12 and 13 of the writ application showing that with regard to the work in question for which the debarment order dated 21.01.2019 has been issued the petitioner has already submitted an application on 03.08.2018 seeking extension of time for completion of work for the reasons highlighted in the said letter. A copy of the letter dated 03.08.2018 is Annexure-7 to the writ application. It is also stated that the respondent authorities have not dealt with the request of the petitioner as contained in Annexure-7 to the writ application.
It is submitted that passing of the debarment order on 21.01.2019 is a malafide action on the part of the authorities. This letter has been anti-dated as it has been uploaded on the website of the Department on 18.02.2019 when the technical bids of the petitioner were under consideration.
Learned counsel for the State prays for three weeks time to file a reply.
In the facts and circumstances stated hereinabove, this Court is prima-facie satisfied that the letter no.71 dated 21.01.2019 has been issued in haste and since it was uploaded on 18.02.2019 itself which would be evident from Annexure-8, it is an act with a purpose to debar the petitioner from being Patna High Court CWJC No.3568 of 2019(2) dt.22-02-2019 6/6 considered in the present tenders. This view of this Court is, however, a prima-facie view for the purpose of grant of interim relief to the petitioner.
This Court thinks it just and proper to stay the operation of the impugned order as contained in letter no.71 dated 21.01.2019 as contained in Annexure-8 to the writ application for the present. The respondents are directed to open the technical bid of the petitioner and consider the petitioner, if qualified in technical bid, for financial bid, subject to result of the writ application.
arvind/- (Rajeev Ranjan Prasad, J) U