Patna High Court - Orders
M/S Ramnandan Singh vs The State Of Bihar & Ors on 25 July, 2014
Author: Mihir Kumar Jha
Bench: Mihir Kumar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.11012 of 2014
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M/s Ramnandan Singh, a proprietorship firm having its office at Jhari, P.O.
Kalapahar Tendua, District Aurangabad, Bihar through its Proprietor Sri
Ramnandan Singh S/o Late Keshav Singh Resident of Village Jhari, P.O.
Kalapahar Tendua, P.S. Tandwa, District Aurangabad, Bihar.
.... .... Petitioner
Versus
1. The State of Bihar through the Secretary, Rural Works Department,
Government of Bihar, Patna.
2. The Secretary, Rural Works Department, Government of Bihar, Patna.
3. The Engineer-in-Chief, Rural Works Department, Government of Bihar,
Patna.
4. The Chief Engineer-1, Rural Works Department, Govt. of Bihar, Patna.
5. The Superintending Engineer Rural Works Department, Works Circle,
Aurangabad.
6. The Executive Engineer, Rural Works Department, Works Division,
Aurangabad.
.... .... Respondents
======================================================
with
Civil Writ Jurisdiction Case No.11588 of 2014
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M/s Sagar Construction, through its one of the partner Arif Jamil Khan, son
of Sarfraz Ali Khan, resident of village Morainia, P.O. Dariouraj, P.S.
Amas, District Gaya
.... .... Petitioner
Versus
1. The State of Bihar through the Secretary, Rural Works Department,
"Vishweshwaraiya Bhawan", Bailey Road, Patna 15
2. The Engineer-in-Chief cum Additional Commissioner cum Special
Secretary, Rural Works Department, "Vishweshwaraiya Bhawan",
Bailey Road, Patna 15
3. The Additional Chief Executive Officer cum Secretary, Bihar Rural
Road Development Agency (BRRDA), "Vishweshwaraiya Bhawan",
Bailey Road, Patna 15
4. The Chief Engineer-1, Rural Works Department, "Vishweshwaraiya
Bhawan", Bailey Road, Patna 15
5. The Superintending Engineer, Rural Works Department, Works Circle,
Gaya- 823001
6. The Executive Engineer, Rural Works Department, Works Division,
Sherghati (Gaya)
.... .... Respondent/s
======================================================
with
Civil Writ Jurisdiction Case No.11254 of 2014
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Baldeo Singh son of Late Ramadhar Singh resident of Mohalla - Satyendra
Nagar (Kanak Bhawan), Aurangabad, P.S. AND District - Aurangabad,
Bihar.
.... .... Petitioner
Patna High Court CWJC No.11012 of 2014 (5) dt.25-07-2014 2
Versus
1. The State of Bihar through the Secretary, Rural Works Department,
Government of Bihar, Patna.
2. The Secretary, Rural Works Department, Government of Bihar, Patna.
3. The Engineer-in-Chief, Rural Works Department, Government of Bihar,
Patna.
4. The Chief Engineer - 1, Rural Works Department, Govt. of Bihar, Patna.
5. The Superintending Engineer, Rural Works Department, Works Circle,
Aurangabad.
6. The Executive Engineer, Rural Works Department, Works Division,
Aurangabad.
.... .... Respondents
======================================================
Appearance :
(In CWJC No.11012 of 2014)
For the Petitioner/s : Mr. Raj Kishore Prasad, Adv.
For the Respondent/s : Dr.Anshuman, SC14
(In CWJC No.11588 of 2014)
For the Petitioner/s : Mr. Rajendra Narain Sinha, Sr.Adv.
Mr. Manish Sahay, Adv.
For the Respondent/s : Mr. Subhash Pd. Singh, GA7
(In CWJC No.11254 of 2014)
For the Petitioner/s : Mr. Mrigank Mauli, Adv.
For the Respondent/s : Mr. P.K.Verma, AC to SC26
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CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA
ORAL ORDER
5 25-07-2014Heard learned counsel for the parties.
Learned counsels appearing on behalf of the petitioners have submitted that the decision taken by the respondents in cancelling tender and going for a re-bid is patently arbitrary because the circular of the Government dated 6.3.2014 which had been made applicable in the case of the petitioners was not available on the day on which the tenders were invited. They have also submitted that there is at least one case where despite the circular dated 6.3.2014 the Chief Engineer, Headquarters, Rural Works Department had issued the work order on 15.5.2014 at the Patna High Court CWJC No.11012 of 2014 (5) dt.25-07-2014 3 rate below 10% which would be reflective of the fact that the said Government decision dated 6.3.2014 is being applied in a selective manner.
In these cases no counter affidavit was filed despite indulgence given on 4.7.2014, 9.7.2014 and 24.7.2014. Consequently keeping in view the urgency of the matter this Court had directed for personal appearance of the Departmental Secretary of the Rural Works Department and today Mr. S.Sidharth has appeared in person.
Mr. Sidharth has explained that in all there were 1121 lot of work which were sought to be awarded by way of contract and the department at the Secretariat level has not awarded contract to anyone who have quoted their rate below 10% of estimated amount. He has also submitted that for ensuring the same level playing field the department infact has cancelled all the offers and the notice inviting tenders (N.I.T.) and has issued fresh NTT. Mr. Sidharth has also clarified that the solitary case of award of contract to a person quoting below 10% of the estimated amount was at the level of Chief Engineer which too had come to the notice of the department was being scrutinized and an action would be taken against such erring Chief Engineer.
Learned Counsel for the petitioners in reply have cited Patna High Court CWJC No.11012 of 2014 (5) dt.25-07-2014 4 another example in connection with the C.W.J.C.No. 11789/2014 highlighting the action of the Executive Engineer of the same department wherein award of contract was given to a person on below 10% of the estimated amount.
Mr. Sidharth obviously being unaware of such decision taken at the field level has again assured that such action of the Executive Engineer being in teeth of policy of the State Government will be dealt with sternly by the State Government.
In the considered opinion of this Court from the stand of the department it becomes more than clear that the Government decision dated 6.3.2014 is sought to be applied in as many as 1121 and the case of the petitioners is also one of them. Therefore, it cannot be said that the department has acted selectively only in the case of the petitioners.
A question infact would arise as to what has been done by way of universal application of government policy dated 6.3.2014 which can be said to have infringed the right of the petitioners? The department had only asked for offer by issuing NIT. Certain offers thereafter were received. The Standard Bidding Document however in clause 25.2(a) itself prescribed that any offer which is not viable could be rejected by the Committee. The Government circular dated 6.3.2014 also in fact aims to Patna High Court CWJC No.11012 of 2014 (5) dt.25-07-2014 5 achieve the same object, inasmuch as it only says that any offer below 10% of the estimated amount will not be accepted. The reason for the same is also very clear to this Court. The maximum percentage of the profit which is given to a contractor in the estimate is 10%. Therefore, no contractor is supposed to work at a rate below 10% unless he is going to make compromise of the quality of work. Therefore, irrespective of the Government decision dated 6.3.2014 the Departmental Committee had a reason to decline the offer of anyone quoting less than 10% of estimated amount by declaring such bid to be not viable and thus, not in the interest of the work.
It is here that this Court will have to understand that if the Government has consciously cancelled the contract of each and every person and has gone for a fresh N.I.T. no right of the petitioners or after contractors has been infringed. As a matter of fact the petitioners as well as other contractors are fully entitled to participate in the bid and their such offer has to be considered on the same objective guideline as laid down in the Standard Bidding Documents.
The apprehension of the learned counsel for the petitioners that the petitioners will be again coerced to purchase a new bill of quantity and therefore, would be subjected to loss is Patna High Court CWJC No.11012 of 2014 (5) dt.25-07-2014 6 also dispelled by the Departmental Secretary himself, who says that those persons who had already participated in the earlier contract will not be required to pay any amount for the bill of quantity.
In the considered opinion of this Court such approach of the department is quite reasonable. It has to be noted that the petitioners had submitted their offer prior to 6.3.2014 and if the Government circular dated 6.3.2014 as a whole was made applicable or special bid document or clause 25.2(a) was being made applicable for fresh consideration, those contractors or bidders who had already submitted their offer could not have been asked to pay again for the bill of quantity.
In that view of the matter, while this Court does not find any error in the decision taken by the authorities in going for fresh bid on the basis of a fresh NIT it is hereby directed that the petitioners will not be required to pay any amount for the bill of quantity of they would be desirous to participate in the fresh tender for the same work on the basis of fresh NIT for the work in question.
With the aforementioned observation and direction, all these applications are disposed of.
Personal appearance of Mr. S.Sidharth, the Departmental Patna High Court CWJC No.11012 of 2014 (5) dt.25-07-2014 7 Secretary of Rural Works Department is also dispensed with but only after recording his undertaking that appropriate action will be taken against the field officers for acting contrary to the government decision dated 6.3.2014.
(Mihir Kumar Jha, J) surendra/-
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