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2004 DIGILAW 65 (PAT)

Deo Construction v. State Of Bihar

2004-01-15

RADHA MOHAN PRASAD

body2004
Judgment 1. In both these writ petitions, the grievance of the petitioner is against the allotment of work to Respondent no. 5 pursuant to the tender notice, contained in Annexure-1 of the respective petition for repair work of the road in Sheoganj-Rafiganj-Goh Road and Barun Navinagar link Road Km. 2., Old G.T. Road km. 3 and Pachrukhia Facer Aurangabad Road Km. 15 (part), 16, 17, 18 (part) and 35, despite his tender being the lowest and as such, with consent of the parties both the writ petitions have been heard together for final disposal by this common order. 2. In the counter affidavit filed on behalf of Chief Engineer (Mechanical), South Bihar Zone, Superintending Engineer, Magadh Road Circle, Gaya and Executive Engineer, Road Construction Department, Road Division No. 1, Aurangabad (Respondent nos. 2 to 4 respectively) it is not disputed that petitioners offer was lowest, yet the work has been allotted to Respondent no. 5 for the reasons that the petitioner has not been able to complete other works allotted to him in time and due to his negligence work is still lagging behind for which fund has been partly surrendered. Chart containing allotment has been annexed as Annexures B/1 & B/2. The other ground taken is that petitioners hot mix plant is situated at a distance of 52 kms from the work site, whereas the said plant of Respondent no. 5 is situated at a distance of 28 km. and as per the practice the hot mix plant which is nearer to site of work which facilitates achievement of good quality of work and prevents the deterioration in quality of bitumen by maintaining proper temperature, which is very essential factor to achieve longer life of the road is given preference. It is stated that it is not binding upon the authority competent to decide the tender to accept the lowest rate quoted by the tenderer. The said counter affidavit, which has been sworn by the Executive Engineer (Respondent no. 4) also stated that Respondent no. 5 started the work at right earnest and has already made elaborate arrangement at the site by procuring the construction materials at site and has started the actual work of repair at site. It is stated that Respondent no. 5 procured bitumen of his own as per the terms and conditions of the agreement. 3. Respondent no. 5 started the work at right earnest and has already made elaborate arrangement at the site by procuring the construction materials at site and has started the actual work of repair at site. It is stated that Respondent no. 5 procured bitumen of his own as per the terms and conditions of the agreement. 3. Respondent no. 5 has also filed counter affidavit in which it is stated that he started the work in full swing and executed the work to complete during the period of completion, and, thus, he has claimed that the work against the two contracts have already been completed up to more than 50%. He however, further stated that he purchased and collected hot mixing plant besides all material other than bitumen, stone chips and stone metal at work site to execute the work within the time schedule. However, it is not disputed that petitioners tender was lowest, but, contended that lowest is not entitled to get the tender in his favour automatically. Mr. Sinha learned counsel appearing for Respondent no. 5, thus, contended that there s no merit in the writ petition and the same is fit to be rejected. 4. In reply to the counter affidavit filed on behalf of Respondent nos. 2 to 4, it has been stated that the work of widening and strengthening of Gaya Panchananpur Daudnagar Road kilometre 35.3 to 70.5, allotment and expenditure of which has been given in the chart contained in Annexure-B/1, was initially allotted to Respondent no. 5 in the year 1998-99 for a sum of Rs. 4.5 crores, but, when he did not start the work, the same was allotted to the petitioner on 15.2.2001 after retender and pursuant to it the petitioner could only start the work in the last week of February, 2001. Thus, it is alleged that the percentage shown in the chart is apparently wrong as the Respondents have calculated the said percentage on the basis of allotment of fund for the whole financial year, whereas the work was allotted to the petitioner on 15.2.2001 and in one month he completed the work of more than Rs. 85 lacs. Thus, it is alleged that the percentage shown in the chart is apparently wrong as the Respondents have calculated the said percentage on the basis of allotment of fund for the whole financial year, whereas the work was allotted to the petitioner on 15.2.2001 and in one month he completed the work of more than Rs. 85 lacs. It is also stated that during the subsequent period also the petitioner substantially completed the work and, thus, the plea taken that the work of the petitioner is lagging behind due to his negligence is completely falsified by their own document Annexure-B/1 itself. It is alleged that, in fact, on account of failure of Respondent no. 5 the widening and strengthening work of Gaya Panchananpur Daudnagar Road was delayed by two years, which escalated the price from Rs. 4.5 crores to Rs. 6.5 crores, and for this the Engineer-in-Chief/Chief Engineer, National Highway recommended for his blacklisting and forefeiture of his security money, but, he however, managed and got his security money released and was also not blacklisted. As regards the agreement no. 25 F2 and agreement no. 16 F2, it is stated that the petitioner completed the said work within the stipulated period to the utmost satisfaction of the officials and payment for the said work has also been made. With respect to the distance of hot mix plant, it is stated that, in fact, the plant of the petitioner as well as Respondent no. 5 is situated at a distance of 20 kms. from the work site, but, the dispute of distance has purposely been raised only to take a plea that the disputed question cannot be decided in a writ proceeding and also to deprive the petitioner from getting the work. He has further stated that earlier under RIQP scheme at National Highway No. 98 kms. 75 to 89 the repair work was allotted to Respondent no. 5 though his hot mix plant was at a distance of 70 kms., whereas for the said work the petitioner was also a tenderer, whose tender has been rejected as his rate was higher even though his hot mix plant was at a distance of 20 kms. from the work site. In the present case, the work has been allotted to Respondent no. from the work site. In the present case, the work has been allotted to Respondent no. 5 on the simple ground that his hot mix plant is at a nearer distance, even though he has given higher rate than the petitioner. It has, thus, been contended by the learned counsel for the petitioner that the claim of lowest tenderer has arbitrarily been ignored and in colourable exercise of power the work has been allotted to Respondent no. 5. Learned counsel submitted that the facts of the case itself speaks volume about the hostile attitude of the concerned authority, who are adament to show undue favour to Respondent no. 5. 5. The facts aforementioned stated in reply affidavit has not been disputed either by the State authorities or by Respondent no 5. In fact, in view of the statement made in the counter affidavit filed by the Executive Engineer that Respondent no. 5 has completed the work up to more than 50% and that Respondent no. 5 has procured bitumen of his own as per the terms and conditions of the agreement of the Indian Oil Corporation Ltd. which is falsified by the statement of Respondent no. 5 in sub-paragraph (C) of paragraph 3 of his counter affidavit, wherein he has stated that all the materials other than bitumen, stone chips, stone metal has been collected at the work site, this Court vide order dated 16.12.2003 directed the Executive Engineer (Respondent no. 4) to show cause as to why appropriate proceeding be not initiated against him for making false statement, and, further, till further orders Respondent no. 5 was restrained from proceeding with the execution of work except with respect to the work for which his tender was lowest. Respondent no. 4 filed a show cause in which he has stated that Respondent no. 5 vide his letter dated 9.12.2003 himself informed to him that he has purchased 54.462 M.T. of bitumen from Indian Oil Corporation through six invoices and the same is available at his hot mix plant. Pursuant to this, he directed the concerned Assistant Engineer and the Junior Engineer to verify and they reported that the bitumen purchased by Respondent no. 5 in 348 drums are available at hot mix plant of Respondent no. 5. It is further stated by him that after the order dated 16.12.2003 he immediately vide letter no. Pursuant to this, he directed the concerned Assistant Engineer and the Junior Engineer to verify and they reported that the bitumen purchased by Respondent no. 5 in 348 drums are available at hot mix plant of Respondent no. 5. It is further stated by him that after the order dated 16.12.2003 he immediately vide letter no. 906 dated 16.12.2003 directed the Respondent no. 5 to stop the work pursuant to the agreement till further order and Respondent no. 5 has reported to him that he has stopped the work, which has also been verified by the concerned Assistant and Junior Encneer. 6. In the present case, the question which falls for consideration is as to whether in the facts and circumstances aforementioned the Respondent-authorities were legally justified in ignoring the claim of the lowest tenderer and allotting the work to Respondent no. 5 on abovementioned flimsy ground. 7. The facts aforementioned show that the Respondent-authorities have acted most arbitrarily just to show undue favour to Respondent no. 5. When the aforementioned facts are not in dispute, there cannot be any justification to ignore the claim of the lowest tenderer on the abovementioned flimsy ground. Even assuming that there was difference in the distance of hot mix plant of the two, namely, petitioner and Respondent no. 5, there cannot be any justification to weigh the same for allotment of the present tender when in similar circumstances earlier Respondent no. 5 was given preference and allotted the work. This only shows that the decision of the authority to allot the work to Respondent no. 5 is bias and the plea aforementioned taken on their behalf is only to cover up their lapses. In fact this Court does not find any substance in the other plea that the petitioner has not been able to complete other works allotted to him in time and due to his negligence the work is still lagging behind on the face of Annexures-B & B/1. 8. Accordingly, both these writ applications are allowed. The respective work order issued in favour of Respondent no. 5 quashed and the Respondent-authoriare directed to consider the case of petitioner afresh keeping in view of it his tender was the lowest.