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2006 DIGILAW 1228 (PAT)

Magadh Construction Works v. State Of Bihar

2006-12-11

NAVANITI PRASAD SINGH

body2006
Judgment 1. The present writ application has been filed by the petitioner for quashing the letter dated 29.5.2006 (Annexure-4) of respondent No. 2, the Chief Engineer (South), Building Constructions Department, Government of Bihar, Patna, by which he has communicated to the Superintending Engineer the decision to accept the tender of respondent No. 5 in respect of construction of seventy five bedded sub-divisional hospital building at Tekari in the district of Gaya and for consequential and other reliefs associated with it. 2. The writ application was filed on 19.6.2006 and by interim order dated 4.7.2006, notice was directed to be issued to respondent No. 5 and the State was directed to file counter affidavit. It was further made clear that though no interim order of stay was being passed at that stage, in case the writ petition finally succeeded, respondent No. 5 may not get payment of any bill or reimbursement of any alleged expenses incurred by him pursuant to the contract being awarded to him. After appearance of respondent No. 5 and counter affidavit filed on his behalf and counter affidavit filed on behalf of respondent No. 2, the Chief Engineer (South), Building Constructions Department, Government of Bihar, Patna, the case was heard on 17.11.2006. 3. The main grievance of the petitioner was that even though respondent No. 5 was held not qualified in the technical bid by the Tender Committee, his financial bid alongwith petitioners financial bid was opened. Secondly, on opening the financial bid, both were found to be at par yet respondent No. 5 was called for negotiations and petitioner was kept in dark and ultimately respondent No. 5 was awarded the contract. In the counter affidavit filed on behalf of Respondent No. 2, the Chief Engineer, it was stated that the Tender Committee finally found both the persons that is petitioner and respondent No. 5 qualified for technical bid and, as such, their financial bids were opened No proceeding of the Tender Committee was filed. It was then stated in the counter affidavit that offer for negotiation was made to both but petitioner turned up and refused to negotiate whereas respondent No. 5 in course of negotiation lowered his rates and, thus, was awarded the contract. The stand of State has been supported by respondent No. 5 in his counter affidavit. 4. It was then stated in the counter affidavit that offer for negotiation was made to both but petitioner turned up and refused to negotiate whereas respondent No. 5 in course of negotiation lowered his rates and, thus, was awarded the contract. The stand of State has been supported by respondent No. 5 in his counter affidavit. 4. This Court, not being satisfied with the averments unsupported by any document, directed the State to produce the entire records with regard to the tender in question in order to substantiate its pleadings and adjourned the matter with specific direction to file a supplementary counter affidavit showing as to how petitioner was informed about negotiation etc. 5. The matter was then taken up for final disposal at the stage of admission itself with the consent of parties on 30.11.2006. Records were produced. Records were perused by the Court and various parts of the records were read out and disclosed to the parties present for their comments. Records spoke for themselves and no further comments were made. Records were retained by the Court. 6. A supplementary counter affidavit was filed on behalf of respondent No. 2 clearly denying the allegations of mala fide and taking a stand that the financial bid of respondent No. 5 was opened on the recommendation of the Technical Evaluation/ Tender Committee headed by respondent No. 2. With regard to the allegation of the petitioner that he was kept in dark about negotiation, it was now stated that both the tenderers were verbally informed to negotiate. The petitioner refused to negotiate. Respondent No. 5 gave reduced rates in sealed envelope and, thereafter, reduced it further before the Tender Committee and, as such, he was awarded contract. It was further pointed that after approval of tender, agreement was executed and the work was in full swing. This was apparently being done notwithstanding the interim order of this Court as noticed earlier. 7. From the aforesaid facts, as pleaded by the parties, the question of fact which have to be considered is whether the Tender Committee/Technical Committee considered both petitioner and respondent No. 5 finally technically qualified for opening their financial bid? Secondly, whether the financial bids of both petitioner and respondent No. 5 were opened simultane-ously or not? Whether petitioner was called for negotiation or not? Secondly, whether the financial bids of both petitioner and respondent No. 5 were opened simultane-ously or not? Whether petitioner was called for negotiation or not? As the pleadings of the respondents were vague and unsupported by documents, it became necessary to look into the records. The records regrettably disclosed a very unsavoury set of facts and the petitioners assertions to a great extent were found to be correct and the counter affidavit filed on behalf of respondent No. 2, the Chief Engineer (South), Building Constructions Department, Government of Bihar wrong to the extent of being false on material issues of fact. 8. The records reveal that the Tender Committee which consisted of Executive Engineer, Magadh Division, Gaya, Superintending Engineer and Chief Engineer (South) (respondent No. 2) finally decided on 25.4.2006 that it was only petitioner who was technically found successful and it was decided to recommend opening of financial bid of petitioner alone. There is no further decision of the Technical Committee/Tender Committee. Apart from the file, a register of 186 pages certified by the Chief Engineer (South), Building Constructions Department, Government of Bihar was also produced which showed that after the said decision on 26.4.2006, petitioners financial bid was opened. Financial bid of respondent No. 5 was not opened then. Now coming back to the file, the file now shows that (pages 7 and 8) vide Memo No. 589 dated 26.4.2006 under the signature of the respondent No. 2 (Chief Engineer (South), the financial bid of petitioner was forwarded to Executive Engineer for opening and making a comparative chart whereas the price bid/financial bid of respondent No. 5 was being returned sealed to be returned to the said respondent. On the aforesaid pages, the copies of the said letter is on record. On 29.4.2006, the Executive Engineer forwarded the comparative statement of the petitioners financial bid to the Superintending Engineer. The files now reveal on the noting side as page 10 that Chief Engineer (South) on 2.5.2006 suddenly decides to order that the price bid of respondent No. 5 can be considered. In a note to the Secretary of the Department on 4.5.2006, the Executive Engineer returns the financial bid of respondent No. 5 to respondent No. 2, the Chief Engineer (South). On 6.6.2006, there is an order to open the price bid of respondent No. 5. In a note to the Secretary of the Department on 4.5.2006, the Executive Engineer returns the financial bid of respondent No. 5 to respondent No. 2, the Chief Engineer (South). On 6.6.2006, there is an order to open the price bid of respondent No. 5. The register now reveals that financial bid of respondent No. 5 is then opened on 9.5.2006 that is almost two weeks after petitioners price bid was opened. No decision of the Technical Committee/Tender Committee has been shown or brought to my notice or can be found on the records after the decision dated 25.4.2006 noted on technical bid evaluation sheet by which the said Committee decided to hold both the parties competent in their technical bid and recommended opening of their financial bid. Now, a document referred to as the Resume of the Tender Committee Meeting is drawn up on 26.5.2006 by respondent No. 2 which is to be found in the notes side of the file from page 17 to page 14. In this, the Chief Engineer has noted that the Tender Committee met on 15.4.2006 and on 25.4.2006 in which it was decided that both parties technical bid was approved and financial bids of both the parties should be opened (this was contrary to the actual proceedings as noted on the technical bid sheet itself and noticed above). It was then stated that the financial bid of both the parties were same without stating as to when financial bids were opened. It was then stated that on 17.5.2006, both tenderers were called for rate negotiation. Petitioner came but did not agree to negotiate. Respondent No. 5 submitted sealed envelope on 22.5.2006 reducing the rate which was acceptable. The records do not reveal that any notice was given to petitioner nor is there any specific noting on the order-sheet that petitioner came but refused to negotiate. On the contrary, on records, a protest letter of petitioner dated 25.5.2006 which was received in the Department on the same day is there which clearly shows the petitioners protest and also clearly mentioning that the petitioner was being kept in dark and the Chief Engineer is taking a one sided decision. This letter was addressed to the Secretary of the Department. This letter was addressed to the Secretary of the Department. On basis of the recommendation as noted above and noting those tacts, a decision was then taken by the Secretary of the Building Constructions Department, Additional Secretary and the Chief Engineer (South) that on 26.5.2006, respondent No. 5 has further reduced his rates and, as such, he should be awarded the contract (page 22 to 19). 9. It would, thus, be seen that there has been a wide variation between the pleading as made on behalf of respondent-Chief Engineer and the conduct of Chief Engineer as recorded in the records. It is for this reason that Courts insist that in matters of writ proceedings, the party canvassing a point of law which is required to be substantiated by facts must bring the facts on record. In the case of Bharat Singh and Others vs. State of Haryana and Others and analogous cases, the Apex Court in AIR 1988 Supreme Court 2181 has noted the distinction between pleading in writ petition and pleading in a plaint. In paragraph-13, their Lordships have noted thus: When a point which is ostensibly a point of law is required to be substantiated by facts, the party raising the point, if he is the writ petitioner, must plead and prove such facts by evidence which must appear from the writ petition and if he is the respondent, from the counter-affidavit. If the facts are not pleaded or the evidence in support of such facts is not annexed to the writ petition or to the counter-affidavit, as the case may be, the court will not entertain the point. There is a distinction between a pleading under the Civil P.C. and a writ petition or a counter-affidavit. While in a pleading, that is, a plaint or a written statement, the facts and not evidence are required to be pleaded, in a writ petition or in the counter-affidavit not only the facts but also the evidence in proof of such facts have to be pleaded and annexed to it. (Para 13) 10. While in a pleading, that is, a plaint or a written statement, the facts and not evidence are required to be pleaded, in a writ petition or in the counter-affidavit not only the facts but also the evidence in proof of such facts have to be pleaded and annexed to it. (Para 13) 10. It is for this reason that when bald evasive statements were made in the counter affidavit unsupported by documents, this Court called for the records and now the records bring out the truth and falsify virtually everything that is said in the counter affidavit of respondent No. 2 and clearly brings out that respondent No. 2 has acted in a mala fide manner and deliberately tried to mislead this Court and others including the Secretary of the Department concerned and bestowed undue favour on respondent No. 5 to the detriment of petitioner. 11. The facts clearly establish these findings as firstly the notings of the Tender Committee/Technical Committee of meeting dated 25.4.2006 show that technical bid of respondent No. 5 was rejected and his financial bid was to be returned contrary to what was stated in the counter affidavit filed before this Court on behalf of respondent No. 2. It is not explained why when financial bid of respondent No. 5 was sent for being returned, it was not so returned but withheld at some level. It was not explained as to why only financial bid of petitioner was opened first and then after a fortnight, the so-called financial bid of respondent No. 5 was opened. A wrong impression was sought to be conveyed that both the bids were simultaneously opened which was wrong to the knowledge of respondent No. 2. Absolutely no material or evidence is to be found on record to show that petitioner was ever called for rate negotiation and he refused to negotiate. On the contrary, there is letter of petitioner protesting to the one-sided decision being taken by the Chief Engineer. Then there is obvious wrong notings of the Chief Engineer in the Resume of the Tender Committee Proceedings, wronn to his knowledge even. Further, if for rate negotiations, both parties were called on 17.5.2006 how respondent No. 5 submitted sealed offer to reduce rates only on 22.5.2006 and further reduced it later on. Then there is obvious wrong notings of the Chief Engineer in the Resume of the Tender Committee Proceedings, wronn to his knowledge even. Further, if for rate negotiations, both parties were called on 17.5.2006 how respondent No. 5 submitted sealed offer to reduce rates only on 22.5.2006 and further reduced it later on. These are the startling facts and reality which leave no scope of doubt as to the mala fide procedure adopted by respondent No. 2 to allow respondent No. 5 to participate and to oust petitioner. Petitioners stand stands vindicated. 12. In view of this indisputable facts, I have no option but to quash the letter of the Chief Engineer, respondent No. 2 dated 29.5.2006 (Annexure-4) awarding the contract to respondent No. 5. In terms of interim order passed as noted above even if any work has been done by respondent No. 5, he shall not be compensated for that and he is disqualified from working this contract any further. The Department would, thus, now be liable to consider the petitioners tender and would be at liberty to negotiate the rates with him for the balance of the contract. 13. This, to my mind, does not bring to end this matter. The facts, as noted above, clearly demonstrate how certain people in the Department have manoeuvred things wrongly in favour of someone. It is for such contingency that Bihar Prevention of Specified Corrupt Practices Act, 1983 has been made and it is a fit case in which action must immediately be taken before concerned persons can cause more damage to the public and the confidence of the public in governmental institutions and institutional decisions. 14. Let a copy of this order be sent to Cabinate Vigilance (Bureau), Patna for appropriate action. The records of this case, as submitted by the State Counsel, will be sealed and kept with the Registrar General to be handed over to any person duly authorised by the said Bureau or the Chief Secretary, Government of Bihar, Patna who should also be forwarded a copy of this order. 15. The writ application, thus, stands allowed.