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2006 DIGILAW 761 (PAT)

Jawahar Yadav v. State of Bihar

2006-08-24

body2006
ORDER Heard the parties. 2. The present application has been filed by the petitioner making a grievance that pursuant to notice inviting tender he had filed his tender. The tender had to be filed in two separate parts, one technical bid and the second financial bid. The date for opening technical bid was fixed. It was so opened in presence of the petitioner. Thereafter no date could be fixed for opening financial bid as steps in regard to approval and sanction were to take place.The petitioner did not know the date when financial bid would be opened. He has produced a notice issued by the department on 16.2.2006 informing the petitioner that financial bid would be opened on 18.2.2006. This notice was despatched on 16.2.2006 and received by the petitioner through post on 18.2.2006 i.e. after the date fixed for opening of the financial bid. The petitioner asserts that because of delay receipt of notice he could not appear and be present and as such his financial bid was not considered. He was not at fault. It is with this grievance the petitioner came to this court. 3. Respondents have appeared and filed a counter affidavit. In the counter affidavit they have taken first stand that on 16.2.2006 they had informed the brother of the petitioner verbally that on 18.2.2006 financial bid would be opened. They, by way of registered post, informed all the parties as well. If the postal department delayed the delivery of documents they could not be fault at all. This court can ask for a better counter affidavit giving details and producing documents to show that in fact some representative of the petitioner was informed or not. A supplementary counter affidavit was filed. In that it was admitted that notice dated 15.2.2006 was in fact despatched on 16.2.2006. It was received in the post office for delivery on 17.2.2006 but was delivered on 19.2.2006. The fact appears to be slightly different. It might have been received in the post office concerned on 17.2.2006 but the postal seal bears the date is 18.2.2006. Even if it be assumed that notice was to be served and had been served on 18.2.2006 it was not physically possible for the petitioner to appear before the Tender Committee on 18.2.2006 itself living in a different district. It might have been received in the post office concerned on 17.2.2006 but the postal seal bears the date is 18.2.2006. Even if it be assumed that notice was to be served and had been served on 18.2.2006 it was not physically possible for the petitioner to appear before the Tender Committee on 18.2.2006 itself living in a different district. It is next submitted on behalf of the State with reference of Rule 160 of the P.W.D. Code that it was obligatory on the par of the department to issue notice of the fact as to when a bid would be opened. Rule 160 of P.W.D. Code reads as follows: "All tenders should be opened in the presence of such intending contractors or their agents as may choose to attend at the pre-specified and advertised time and place." A bare reference to the aforesaid rule would show that knowledge of the date when the tenders are to be opened has to be there. This can be either if the date is pre fixed in the notice inviting tender itself or it can be subsequently communicated giving reasonable time to the parties to appear. This is a condition required to maintain transparency in the decision making process. If tenders are not opened in front of all tenderers then there can be serious doubt about the correctness of the tender papers as it would be open to manipulation, as is alleged in the present case. 4. In the present case the petitioner has specifically asserted that the date was fixed in such a manner so that other tenderers may not be in a position to appear. The tender papers having been opened, the rate was reduced. The allegation can only be denied by the respondents but the fact remains that Rule 160 of P.W.D. Code was flagrantly violated. The need is the transparency which was to be maintained in the decision making process was completely lost. Ordinarily this would have led to cancelling of the entire process including the agreement already entered into but in view of the fact that contract has been entered into and substantial works have been done, in these special facts and circumstances, I am not inclined to exercise discretionary jurisdiction in this matter. However, I may observe that decision making process was clearly vitiated. The petitioner was unfairly excluded. However, I may observe that decision making process was clearly vitiated. The petitioner was unfairly excluded. The petitioner has a genuine grievance but because of lapse of time and the contract works having been substantially executed he is not entitled to any relief in this discretionary jurisdiction. 5. The writ petition is dismissed. 6. It goes without saying that caution money deposited by the petitioner with the department will be refunded within two weeks from the date of receipt of a copy of this order.