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2006 DIGILAW 938 (PAT)

J. P. Construction v. State Of Bihar

2006-10-13

NAVANITI PRASAD SINGH

body2006
Judgment 1. Heard the parties. 2. The present writ application has been filed the petitioner being aggrieved by wrongful exclusion from consideration of his tender filed in pursuance of notice inviting tender issued under the signature of respondent-Executive Engineer, Irrigation Division Bijikhorwa P.S. Belhar, District-Banka (respondent no. 6). Counter affidavit and rejoinder thereto have been filed and with the consent of the parties this writ application has been heard and is being disposed of at the admission stage itself. 3. The petitioner and three others filed their tenders in response to the notice inviting tender. The petitioner and another were excluded from consideration on the ground that they did not submit valid Labour Registration Licence. The tender was given in favour of private respondent no. 7. Respondent no. 7 has been noticed in these proceedings and notices were validly served but has chosen not to appear, for obvious reason that he had got the contract and had substantially done the work. The question that arises for consideration is whether the petitioner was rightly excluded or not. In this respect it is not in dispute that the petitioner had a valid Labour Registration Licence, which has valid upto 28.5.2006. Along with tender he had filed an application also clearly stating that he had duly made application for renewal of the said Registration which was pending with the authorities and as soon as the concerned clerk was available he would get it and file the same. These facts are not disputed and are specifically admitted by the respondents. Inspite of these facts the petitioner was excluded from consideration. 4. Having considered the matter I find that exclusion of the petitioner was arbitrary and malafide as well. It is arbitrary because renewing the existing registration/licence is not in the hands of individual. By law he is required to make an application in due time. Petitioner had made that application. It is then the authorities, who are all government officials, who have to grant and issue the same. If there is delay in it then the petitioner cannot be penalized. If the petitioner is held not entitled to participate in tender because registration/licence was not renewed due to delay on the part of the government then it would be putting premium of delay being caused by government official, which is most undesirable. Therefore, the action in exclusion him was arbitrary and wrong. 5. If the petitioner is held not entitled to participate in tender because registration/licence was not renewed due to delay on the part of the government then it would be putting premium of delay being caused by government official, which is most undesirable. Therefore, the action in exclusion him was arbitrary and wrong. 5. I find that the action was malafide as well for the simple reason that petitioner in his affidavit has specifically asserted that having filed his tender he was able to get the renewal certificate on the same very day i.e. 7.7.2005 and on the same very day he filed a copy thereof with renewal endorsement before the authorities which was duly acknowledged on the copy of the renewal of licence itself, which has been marked as Annexure 8. Though respondents were put to notice of this fact and the case was adjourned, they have not chosen to controvert the same. If this is accepted then only contention of the respondents in their counter affidavit was only half truth. They have deliberately concealed the other half i.e. with regard to filing of renewal licence on that day itself. This establishes malafide on the part of the concerned Executive Engineer. 6. For the aforesaid reasons this court would have normally set aside the entire tender but as the stand has been taken by the State that work order has been issued and substantially work has already been done by respondent no. 7 this Court does not set aside the tender as awarded in favour of respondent no. 7. Instead this court directs that a copy of this order be sent to the Engineer-in-chief and the Chief Secretary. Govt. of Bihar, Patna for taking appropriate departmental and also criminal action against the concerned Executive Engineer as they may deem fit and proper in the facts and circumstances of the case. 7. This writ application stands disposed of.