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2011 DIGILAW 2356 (PAT)

Md. Siddique v. State of Bihar

2011-11-25

SHEEMA ALI KHAN

body2011
ORDER Heard Counsel for the petitioner and the Counsel appearing on behalf of the Mines Department. 2. The petitioner is aggrieved by the order dated 17.08.2007 passed by the Commissioner of Mines, Bihar, Patna in Revision Case No. 08 of 2007 (Annexure-6). By the impugned order, the earnest money deposited by the petitioner being the second highest bidder has been confiscated, in addition to 2 per cent security amount of the bid amount. 3. Learned Counsel for the petitioner submits that the notification of the State Government in compliance with Annexure-1 has been issued. Clause 6 (ii) of the Notification indicates that the earnest money of the highest bidder would be confiscated, in case he does not fulfill the conditions as required under the Bid. It is pointed out that Clause 6 (ii) was later amended in the year 2009. The amendment states as follows:- <span class="Hfont"> ^^izFke MkdoDrk }kjk izFke fdLr ds iw.kZ Hkqxrku esa vleZFkrk O;Dr fd;s tkus ij muds }kjk tek vxzèku ,oa vkaf'kd fdLr jkf'k tIr djrs gq;s nwljs MkdoDrk dks volj fn;k tk;sxkA ;fn f}rh; MkdoDrk Hkh iw.kZ jkf'k tek djus ls badkj djrs gSa rks mlds }kjk vxzèku ,oa vkaf'kd fdLr jkf'k dks tIr djrs gq;s iqu% foKkiu djk;k tk;sxkA** 4. On the basis of the aforesaid facts, it is submitted on behalf of the petitioner that if the intention of the Legislature was to confiscate the earnest money of the second highest bidder, it would have been specified in the provisions issued vide Annexure-2 by the State Government. The fact that the Mines Department of the State Government thought it fit to clarify this aspect of the matter and insert the fact that the second bidder would step into the shoes of the first bidder and, therefore, he too would have to face the similar consequence as the first bidder, in case he fails to accept the conditions of the bid, has been added in order to bring home the point. 5. Counsel for the Mines Department, on the other hand, submits that once the first bidder has failed to respond to the offer made by the Department, the second bidder would step into the shoes and would be treated as the first bidder, and thus, the Department would be entitled to confiscate the earnest money, in case there is failure on his part to accept the offer. 6. 6. In my considered opinion, after going through the two provisions of the Notification of the State Government issued in the year 2006 and subsequently, in the year 2009, I came to the conclusion that the fact that there is no specific provision for confiscation of the earnest money of the second bidder, the confiscation is not in consonance with the Notification of the State Government. I also find that the additional charge of 2 per cent security money of the bid amount is not mentioned anywhere in the Notification either of 2006 or of 2009 and thus, the order of the Commissioner of Mines, Bihar, Patna dated 17.08.2007 is bad on this ground as well. 7. In the result, the order of the Commissioner of Mines, Bihar, Patna dated 17.08.2007 passed in Revision Case No. 08 of 2007 is set aside and the Commissioner is directed to refund the amount deposited by the petitioner as earnest money and the security amount of bid amount within a period of six weeks from the date of filing of an application by the petitioner along with a copy of this order. This writ application is accordingly allowed.