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2012 DIGILAW 805 (PAT)

Narayani Nirman v. State of Bihar

2012-05-18

S.N.HUSSAIN

body2012
JUDGMENT This writ petition has been filed by the petitioner for the following reliefs:- (i) For quashing order dated 12.08.2009 issued by respondent no.3, the Engineer-in-Chief-cum-Additional Commissioner-cum-Special Secretary, Road Construction Department, Bihar, Patna by which the registration of the petitioner bearing Pratham-181/2008 Road has been blacklisted under provision of Clause VII of Rule 11(A) of Bihar Contract Registration Rules and Rule 13 (VII) of Bihar Enlistment of Contractor Rules, 1996 for the charge of changing the rate quoting page of the tender paper filed on 27.12.2001 for the contractual work of strengthening of Loria-Sikarpur-Thori Road from 0 KM to 12.7 KM in connivance with the officials (Annexure-6). (ii) For quashing the order under appeal passed by the Secretary, Road Construction Department, Bihar, Patna on 15.10.2009 by which he affirmed the order of blacklisting dated 12.08.2009 passed by Engineer-in-Chief-cum-Additional Commissioner-cum-Special Secretary, Road Construction Department, Bihar, Patna (Annexure-8). 2. It is stated on behalf of the petitioner that it is a firm duly registered as Contractor-Grade-I under Bihar Contractor Registration Rules, 2007 which is valid up to 03.06.2013 and in response to the notice inviting tender it filed its tender on 27.12.2001 at the rate of 0.3% below estimated cost of Bill of Quantity against contractual work of strengthening of Loria-Sikarpur-Thori Road from 0 KM to 12.7 KM which was duly verified from the Executive Engineer to the Chief Engineer and was sent to the Departmental Tender Committee headed by the Secretary, Road Construction Department, Govt. of Bihar ((hereinafter referred to as „the Department? for the sake of brevity), but the said tender was rejected by the authorities and the said work was not allotted to him. It is also stated that similarly other contractors namely (i) M/s Rishi Builders India Ltd., Srikrishnanagar, Motihari, (ii) M/s Roy Brothers Construction, Thakur Mansion, Gopalganj, (iii) M/s Crown Construction, Katra, Hajipur and (iv) M/s Shivlal Singh also submitted their tenders and out of them, tender of M/s Crown Construction, Hajipur was accepted by the Departmental Tender Committee on 25.01.2002. 3. It is also stated that similarly other contractors namely (i) M/s Rishi Builders India Ltd., Srikrishnanagar, Motihari, (ii) M/s Roy Brothers Construction, Thakur Mansion, Gopalganj, (iii) M/s Crown Construction, Katra, Hajipur and (iv) M/s Shivlal Singh also submitted their tenders and out of them, tender of M/s Crown Construction, Hajipur was accepted by the Departmental Tender Committee on 25.01.2002. 3. It is also claimed that on the complaint of several persons, the matter was enquired into and the Superintending Engineer, North Bihar Circle, Muzaffarpur submitted his enquiry report dated 25.10.2002 to the Department and on the said enquiry report, the Engineer-in-Chief-cum- Additional Commissioner-cum-Special Secretary of the Department issued show cause notice to the petitioner on 09.03.2009 alleging the petitioner for changing the rate quoting page from the tender paper, obtaining B.O.Q after stipulated period and not matching signature and seal of the petitioner from rate quoting page with other papers of tender. However, no evidence or documents with respect to the aforesaid charge was served upon the petitioner and hence petitioner requested for them on 20.03.2009. Thereafter the petitioner filed his show cause on 26.05.2009 specifically denying all the charges against him as he had done nothing as alleged in the charges and the evidence itself made it abundantly clear that the allegations made in the show cause notice was wholly misconceived and contrary to the facts. 4. Thereafter the Engineer-in-Chief-cum-Additional Commissioner-cum-Special Secretary of the Department passed order dated 12.08.2009 by which the petitioner was black listed under clause VII of Rule 11(A) of Bihar Contract Registration Rules and Rule 13 (VII) of Bihar Enlistment of Contractor Rules, 1996 without considering and going through the records detailed in the show cause filed by the petitioner on 26.05.2009. Against the said order, petitioner filed an appeal before the Secretary of the Department on 24.08.2009 and the said appeal was heard on 29.09.2009 when the order was reserved and was kept pending. Hence, petitioner filed CWJC No.12975 of 2009 which was disposed of on 13.10.2009 with a direction to the appellate authority to dispose of the appeal as early as possible. Only thereafter the appellate authority rejected the appeal vide order dated 15.10.2009. 5. Hence, petitioner filed CWJC No.12975 of 2009 which was disposed of on 13.10.2009 with a direction to the appellate authority to dispose of the appeal as early as possible. Only thereafter the appellate authority rejected the appeal vide order dated 15.10.2009. 5. Learned counsel for the petitioner claimed that the authority concerned neither properly examined the relevant documents nor considered the points raised by the petitioner and passed the impugned order dated 12.08.2009 rejecting the show-cause of the petitioner and placing his registration in the blacklist. Against the said order, petitioner filed an appeal, but after the above mentioned order of the High Court neither any date was fixed by the appellate authority nor any opportunity was given to the petitioner to place his case and all of a sudden the impugned order was passed by the appellate authority dismissing the appeal of the petitioner without considering the points raised by the petitioner as well as the facts and law involved therein. 6. Learned counsel for the petitioner argued that the notice inviting tender as well as the petitioner?s tender was of 2001 and hence it was governed by the Enlistment Rule of 1996 in which there is no provision for blacklisting any registration nor there is any allegation against the petitioner for which any punishment can be granted under the said Rule. Learned counsel for the petitioner further argued that the Registration Rule of 2007 was not in existence at the relevant time and hence its provisions were not applicable to the instant case, but belatedly in the year 2009 proceeding was started and punishment of blacklisting was given to the petitioner by the respondents taking help of the Registration Rule of 2007 although it was not applicable to the case of the petitioner. 7. Learned counsel for the petitioner also averred that admittedly work was not given to the petitioner, but in spite of that the allegation is that the petitioner connived with the regional authority for committing illegalities in the submission of tender in the year 2001, but no punishment had been given to any of the regional authorities whereas major punishment had been given to the petitioner and that too after seven years. Hence he claimed that the impugned orders and actions of the authorities concerned are not sustainable in law and are fit to be quashed. 8. Hence he claimed that the impugned orders and actions of the authorities concerned are not sustainable in law and are fit to be quashed. 8. On the other hand, learned counsel for the respondents claimed that five contractors submitted tenders, including Shivlal Singh, who quoted 0.2% below estimated cost and when the remaining 4 tenderers, including the petitioner, learnt about it they in collusion with authorities opened tender box and overnight bid sheet was changed now showing 0.3.% below estimated cost which was earlier 15% above estimated cost. It was also stated that when the authorities learnt about the same, they got an enquiry held with respect to all the four tenderers, including the petitioner. He also averred that the petitioner being local he had the advantage and hence he was the only beneficiary. 9. Learned counsel for the respondents further argued that the impugned orders were passed under Bihar Contract Registration Rules, 2007 and Bihar Contract Registration Rules, 1996 both, as in Rule 11 (ka) of 2007 Rules as well as in Rule 13(VII) of 1996 Rules, provision of black listing had been made. Hence, he claimed that the impugned orders of the authorities concerned are fully legal and justified. 10. From the aforesaid arguments of learned counsel for the parties and the materials on record, it is quite apparent that with respect to the same matter, one of the other tenderers, namely M/s Rishi Builders Private Limited came to this court vide CWJC no.830 of 2010 against the order of its black listing dated 12.08.2009 and the appellate order and this Court considered the matter in detail and allowed the writ petition on 09.09.2011 (Annexure-10) quashing impugned order of black listing dated 12.08.2009 as well as appellate order. 11. Furthermore the respondents have failed to give any valid reason for such a long delay of more than seven years in initiating the proceeding against the petitioner and they have even failed to produce any document to show the reason claimed by them for such inordinate delay. In exactly a similar matter in which there was a delay of about seven years a Bench of this court passed order dated 07.04.2009 in case of M/s Simanchal Construction and Another Vs. The State of Bihar and Others, reported in 2009 (3) P.L.J.R. 405 paragraph-3 of which reads as follows:- “In my view, the writ petition must succeed. In exactly a similar matter in which there was a delay of about seven years a Bench of this court passed order dated 07.04.2009 in case of M/s Simanchal Construction and Another Vs. The State of Bihar and Others, reported in 2009 (3) P.L.J.R. 405 paragraph-3 of which reads as follows:- “In my view, the writ petition must succeed. The order impugned of blacklisting cannot be sustained. Behind every power including a punitive power, there is a purpose. The purpose is not to mechanically act but to punish a person. While it was relevant to start proceeding for blacklisting of the petitioner in the year 2000, it was given up but now all of a sudden, in the year 2007 the order is being passed which is a delayed action and is not only an abuse of authorities but also an abuse of discretionary powers of the authorities. For any action to be reasonable it must be taken within a reasonable time or not at all.” 12. Even from the enquiry report of the Superintending Engineer dated 25.10.2002 no specific overt act is found to have been alleged against the petitioner, whereas the specific illegalities were found to have been committed by the officers of the department themselves. However, the authorities did not take any step after the said report and waited for seven years for reasons best known to them. Hence in the light of the aforesaid decision, it is quite apparent that the actions of the authorities were not reasonable as they were not taken within a reasonable time and hence they committed abuse of their discretionary powers. 13. It is also not in dispute that at the time of notice inviting tender as well as the submissions of tender, the Enlistment Rule of 1996 was applicable and hence if any action was to be taken against the tenderers of 2001 it should have been taken under the Rule which was prevalent at that time. In the said circumstances, the authorities were not justified in applying the Registration Rules of 2007 in the said matter. Hence the punishment of blacklisting not having been provided in the Enlistment Rule of 1996, there was no occasion for the authorities concerned to punish the petitioner by putting its registration in the blacklist as per the provisions of the Registration Rule of 2007 which was not applicable in the year 2001. 14. Hence the punishment of blacklisting not having been provided in the Enlistment Rule of 1996, there was no occasion for the authorities concerned to punish the petitioner by putting its registration in the blacklist as per the provisions of the Registration Rule of 2007 which was not applicable in the year 2001. 14. So far the objection raised by the respondents regarding petitioner not taking such plea before the authorities is concerned, there is no estoppel against the statutes and this plea can be legally raised by the petitioner at any stage and if such objection is valid it has to be allowed. Here, the aforesaid objection raised by the petitioner is quite legal, valid and proper and the respondents have failed to validly contradict the same. 15. Accordingly, this writ petition is allowed and the impugned orders of respondent nos.2 and 3 dated 15.10.2009 (Annexure-8) and 12.08.2009 (Annexure-6) are hereby quashed.