JUDGMENT : I.A. No. 2657 of 2017 1. The interlocutory application has been filed for amending the writ petition by adding the following prayer- "(iv) To issue a writ in the nature of Certiorari for quashing the Re Notice Inviting Tender (No. RWD/NABARD/ SBD/15/E-Tender 2016-17) for construction of bridge including maintenance for five years namely "Tajwa Koierganwa Balwa Kothi Manjheel in Mahuaawa Panchayat under Chakia Block in the District of East Champaran" issued by the office of Executive Engineer RWD Work Division Chakia. The date of opening of bid was on 28.4.2017." 2. Having regard to the nature of the prayer, the interlocutory application is allowed and the same shall be treated as forming part of the writ petition. CWJC No. 4486 of 2017 3. The main writ petition has been filed for the following reliefs- "(i) To issue a writ in the nature of Certiorari for quashing the decision dated 10.3.2017 taken by the Committee whereby the petitioner despite being declared L-1 in financial bid, has been declared ineligible in technical bid and further direction to the respondents to produce the entire documents related to tender and after production of the same, quashing of decision for cancellation of present tender and decision to re-tender the work as same being illegal, arbitrary, perverse and wholly without jurisdiction. (ii) Consequent upon quashing the same, issuance of direction to the respondents to treat the petitioner eligible and to award the tender in favour of the petitioner. (iii) To any other relief or reliefs to which the petitioner is entitled in the facts and circumstances of the case." 4. The brief facts according to the petitioner, are that pursuant to a short tender notice in NIT No. RWD/NABARD/SBD/15/E-Tender 2015-16, the petitioner along with others participated and was finally found eligible along with four other bidders in terms of the decision taken in the meeting of the Tender Committee held on 30.1.2017. The financial bids of all the five bidders were opened on 3.2.2017 and the petitioner was declared L-1. It appears that pursuant to a complaint by a Member of the Legislative Assembly, an enquiry report was received which led the Tender Committee to decide that both L-1 and L-2 bidders had not complied with Clause 4.5B(b) of SBD as the stamp paper had not been issued in the name of the person making affidavit and hence, they were declared ineligible. The tender was accordingly cancelled and the decision was taken for re-tender which was published on 31.3.2017. The petitioner did not participate in view of pendency of the present writ petition and the private Respondent No. 6 was declared L-1 and was awarded the subject work which it proceeded to execute. This notice of re-tender has been challenged by way of the Interlocutory Application as aforesaid. 5. By order dated 12.4.2017, this Court deferred the decision on I.A. No. 2657 of 2017 (I.A. No. 2656 of 2017 appears to have inadvertently been mentioned) until the time of final hearing The petitioner was granted liberty to participate in the fresh bid, observing that any action would be subject to the result of the case. The writ petition was finally disposed of on 10.8.2018 (sic), inter alia, observing as follows- "Paragraph-5 of enquiry report (Annexure-A) to the counter affidavit itself shows that in prevalent practice, stamp purchased by an individual can be used by other by filing an affidavit. This Court has asked from the counsel for the State as to whether such condition has been mentioned in the NIT but counsel for the State has fairly stated that there is no such condition in the N.I.T. He submits that there is nothing in the counter affidavit to show that such condition is/was there If such condition is not in the NIT such condition cannot be a ground for the purposes of rejection of the tender and that too at the instance of Member of Legislative Assembly who is no way connected with the outcome of the tender. Learned counsel for the State has further submitted that already department has gone for second tender but learned counsel for the petitioner submits that as matter was pending before this Court petitioner has not participated in the tender. In the facts' and circumstance of this case, it appears that previous proceeding suffers from illegality and ground of rejection of technical bid is not sustainable at all. In such view of the matter, this Court direct that second tender will not be taken into consideration and concerned authority is directed for fresh tender and petitioner, if so advised may participate in the fresh tender. 6. In such view of the matter, this Court direct that second tender will not be taken into consideration and concerned authority is directed for fresh tender and petitioner, if so advised may participate in the fresh tender. 6. In view of the order of this Court dated 10.8.2017, the respondent-Executive Engineer issued a letter bearing No. 1125 dated 26.9.2017 cancelling the work order dated 14.7.2017 and terminated the agreement with the respondent no. 8. Thereafter the respondent no. 8 preferred LPA No. 1419 of 2017 which was disposed of on 20.11.2017 with the following observations- "That being so, in our considered view, the matter should be remanded back to the learned Writ Court for reconsideration so that the issue with regard to finalization of the second tender which was going on and the right created in favour of the appellant herein are also taken note of along with the objection of the original petitioner in• the writ petition, namely Kamakshi Minakshi Construction Pvt. Ltd. respondent No. 8 herein, and final decision taken by the learned Writ Court after hearing all concerned. In the present scenario, where the appellant has not been heard and the right which accrued to him because of the acceptance of a second tender having been adversely affected, we find that he has a right to be heard and, therefore, we have no option but to quash the order passed by the learned Writ Court on 10.8.2017 and remand the matter back for reconsideration. The present appellant be impleaded as respondent. Accordingly, the appeal is allowed, order passed by the learned Writ Court on 10.8.2017 is quashed and the matter is remanded back to the learned Writ Court for reconsideration with a request to proceed with the matter and decide tl it within a period of two months after t hearing all concerned." 7. Learned counsel appearing for the petitioner submits that cancellation of the petitioner's technical bid was wholly arbitrary and without foundation which was duly challenged in the present writ petition. Pending disposal thereof, the work was re-tendered in which the private respondent no. 8 was awarded the work. It is submitted that the right of the Respondent No. 8 was subject to result of this case as directed in this Court's order dated 12.4.2017 and hence such right was not absolute or crystallised. Pending disposal thereof, the work was re-tendered in which the private respondent no. 8 was awarded the work. It is submitted that the right of the Respondent No. 8 was subject to result of this case as directed in this Court's order dated 12.4.2017 and hence such right was not absolute or crystallised. Even otherwise, such right would abide by the well known doctrine of lis pendens. No direction of this Court has been sought either by the State or by the respondent no. 8 for proceeding with the work awarded upon re-tender and for alienating the tender. Reliance is placed upon a decision of the Supreme Court in the case of Poonam vs. State of Uttar Pradesh and Others, 2016 (1) PLJR (SC) 218 in support of the petitioner’s contentions. 8. Learned counsel for the petitioner further submits that there was no occasion for the private respondent no. 8 to have proceeded with the work despite issuance of the respondent's letter dated 26.9.2017 cancelling the work order, operation of which was no doubt stayed as an interim measure by order dated 11.10.2017 in LPA No. 1419 of 2017, but the same not having finally been quashed on disposal of the LPA, revived and regained its force. 9. Learned counsel for the respondent-State opposes the writ petition, submitting that the order dated 10.8.2017 by which the writ petition was earlier disposed of, had been set aside in LPA No. 1419 of 2017. The letter dated 26.9.2017 cancelling the work order thus impliedly lost force The respondent no. 8 who had been validly awarded the work pursuant to re-tender, was accordingly permitted to proceed with the work, more so in view of the order in the aforesaid LPA specifically noticing that a right had been created in the respondent no. 8. 10. Dr. Anshuman, learned counsel appearing on behalf of the private respondent no. 8, submits that the impugned re-tender notice needs no interference in the facts and circumstances of the case. It is a matter of record that this Court in CWJC No. 4486 of 2017 had observed in its order dated 12.4.2017 that the petitioner may participate in the fresh bid which was set to open on 28.4.2017. However, despite sufficient time, the petitioner chose not to so participate. It is a matter of record that this Court in CWJC No. 4486 of 2017 had observed in its order dated 12.4.2017 that the petitioner may participate in the fresh bid which was set to open on 28.4.2017. However, despite sufficient time, the petitioner chose not to so participate. Having allowed the opportunity to lapse, it could not be permitted to take advantage of its own fault and seek quashing of the re-tender notice. It is not in dispute that the petitioner's technical bid was rejected and no work was awarded to him. On the other hand, the private respondent no. 8 succeeded in. the re-tender, pursuant to which the work was awarded to it, the agreement duly executed and the work was commenced. As a matter of fact, it is stated that about 80% of the work has already been completed by respondent no. 8 and the work continues to proceed at a fast pace in order to complete the same before onset of monsoon season which is already at hand. It is stated that by Memo No. 1189 dated 17.10.2017, the Department had withdrawn the earlier letter rescinding the agreement of the respondent no. 8. Thus, no illegality has been committed by the State respondents in having allowed the Respondent No. 8 to continue the work. On the other hand, stoppage of work at this stage would be contrary to public interest. It is submitted that reliance placed by the petitioner upon Poonam's case (supra) is misconceived as in that case the work had been awarded and the petitioner therein had acquired a right in execution of the work, unlike in the present case. The Hon'ble Supreme Court in Rajasthan Housing Board and Anr. Vs. G.S. Investments and Another, (2007)1 SCC 477 has cautioned as follows- "... The court should always keep the larger public interest in mind in order to decide whether it should interfere with the decision of the authority." 11. Having heard learned counsel for the parties and on careful consideration of the materials available on record, this Court finds merit in the writ petition. It is not in dispute that the present writ petition had already been filed and was pending in which challenge had been made by the petitioner against its technical bid being declared ineligible, much prior to the date when the work was awarded to the respondent no. 8. It is not in dispute that the present writ petition had already been filed and was pending in which challenge had been made by the petitioner against its technical bid being declared ineligible, much prior to the date when the work was awarded to the respondent no. 8. The doctrine of lis pendens as explained in the judgment of the Hon'ble Supreme Court in Sarvinder Singh vs. Dalip Singh and Others, (1996)5 SCC 539 and in Sanjay Verma vs. Manik Roy and Others, (2006)13 SCC 608 thus becomes applicable. Besides, this Court had specifically directed in its order dated 12.4.2017 that any action with regard to the fresh bid would be subject to result of this case. It is also on record that I.A. No. 2657 of 2017 has been filed challenging the validity of the re-tender itself. Any right acquired by Respondent No. 8 must therefore be held to be dependent upon, and must yield to, the decision herein with regard to the petitioner's right. 12. This view is supported by the decision of the Hon'ble Supreme Court in Poonam's case (supra), rendered in the context of a subsequent allottee of a fair price shop challenging an order setting aside the cancellation of allotment of the original allottee, as follows- "48. In the instant case, shop no.2 had become vacant. The appellant was allotted the shop, may be in the handicapped quota but such allotment is the resultant factor of the said shop falling vacant. The original allottee, that is the respondent, assailed his cancellation and ultimately succeeded in appeal. We are not concerned with the fact that the appellant herein was allowed to put her stand in the appeal. She was neither a necessary nor a proper party. The appellate authority permitted her to participate but that neither changes the situation nor does it confer any legal status on her. She would have continued to hold the shop had the original allottee lost the appeal. She cannot assail the said order in a writ petition because she is not a necessary party. It is the State or its functionaries, who could have challenged the same in appeal. They have maintained sphinx like silence in that regard. Be that as it may, that would not confer any locus on the subsequent allottee to challenge the order passed in favour of the former allottee. It is the State or its functionaries, who could have challenged the same in appeal. They have maintained sphinx like silence in that regard. Be that as it may, that would not confer any locus on the subsequent allottee to challenge the order passed in favour of the former allottee. She is a third party to the lis in this context. The decisions which we have referred to hereinbefore directly pertain to the concept of necessary party. The case of Kailash Chand Mahajan (supra) makes it absolutely clear. ... in a case which relates to a post or position or a vacancy if he or she who holds the post because of the vacancy having arisen is allowed to be treated as a necessary party or allowed to assail the order. Whereby the earlier post holder or allottees succeeds, it will only usher in the reverse situation-an anarchy in law.” 13. It is equally relevant to bear in mind the reason why the petitioner’s technical bid had been cancelled in the first place, namely, that the stamp paper had not been issued in the name of the person making the application, thus violating Clause 4.5B(b) of the SBD. This aspect of the matter had been dealt with by this Court in paragraph 5 of the judgment dated 10.8.2017 in which it had been observed as follows- "In the facts and circumstance of this case, it appears that previous proceeding suffers from illegality and ground of rejection of technical bid is not sustainable at all. In such view of the matter, this Court directs that second tender will not be taken into consideration and concerned authority is directed for fresh tender and petitioner, if so advised, may participate in the fresh tender. With the aforesaid observation and direction this writ petition is disposed of." 14. This Court is thus in agreement with the submissions of the learned counsel for the petitioner that the right created in the respondent no. 8 pursuant to the re-tender was always subject to the final result of the present writ petition as such right was created during pendency thereof and covered by the doctrine of lis pendens, apart from the order of this Court dated 12.4.2017 as aforesaid. 15. Inasmuch as the judgment dated 10.8.2017 has been quashed in LPA, learned counsel for the State was requested to make submissions in this regard afresh. 15. Inasmuch as the judgment dated 10.8.2017 has been quashed in LPA, learned counsel for the State was requested to make submissions in this regard afresh. A supplementary counter affidavit has been filed on behalf of the respondent-State, but there is nothing on record to indicate any departure from its earlier stand as noted above nor was learned counsel for the respondent no. 8 able to contend otherwise. In this view of the matter, it must once again be held that in absence of any condition to the contrary, whether in the NIT or elsewhere, the stamp purchased by the individual had validly been used by the petitioner and its technical bid could not have been rejected on this ground alone. 16. That said, however, it now remains to be considered whether the relief as sought can be granted to the petitioner. The claim of the respondent no. 8 that about 80% of the work has already been completed and in respect of which payments have also been received, has not been controverter by the petitioner nor by the State. It is also true that interference at this advanced stage by directing the respondents to hand over execution of the remaining work would no doubt result in disruption and delay in execution of the work which would be contrary to public interest. Besides, if the petitioner is permitted to complete the balance work now remaining after the respondent has already completed about 80% of the work, it may be difficult to assign responsibility and accountability, should such need arise in future. It is thus held that though the petitioner has made out a case for relief as sought, it would not be in public interest to pass orders in this regard. 17. Considering that the petitioner has arbitrarily been ousted from executing the work, this Court directs the State to pay a compensation of Rs. 5,00,000/- (Rs. Five Lacs) to the petitioner within one month from the date of receipt/production of a copy of this judgment. It is made clear that the State would be at liberty to fix responsibility on the concerned erring officials for having acted contrary to law much to the prejudice of the petitioner by arbitrarily rejecting its technical bid, and recover the said amount from them. 18. The writ petition stands disposed of with the aforesaid observations and directions.