Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.20859 of 2012 ====================================================== 1. M/S Arun Construction Co. (Government Contractor & Suppliers), Partner Arun Kumar, Son Of Late Krishna Prasad Resident Of Mahabir Prasad Lane, Nayachak, P.S.- Ishachak, District- Bhagalpur .... .... Petitioner/s Versus 1. The State Of Bihar Through Secretary, Rural Works Department, Patna 2. The Engineer In Chief, Rural Works Department, Government Of Bihar, Bisheshwaraiya Bhawan, Baily Road, Patna 3. Chief Engineer-1, Rural Works Department, Government Of Bihar, Bisheshwaraiya Bhawan, Baily Road, Patna 4. The Superintending Engineer, Rural Works Department, Work Circle, Munger 5. Executive Engineer, Rural Works Department, Works Division, Kharagpur- Tarapur (Muner- 2), District- Munger .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Ashok Kumar Jha Mr. Ajay Kumar Jha For the Respondent/s : Mr. Tej Bahadur Singh, AAG-7 ====================================================== CORAM: HONOURABLE MR. JUSTICE RAMESH KUMAR DATTA ORAL ORDER 5 24-04-2013 Heard learned counsel for the petitioner and learned Additional Advocate General No.7 for the State. The petitioner has approached this Court for setting aside the decision of the Technical Bid Committee which had rejected the Technical Bid of the petitioner for tender notice dated 23.9.2012 vide Reference No.2012 ECBIH-8724-I for construction of road under Rural Works Division, Kharagpur- Tarapur, for which no reason had been assigned but only in SMS message, it was stated that his bid has been rejected. It is the
Facts
Patna High Court CWJC No.20859 of 2012 (5) dt.24-04-2013 2 submission of learned counsel for the petitioner that the reason for rejection of technical bid as learnt by the petitioner is the non- completion of the work of construction of widening and strengthening of Kharagpur-Jamui main road via Basudeopur Matsumbha under Mukhya Mantri Gramin Sadak Yojana, for which Agreement No.4-F2/2007-2008 had been signed and the petitioner had started the work but the same could not be completed due to demand of levy and creation of hindrance by M.C.C. (Naxalites) who thereafter abducted an employee of the petitioner after threatening the petitioner by letter dated 23.10.2008 that if he wanted to do the work he had to pay 10% as levy or leave the work. The petitioner informed the Executive Engineer about the same in writing but no action was taken by the respondents. Ultimately, the petitioner had to file a petition on 7.5.2009 requesting to take the measurement of work done and materials stocked by the petitioner on the site and requesting that the agreement may be closed and security and earnest money be refunded, which was also recommended by the Executive Engineer by his letter dated 16.7.2010 but no action was taken by the respondents and ultimately the petitioner filed Reference Case No. 103/2011 before the Bihar Public Works Contract Dispute Arbitration Tribunal, which is pending. Patna High Court CWJC No.20859 of 2012 (5) dt.24-04-2013 3
Legal Reasoning
of the petitioner is squarely covered by a decision of this Court in the case of M/s. NCC Ltd. vs. The State of Bihar and others: 2013 (1) PLJR 952, in paragraph Nos. 25 and 26 of which it has been held as follows:- “25. From a perusal of the facts and circumstances enumerated above it is evident that in the present matter the petitioners have been declared defaulters in carrying out their contractual work by the authorities of the State which factual situation is denied by the petitioners who have on the other hand made Patna High Court CWJC No.20859 of 2012 (5) dt.24-04-2013 4 allegations against the State authorities as being equally liable and at fault in the matter. The contention of learned counsel for the petitioners that in such circumstances the issue regarding default can only be decided by an impartial adjudicatory body has much force in view of the law laid down by the Apex Court in M/s. J.G.Engineers case (supra). The Apex Court has clearly held that the question whether the other party has committed a breach cannot be decided by the party which alleges the breach nor the contract can provide that one party to the contract can decide whether they committed the breach or the other party committed the breach, which question can only be decided by a judicial forum, i.e. a court or an Arbitral Tribunal. 26. The said proposition laid down by the Apex Court applies squarely in the present situation where the petitioners have been declared defaulters by alleging breach of contractual terms on their part and as being liable and at fault on account of the slow progress of the work as compared to what was required under the contract. This should be specially so since Patna High Court CWJC No.20859 of 2012 (5) dt.24-04-2013 5 the petitioners not only do not admit such allegation of liability and fault on their part as made by the respondents but have on the contrary raised the plea of liability and fault on the part of the State authorities in the matter on various grounds. It is evident that the authorities of the State cannot be permitted to decide such matter which involves liability on the part of the State officials also. Thus, even if it is accepted that the authorities of the State have the power to debar a contractor from participating in future contract after they are declared defaulter on account of not making the targeted progress to the extent of 80% in the work, still the finding regarding the default cannot be made by the State authorities and that must come from a proper adjudicatory forum, whether a court or arbitral tribunal. Only after such finding it can be open to the authorities of the State to declare a contractor as a defaulter and debar it from participating in future tenders. It is evident that the effect of such declaration as defaulter and debarment would have serious civil consequence on the party concerned and cannot be left to be decided by the party which has made allegation Patna High Court CWJC No.20859 of 2012 (5) dt.24-04-2013 6 against whom also there is counter allegation by the contractor concerned”. Learned AAG-7 appearing for the State is unable to show as to how the aforesaid decision does not apply to the case of the petitioner. This Court is of the view that it is not open to the authorities of the respondent State to unilaterally declare a person as a defaulter and debar him when the contractor in question does not accept the said allegations and the issue regarding default and debarment can only be decided by an impartial adjudicatory body like a Court or an Arbitral Tribunal and not by one of the authorities of the State. In the present matter on the basis of the allegation of the petitioner, the authorities of the respondent State can be considered prima facie equally liable for non-completion of the work on account of Naxal activities. Thus, the action of the respondents in rejecting the technical bid of the petitioner, if the same is in terms of Clause 4.8 of the S.B.D., and the letter dated 9.5.2012 of the Secretary, Rural Works Department do not appear to be supportable in view of the law laid down in M/s. N.C.C.’ case (supra). Despite several opportunities being granted, learned counsel for the State has been unable to file the counter affidavit Patna High Court CWJC No.20859 of 2012 (5) dt.24-04-2013 7 in the matter. However, learned counsel for the petitioner submits that he is not pressing for consideration of his tender in the present matter rather he seeks a direction upon the respondents not to treat the petitioner as a defaulter and debar him from future contracts on the ground of non-completion of the aforesaid work. In the light of the aforesaid discussions, the writ
Arguments
It is submitted by learned counsel for the petitioner that the petitioner’s tender papers submitted on 27.9.2012 against Tender Notice No. 2012-ECBIH-8724-1 for construction of road from Ratani Naresh Yadav’s house to Muzaffarganj Hatia have been rejected by the Technical Bid Committee, for which only SMS message was received on 17.10.2012 without disclosing any reason. However on enquiry, the petitioner was informed that in terms of clause 4.8 S.B.D., the petitioner has been debarred as he has not completed 80% of the contract work allotted earlier as per the letter dated 5.9.2012 issued by the Secretary, Rural Works Department. Learned counsel for the petitioner submits that the case
Decision
application is disposed of with a direction to the respondents not to treat the petitioner as a defaulter and debar him from future contract with the State only on the ground of non-completion of the aforesaid work related to Kharagpur-Jamui main road via Basudeopur Matsumbha, pursuant to Agreement No.4-F2/2007- 2008 unless issue regarding defaulter of the petitioner is adjudicated by a competent Court or Arbitral Tribunal. (Ramesh Kumar Datta, J) V.P.Sinha/-