ORDER

Leave granted.

2. The Patna Regional Development Authority (hereinafter referred to as the appellants ) invited tenders for the construction of a high rise building Maurya Towers in the town of Patna. Of the three bids which were submitted, the bid of the first respondent, namely, Rashtriya Pariyojana Nirman Nigam was found to be the lowest. The second lowest bid was of respondent No.4, M/s. Walia Builders. Although the tender submitted by the first respondent was the lowest, the Tender Committee took into account the fact that the first respondent had been black-listed for a period of five years by the Water Resources Department, Government of Bihar under a black-listing order dated 26.9.1991, and decided not to award the contract to the first respondent. Instead, it awarded the contract to the fourth respondent. The fourth respondent, after negotiation, agreed to do the work at the rates offered by the first respondent.

3. This decision of the appellants was challenged by the first respondent by filing a writ petition being C.W.J.C. No.3964 of 1995 which was filed on 13.6.1995 in the Patna High Court. The first respondent also filed another writ petition bearing C.W.J.C. No.4064 of 1995 challenging the black-listing order of 26.9.1991. Writ Petition C.W.J.C. No.4064 of 1995 was rejected by a learned Single Judge of the Patna High Court by his order dated 18.9.1995 on the ground of delay, since the order of black-listing was challenged more than four years after it was made. The first respondent filed an appeal to a Division Bench of the Patna High Court being L.P.A. No. 1473 of 1995.

4. Writ Petition C.W.J.C. No.3964 of 1995 filed by the first respondent against the decision not to award the contract to it, was allowed by a learned Single Judge of the Patna High Court. He held, inter alia, that before the appellants decided not to award the contract to the first respondent on the ground of its being black-listed, no show-cause notice was issued by the appellants to the first respondent. Hence their decision was against the principles of natural justice and was bad in law. Two Letters Patent Appeals were filed from this judgment and order, being L.P.A. No.912 of 1995 filed by the appellants and L.P.A. No.1078 of 1995 filed by the fourth respondent, M/s.Walia Builders.

5. These two Letters Patent Appeals along with L.P.A. No.1473 of 1995 were heard together by the Division Bench of the Patna High Court. It has held that the order of black-listing must be set aside because the order was not communicated to the first respondent. It has further held that since the order of black-listing has been set aside, the question of award of tender must be re-examined by the first respondent.

6. In our view the impugned decision of the Division Bench of the Patna High Court cannot be sustained. The decision of 26.6.1991 taken by the Water Resources Department to black-list the first respondent for give years was communicated by a letter of the same date to the first respondent. The High Court has, however, held that the letter of 26.9.1991 addressed by the Water Resources Department, Government of Bihar to the first respondent was not served on the first respondent. This conclusion is arrived at by the High Court only on the ground that the allegation of non-service of the letter, made by the first respondent in their pleading is not denied by the appellants in their pleading. But as the High Court s judgment itself records, the appellants had, in fact, stated in their pleading that the letter of 26.9.1991 was communicated to the first respondent. The High Court, however, has proceeded on the basis that there was non-traverse of the statement made by the first respondent that the letter of 26.9.1991 was not received by the first respondent. The appellants had clearly pleaded that the order of 26.9.1991 was communicated to the first respondent. This cannot be construed as non-traverse. In any case, the proviso to Order VIII Rule 5(1)of t