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2023 Supreme(Pat) 250

IN THE HIGH COURT OF JUDICATURE AT PATNA
P. B. BAJANTHRI and A. ABHISHEK REDDY, JJ.
CWJC No.13501 of 2022
(10.7.2023)
Naveen Kumar Singh ... Petitioner
vs.
Bihar State Warehousing
Corporation & Ors. ... Respondents

Advocates:
For the Petitioner: Mr. Arun Kumar.
For the Respondents: Mr. Prabhat Kumar Verma, AAG.

Headnote:

Government Contract – Tender – Challenge to award of contract to respondent – Even though J.M.D. Enterprises is trying to show that a Memorandum of Association has been entered between a non-participant and J.M.D. Enterprises, said Memorandum of Understanding is not valid in eye of law as partner cannot be substituted in a partnership firm through a Memorandum of Understanding but only through a substitution of partner as contemplated under relevant provision of Partnership Act, 1932 – Memorandum of Understanding is not a registered document but only a notarized document – Once it is held that said non-participant is not a partner of JMD Enterprises, Experience Certificate produced by non-participant has to be held as invalid in eye of law to present matter – Even otherwise, in Experience Certificate, nature of work/contract executed shows that only Transporting & Handling Agent (DSD-Door Step Delivery) work was done and not Rail Rake Handling and Transportation work on different condition – Work order allotted by Respondent-Corporation in favour of non-participant is not only illegal but same is an arbitrary exercise of power – Work order issued by Respondent-Corporation in favour of respondent set aside – Authorities shall call for fresh tender notice for balance work – Writ Petition allowed. (Paras 4, 8, 10 and 11)

A. Abhishek Reddy, J.—The present Writ Petition is filed by the petitioner herein seeking the following reliefs:—

a. For issuance of an appropriate Writ/s, order/s, direction/s, in the nature of certiorari quashing the said decision of the Respondent Bihar State Warehousing Corporation by which the Tender pursuant to (Notice Inviting Tender) NIT No.TH-Handling Contractor to carry out Handling & Transporting works attached to Lakhisarai Warehousing Centre has been allotted in favour of Respondent No.6.

b. For issuance of an appropriate Writ/s, order/s, direction/s in the nature of certiorari quashing the Letter of Award (hereinafter referred to as LOA) and consequent execution of contract Agreement by the Respondent Bihar State Ware Housing Corporation in favour of Respondent No.6 pursuant to its Notice Inviting Tender (NIT) No.TH-01/2021-22 and consequently declare the said LOA and Contract Agreement to be null & void and inoperative and forfeit the earnest money as well as security deposit amount and blacklist the Respondent No.6 from future participation in any Bid.

c. For issuance of an appropriate Writ/s, order/s, direction/s in the nature of certiorari quashing the work order as communicated by the Managing Director of Bihar State Warehousing Corporation to the Respondent No.6 by letter bearing No.248 dated 28.01.2022 by which Respondent No.6 has been appointed as Transporting & Handling Contractor for the period of Agreement i.e, 01.02.2022 – 31.01.2024.

d. For issuance of an appropriate Writ/s, order/s, direction/s in the nature of Mandamus commanding Corporation to reconsider the entire Bids pursuant to Notice Inviting Tender (NIT) No.TH-01/2021-22 and award the contract in its favour and appoint the Petitioner as Transporting & Handling Contractor to carry out Handling & Transporting works attached to BSWC Lakhisarai Centre as the Petitioner is the sole Bidder who fulfills all the terms of NIT and duly qualifies for the aforesaid Bid.

e. For issuance of an appropriate Writ in the nature of certiorari quashing the Registration of the Petitioner with the Bihar State Warehousing Corporation bearing Registration No. BUSS/CORD/2021-22/TO THE-93.

f. For issuance of any other order/orders or relief/reliefs for which the Petitioner may be found to be entitled in the facts and circumstances of the case.

2. Heard the submissions of the learned counsel for the petitioner, learned counsel for the Respondent No.1, learned counsel for the Respondent No.6.

3. The brief facts for the purpose of disposing the present case are that the Respondent No.1-Corporation has issued a Notice Inviting Tender (NIT) No.TH-01/2021-22 for transportation and handling works of Food grains/Fertilizers for different Warehouses/ Centres/Godowns under Respondent No.1-Corporation under Grade A, B & C categories. It is the case of the petitioner that after publication of the said NIT in the newspaper on 02.12.2021, the petitioner along with other persons have participated in the tender floated by the Respondent No.1-Corporation. That the Technical Bids were opened on 10.01.2022 and the Financial Bids were opened on 24.01.2022. That though the Respondent No.6 has not fulfilled the mandatory conditions laid down in the tender notice, the respondent No.1 with a malafide intention has allotted the work order dated 28.01.2022 to the Respondent No.6.

4. At the time of arguments, the learned counsel for the petitioner has confined the prayer to the extent of setting aside the work order dated 28.01.2022 issued by the respondent No.1-Corporation in favour of respondent No. 6. The learned counsel for the petitioner has stated that the tender filed by the Respondent No.6 ought to have been rejected at the stage of Technical Bid itself but the authorities for the reasons best known to them have qualified the Respondent No.6 in the Technical Bid even though the Respondent No.6 was not eligible for the same. The learned counsel for the petitioner has laid stress on the following

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