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2023 Supreme(Pat) 989

IN THE HIGH COURT OF JUDICATURE AT PATNA
P. B. BAJANTHRI and JITENDRA KUMAR, JJ.
CWJC No.13609 of 2022
(21.7.2023)
Shri Balajee Transport ... Petitioner
vs.
Bihar State Warehousing Corp.
& Ors. .... Respondents

Advocates Appeared:
For the Petitioner: M/s Arun Kumar, Jitendra Kumar Singh, Raghubir Chandra, Isshan Singh.
For Resp. No. 6 : M/s Umesh Pd. Singh, Sanjeet Kumar, Vaibhava Veer Shanker.
For the Resp./BSWC : M/s Shravan Kumar, Mithilesh Kumar Rai.
For FCI : Mr. Saket Tiwary.

Headnote:

Government Contract–Writ petition–maintainability–respondent–Corporation action in awarding the contract in favour of 6th respondent are in violation of clause 14 (xiv, Clause 14 (xv) and coause 14 (xii) and bidder–6th respondent has filed affidavit dated 8.11.2021 whereas the NIT was issued on 2.12.2021–these are all glaring errors committed by the 6th respondent, the same has not been noticed by the respondent–corporation or knowingly they have favoured 6th respondent in awarding the contract–therefore, prima facie, writ petition is maintainable on the score that respondent-corporation is awarding contract to 6th respondent is arbitrary. (Para 19)

Government Contract–Contract awarded in favour of respondent no. 6–the 6th respondent has mislead to respondent–corporation in not furnishing eligibility criteria materials and the same has been ignored by the respondent–Corporation and awarded contract and favoured 6th respondent with work order–in these facts and circumstances, the work order allotted by the respondent–Corporation in favour of 6th respondent is not only illegal and the same is arbitrary exercise of power, which is contrary to clause 14(xiv), clause 14 (xiv) and clause (xvii) of the NIT and clause 20 of the NIT dated 2.12.2021–therefore, work order dated 28.1.2022 issued by the respondent-corporation is set aside–Authorities deirected to call for a fresh tender notice for the balance work–a cost at Rs. 2 lakh imposed on respondent–Corporation 6th respondent, Rs. 1 lakh each, to be paid to the petitioner–writ petition allowed. Paras 35 to 38)

CWJC 13501 of 2022 paras 48, 7 (1990) 3 SCC 752 para 12, 2021 SCC Online SC 99, (2023) 2 SCC 703, 2022 Line Law (SC) 966 paras 33, 44, 47 48, 52 and 54, 2023 SCC Online SC 671, 2023 Live Law (SC) 467 para 48, (2023) 3 SCC 629, Civil Appeal No. 18312 of 2017 d/- 24.8.2018 para 10, 11 and 12, (2022) SCC 401 para 29, (2022) 1 SCC 165 paras 53 to 52–Referred.

P. B. Bajanthri, J. – In the instant petition, the petitioner has prayed for 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 01/2021-22 for appointment of Transporting & Handling Contractor to carry out Handling & Transporting works attached to Narpatganj 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. 245 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 the Respondent Bihar State Ware Housing 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 Narpatganj Centre as the Petitioner is the sole Bidder who fulfills all the terms of MTF 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/TH- 91.

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. Gist of the matter are as under: –

(i) On 02.12.2021, NIT was notified for transporting and handling contract. Pursuant to NIT dated 02.12.2021 by the Bihar State Warehousing Corporation (for short ‘Corporation’), both the petitioner and respondent no. 6 are bidders. Letter of award and contract was in favour of the respondent no. 6, to that effect, the concerned authority issued a letter on 28.01.2022. The petitioner filed a suit bearing no. 15 of 2022 before the Sub-Ordinate Judge, Darbhanga on 08.02.2022 and it is pending consideration as on today.

(ii) Simultaneously, he had submitted a representation to the respondent-Corporation on 19.02.2022. In the suit, vide order dated 07.06.2022, parties were directed to maintain status quo with reference to award of contract. Feeling aggrieved by the status quo order, Civil Misc. No. 181 of 2022 was filed before this Court and this Court has stayed the suit proceedings on 29.06.2022.

(iii) The petitioner had submitted an application to withdraw the Suit No. 15 of 2022 on 11.08.2022. The learned Judge has not passed any order, on the score that Civil Misc. No. 181 of 2022 is pending consideration before this Court. In this backdrop, the petitioner has presented this writ petition.

3. On 18.04.2023, the following order was passed: –

“With the consent of learned counsels for the respective parties, we are referring the subject matter to the Chairperson of the Bihar State Warehousing Corporation to constitute a committee consisting of three persons including the Chairperson to examine award of contract to 6th respo

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