Himalaya Construction vs The State of Bihar and Others

I.A. Ansari, J.—Heard Mr. Y.V. Giri, learned Senior Counsel for the appellant, Mr. Suman Kumar Jha, learned counsel for the State respondent Nos. 1 to 6, and Mr. S.B.K. Manglam, learned counsel for the respondent No. 7. This L.P.A. has arisen out of the order, dated 14.5.2014, passed in C.W.J.C. No. 5691 of 2014, whereby the award of contract work by the State respondents, in favour of the present appellant, has been set aside and quashed with direction to open the financial bid of the writ petitioner-respondent No. 7 herein within a period of two weeks and, then, to award the contract, in question, in accordance with law.

Before proceeding further, what needs to be noted is that a Notice Inviting Tender (in short, NIT) was issued, on 13.2.2014, by respondent No. 6, namely, Executive Engineer, Road Construction Department, Road Division, Gopalganj, for construction of road. The appellant and respondent No. 7 herein participated in the said tender process. On 1.3.2014, a work order was issued in favour of the appellant stipulating therein that the work awarded shall be completed by 30.6.2014. The award of work, in favour of the appellant, was put to challenge by respondent No. 7 herein, on 12.3.2014, by filing a writ petition under Article 226 of the Constitution of India, which gave rise to C.W.J.C. No. 5691 of 2014. By order, dated 14.5.2014, aforementioned, the award of contract, in favour of the appellant, as already indicated above, has been quashed with direction as we have mentioned hereinbefore, the ground of interference with the award of work in favour of the appellant being that though respondent No. 7 had contended, while attempting to justify the allotment of the contract, in question, in favour of the appellant, that respondent No. 7 had delayed the construction of the work allotted to him, no opportunity was given to respondent No. 7 to have his say on this aspect of the matter and, thus, respondent No. 7 was penalized by a decision, which was taken on his back and without affording any opportunity of hearing or showing cause to respondent No. 7.

Aggrieved by the order, dated 14.5.2014, the awardee of the earlier contract is, now, in appeal, before us.

With the help of a supplementary affidavit, the appellant has, now, placed on record the developments, which have taken place subsequent to the passing of the impugned order, dated 14.5.2014, the subsequent developments being that respondent No. 7 has sent a letter, dated 24.6.2014, addressed to respondent No. 6, namely, Executive Engineer, Road Construction Department, Gopalganj, stating to the effect, inter alia, that as the awardee of the contract (i.e., appellant herein) was required to complete the work by 30.6.2014 and the appellant has completed almost the entire work, in question, it is not feasible or practicable for respondent No. 7 to, now, participate in the limited work inasmuch as the same does not remain feasible or practicable.

On a query made by this Court, Mr. S.B.K. Manglam, learned counsel for the respondent No. 7, submits that according to the instructions received by him, respondent No. 7 has written the letter, dated 24.6.2014, aforementioned, which the appellant has brought on record by way of supplementary affidavit, and that respondent No. 7 is no longer willing to participate in the tender process or seek allotment of the contract work; in question.

In so far as State-respondent Nos. 1 to 6 are concerned, it has been-submitted, on their behalf, that the State is willing to get the remaining work completed by the appellant.

Considering the fact that in the tender process, there were only two tenderers, namely, the appellant and respondent No. 7 and, out of these two tenderers, respondent No. 7 is, now, unwilling to participate in the tender process, the consequence is that it is the appellant, who remains the only eligible and willing tenderer to complete the work, in question.

In the changed circumstances mentioned above, this Court is of the view that while the order, dated 14.5.2014, passed in C.W.J.C. No. 5691 of 2014, is not bad in law, the fact remains that public interest and public cause will suffer if the work is not completed as expeditiously as possible.

Notwithstanding, therefore, the fact that the learned Single Judge was correct in coming to the conclusion, which had been reached, that the State respondents'' contention is not sustainable that respondent No. 7 was not considered for granting the contract, in question, on the ground that respondent No. 7 had delayed execution of the previous work, which already stood awarded to him, we have no option but to hold, in the changed circumstances of the present case, that it would subserve public interest if the contract work is allowed to be completed at the earliest by the present appellant.

While, therefore, we agree with the conclusions reached by the learned Single Judge in the impugned order, dated 14.5.2014, we allow, in the changed circumstances, the State-respondents to get the work completed with the help of the appellant. We also hasten to add and make it clear that the decision not to award contract, in favour of respondent No. 7 by the State-respondents, shall not be treated as a ground for disqualifying respondent No. 7 in any other tender process unless respondent No. 7 is given an opportunity of having his say as to why he has not completed the earlier allotted work within the given time frame, as was alleged by the State-respondents in C.W.J.C. No. 5691 of 2014. With the above observations and modifications, which we have made in the impugned order, dated 14.5.2014, this appeal shall stand partly allowed.