DEO CONSTRUCTION Vs. STATE OF BIHAR

JUDGEMENT

(1.) IN both these writ petitions, the grievance of the petitioner is against the allotment of work to Respondent no. 5 pursuant to the tender notice, contained in Annexure -1 of the respective petition for repair work of the road in Sheoganj -Rafiganj -Goh Road and Barun Navinagar link Road Km. 2., Old G.T. Road km. 3 and Pachrukhia Facer Aurangabad Road Km. 15 (part), 16, 17, 18 (part) and 35, despite his tender being the lowest and as such, with consent of the parties both the writ petitions have been heard together for final disposal by this common order.

(2.) IN the counter affidavit filed on behalf of Chief Engineer (Mechanical), South Bihar Zone, Superintending Engineer, Magadh Road Circle, Gaya and Executive Engineer, Road Construction Department, Road Division No. 1, Aurangabad (Respondent nos. 2 to 4 respectively) it is not disputed that petitioner 'soffer was lowest, yet the work has been allotted to Respondent no. 5 for the reasons that the petitioner has not been able to complete other works allotted to him in time and due to his negligence work is still lagging behind for which fund has been partly surrendered. Chart containing allotment has been annexed as Annexures B/1 & B/2. The other ground taken is that petitioner 'shot mix plant is situated at a distance of 52 kms from the work site, whereas the said plant of Respondent no. 5 is situated at a distance of 28 km. and as per the practice the hot mix plant which is nearer to site of work which facilitates achievement of good quality of work and prevents the deterioration in quality of bitumen by maintaining proper temperature, which is very essential factor to achieve longer life of the road is given preference. It is stated that it is not binding upon the authority competent to decide the tender to accept the lowest rate quoted by the tenderer. The said counter affidavit, which has been sworn by the Executive Engineer (Respondent no. 4) also stated that Respondent no. 5 started the work at right earnest and has already made elaborate arrangement at the site by procuring the construction materials at site and has started the actual work of repair at site. It is stated that Respondent no. 5 procured bitumen of his own as per the terms and conditions of the agreement.

(3.) IN reply to the counter affidavit filed on behalf of Respondent nos. 2 to 4, it has been stated that the work of widening and strengthening of Gaya Panchananpur Daudnagar Road kilometre 35.3 to 70.5, allotment and expenditure of which has been given in the chart contained in Annexure - B/1, was initially allotted to Respondent no. 5 in the year 1998 -99 for a sum of Rs. 4.5 crores, but, when he did not start the work, the same was allotted to the petitioner on 15.2.2001 after retender and pursuant to it the petitioner could only start the work in the last week of February, 2001. Thus, it is alleged that the percentage shown in the chart is apparently wrong as the Respondents have calculated the said percentage on the basis of allotment of fund for the whole financial year, whereas the work was allotted to the petitioner on 15.2.2001 and in one month he completed the work of more than Rs. 85 lacs. It is also stated that during the subsequent period also the petitioner substantially completed the work and, thus, the plea taken that the work of the petitioner is lagging behind due to his negligence is completely falsified by their own document Annexure -B/1 itself. It is alleged that, in fact, on account of failure of Respondent no. 5 the widening and strengthening work of Gaya Panchananpur Daudnagar Road was delayed by two years, which escalated the price from Rs. 4.5 crores to Rs. 6.5 crores, and for this the Engineer -in -Chief/Chief Engineer, National Highway recommended for his blacklisting and forefeiture of his security money, but, he however, managed and got his security money released and was also not blacklisted. As regards the agreement no. 25 F2 and agreement no. 16 F2, it is stated that the petitioner completed the said work within the stipulated period to the utmost satisfaction of the officials and payment for the said work has also been made. With respect to the distance of hot mix plant, it is stated that, in fact, the plant of the petitioner as well as Respondent no. 5 is situated at a distance of 20 kms. from the work site, but, the dispute of distance has purposely been raised only to take a plea that the disputed question cannot be decided in a writ proceeding and also to deprive the petitioner from getting the work. He has further stated that earlier under RIQP scheme at National Highway No. 98 kms. 75 to 89 the repair work was allotted to Respondent no. 5 though his hot mix plant was at a distance of 70 kms., whereas for the said work the petitioner was also a tenderer, whose tender has been rejected as his rate was higher even though his hot mix plant was at a distance of 20 kms. from the work site. In the present case, the work has been allotted to Respondent no. 5 on the simple ground that his hot mix plant is at a nearer distance, even though he has given higher rate than the petitioner. It has, thus, been contended by the learned counsel for the petitioner that the claim of lowest tenderer has arbitrarily been ignored and in colourable exercise of power the work has been allotted to Respondent no. 5. Learned counsel submitted that the facts of the case itself speaks volume about the hostile attitude of the concerned authority, who are adament to show undue favour to Respondent no. 5.