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Arun Kumar v/s Bihar State Building Construction Corporation Ltd. & Others

    Civil Writ Jurisdiction Case No. 16766 of 2019

    Decided On, 10 March 2021

    At, High Court of Judicature at Patna

    By, THE HONOURABLE MR. JUSTICE PRABHAT KUMAR JHA

    For the Appellant: Umesh Prasad Singh, Sr. Advocate, Neeraj Kumar,Advocate. For the Respondents: Tej Bahadur Singh, Sr. Advocate, Uday Shankar Sharan Singh, Advocate.



Judgment Text

Oral Judgment

1. Heard Mr. Umesh Prasad Singh, learned senior counsel for the petitioner, Mr. Tej Bahadur Singh, learned senior counsel for respondent nos.1 to 4 and Mr. Uday Shankar Sharan Singh, learned G.P.19 for respondent no.5.

2. The petitioner by filing this writ petition seeks following reliefs:-

(i) To issue a rule NISI in the nature of a writ of certiorari to quash and cancel the Communication dated 12.1.2019 issued by respondent no.2 to respondent no.5 as also the letter dated 3rd April, 2019 issued under the signature of the Engineer-in-Chief-cum-Additional Commissioner-cum-Special Secretary, Building Construction Department, Government of Bihar, Patna (respondent no.5) by which he called upon the petitioner to file a show cause in regard to the allegations made in the aforesaid letter being without authority of law;

(ii) To issue a writ in the nature of writ of certiorari to quash and cancel the order as contained in Memo no. Building/Blacklisting/05/2019/6851/ Bhawan dated 26.7.2019 by which the registration no.BCD First (Personnel)-29 (Building)/2014 of the petitioner as contractor with the Building Construction Department, Government of Bihar, has been suspended and the petitioner has been blacklisted for 5 years;

(iii) To issue a writ of mandamus commanding the respondents to refrain from giving effect of the order as contained in letter dated 24/26th July, 2019 issued under the signature of the Engineer-in-Chief-cum-Additional Commissioner-cum-Special Secretary, Building Construction Department, Government of Bihar, Patna.

(iv) To issue other appropriate writ/writs, order or orders, direction or directions as this Hon'ble Court may deem fit and proper in the facts and circumstances of this case.

3. The facts, in brief, for disposal of the case are that the petitioner though not a registered contractor with the Bihar State Building Construction Corporation Limited (hereinafter referred to as the Corporation) participated in pursuance of e-Tender being e-Tender No.96/2018-19 for construction of Civil Court Building at Paliganj as detailed in Item No. 19 of the saide-Tender of which the bill of quantity was valued at Rs.21,14,51,242/-. The petitioner was required to deposit earnest money of Rs.31,20,000/- and the petitioner deposited vide Fixed Deposit Receipt dated 20th November, 2018 issued by the Bank of India, Patel Nagar Branch, Patna. The petitioner had also submitted e-Tender for construction of Gymnasium near the registered office of respondent no.1 fully described in Item No. 16 of the e-Tender of which the bill of quantity was valued at Rs.8,25,06,457/-. The petitioner deposited the earnest money of Rs. 16,50,000/- by Fixed Deposit Receipt dated 20.11.2018 issued by the Bank of India, Patel Nagar Branch, Patna. As per the terms and conditions of the e-Tender, the petitioner had to comply with the requirements as mentioned.

4. The case of the petitioner is that by mistake, the representative of the petitioner uploaded experience certificate with the documents filed in pursuance of e-Tender but when the petitioner came to know the mistake, withdrew both the tenders much before opening of the bid and the petitioner did not participate in bidding process. The petitioner had already withdrawn himself as a bidder. Nevertheless, the Tender Committee of respondent no.1 by order dated 4th January, 2019 forfeited the security amount in respect of tenders on the same ground that the petitioner had enclosed the certificate of experience, which was forged and fabricated and thus the petitioner had concealed the material facts and applied for two works detailed in aforesaid e-Tenders.

5. Further case of the petitioner is that the earnest money deposited by the petitioner was forfeited as per the order of the Tender Committee of respondent no.1 although there was no concluded contract between the parties. The petitioner filed CWJC No.1543 of 2019 and CWJC No.2237 of 2019 against the order forfeiting the earnest deposit money i.e. Rs.31,30,000/- and Rs. 16,50,000/- for the two tenders. Both the writ petitions are pending in this High Court for disposal.

6. The General Manager (South), vide letter no.28.12.2018 called upon the petitioner to show-cause. The petitioner in pursuance thereof filed his show-cause but the same was not accepted. Vide letter dated 12.01.2019 the Managing Director of the Corporation wrote a letter to the Engineer-in-Chief-cum-Additional Commissioner-cum-Special Secretary, Building Construction Department, Government of Bihar, Patna to pass an order for blacklisting of the petitioner in accordance with Bihar Contractors Registration Rules, 2007. Respondent no.5 thereafter called upon the petitioner as to why the registration of the petitioner not be suspended and petitioner be not blacklisted. In response thereto, the petitioner filed a detailed show-cause. The petitioner challenged and raised objections to the very authority of respondent no.5 to issue such notice and exercise power under the so-called Bihar Contractors Registration Rules, 2007.

7. The Engineer- in- Chief -cum - Additional Commissioner - cum - Special Secretary, Building Construction Department, Government of Bihar (respondent no. 5) communicated the order as contained in letter no.6851 dated 24th/26th July, 2019 by which the registration of the petitioner with the Building Construction Department has been suspended and the petitioner has been blacklisted for five years (Annexure P/4). Being aggrieved with the aforesaid order, the petitioner filed this writ petition.

8. Respondent nos.1 to 4 (Bihar State Building Construction Corporation Limited) and Respondent no.5 (Engineer - in - Chief - cum - Additional Commissioner - cum - Special Secretary, Building Construction Department) filed their counter affidavits justifying the actions of the respondents stating therein that the first requirement of e-Tender is that the contractor should be registered with the Building Construction Department/Road Construction Department and only such contractor, who is registered under the Bihar Contractors Registration Rules, 2007, is eligible to participate in e-Tender. The Bihar Contractors Registration Rules, 2007 prescribe the procedure for suspension of registration and blacklisting of such erring contractor from participating or doing any business or contract work.

9. Mr. Umesh Prasad Singh, learned senior counsel for the petitioner, submits that it is a matter of record that the petitioner is not a contractor registered with the Corporation (respondent no.1) nor respondent no.1 has adopted the so-called Rules i.e. Bihar Contractors Registration Rules, 2007 and as such the Corporation (respondent no.1) is only a Government of Bihar undertaking Company registered under Section 617 of the Companies Act, 1956. The respondent no.1 is neither an agency of the Government of Bihar nor the superior or subordinate office of the Government of Bihar. It is apparent that respondent no.1 or its Managing Director or any other authority of the Corporation had/have no authority of law and thereby they were ineligible because they are not authorised by law to pass any order of punishment much less an order of suspension of registration of the petitioner with Building Construction Department and/or to blacklist the petitioner. It is apparent that respondent no.1 or its Managing Director cannot pass any order of punishment much less to blacklist the petitioner and if they were ineligible and have no authority of law to pass order against the petitioner, which in fact and in law, respondent nos.1 to 4 could not have suspended the registration of the petitioner which is with the Building Construction Department, Government of Bihar. It is further submitted that the law in this regard is settled that if an authority cannot take any action directly, in other words, he is ineligible. Such authority cannot take any action indirectly and as such the letter dated 12.01.2019 sent by the Managing Director (respondent no.2) is not only illegal, without authority of law, rather malafide and without jurisdiction. It has been further submitted that the Bihar Contractors Registration Rules, 2007 is not a statutory rule framed by the legislatures authorised under the provisions of the Constitution and it is a mere executive instruction.

10. Learned senior counsel for the petitioner further submits that similarly Engineer-in-Chief-cum-Additional Commissioner-cum-Special Secretary (respondent no.5) has acted illegally, arbitrarily and without authority of law. The authority concerned failed to understand that the Corporation is not a department of Government of Bihar nor respondent no.5 is an officer with delegated authority to act under the so-called Bihar Contractors Registration Rules, 2007 that too under the control of respondent no.5 nor the Corporation is an agency of the State Government, as such respondent no.5 cannot exercise the power under the so-called Bihar Contractors Registration Rules, 2007.

11. It is further submitted that respondent no.5 simply narrated the facts what transpired in relation to submissions of the tender by the petitioner in the Corporation and the fact incorporated and the documents sent by the office of respondent no.5 but has not considered the facts and submissions detailed in the show-cause submitted by the petitioner. It need not be mentioned that every order, that too, such order which affects the right of a person, a right under Part III of the Constitution debarring a person from his source of livelihood, is bad unless such an order is passed on relevance and reason, the twin principles of the Constitution of India. The order per-se is illegal and is fit to be quashed and cancelled.

12. Learned senior counsel for the petitioner placed reliance on the judgement of the Supreme Court in the case of Pratapchand Nopaji Vs. Kotrike Venkata Setty & Sons reported in (1975) 2 Supreme Court Cases 208, para 9, which reads as follows:-

"Para-9 .... the principle which would apply, if the objects are struck by Section 23 of the Contract Act, is embodied in the maxim : quifacit per aliumfacit per se" (what one does through another is done by oneself). To put it in another form, that which cannot be done directly may not be done indirectly by engaging another outside the prohibited area to do the illegal act within the prohibited area. It is immaterial whether, for the doing of such an illegal act, the agent employed is given the wider powers or authority of the "pucca adtia", or, as the High Court had held, he is clothed with the powers of an ordinary commission agent only".

13. Learned senior counsel for the petitioner further placed reliance on the judgement of the Supreme Court in the case of Hukam Chand Shyam Lal Vs. Union of India and others, reported in A.I.R. 1976 (SC) 789, para 18, which reads as follows:-

18. "It is well settled that where a power is required to be exercised by a certain authority in a certain way, it should be exercised in that manner or not at all, and all other modes of performances are necessarily forbidden. It is all the more necessary to observe this rule where power is of a drastic nature and its exercise in a mode other than the one provided, will be violative of the fundamental principles of natural justice. Now, in the present case, if the telephones of the appellants were to be disconnected on the ground of misuse, then they had to give, in consonance with the principles of natural justice, opportunity to the appellants to explain their conduct before taking action under Rule 427 read with Rules 416 and 421. Resort to the wrong and more drastic course provided in Rule422, on a ground which was not germane to an action under that Rule, vitiates the impugned order, particularly when it is manifest that in making the impugned order, the General Manager was influenced more by this ground and less, if at all, by the existence of 'public emergency certified by the Delhi Administration."

14. Mr. Tej Bahadur Singh, learned senior counsel for respondent nos.1 to 4 (Corporation) and Mr. Uday Shankar Sharan Singh, learned G.P.19 for respondent no.5, submit that the pre-requisite to participate in the tender issued by the Corporation is that only such contractor/contractors is/are eligible to participate and fill up e-Tender, who is/are registered with the Bihar Building Construction Department/Road Construction Department. The Bihar Building Construction Department/Road Construction Department framed rules and issued notification on 07.05.2007 vide letter no.Rule-03-01/2002-5737(s). The rules prescribe the procedure for registration of different categories of contractors. Clause 11 of the Rules prescribes the procedure for blacklisting the contractor, if a contractor is found to have committed any of the irregularities and acts described therein. It is further submitted that the Rule itself provides efficacious and alternative remedy to file appeal before the Commissioner and, therefore, the order suspending the registration of the petitioner and blacklisting him for five years does not suffer from any illegality and jurisdictional error.

15. Having heard both sides and on consideration of the submissions put forward before this Court, this Court finds that the learned counsel for the petitioner assailed the order dated 24th/26th July, 2019 passed by respondent no.5 as contained in Annexure P/4 suspending the registration of the petitioner and blacklisting him for five years mainly on the ground that the petitioner is registered with the Building Construction Department and, therefore, respondent nos.1 to 4 cannot take any punitive action with regard to suspension of registration and blacklisting the petitioner from doing any contractual work on the basis of registration with the Building Construction Department/Road Construction Department. Once the authority is found incompetent and ineligible to take action against the petitioner under the Bihar Contractors Registration Rules, 2007, on the basis of recommendation made by the Corporation, the Building Construction Department with whom the petitioner is registered cannot take action on such recommendation because the petitioner has done no wrong with the Building Construction Department. If the law does not permit a person to pass any order, the law also does not permit any other such person or entity to pass any punitive action on the recommendation of such person, who is not at all legally entitled or permissible to take any action against the petitioner.

16. For consideration of submissions of both sides in order to decide the question raised on behalf of the petitioner whether the Corporation is legally entitled to recommend for taking appropriate action to the Building Construction Department under the Bihar Contractors Registration Rules, 2007 and the action on such recommendation is within the purview and four corners of law or the same is without jurisdiction.

17. It will be worthwhile to look into the relevant Rules and the terms and conditions of the e-Tender issued by respondent nos.1 to 4, which are as follows:-

“IMAGE”

18. The plain and simple reading of the Bihar Contractors Registration Rules, 2007 is that a person, who wishes to do the contract work under the different work departments of the Government of Bihar, it's company is required to get registered with the Building Construction Department. Clause 4(kh) says that the Engineer-in-Chief or the Chief Engineer or the Junior Officer to the Chief Engineer, who is duly authorised by the State Government, shall be the registration authority. Clause 4(g) says that all the three classes of registered contractors are eligible to submit tenders throughout the Bihar on the basis of such registration. Clause 11 prescribes the procedure for blacklisting such registered contractor on his breach of any conditions enumerated therein. The another amended letter dated 16.10.2008 vide letter no.Rule-03-04/2002-13211(S) was issued under the signature of the Principal Secretary, Road Construction Department, Bihar and the notification dated 07.05.2007 vide letter no.Rule-03-01/2002-5737(S) is made effective in all the work departments of the Government of Bihar. The government resolved that all the work departments shall also adopt the rules for registration of the contractors. If any of the department blacklists or punishes any such registered contractor, such contractor shall not be eligible for getting any work in any of the departments on such disqualification.

19. From perusal of Clause 11 of the e-Tender issued under the signature of the Chief General Manager, Bihar State Building Construction Corporation Ltd., vide Notice Inviting Tender No.96/2018-19, it appears that only such contractor/contractors is/are eligible to take part in the bid, who is/are registered contractor/contractors under the Bihar Contractors Registration Rules, 2007 with the Building Construction Department or the Road Construction Department of Government of Bihar.

20. From the plain and simple reading of different clauses of the Bihar Contractors Registration Rules, 2007 and the e-Tender, it is crystal clear that the contractor, who is participating in any Notice Inviting Tender and fills up the paper for bid, such contractor must be registered with the Building Construction Department/Road Construction Department with his class of contracts as classified therein. Rule 11(k) says that any such contractor, who commits any misconduct as enumerated therein, the Road Construction Department or the Building Construction Department may suspend the registration and blacklist such contractor.

21. The petitioner also got himself registered with the Building Construction Department/Road Construction Department and on the basis of such registration filled up Notice Inviting Tender issued by the Corporation (respondent nos.1 to 4). The first criteria to participate in the bid is to get registration with the Building Construction Department or the Road Construction Department and only then the petitioner becomes eligible to participate in the Notice Inviting Tender issued by any department, company or corporation within the territory of the State of Bihar. Once the petitioner becomes eligible to participate in the bid on the basis of such registration with the Building Construction Department/Road Construction Department, the petitioner cannot absolve from the liability of being prosecuted by the Building Construction Department/Road Construction Department, if the petitioner commits any misconduct as enumerated in the Bihar Contractors Registration Rules, 2007. The Building Construction Department/Road Construction Department with whom the petitioner is registered as a contractor, cannot be precluded or restrained from taking any actions for such misconduct of the petitioner. Therefore, I find that the Building Construction Department with whom the petitioner is registered as a contractor under the Rules, 2007 has got power and jurisdiction to take actions against any contractor registered with it to participate in any work departments within the territory of the State of Bihar and the department with whom the contractor is registered may take actions and blacklist such contractor, who commits misconduct. Thus, I find that the submission of learned senior counsel for the petitioner that the Building Construction Department with whom the petitioner is registered as a contractor has got no power and jurisdiction to take any actions cannot be acceptable.

22. The Building Construction Department, after having received such recommendation of the Building Construction Corporation that the petitioner being registered with the Building Construction Department as a contractor participated in the bid a

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nd submitted forged documents of experience, issued notice to the petitioner to show-cause and explain the reasons for submitting forged and fabricated experience certificate said to have been issued by the National Buildings Construction Corporation. The Building Construction Corporation held preliminary enquiry and found that the petitioner participated in the bid and in order to get the works submitted forged experience certificate to show that the petitioner had also worked with the National Buildings Construction Corporation but when that experience certificate was sent to the National Buildings Construction Corporation, the petitioner came to know about the step taken by the Building Construction Corporation and withdrew the bid papers but the Building Construction Corporation took actions for submitting such forged papers in order to get the works and forfeited the security money deposited by the petitioner and also made recommendation to the Building Construction Department to take actions against such contractor, who committed misdeeds. The Building Construction Department after having considered the show-cause and the explanation submitted by the petitioner took actions under the Bihar Contractors Registration Rules, 2007 with whom the petitioner was registered. Therefore, I find that the Building Construction Department (respondent no.5) has rightly taken actions against the petitioner. 23. At last, I also do not find any force in the submissions of learned senior counsel for the petitioner that the Bihar Contractors Registration Rules, 2007 has got no statutory power. Even if the provision of Bihar Contractors Rules, 2007 is an executive instruction, it has to be followed and the petitioner, who has been registered as a registered contractor under the Rules, is bound to follow the provisions and he is also liable to be punished thereunder, if the petitioner or contractor commits any misconduct. The violation of which entails punishment of suspension of registration and blacklisting the contractor. 24. Having considered the submissions of both sides and on perusal of the records, I do not find any merit in this writ petition. Accordingly, the writ petition is dismissed.
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