DHARMENDRA SINGH Vs. STATE OF BIHAR
LAWS(PAT)-2022-1-39
HIGH COURT OF PATNA
Decided on January 21,2022

DHARMENDRA SINGH Appellant
VERSUS
STATE OF BIHAR Respondents

JUDGEMENT

- (1.) Heard learned counsel for the parties.
(2.) Petitioners have prayed for the following relief(s):- "I. For the issuance of appropriate writ of Mandamus or any other appropriate writ(s) or orders(s) or direction(s) commanding the Respondents to immediately return and refund the Earnest Money Deposit (EMD) which amounts to INR 2,21,000 (Two Lacs Twenty One Thousand Only) deposited by the Petitioner No. 1 to participate in the e-tender invited by Respondent No. 6 vide letter no. NIT/02/2020-21 dtd. 20/2/2020, which directed willing contractors to deposit Earnest Money Deposit (EMD) not later than 4/9/2020. II. For the issuance of appropriate writ of Mandamus or any other appropriate writ(s) or orders(s) or direction(s) commanding the Respondents to immediately return and refund Earnest Money Deposit (EMD) which amounts 1,17,000 (One lac Seventeen Thousand Only) deposited by Petitioner No.2 to participate in the e-tender invited by Respondent No. 6 vide letter no. NIT/03/2020-21 dtd. 20/2/2020, which directed willing contractors to deposit Earnest Money Deposit (EMD) not later than 8/9/2020. III. For the issuance of appropriate writ of Mandamus or any other appropriate, writ(s) or orders(s) or direction(s) commanding the Respondent No.2, Respondent No.3, Respondent No.4 and Respondent No.5 to expedite the procedure with utmost priority to return the EMD deposited by the Petitioners which the Petitioner No.1 and Petitioner No.2 are entitled after participating the bid but failing to secure certain tenders. IV. For the issuance of appropriate writ of Mandamus or any other appropriate writ(s) or orders(s) or direction(s) commanding the Respondent no. 2, Respondent No.3 and Respondent No.4 to return and refund the EMD with compensation of rate of 14% per annum along with compensation for metal agony and financial hardship faced and litigation cost i.e. INR 4,39,830 (3,38,000 as EMD + 11, 830 interest + 50,000 mental agony and financial hardship and 40,000 as litigation cost) as the Respondents have illegally without proper justification has detained the EMD deposited by the Petitioner No.1 and Petitioner No.2 causing serious financial injury and danger to livelihood which is serious breach of Article 21 of the Constitution. V. For the issuance of appropriate writ of Mandamus or any other appropriate writ(s) or orders(s) or direction(s) commanding the Respondent No.3, Respondent No.4, Respondent No.5, Respondent No.6 to return the unjustified detention of EMD causing breach of freedom of trade and commerce enshrined under the Article19(1)(g) of the Constitution as the petitioners are the person with smaller means and capitals who are involved in the business of construction as registered contractor Sahabad Path Pramandal. VI. For the issuance of appropriate writ of Mandamus or any other appropriate writ(s) or orders(s) or direction(s) commanding the Respondents 5 and Respondent No. 6 not to invite any further bid via e- tendering till the EMD deposited for NIT/02/2020-21 and NIT/03/2020-21 is returned and all other EMD backlog is cleared from the end of Respondent NO.3, Respondent No.4 and Respondent No.7 as the collusive behaviour of Respondent No.3, Respondent No.4 and Respondent No.5 are destined in the direction to profit the cartel of contractors with appreciable capital so as to siphon out smaller contractors causing serious infringement of right to equality as enshrined under Article 14. VII. For the issuance of appropriate writ of Mandamus or any other appropriate writ(s) or orders(s) or direction(s) commanding the Respondent no. 2, Respondent No.3, Respondent No. 4 and Respondent No.6 as return the EMD of petitioner No. l and Petitioner No. 2 along with all other contractors who were declared as unsuccessful bidder for the tenders invited vide NIT/02/2020-21 and NIT/03/2020-21 as under the patron of Respondent No. 3 and Respondent No.4 the e- tendering is synchronized is a way to create cartel of financially sounds contractors leading to promotion of anti-competitive agreements as to benefit bigger players. VIII. For the issuance of appropriate writ of Mandamus or any other appropriate writ(s) or orders(s), or direction(s) commanding the Respondent No.3, Respondent No.4 and Respondent No.7 to create acceptance and return gateway in eproc.2 whose maintenance and solutions are provided by BELTRON. IX. For the issuance of appropriate writ of Mandamus or any other appropriate writ(s) or orders(s) or direction(s) commanding the Respondent 1 to 3 and Respondent No.6 not to demand Bank Guarantee for the tender invited which costs less than One Crore as it violates and over-rides Regulation 161 of Bihar Public Work Department Code and demand of Bank Guarantee below One Crore is unnecessarily over-burdening the micro and smaller contractors as bank guarantee unnecessarily accumulates miscellaneous costs like bank fee and stamp duty fee and the bank guarantee as collateral is quite time consuming because this instrument is always needed to be acquired from Regional Branch of Banks. X. For the issuance of appropriate writ of Mandamus or any other appropriate writ(s) or orders(s) or direction(s) commanding the Respondent No.1, Respondent No.2 and Respondent No.6 to reinstate the Term Deposit (T.D.) and National Saving Certificate (NSC) as the instrument for Earnest Money Deposit (EMD) as these instruments are least formalities concerned and give better return as interest-to miccro and small contractors who sustain and carry their business with lesser means and T.D. and NSC can easily be authenticated and cross checked. XI. For the issuance of appropriate writ of Mandamus or any other appropriate writ(s) or orders(s) or direction(s) commanding the Respondent No.1, Respondent No.2 and Respondent No. 3 and Respondent No.4 to make all the circulars and bye-laws regulating EPROC 2 and BELTRON available on their respective websites to enable every citizens including the registered contractors and Petitioner no.1 and 2 to know about the binding terms and obligatory rules and regulations subsisting between Respondent No. 3 to 7 and Petitioner No. 1 and 2. XII. For the issuance of appropriate writ of Mandamus or any other appropriate writ(s) or order(s) or direction(s) commanding the Respondent No.1, Respondent No.2, Respondent No. 3 and Respondent no. 6 to ensure proper training of their subordinate staffs to mitigate the technical glitches which may delineate time to time and such training should be solution oriented to avoid any present alike situation for which the present writ is preferred. XIII. For the issuance of appropriate writ of Mandamus or any other appropriate writ(s) or orders(s) or direction(s) commanding the Respondent No.1 and Respondent No.2 and Respondent No.6 to take proper and stringent action against staffs responsible for delay in the return and refund of Earnest Money Deposit (EMD) deposited by the Petitioners AND/OR XIV. Pass any such order or direction which may deem fit to this Hon'ble Court m the best interest of the petitioner."
(3.) After the matter was heard for some time, finding the Bench not to be agreeable with the submissions made by learned counsel for the petitioners, learned counsel for the petitioners, under instructions, states that petitioners shall be content if a direction is issued to the authority concerned to consider and decide the representation which the petitioners shall be filing within a period of four weeks from today for redressal of the grievance(s).;


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