ORDER
M.Y. Eqbal, J.
1. Heard Mr. Rajiv Ranjan learned counsel for the petitioner and Mr. R.N. Sahay, learned counsel for the State.
2. In this writ application the petitioner has prayed for quashing the tender published by the respondents for construction of Sub-Divisional Office and other allied buildings for Hussainabad Sub-Division in the district of Palamau on the ground that the petitioner was awarded same contract pursuant to a tender notice published earlier.
3. Petitioner’s case is that on 31.12.1999 a tender notice was published by the respondents for construction of Sub-Divisional Office and other allied buildings for a total contract value of Rs. 46,418,000/-. Petitioner submitted his tender for the said work and after negotiation the work was allotted to the petitioner and agreement was executed on 21.6.2000. It is alleged that after the agreement was executed the site for construction of building was not made available and construction work could not be started however, the soil testing was carried out and the project map for the site was sanctioned. There had been series of correspondence between the petitioner and the department for completing the formalities so that the work could be started. Petitioner thereafter surprised to know that another tender was published for the same i.e. Construction of Sub-Divisional Office and other allied buildings alongwith plumbing, electrification and sanitation for an estimated value of Rs. 1.63,72,856/- which was subsequently modified to Rs. 1,67,72.856/-. Petitioner’s case is that the aforesaid tender is illegal and arbitrary in as much as for the same work an agreement was executed with the petitioner and the said agreement was never cancelled.
4. Respondent’s case on the other hand is that new scheme was sanctioned by the Jharkhand Government in different places. The earlier scheme was sanctioned by the Government of Bihar whereas the present scheme was sanctioned by the Deptt. of Building Construction, Government of Jharkhand on 13.3.2003. The tender is not only for the construction of building but also for plumbing, electrification and sanitation and the estimated value has been increased. The respondents had decided to cancel the earlier agreement and return the earnest money deposited by the petitioner.
5. Respondents’ further case is that in response to the new tender various tenderers including petitioner have submitted their tender. Petitioner participated in the new tender and he became the second lowest bidder. It is only thereafter, in apprehension that petitioner may not get the tender, the writ petition has been filed.
6. The matter was heard at length on 16.12.2003 and in order to find out whether petitioner participated in the tender, the original record was called for from the respondents. From perusal of the original record, it appears that as against the second tender notice petitioner submitted his tender and participated at the time of opening of bid.
7. Mr. Rajiv Ranjan, learned counsel for the petitioner submitted that petitioner had submitted tender for the rest of the work i.e, plumbing, electrification and sanitation. The submission cannot be accepted for the reasons that the petitioner deposited the full earnest money as per the impugned tender notice. Admittedly, the petitioner had deposited earnest money for the earlier tender also. If the petitioner submitted tender for the rest of the work it should have deposited proportionate earnest money. It is well settled that if a person participate in a tender and having failed to get the work, he cannot challenge the tender notice subsequently. In that view of the matter, petitioner having participated in the tender may not be allowed to challenge the tender notice.
8. Mr. Rajiv Ranjan, learned counsel further argued that pursuant to the earlier tender notice, tender of the petitioner was accepted and the petitioner was allowed to execute agreement. Without cancelling the agreement respondents have issued second tender notice. In my opinion, if the earlier agreement was not cancelled and the respondents committed breach of the agreement then the only remedy available to the petitioner is to claim refund of the earnest money together with interest particularly in view of the fact that by participating in the second tender notice petitioner has waived its right for enforcement of the earlier agreement.
9. For the aforesaid reasons, no relief can be granted to the petitioner in this writ application which is, accordingly dismissed.