ORDER
Tapen Sen, J.
1. Heard Mr. Dilip Jerath learned Counsel appearing for the Petitioner and Mr. Shamim Akhtar (S.C.-II) along with his J.C.. Mr. Arvind Kumar.
2. The grievance of the Petitioner in this case is that although he was found to be the lowest tenderer by the Tender Committee yet the respondents on one pretext or the other went on delaying the matter in relation to the formal execution of the Agreement.
3. Pursuant to the order dated 21.02.2002 Mr. Akhtar has produced before me the original file.
4. It appears that after having completed all formalities, the Tender Committee on 05.12.2001 (by Annexure-6) had decided to allot the work to the petitioner. Thereafter, the Petitioner has made a statement at Paragraph-21 that the Respondent No. 8 made a complaint to the Minister as to how a person who has not even in a possession of a ‘Hot Mix Plant’ had been chosen. A photo
copy of the letter has been produced for perusal of this Court by Mr. Dilip Jerath. Let that letter be kept on record. Mr. Dilip Jerath is directed to file a photo copy of the letter so that it can be kept on record.
5. According to Mr. Dilip Jerath, after the aforesaid letter had been written by Respondent No. 8 (Surender Singh) directly to the Minister the Engineer-in-Chief by An-nexure-7 wrote to the Superintending Engineer and instructed him to request the Executive Engineer to execute the agreement with the petitioner.
6. Suddenly, however by Annexure-8 the Engineer-in-Chief wrote a letter to the Superintending Engineer informing him that
the matter relating to the execution of the agreement was kept in abeyance and the work should not be allowed to commence till further orders.
7. Even thereafter, on 18-01.2002 by Annexure-9 the Superintending Engineer wrote a letter to the Executive Engineer giving guidelines in relation to execution of the agreement. It was at this juncture that Mr. Dilip Jerath requested the Court to look into the original record produced. Pages-16 to 17 of the said original file contains infer alia the note of the Secretary Shri Ashok Kumar Singh put up before the concerned Minister.
8. In the last concluding portion, the Secretary stated that the lowest tenderer had installed his own Hot Mix Plant within five kilometers from the work site. This noting was made on the same day i.e. 18.01.2002 (the date on which the Annexure-9 was also written by the Superintending Engineer to the Executive Engineer.
9. Mr. Dilip Jerath thereafter, draw the attention of the Court to a letter dated 21.01.2002 (Annexure-10) by which the petitioner requested for an early execution of the agreement. It was thereafter, that Mr. Dilip Jerath sought to draw the attention of the Court to the next date i.e., 04.02,2002 being the note of the Minister. According to the note of the Minister which is contained at page-17 of the tile it appears that he relied upon the earlier note of the Respondent No. 4 dated 29.01.2002 in which he had stated that the Respondent No. 8 had Installed a fully functional Hot Mix Plant at a distance of five kilometers from the work site whereas the Petitioner had brought a Hot Mix Plant for purposes of installation and it was expected that it would installed within a period of one month. According to the Minister the condition to the effect that the work can start only on installation of the Hot Mix Plant had not been followed and therefore, the Minister gave an order that the tender should be cancelled and a fresh tender should be called for within a period of two days, Thereafter, the Secretary of the Department made a note for the perusal of the Engineer-in-Chief saying that in the fresh tender it must be clarified that the tenderer should have an installed Hot Mix Plant within an area of forty kilometers and that the should install the said plant within a period of thirty days from
the date of issuance of the work order. It would be relevant to mention that the noting of the Secretary was made on 18.01.2002 where he had said that the lowest tenderer had already installed his Hot Mix Plant within five kilometers from the work site. Subsequently the Engineer-in-Chief stated that the Petitioner. Rishi Builders has brought his Hot Mix Plant for installation and it will take about one month to make it functional. He also said that the Respondent No. 8 had installed a fully operational Hot Mix Plant within a distance of 56 Kms. from the work site.
10. It was perhaps on the basis of the aforesaid noting of the Engineer-in-Chief that the Minister came to the aforementioned conclusion recorded above.
11. This therefore, becomes a disputed question of fact as to who out of two i.e. the Petitioner and/or Respondent No. 8 is possessed of-
(a) Superior Hot Mix Plant? and;
(b) Where is it located?
12. If it is found that the petitioner has already a fully functional Hot Mix Plant situated within 05.00 kms. and it meets all the eligibility criteria as required, then this Court feels that the respondent Authority have entered into an unnecessary exercise of calling for another tender.
13. This Court feels and as has been suggested by the parties that an independent on-the-spot inquiry should be conducted by the Deputy Commissioner. Sahebgunj. It is therefore, directed that the Deputy Commissioner. Sahebgunj will inquire and submit his report to the Government within one week from the date of receipt/production of a copy of this Order whereafter the Government in its turn shall act strictly in accordance with Law. The report of the Deputy Commissioner must specifically dwell on basically two following areas :
1. Where is the Hot Mix Plant located–its distance from the work site and to whom does it belong ?
2. Out of the two whose Hot Mix Plant is more superior ?
14. The report should be in accordance with law. It goes without saying that the Deputy Commissioner. Sahebgunj shall be free to obtain technical specification from
both the petitioner and the Respondent No. 8 and both must render all cooperation to him.
15. While concluding Mr. Dilip Jerath submitted that in the mean time the Department should be restrained from allotting the work order to anybody. According to him it may be given to Respondent No. 8 or anyone else. The apprehensions of Mr. Dilip Jerath was countered by Mr. Shamim Akhtar who produced before me the noting on the file at Page No. 20 which shows that the Department was awaiting further orders from this Court. In that view of the matter his apprehensions are not well founded. The State Respondents also agreed that they will allow the Petitioner to file his tender documents pursuant to fresh tender.
16. With the aforesaid observations this Writ Petition is disposed off.