Patna HC Dismisses Contractor's Writ as Non-Maintainable: No Live Cause of Action Where Petitioner Never Bid Despite Interim Protection
A Division Bench of the Patna High Court dismissed a writ petition challenging anticipated disqualification in Bihar PHED tenders, holding that no concluded administrative action existed and the petitioner had waived its opportunity by not bidding even after interim protection was granted.
A Division Bench of the Patna High Court, comprising Justice Sudhir Singh and Justice Shailendra Singh, dismissed a writ petition filed by Aarpee Infra Projects (P) Ltd., a West Bengal-based works contractor, on the ground that the petition disclosed no live cause of action. The petitioner had approached the court fearing that a debarment order issued by a West Bengal government authority would be applied against it in two Bihar Public Health Engineering Department tenders. The court found that the petitioner had never participated in those tenders, no adverse decision had been taken against it, and it had failed to bid even after this court granted interim protection in September 2025. The bench held that writ jurisdiction under Article 226 cannot be exercised on the basis of a speculative grievance.
The Dispute Before the High Court
Aarpee Infra Projects (P) Ltd., registered under the Companies Act with its corporate office in Siliguri, West Bengal, is engaged in the execution of works contracts. On 10 January 2024, the Superintending Engineer, National Highway Circle No. II, Birbhum, Government of West Bengal, issued a debarment order bearing Memo No. 21/W-309 against the company. That order debarred the petitioner for a specified period from participating in tenders issued by the Ministry of Road Transport and Highways and its implementing agencies.
The Bihar Public Health Engineering Department subsequently issued two Notices Inviting Tenders on 21 July 2025: NIT No. 06/2025-26 (LOT/PRD) for piped water supply schemes in District Madhubani, and NIT No. Re1_09/2025-26 for similar works in District Araria. The petitioner did not submit bids for either tender. Instead, it filed Civil Writ Jurisdiction Case No. 13104 of 2025 before the Patna High Court, apprehending that Clause 4.8 of the Instructions to Bidders in those tender documents would be invoked to disqualify it on the basis of the West Bengal debarment order.
The reliefs sought were wide-ranging: a direction restraining the respondents from disqualifying the petitioner under the two NITs; a declaration that the West Bengal debarment order was confined to Ministry of Road Transport and Highways tenders and could not automatically extend to Bihar PHED tenders; a declaration that any presumption of disqualification based on debarment by another organisation in any state would be arbitrary and violative of principles of natural justice; and a direction to consider the petitioner's bid if it was otherwise qualified.
The Legal Issue: Can Article 226 Be Invoked on Apprehension Alone?
The central question framed by the bench was whether a writ petition under Article 226 of the Constitution is maintainable at the instance of a petitioner who has neither participated in the tender process nor suffered any actual disqualification, but seeks to invoke writ jurisdiction solely on the basis of an apprehension of adverse action.
Counsel for the petitioner, Mr. Alok Kumar Agrawal, argued that the West Bengal debarment order was limited in its operation to Ministry of Road Transport and Highways tenders and could not be read into Bihar PHED tenders through Clause 4.8. He relied on M/s. Erusian Equipment & Chemicals Ltd. v. State of West Bengal & Ors., AIR 1975 SC 266, and M/s. HCL Infosystems Ltd. v. Bihar State Electricity Board, (2013) 2 PLJR 753, for the proposition that a debarment order by one authority cannot operate as an automatic bar before other departments. He also pointed to orders dated 16 August 2019 and 26 April 2021 passed in C.W.J.C. No. 16346 of 2019, which had involved the same petitioner against the State of Bihar.
The State's counsel, Mr. Raghwanand (GA-11), countered that the petition was pre-emptive in nature, seeking protection against an adverse action that had never materialised. He submitted that the tender process had since concluded and the work had been awarded to the L-1 bidder among responsive bidders. He also pointed out that this court had granted interim protection to the petitioner on 4 September 2025, yet the petitioner had not submitted a bid despite that protection.
How the Bench Reasoned
Justice Sudhir Singh, writing for the bench, began by setting out the conditions under which writ jurisdiction under Article 226 is properly exercised. The jurisdiction is extraordinary, discretionary and essentially remedial. It is not intended for abstract, hypothetical or speculative circumstances, but only where there exists a real, live and enforceable cause of action arising from a concluded or imminent administrative action.
The bench identified five broad situations in which writ petitions under Article 226 are maintainable: violation of a fundamental or legal right; a clear cause of action involving actual or imminent infringement of rights; State action that is arbitrary, illegal, mala fide or procedurally improper; absence of an efficacious alternative remedy subject to recognised exceptions; and the petitioner having a direct and substantial legal interest in the subject matter.
Applying those conditions to the facts, the bench found that none were satisfied. The petitioner had not participated in either tender. No decision had been taken by the Bihar PHED declaring the petitioner disqualified or rejecting any bid. The challenge rested entirely on the existence of the West Bengal debarment order and a misapprehension that Clause 4.8 might be invoked against the petitioner at the evaluation stage.
The conduct of the petitioner after the interim order of 4 September 2025 was treated as decisive. Despite this court having granted protection, the petitioner chose not to submit a bid. The bench held that the petitioner, having failed to avail the opportunity extended by the court, could not be permitted to maintain the writ petition on the basis of a speculative grievance. That conduct, the bench said, clearly indicated a waiver of the opportunity to participate.
On the precedents cited by the petitioner, the bench accepted the legal propositions in Erusian Equipment and HCL Infosystems without quarrel: a blacklisting or debarment order ordinarily remains confined to the authority that passed it and cannot be mechanically extended by other departments without independent application of mind. However, the bench held that those principles would become relevant only when a decision is actually taken by the concerned authority affecting the petitioner's rights. Since no such decision had been taken, those judgments did not advance the petitioner's case at this stage.
The bench also addressed the scope of judicial review in tender matters. Relying on Tata Cellular v. Union of India, (1994) 6 SCC 651, it reiterated that judicial review in contractual and tender matters is limited to examining the decision-making process, not the merits of a decision, and interference is permissible only where there is arbitrariness, irrationality or mala fides in an actual decision. From Michigan Rubber (India) Ltd. v. State of Karnataka, (2012) 8 SCC 216, the bench drew the principle that courts must exercise restraint and should not interfere unless the process is ex facie arbitrary or discriminatory.
The bench also observed that the petitioner had not specifically challenged Clause 4.8 of the Instructions to Bidders. The reliefs sought were, in substance, a direction to render that clause inapplicable to the petitioner. Such relief would amount to the court rewriting or modifying the terms of the tender, which the bench held was clearly beyond the domain of writ jurisdiction. Citing Afcons Infrastructure Ltd. v. Nagpur Metro Rail Corporation Ltd., the bench reiterated that the author of a tender document is the best person to understand and interpret its requirements, and constitutional courts must defer to that understanding unless it is found to be arbitrary, mala fide or perverse.
The bench also drew on Whirlpool Corporation v. Registrar of Trade Marks, (1998) 8 SCC 1, for the general proposition that writ jurisdiction, while available even where alternative remedies exist in cases of fundamental rights violations or breach of natural justice, is still subject to the requirement that a real cause of action must exist. And from State of Orissa v. Madan Gopal Rungta, 1951 SCC 1024, the bench recalled that Article 226 cannot be invoked for declaratory relief in the absence of a legal injury or enforceable right, and that writ jurisdiction cannot be exercised in vacuum.
Pulling these threads together, the bench concluded that at the stage of filing, there was neither any concluded administrative decision nor any crystallised legal injury. The grievance remained contingent upon a future possible event that may or may not arise depending on the course of the tender evaluation process. The writ petition was therefore founded on a mere misapprehension and did not disclose a live cause of action warranting interference under Article 226.
Outcome
The Division Bench dismissed Civil Writ Jurisdiction Case No. 13104 of 2025 as not maintainable. All pending applications, if any, were directed to stand disposed of. The order was passed on 28 April 2026.