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2004 DIGILAW 565 (PAT)

Ashok Kumar Bajaj v. State Of Bihar

2004-05-20

RADHA MOHAN PRASAD

body2004
Judgment 1. In this writ petition, the petitioners have sought for direction to the respondents to pay their admitted dues amounting to Rs. 15,14,587/- for the works completed by them. 2. In short, the relevant facts are that the Bihar State Construction Corporation (hereinafter referred to as the Corporation) entered into an agreement with the Flood Control Division, Naugachhia for execution of work of anti erosion at Goagachi (Agenda 70/155) for Rs. 1,55,98,071.45 paise. Thereafter as per its rules, the Corporation entered into separate agreement with each of the petitioners worth Rs. 5 lacs for completion of anti erosion work from Chain 38.1 to 45.1. The total estimate for the said work was Rs. 53,45,017.90 paise. The work order was issued in two phases. In the first phase work order was issued on 29.3.1999 by the Corporation to petitioners no. 1, 3, 5 and 6 and in the second phase, to the rest of the petitioners on 25.5.1999, photo copies whereof have been annexed as Annexure 1 series. The nature of work was to make slope along the river banks by removing and filling the earth and thereafter laying boulders all along the slope to prevent the current of the river during the flood from eroding the banks. 3. According to the case of the petitioners, they could complete the work only worth Rs. 45 lacs in both the phases within the time fixed by the respondents and out of the said amount, a sum of Rs. 29,85.413/- was paid to them and a sum of Rs. 15,14,587/- remained as an outstanding dues against the respondent-Corporation. It is alleged that the work was to be completed by 31.5.1999 but due to laches on the part of the Flood Control Division, Naugachhia by not supplying boulders in sufficient quantity, the work continued even after 31.5.1999 till 15.7.1999 under the orders of the Works Manager of the Corporation (respondent no.9). It is stated that a laches and deficiencies of the respondents compelled them to extend the time period for completion of work and accordingly it was extended till 15.7.1999 and payment was also made till 28.6.1999. Their further case is that the works were completed according to the direction of the officials of the Corporation, namely, respondents no. 7 to 9, and after completion, measurement was done and the bills were submitted to the tune of Rs. Their further case is that the works were completed according to the direction of the officials of the Corporation, namely, respondents no. 7 to 9, and after completion, measurement was done and the bills were submitted to the tune of Rs. 45 lacs, but against it the aforementioned payment was made. It is contended that when despite best efforts, the petitioners failed to get the remaining due payment, they filed the present writ petition. 4. A counter affidavit has been filed on behalf of the officials of the respondent- Corporation (respondents no: 8 and 9) in which the facts aforementioned have not been disputed. It is stated that the Corporation is under complete control and supervision of the Water Resources Department, Government of Bihar, as the State Government is hundred percent shareholders of the Company. It is stated that in clause (1) of the work order it is categorically mentioned that "payment to the agency would be made only after obtaining the payment from the department concerned." In paragraph 10 it has been vaguely contended that the final bill has not been passed for the alleged work executed by the petitioners. Besides this, they have only referred to the provisions of the arbitration clause incorporated in the agreement and about the remedy available to the petitioners in the Civil Court of competent jurisdiction. 5. However, in the supplementary counter affidavit filed on behalf of the Corporation they have relied upon the order of the Water Resources Commissioner, contained in Annexure C, and has contended that the said order fully covers the case of the petitioners also and in view of the report, the claim of the petitioners has no legs to stand for and the writ petition is devoid of any substance and thus fit to be dismissed with cost. 6. A counter affidavit has been filed on behalf of the Chief Engineer, Water Resources Department, Purnea, the Superintending Engineer, Mahananda Flood Control Circle, Katihar and the Executive Engineer, Flood Control Division, Naugachhia (respondents no. 4, 5 and 6 respectively) in which it is stated that as per the agreement, the Corporation had to finish the work till 31.5.1999, but the work remained incomplete till 11.7.1999. 4, 5 and 6 respectively) in which it is stated that as per the agreement, the Corporation had to finish the work till 31.5.1999, but the work remained incomplete till 11.7.1999. It is further stated that the Contractors finished only 48% of the total work and incomplete work could not withstand the thrust of the flood water and works executed was washed away causing heavy loss to the public property. Having examined the work done by the Contractors, the Government stopped all types of payments to the agencies. In paragraph 12 it is further denied that there was any kind of laches on the part of the Flood Control Division either in supplying the boulders in sufficient quantity or making payment. 7. In the rejoinder to the counter affidavit the petitioners have annexed the copy of the report dated 20.6.1999 of the Chief Engineer to the Engineer-in-Chief as Annexure 9 about the progress being made to complete the work. In the said report it is also mentioned that in the first phase 5800 cubic meter of boulder is required and in the second phase additional 3800 cubic meter of boulder is required. It is also stated in the said report that all Contractors/representatives department officers have assured to complete the work of first phase by 30th June and the second phase by 15th July, 1999. It is also mentioned that the Assistant Engineer, who just returned from Sahibganj, apprised him that till that date 15,500 cubic meter of boulder had reached and, further, that for the first phase 22,000 cubic meter is required and for the second phase 25,000 cubic meter is required. The Chief Engineer vide his letter no. 1800 dated 27.7.1999, addressed to the Engineer-in-Chief-Cum-Additional- Commissioner-Cum-Special Secretary of the Water Resources Department, contained in Annexure 8, further reported about the completion of the work and pendency of the payments and also sought for consideration for lifting of the ban for payment of the said amount by the department. 8. In paragraph 3 of the supplementary affidavit filed by petitioner no. 1 it is stated that the Secretary, Water Resources Department has also, vide his order dated 11.3.2000, contained in Memo no. 696, ordered for payment of the work done after flood of 1999 but still the payment to the petitioners has not been made. 8. In paragraph 3 of the supplementary affidavit filed by petitioner no. 1 it is stated that the Secretary, Water Resources Department has also, vide his order dated 11.3.2000, contained in Memo no. 696, ordered for payment of the work done after flood of 1999 but still the payment to the petitioners has not been made. A photo copy of the bill signed by the concerned Assistant Engineers and the Executive Engineers has been brought as Annexure 6 to the supplementary affidavit to show that even after 11.7.1999, the work was done by the petitioners till 15.7.1999. 9. In the second supplementary counter affidavit filed on behalf of the Executive Engineer, Flood Control Division, Naugachhia (respondent no. 6) a copy of the report submitted by another Chief Engineer, contained in letter no. 829 dated 13.3.2000, addressed to the Engineer-in-Chief (North), Water Resources Department has been annexed as Annexure E, in which it is alleged that the work in the Chain in question was not completed. 10. l fail to appreciate as to how another Chief Engineer in his report (Annexure E) has reported that no work in the second phase in question was completed. Admittedly, he conducted the inspection on 12.3.2000 after flood and he has not disclosed any basis for recording such finding. From the said report it appears that he had gone there to inspect and assess as to what remained out of the work executed before flood arid the damage caused due to flood. The order of the Commissioner and Secretary, contained in Annexure C, deals with the claim relating to Chain no. 0 to 12 and 12 to 38.1 and not with Chain No. 38.1 to 59.1 in question. Further, in the said report he has found that due to laxity and inaction of the Contractor the progress in work is extremely slow and remained halfway before coming up of the flood, which resulted in that due to erosion, the work executed also submerged in the river. 11. I fail to appreciate as to what is the basis of this finding on the face of the reports of the Chief Engineer, contained in Annexures 9 and 8. I do not find any basis for such finding. 11. I fail to appreciate as to what is the basis of this finding on the face of the reports of the Chief Engineer, contained in Annexures 9 and 8. I do not find any basis for such finding. However, since one similar Contractor, namely, Lalit Narain Mahto, for similar relief had moved this Court in C.W.J.C. No. 8214 of 2002, for payment against the work done through the Corporation for preventing soil erosion along the Ganga river banks, as stated in the supplementary counter affidavit filed on behalf of the Corporation, and a Bench of this Court, vide order contained in Annexure B, directed the said petitioner to give a representation before the higher authorities and if on consultation of records it is found that the admitted dues are there, then the same shall be paid to the petitioner of the said case forthwith, this writ petition is also disposed of with the direction that the petitioners may approach the higher authorities by filing representation alongwith a copy of this order and if such representation is filed within two weeks, the said authorities must examine their claim and dispose it of by a reasoned order keeping in view the aforementioned facts and circumstances within four weeks and the dues, if any, found payable must also be paid within the said time.