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2006 DIGILAW 770 (PAT)

Prabha Shankar Pandey v. State of Bihar

2006-08-28

NAVANITI PRASAD SINGH

body2006
ORDER : Heard. 2. The State has appeared and filed a counter affidavit to which a reply has been filed by the petitioner. Private respondent No 6 has also appeared. 3. Shri Krishna Mohan, learned counsel appearing in support of the petition submits that pursuant to a notice inviting tender, the petitioner had filed his tender. His tender was accepted and on 3.3.2006, an agreement was entered into between the petitioner and the State of Bihar through respondent No.5. The work ORDER :was also issued to the petitioner. The petitioner started the work but all of a sudden, he was stopped from working by virtue of the impugned Annexure-1 dated 25.4.2006 written by the Executive Engineer. He intimated that as per the ORDER :s of the Superintending Engineer dated 7.3.2006 -and 12.4.2006, his agreement was being cancelled and the contract was being given to respondent No.6 at 15% below the scheduled price. It is the contention of the petitioner that the petitioner had not violated any terms of the agreement. There was sufficient time still left for completion of work. He could have completed the work within the stipulated time and, therefore, cancellation of his agreement without notice to him and further allotment of work to respondent No. 6 straightway were both actions which were vitiated on grounds of malice, they were illegal, arbitrary and unauthorised. On the other hand, the stand of the State is that the work progress was not found satisfactory. It was found on measurement done on 17.4.2006 that no substantial progress was made in the work. It is further admitted that respondent No.6 was given the contract as he had objected to the contract being given to the petitioner because petitioner had tendered work at 5% below the scheduled price whereas respondent No. 6 had tendered at 15:% below the scheduled price. His stand ",S that pursuant to his protest, the Superintending Engineer examined the matter and as admitted by the State also as it amounted to substantial saving, on behalf of the State, the agreement was cancelled and settled with him. Neither the State nor the private respondent disputes that the agreement with petitioner was cancelled without any notice to the petitioner. It is further not disputed that there was no violation of any of the terms and conditions of the agreement. Neither the State nor the private respondent disputes that the agreement with petitioner was cancelled without any notice to the petitioner. It is further not disputed that there was no violation of any of the terms and conditions of the agreement. It is also not disputed that it was not the Tender Committee who ultimately chose respondent No.6 but the Superintending Engineer straightway ORDER :ed for cancellation of petitioner's agreement and settling it with respondent NO.6. 4. Having considered the matter, it is clear that the actions of the respondents are absolutely illegal, arbitrary and suffers from malice in law. It is well settled that State, acting in contractual field, is not relieved of the responsibility of Article 14 of the Constitution. Article 14, apart from other things, enshrines compliance of principles of natural justice and non-arbitrary action. In the present case, petitioner having been given the work, was executing the same, there was no violation of the agreement yet his agreement was cancelled even without notice to him. This cannot be countenanced. Therefore, this Court holds that the cancellation of the agreement was wholly illegal and unsustainable. 5. The next question comes to whether the settlement could be made with respondent No.6 straightway. Here again, the authorities have acted illegally. Even if respondent No.6 had objected to the grant of the work to petitioner and petitioner's agreement was to be set aside, the work could not automatically go to respondent No.6. The decision was to be taken not by the Superintending Engineer but by the Tender Committee which only had the jurisdiction to make the settlement. i, accordingly, find that the direction to make settlement issued in favour of respondent No.6 was equally arbitrary, illegal and unsustainable. 6. Shri Amanullah appearing for the State then submitted that pursuant to agreement in favour of respondent No.6, he has completed substantial work and, as such, no relief should now be granted to the petitioner. I am afraid I cannot accede to this prayer. One who seeks equity must do act in accordance with equity. In the present case, the State acted arbitrarily. Respondent No.6 got the agreement not in accordance with law. Equity is not in their favour. The agreement in favour of respondent No.6 is, thus, liable to be set aside and is set aside accordingly. The ORDER :cancelling the agreement of the petitioner is also set aside. In the present case, the State acted arbitrarily. Respondent No.6 got the agreement not in accordance with law. Equity is not in their favour. The agreement in favour of respondent No.6 is, thus, liable to be set aside and is set aside accordingly. The ORDER :cancelling the agreement of the petitioner is also set aside. The work will now be completed by the petitioner and in case he seeks extension of time, the same shall be considered by the respondents in a lawful and non-arbitrary manner. 7. With this observation, the writ application is allowed. 8. So far as work said to have been done by respondent No. 6 is concerned, the same would be assessed within a week from the date of production of a copy of this ORDER :before the Executive Engineer concerned in presence of the petitioner and respondent No.6. The Executive Engineer then would decide as to the amount that has to be paid to respondent No.6 for the work done by him which shall stand deducted from the bill payable to the petitioner. 9. In this connection, the petitioner asserts that in fact respondent No. 6 has not done any work because the rains intervened and this writ application having been filed rather the articles deposited at sight (sio-site?) by the petitioner were partly utilised. This Court leaves it to the parties to raise all these issues before the inspecting authorities.