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2007 DIGILAW 1718 (PAT)

B. K. Enterprises, Dhanpura v. State Of Bihar

2007-11-05

NAVANITI PRASAD SINGH

body2007
Judgment 1. Heard. 2. State had invited tenders for earth work, construction of outlet, repair and renovation of structure of Koilwar Distributory under the Sone Canal Division, Ara, Bhojpur. In the tender document, rate of work was specified. This tender was issued in 2004. Petitioner filed his tender accordingly stating that he was ready to do the work at 15% below estimated rate. His tender was accepted and he was given work order. While doing the work, the rainy season intervened and consequently the canal got filled up with water hampering progress of the work. Petitioner requested and was granted extension. Authorities wanted to verify the extent of work done but were informed by the authorities on site that the same was not possible till the water receded. These showed the difficulty in executing the work. The Executive Engineer, who signed the agreement and was responsible for execution thereof also recommended from time to time that the petitioner should be granted time upto December, 2007 to complete the work. Obviously, there was default on the part of the petitioner in completing the work in time, which had already necessitated extension. Notwithstanding recommendation subsequent extension upto December, 2003 was rejected and the contract cancelled. 3. After the contract was cancelled it has been re-tendered for the balance work but no tender has yet been received within the date stipulated for filing tenders and as such the same has further been extended but no tender was filed. 4. Petitioner submits that if the balance work is being re-tendered and the estimated cost is based on the cost as fixed in 2007 and if these costs are paid for the balance work, State would be liable to spend 27 lakh in excess of what the petitioner would charge for doing the work as per his contract and that too, he was ready to do by December, 2007. 5. In substance the cancellation and re-tender will serve no useful purpose. It will only cost the State and the public exchequer substantial extra money with no gain whatsoever. This extra expense cannot be said to be reasonable in any manner justifying the action taken. 6. 5. In substance the cancellation and re-tender will serve no useful purpose. It will only cost the State and the public exchequer substantial extra money with no gain whatsoever. This extra expense cannot be said to be reasonable in any manner justifying the action taken. 6. The other grievance of the petitioner is that when the original tender was floated the cost was estimated on basis of cost prevalent in 2002 but before the tender was issued in the year 2004, on 1st April, 2004 the cost had been revised. Thus, when the petitioner had to do the work after the period 2004 as per States own estimate they ought to increase the cost as he is entitled to receive higher rate. This position is reasonable, fair and equitable and has also been accepted by the various authorities as evident from Annexures 3, 5 and 7 of the writ petition being communication of the concerned Engineer. This aspect of the matter has also not been considered in correct perspective. 7. So far as the price is concerned, it is not open for this court to dictate the State as to what, ought to be paid. It is open to the State to consider the petitioners representation and recommendation of the concerned Engineer and take a decision in the matter. 8. Needless to point out that once State itself revised the rate and that too before the tender was finalised, it ought to have considered the same as the work was to be done subsequent thereto but these are the matters for the State authority to decide. I, accordingly, direct the authority to decide the said issue on their own assessment. 9. Coming to the cancellation and retender aspect of the matter, I feel that though the authorities cannot be faulted for cancelling the tender because the petitioner failed to execute the same within the extended time, the authorities can consequently be faulted with re-tendering the balance work. Merely, because there has been a default in completing the work in time, does not give right to the authority to cancel and retender because the consequences thereof has to be kept in mind as the authorities are the custodian of public finance as well. Merely, because there has been a default in completing the work in time, does not give right to the authority to cancel and retender because the consequences thereof has to be kept in mind as the authorities are the custodian of public finance as well. If balance work is re-tendered then apart from work being completed there will be no other benefit which State would get, rather to the contrary State would be obliged to pay at the present with current revised rate and as such would incur an extra expenditure over rupees twenty seven lakhs. This would be a waste of public money, the work being the same. On the contrary if the period is further extended with the petitioner himself, which the petitioner has been asking since long and it has also been recommended again and again by the Executive Engineer even after cancellation of the work, then both the objectives would be achieved that is the work would be done and no extra expense would incur. This would save substantial public finance. The facts, aforesaid, are not disputed by the State but the stand is that as the petitioner has delayed, they had a right to cancel and pursuant to the said right to cancel, a decision to cancel has been taken. 10. To my mind this court has not questioned either the authority or the right to cancel but the propriety to cancel and its financial consequence. If the petitioner is ready to do the same work at the cost at which he was doing earlier part of the work then the authority instead of cancelling ought to have extended the period rather than re-tendering at a substantial extra spend. That to my mind would have been prudent, fair, equitable and a business like approach rather than cause loss to the public exchequer by paying higher rate which now prevalent in the year 2007. 11. In that view of the matter, keeping, in view the financial aspect of the matter and in order to save of public money. .I. direct the authority to reconsider the matter and consider the desirability of granting petitioner further time to complete the work and pass appropriate orders with regard to the dispute, which was pending before the authority. 12. With the aforesaid observation and direction this writ petition stands disposed of.