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2008 DIGILAW 361 (PAT)

Rajendra Prasad Singh v. State of Bihar

2008-02-19

body2008
ORDER An interlocutory application being I.A. No. 144 of 2008 has been filed by one Shailendra Kumar 'Akela' for intervening in the matter as pursuant to tender notice issued again, after cancellation of petitioner's contract, vide Annexure 8. The intervener has been selected and work order issued in his favour. He is thus an interested party in the litigation. 2. Heard the parties. 3. I.A. No. 144 of 2008 is allowed and the said Shailendra Kumar 'Akela' is deemed to be added as respondent no. 8 to the writ petition. 4. Petitioner had undertaken work contract for making a road. The work order was issued on 25.4.2007 and the work had to be completed by 25.7.2007. The petitioner has challenged the letter of the Executive Engineer, Road Construction Division, Biharsharif, Nalanda, dated 24.8.2007 (Annexure 7) by which the petitioner has been informed that considering the show progress of the work and the work not being completed within the stipulated time, the work allotment of the petitioner was being cancelled, his security forfeited and the petitioner was required to be present for measurement of work done. 5. Subsequently, an interlocutory application was filed in which it was stated that the respondent has re-tendered the balance work. This Court by order dated 20.11.2007 while granting time to the State to file a counter affidavit observed that the fresh tender would be subject to the result of this case and pendency of this writ petition would not come in the way of the authorities in granting further time to the petitioner to complete the work on the rate already tendered, if they are so advised. 6 An interlocutory application, as noted above, has been filed claiming to be the selected tender pursuant to re-tender. The same has been allowed. 7. From beginning I would like to clarify as to why this Court observed on the earlier occasion that the authorities may extend the time with the petitioner and take work at the rate quoted by him earlier. Records of the case would show that earlier the entire work was given to the petitioner to be done at a cost of about Rs. 33 lakhs. Petitioner, undisputedly, has done substantial work. In spite of which the work has been re-tendered and re-tender document (Annexure 8) shows that the balance work is now estimated at new rate to be of Rs. 45 lakhs. 33 lakhs. Petitioner, undisputedly, has done substantial work. In spite of which the work has been re-tendered and re-tender document (Annexure 8) shows that the balance work is now estimated at new rate to be of Rs. 45 lakhs. Thus, the State exchequer is to spend extra amount for getting the work done whereas the work could have been done by the petitioner himself, if time was extended, which would have save huge of amount of the State. Regrettably, this commercial aspect of the matter did not occur to the State authorities at all and. they chose to stick by the rule. Thus, putting the State to an unnecessary loss. However, fact remains that the work has been re-tendered and as such petitioner challenged to the cancellation and re-tender cannot be now gone into by this Court. 8. Petitioner submits that admittedly the work was to be completed by 25th July, 2007. Two factors had delayed the work, which are not in dispute and are also noticed in the impugned Annexure 7. First as is well-known in July, this State deluged with unusual rain, road making work could not be done in those conditions and, Second, it is again undisputed fact that on the land on which road has to be constructed, at several places there were encroachments and as such the petitioner could not be expected to do the work on those places. 9. To the contrary Annexure 7 said that even for unencroached portion, the progress of work had been slow. This to my mind is a subjective satisfaction which cannot be interfered with by this Court in a writ jurisdiction. However, fact remains that there were encroachments and as a consequence work could not have completed in time. That to my mind is a ground mitigating the ground available to the petitioner least to say his security, which has been ordered to be forfeited. The authorities have not applied their mind in this direction. 10. In that view of the matter, I set aside that part of the impugned communication dated 24.8.2007 (Annexure 7) wherein it has been ordered that the security of the petitioner is being forfeited. The authorities have not applied their mind in this direction. 10. In that view of the matter, I set aside that part of the impugned communication dated 24.8.2007 (Annexure 7) wherein it has been ordered that the security of the petitioner is being forfeited. The authorities on representation being filed by the petitioner reconsider this aspect of the matter keeping in view of the observations made in this order and pass an appropriate order preferably within one month from the date of representation and a copy of this order are filed before the Executive Engineer, Road Construction Division, Biharsharif, Nalanda, who is respondent no. 6 in this writ petition. 11. With these observations and directions this writ petition stands disposed of.