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2010 DIGILAW 959 (PAT)

M/s Deo Construction v. State Of Bihar

2010-04-26

AJAY KUMAR TRIPATHI

body2010
JUDGEMENT 1. Both the writ applications have been heard together not only because the parties to the dispute are common but it also arises out of the same bundles of facts. 2. The issue in CWJC No. 8303 of 2009 is the two decisions which have been communicated to the petitioner and are dated 24.4.2009 and 30.5.2009 which are impugned orders as contained in Annexures-19 and 20 to the present writ application. By virtue of the two decisions the contract awarded in favour of the petitioner for widening and strengthening of Aurangabad to Hariharganj Road between K.M. 1 to 1.3 stands rescinded. The earnest money and the security deposit forfeited and further recommendation has been made to blacklist the petitioner. By virtue of Annexure-19 the petitioner has been debarred from participating in any future contract after having declared as non-responsive. 3. The short fact is that the petitioner is a registered Class-1 contractor and he came to be awarded work for widening and strengthening of Aurangabad to Hariharganj road between Kilometer 1 to 1.3 under the plan head for the year 2006-07. The estimate cost for the work was fixed Rs. 1.73 crores. Petitioner was the successful bidder and an agreement came to be entered in terms of Annexure-1 to the writ application. The time frame fixed for completion of the work was 12 months. Agreement is dated 16.3.2007. 4. It is the stand of the petitioner that the work was started by him well in time. He completed the base work but only the bituminous work of widened road had to be completed. On completion of base work the petitioner wrote several letters to the respondent Executive Engineer to remove electric poles and trees which were coming in the middle of the road after due expansion. The electric poles and trees were coming in the way of bituminous work. 5. Taking cognizance of the communication of the petitioner the Executive Engineer wrote several letters to the higher authority of Bihar State Electricity Board for doing the" needful. Even a sum of Rs. 86.24 lakhs was ordered to be paid to the Electricity Board to remove the electric poles. All this was done in the year, 2007 and early 2008. The money was deposited with the Electricity Board on 26.5.2008 but for strange reason neither the electric poles were removed nor were the trees. Even a sum of Rs. 86.24 lakhs was ordered to be paid to the Electricity Board to remove the electric poles. All this was done in the year, 2007 and early 2008. The money was deposited with the Electricity Board on 26.5.2008 but for strange reason neither the electric poles were removed nor were the trees. The obstructions remained in the way of completion of the project but the respondent authority insisted on completion of the work even without removing the above hurdle coming in the way of completion of the bituminous surface work over the base work which had already been completed. Petitioner had been cautioned for the work and finally the respondents in their wisdom first issued the order dated 24.4.2009 contained in Annexure-19 where the work was declared to be non-responsive and he was debarred from participating in any future contract coupled with yet another order dated 30.5.2009 contained in Annexure-20 where the contract in question was rescinded and his earnest money and security deposit was ordered to be forfeited which the petitioner terms as arbitrary and irrational act of the respondents. 6. The respondent State was directed to file counter affidavit and justify their decisions. Their primary stand is that the agreement and the contract was for a fixed time frame for completion of work. The petitioner was not serious in completion of the work because despite repeated direction to him the work in its entirety was not completed. The bituminous layer was never laid and the respondents were left with no, option but to go for action which is reflected by Annexures-19 and 20. Their stand is that the work could still be completed despite the trees and the electric poles standing in the way. That portion of the work could have been executed by the petitioner and he should have completed the balance part of the work in view of the direction issued by the competent authority in this regard. 7. The Court directed the respondents to file an additional supplementary affidavit and certify whether the electric poles and the trees stood removed even at the time when the hearing of the case was taken up. In the supplementary affidavit filed on behalf of the respondent which was sworn by the Executive Engineer, Road Construction Department Division No. 1 Aurangabad, there is categorical statement in paragraph-5 that the hindrance like electric poles etc. In the supplementary affidavit filed on behalf of the respondent which was sworn by the Executive Engineer, Road Construction Department Division No. 1 Aurangabad, there is categorical statement in paragraph-5 that the hindrance like electric poles etc. are being removed and new electric poles are being installed. At present almost 17 poles have already been installed out of 35 poles. In otherwords even on the date when the affidavit was sworn i.e. 19.1.2010 the position stood that the electric poles had not been removed from the road by the concerned authority. They are silent about the status of trees. 8. If this is the accepted position and fact then the Court fails to understand as to how the respondent could insist on completion of work in question by allowing the electric poles and trees to stand in the middle of the road which were sought to be widened and strengthened by virtue of the work assigned to the petitioner. Hypothetically the petitioner could have completed the bituminous work leaving the trees and electric poles on the road but then the question arises as to what kind of widening and strengthening of the road would have been carried out with such obstruction jutting out of no where which the public was expected to use. 9. Obviously the respondent authority have tried to shift the blame and pass the buck upon the petitioner and they have been unreasonable and arbitrary in taking harsh action as is reflected in Annexures- 19 and 20 of the writ application. The Court therefore quashes both the Annexures-19 and 20 and allows the writ application. 10. It is further clarified that since retendering of the left over work have already been made on 18.7.2009 and it is the stand of the respondents that more than 20% of the work have already been carried out, that part of the assignment or award of work on retendering would not be interfered with. Re: CWJC No. 9931 of 2009: 11. Since Annexures-19 and 20 was in existence against the petitioner, when he filed his tender, made his bid with regard to yet another work, the respondent authority returned his bidding documents on the ground that the petitioners name figures in the defaulter list and therefore he is debarred from participation in any future tender. The communication dated 6.8.2009 contained in Annexure-6 is under challenge in the present case. 12. The communication dated 6.8.2009 contained in Annexure-6 is under challenge in the present case. 12. In view of the reasonings assigned by this Court in CWJC No. 8303 of 2009 and consequential relief which has been granted to the petitioner, the present writ application has lost its meaning. Annexure-6 even though has been quashed will not give any benefit to the petitioner because the work in question has already been assigned to the successful bidder. It is further clarified that in view of the order recorded in CWJC No. 8303 of 2009 the petitioner has freedom to participate in future contract. 13. Both the writ applications stands disposed of as above.