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2011 DIGILAW 770 (JHR)

Arjun Yadav v. State of Jharkhand

2011-08-08

POONAM SRIVASTAV

body2011
JUDGMENT I.A. No. 2065 of 2011 An intervention application has been filed on behalf of B.K. Yadav Proprietor of M/s. B.K. Enterprises vide I.A. No. 2065 of 2011. Intervention application is allowed. Let the applicant be added as Respondent No. 5 in the instant writ petition. W.P.(C). No. 482 of 2011 Heard learned counsel for the petitioner as well as on behalf of the State. Mr. P.K. Prasad, Sr. Advocate has appeared for the Intervener and also advanced his arguments. 2. The order impugned in the instant writ petition is Annexure-4 dated 17.01.2011 whereby the Agreement No. 02F2/10-11 was cancelled. The letter dated 17th January, 2011 is only information that the agreement on behalf of the petitioner stands cancelled. 3. Contention on behalf of the petitioner is that tender was invited for construction of Chalkusa Block Office, Circle office and residential houses vide publication made on 19.09.2010. The petitioner's firm M/s. Jyoti Enterprises had applied pursuant to the aforesaid advertisement and his bid was accepted. Consequent thereon, the petitioner entered into an agreement on 02.12.2010 and the work was passed over to him after a deposit of Rs. 6,95,000/-. Earlier, an advance money was also deposited to the tune of Rs. 4,65,000/-. These factual aspects are denoted by Annexure-3 which is a letter No. 1663 dated 02.12.2010 to the writ petition. Another letter was issued vide letter No. 1664 on 02.12.2010 itself to commence the work. 4. Contention on behalf of the petitioner is that he invested Rs. 5,00,000/-and the contract labourers were given advance so that the work allotted to him may be completed within the time frame of 18 months. It is also contended that material worth Rs.20 lacs was purchased on the site and it was stacked by the petitioner meaning thereby that the petitioner had invested a huge amount towards the work allotted to him by the respondents. 5. Grievance of the petitioner is that once his tender was accepted, agreement was executed and he was asked to commence the work and after investment of a huge amount of money, the agreement could not be cancelled, unilaterally without notice or opportunity of hearing, by a letter which has been done in the instant case. 6. 5. Grievance of the petitioner is that once his tender was accepted, agreement was executed and he was asked to commence the work and after investment of a huge amount of money, the agreement could not be cancelled, unilaterally without notice or opportunity of hearing, by a letter which has been done in the instant case. 6. Learned counsel appearing on behalf of the State has tried to bring to the notice of the Court that the order passed by the Chief Engineer and the consequent agreement executed was without jurisdiction as he was not authorized to do so and, therefore, the allotment in favour of the petitioner was cancelled. 7. This explanation has been given for the first time in the counter affidavit in the writ petition but the petitioner was not apprised of any such facts or circumstances prior to cancellation of his tender. It is apparently a non speaking order and, therefore, opposed to principles of natural justice and fair play. Reasons cannot be substituted for the first time in the counter affidavit. This principle has been laid down as far in the year 1978 in the case of Mohinder Singh Gill vs. Chief Election Commissioner, 1978 (1) SCC 405 . 8. The affidavits have been filed, as directed by this Court earlier, by the Secretary, Building Construction Department as well as by the Secretary, Rural Development Department and, therefore, complete compliance of the order dated 15.06.2011 is made. 9. In the facts and circumstances, it is evident that the petitioner's right has considerably been jeopardized and he has been deprived of a valuable right which had accrued to him after execution of the agreement and after a direction from the respondents to commence the work but he has been stopped illegally without assigning any reason which cannot be done since the act of the State has to stand to reason and maintain transparency which is evidently missing in the impugned order and, therefore, in my view, the order dated 17.01.2011 is liable to be quashed. 10. It is also brought to my notice that a subsequent tender was floated and invited on 22.01.2011 and pursuant to the fresh tender, the allotment has been given to a third party. This exercise was taken immediately after canceling the petitioner's agreement which could not be done legally. 11. 10. It is also brought to my notice that a subsequent tender was floated and invited on 22.01.2011 and pursuant to the fresh tender, the allotment has been given to a third party. This exercise was taken immediately after canceling the petitioner's agreement which could not be done legally. 11. In view of what has been stated above, the impugned order dated 17.01.2011 is hereby quashed. The writ petition is allowed.