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2014 DIGILAW 712 (PAT)

Rajiv Kumar Singh v. State of Bihar

2014-06-27

RAMESH KUMAR DATTA

body2014
Order Heard learned counsel for the petitioner and learned counsels for the State and for the private respondent no.6. 2. The petitioner seeks quashing of the entire proceedings of Certificate Case No. 1/2005-06 pending before the Certificate Officer, Banka in which the petitioner has been held liable to pay the dues of Rs. 3,10,455/- in respect of Orhni Water Reservoir Project and for consequential reliefs. 3. The settlement for fishing in the Orhni Water Reservoir was made in favour of respondent no.6, Anil Kumar Singh in the year 1994 for ten years and agreement dated 29.11.1994 was also subsequently entered between the respondent no. 6 and the respondent no.4, the Executive Engineer, Irrigation Division No.2, Laxmipur camp, Banka. 4. It is the stand of the respondent no.6 that he continued to deposit the instalments from time to time in terms of the agreement and subsequently from 21.9.1996 he assigned the contract/settlement to the petitioner. Thereafter it appears that a proposal with affidavits by the respondent no. 6 as also the petitioner were put up before the Executive Engineer for the purpose of such assignment and the Executive Engineer by his order dated 22.6.1999 in terms of Clause 19 of the agreement granted a provisional approval only and recommended for approval to the Superintending Engineer. Ultimately the Superintending Engineer by his order dated 20.9.2002 rejected the proposal for assignment of work. The Executive Engineer by his letter dated 28.9.2002 communicated the rejection of the said proposal to the respondent no. 6 and also to the petitioner. For the period from 21.9.1996 to 19.7.2002 the petitioner was asked to deposit the dues but on the petitioner not taking any step for the said purpose, ultimately the certificate case has been filed against the petitioner for an amount of Rs. 3,10,455/-. Aggrieved by the same the petitioner has come to this Court. 5. Learned counsel for the petitioner submits that the agreement having been entered into between the respondent – Executive Engineer and the respondent no.6, it is the responsibility of the respondent no. 6 alone to make any payment of the instalments under the agreement and the settlement as there is no privity of contract between the petitioner and the State-respondents and if at all there is any liability of the petitioner in the matter, it is for the respondent no. 6 alone to make any payment of the instalments under the agreement and the settlement as there is no privity of contract between the petitioner and the State-respondents and if at all there is any liability of the petitioner in the matter, it is for the respondent no. 6 to recover the same from the petitioner in accordance with law. 6. It is further submitted by learned counsel for the petitioner that the petitioner along with respondent no. 6 having applied for the assignment of the agreement but the same having been ultimately rejected then no liability can be thrust upon the petitioner in the matter and having rejected the proposal of the petitioner it is not open to the respondents to proceed to recover any amount from the petitioner. 7. Learned counsels for the State and for the respondent no. 6, on the other hand, have sought to rely upon the provisions of Clauses 19 and 22 of the agreement in support of their stand. Clauses 19 and 22 are quoted below:- “Clause 19 :- The contract shall not be assigned or subject without the written approval to Executive Engineer, and if the contrary for shall assign or sublet his contract or attempt so to do or become insolvent or commence any insolvency proceedings or make any composition with his creditors, or attempt so to do, or if any bribe, gratuity, gift loan, perquisite, reward or advantage pecuntary or otherwise shall either directly or indirectly, be given promissed or offered by the contractor, or any of his servants or agents to any yubleeo ncer or person in roe employ or Government in any way relating of his officer or employment or if any such officer or person shall become in any way relating to his officer or employment or if any such officer or person shall become in any directly or indirectly interested in the contract, the executive Engineer may thereupon by notice in writing rescind the contract, the security deposit of the contractor shall thereupon stand forfeited and be absolutely at the disposal of Government and the same contequences shall ensure as if the contract had been rescinded under Clause 3 hereof, and in addition the contractor shall not be entitled to recover or be paid for any work therefor actually performed under the contract. (sic) 22. (sic) 22. All work to be executed under the contract shall be executed under the direction and subject to the approval in all respect of the superintending Engineer of the Circle for the time being who shall be entitled to direct at what point or poidts and in what manner they are to be commenced and from time carried on.” (sic) 8. It is urged by learned counsels for the respondents that under Clause 19 the Executive Engineer had the right to grant approval to any assignment or subletting and the same having been done provisionally by an order dated 22.6.1999 the petitioner is clearly liable to make the payment in terms of the said assignment. The subsequent rejection by the Superintending Engineer, according to learned counsel for the respondents, would not operate for the period when the petitioner was enjoying the benefits of fishing in terms of the provisional order of assignment and he cannot shy away from the liability for the said period. It is submitted that the order of the Executive Engineer shall be of full effect for the period from which the petitioner had been obtaining the benefit of the fishing from 21.9.1996 to 19.7.2002 in terms of the affidavit, etc., filed before the respondent-authorities. 9. Having considered the submissions of learned counsels for the parties, it is evident from the provisions of Clause 19 of the agreement that the power to permit assignment or subletting of the contract is vested in the Executive Engineer himself whose written approval of the same is sine qua non for subletting, otherwise the contract would be liable to rescindment and security deposit shall stand forfeited by the Executive Engineer. It is true that the Superintending Engineer has been made the supervisory authority under Clause 22 but the power of the Executive Engineer to grant approval for assignment or subletting flows directly from Clause 19 and once the same was exercised on 22.6.1999 specifically referring to Clause 19 of the agreement, it is evident that liability on account of the said assignment will pass to the petitioner. 10. The stand of learned counsel for the petitioner that there was no privity of contract between the State respondents and the petitioner can be of no avail in view of the affidavits filed on his behalf before the Executive Engineer for such assignment. 10. The stand of learned counsel for the petitioner that there was no privity of contract between the State respondents and the petitioner can be of no avail in view of the affidavits filed on his behalf before the Executive Engineer for such assignment. Thus at least for the period from 22.6.1999 when the assignment was permitted provisionally to 28.9.2002 when the Executive Engineer again communicated the fact regarding rejection of the proposal for assignment, the liability clearly is of the petitioner to make payment under the contract. 11. So far as the period from 21.9.1996 to 21.6.1999 is concerned, it is evident that although it is not seriously denied that the petitioner had been obtaining the benefit of fishing from the said earlier period, but the fact remains that there was no approval of the Executive Engineer for such act of subletting/assignment and thus it is not open to the authorities of the respondent-State to make any recovery from the petitioner for the period from 21.9.1996 to 21.9.1999. If at all any amount is to be recovered for the said period, it would be for the respondent no. 6 to take appropriate steps for such recovery from the petitioner. 12. Thus, in the light of the aforesaid discussions, the writ application is partly allowed and it is directed that the amount under the certificate proceedings shall be confined to the period from 22.6.1999 till 28.9.2002 in so far as the petitioner is concerned. It would, however, be open to the respondents to pray for addition of party in the Certificate case and for recovery of the balance demand from the respondent no.6, if so advised. If any deposit has been made by the petitioner for the period from 22.6.1999 till 28.9.2002, the same may be adjusted from the certificate dues, but it shall not be open to the petitioner to claim adjustment or refund of any amount for an earlier period which he may have paid pursuant to the assignment.