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2021 DIGILAW 151 (GAU)

Kaustav Saikia v. State of Assam

2021-02-18

PRASANTA KUMAR DEKA

body2021
ORDER : Prasanta Kumar Deka, J. 1. Heard Mr. N. Deka, the learned counsel for the petitioner. Also heard Mr. D. Nath, the learned counsel representing the respondent Nos. 4 and 5, Mr. K.P. Pathak, the learned counsel for the respondent Nos. 2, 3, 6 and 7. 2. The petitioner participated in the Notice Inviting Expression of Interest dated 30.12.2017 issued by the respondent No. 3. The petitioner is the registered contractor under the Assam Agricultural University/Animal Husbandry and Veterinary Department, Assam and Dairy Development, Assam. The respondent No. 3 vide letter dated 3.4.2018 allotted the work "Construction of Bull Shed No. 2 at F.S.B.S. Barapetta in Barpeta District, (Civil, Water supply Sanitary and Electrical works)" to the petitioner. The completion time for the said work was three months from the date of signing the tender agreement The work is under the respondent No. 4, Assam Livestock Development Agency (ALDA) and respondent No. 3., the Director, Physical Plant, Assam Agricultural University, camp-Khanapara is the executing agency of the said work. The completion period though was for three months however, the work could not be completed by the petitioner for which, he sought for extension of time to the respondent No. 3 time to time. The petitioner was surprised to find that the respondent 5., the Chief Executive Officer, Assam Livestock Development Agency had issued an NIT dated 11.09.2020 for completion of unfinished works in Bull Shed No. 2 at FSBS Barapetta in Barpeta District under NPCBB and the work value stipulated therein amounted Rs. 78,00,000/-. The petitioner was surprised to find that the respondent 5., the Chief Executive Officer, Assam Livestock Development Agency had issued an NIT dated 11.09.2020 for completion of unfinished works in Bull Shed No. 2 at FSBS Barapetta in Barpeta District under NPCBB and the work value stipulated therein amounted Rs. 78,00,000/-. Having come to know about the publication of the said NIT dated 11.09.2020, the petitioner has filed this writ petition seeking for the following reliefs:- "In the premises aforesaid the petitioner pray that this Hon'ble Court may be pleased to call for the records of the case, issue a Rule calling upon the respondents to show cause as to why a Writ in the nature of Certiorari should not be issued and the NIT No. ALDA/PM/pt 1/2014-15/404 dated 11.09.2020 issued by the respondent No. 5 for the work of completion of unfinished Bull Shed No. 2, at FSBS Barapetta should not be set aside and quashed and as to why a Writ in the nature of Mandamus should not be issued directing the respondent authorities to recall/cancel/forbear from giving effect to the aforesaid NIT dated 11.09.2020 and as to why the petitioner should not be allowed to complete the balance work and as to why the balance amount of Rs. 39,72,188/- of the R/A Bill dated 05.03.2019 should not be paid to the petitioner and upon hearing the parties be pleased to make the Rule absolute and/or to pass such further or other orders as Your Lordships may deem fit and proper. And In the interim be pleased to direct the respondent authorities to stay the NIT No. ALDA/PM/Pt-I/2014-15/404 dated 11.09.2020 issued by the respondent No. 5 for the work of completion of unfinished Bull Shed No. 2, at FSBS Barapetta till disposal of the writ petition in the interest of justice". 3. Upon motion on 07.10.2020, this court was satisfied while issuing notice of motion to allow the respondent No. 5 to proceed with the impugned NIT but not to award the work to any third party without the leave of this court. 4. In the writ petition it is alleged that during the continuation of the work, the petitioner submitted a running Bill amounting Rs. 1,11,14,048/- which was duly certified by the respondent Nos. 6 and 7 out of which an amount of Rs. 71,41,860/- was released by the respondent Nos. 4. In the writ petition it is alleged that during the continuation of the work, the petitioner submitted a running Bill amounting Rs. 1,11,14,048/- which was duly certified by the respondent Nos. 6 and 7 out of which an amount of Rs. 71,41,860/- was released by the respondent Nos. 4 and 5 on 23.09.2019 and for that reason, the petitioner faced extreme financial difficulties and was unable to continue with the work as a huge sum of almost Rs. 40 lakhs was blocked. It is further stated in the writ petition that due to Covid-19 pandemic as there was scarcity of materials and workforce due to the restrictions of movement, he was unable to complete the work even in the month of September, 2020. The petitioner made an attempt to visit the site on 06.09.2020 but even then he was not allowed to enter as the Officer-in-charge, FSBS, Barapetta was informed by the superior authorities not to allow the petitioner to enter the site and/or resume construction. Vide letter dated 10.09.2020, the petitioner requested the respondent No. 3 for permitting him to complete the work but without allowing the petitioner to carry out the construction work nor hearing him, the impugned NTT was published for which the petitioner filed this writ petition seeking for above mentioned reliefs. 5. The respondent Nos. 4 and 5 filed the affidavit-in-opposition. In the affidavit, the respondent No. 5 stated that the Running Account Bill dated 05.03.2019 for an amount of Rs. 1,11,14,048/- along with a certificate dated 06.03.2019 was prepared by the respondent No. 3 and the officials certifying that the progress of the work was about 78%. As the respondent No. 5 could not verify at that relevant time, accordingly 50% of the contract value i.e. Rs. 71,41,860/- was decided to be paid leaving a balance amount of Rs. 39,72,188/- out of the total progress of work of about 78%. But even thereafter as the petitioner was pressing for release of the balance 28% payment enabling him to complete the remaining work, it was decided to place the matter before the Advisory Sub Committee for verification of the progress of the work and further suggestion. 39,72,188/- out of the total progress of work of about 78%. But even thereafter as the petitioner was pressing for release of the balance 28% payment enabling him to complete the remaining work, it was decided to place the matter before the Advisory Sub Committee for verification of the progress of the work and further suggestion. A meeting was held on 25.07.2019 wherein it was observed that 78% of the work was not completed even on that day and as on 24.07.2019 only 60% of the work was completed by the petitioner which)vas about 10% more than the progress made in March, 2019. Thereafter, the respondent No. 5 entrusted the departmental Civil Engineer to make a detailed assessment of the actual progress made in the construction site and to submit a report at the earliest. As per the report of the Engineer, only 45.97% of the estimated work was completed and further no construction activities were going on. Though the said progress which was not satisfactory was informed to the respondent No. 3 a stalemate situation resulted as due to non release of the amount under the R; A. Bill, the petitioner also did not resume the work. A meeting was convened on 17.02.2020 in the office of the respondent No. 1. In the said meeting various members participated including the petitioner. The minutes of meeting held on 17.02.2020 is annexed in the affidavit-in-opposition which is reproduced herein below:- "Minutes of the Meeting on Payment of the Witheld amount of Running Bill to the AAU Appointed Contractor, Sri. Kaustav Saikia, Against Civil Works at FSBS Barapetta. (Construction of Bull Shed No. 2 at FSBS-Barapetta under NPCBB, Work Order Value: Rs. 142.8372 Lakhs) Dated: 17.02.2020 at Dispur. Participants: (1) Shri Shyam Jagganathan, IAS: Vice President: Chairman. 2) Dr. Z Hrangchal, CEO-ALDA 3) Shri Navaneet Saikia, AFS: Sr. FA, AH & Veterinary Deptt-Assam 4) Dr Monideep Das, Manager (A&M)-ALDA 5) Smt. Biva Dutta, Civil Engineer-ALDA 6) Shri Kaustav Saikia, AAU Contractor 7) Shri Rohit Ch Hazarika, Asstt Engineer, DPP-AAU At the outset, the Chairman welcomed the participants and requested to CEO to explain the purpose of the meeting. Z Hrangchal, CEO-ALDA 3) Shri Navaneet Saikia, AFS: Sr. FA, AH & Veterinary Deptt-Assam 4) Dr Monideep Das, Manager (A&M)-ALDA 5) Smt. Biva Dutta, Civil Engineer-ALDA 6) Shri Kaustav Saikia, AAU Contractor 7) Shri Rohit Ch Hazarika, Asstt Engineer, DPP-AAU At the outset, the Chairman welcomed the participants and requested to CEO to explain the purpose of the meeting. After threadbare discussion, the following deliberations/decisions were recorded the meeting: a) The AAU Asstt Engineer explained that it is a routine practice that running bills against unmeasured works are prepared and submitted to the payment authority so that the contractor can avail some amount as advance to expedite completion of works. As such, billing at 78% of the work value was done. However, ALDA paid only 50% of work value to the contractor and 28% was withheld, even though the work progress was not as per. billed amount. Any payments from ALDA should be made directly to the contractor as per precedence. b) The Vice President-ALDA opined that since mobilization advance was not give to the contractor, the withheld amount of 28% could be released. c) ALDA recently did an internal work assessment which indicated that only about 46% of the scope of work was completed. However, payment of the 28% withheld amount can be made immediately by ALDA, if the AAU Engineers and the Contractor agrees to finish 100% of the work within a short period, without any cost escalation. d) The contractor, Shri Kaustav Saikia, requested for release of the withheld amount (28%) and assured to finish 100% works within five months, without raising any more running bills through the AAU. The meeting concluded with the Vice President-ALDA requesting the Senior FA to examine the above, matter in detail and consider for release of the withheld amount (28%) to the contractor to break the stalemate and complete the work. (Shyam Jagannathan, IAS) Commissioner & Secretary to the Govt. of Assam AH & Veterinary Deptt & Vice President- ALDA". 6. There after vide letter dated 30.07.2020, the respondent No. 5 directed the respondent No. 3 to issue necessary instruction to the petitioner immediately to complete the pending work and if there was no favourable response from the contractor, the respondent No. 4 would be at liberty to complete the unfinished work (54%) departmentally. The contents of the letter dated 30.07.2020 is relevant which is extracted herein below:- Ref. The contents of the letter dated 30.07.2020 is relevant which is extracted herein below:- Ref. No. ALDA/PM/Pt-I/2014-15/273-278 Dated 30.07.2020. To: The Director, Physical Plant AAU, Jorhat/Khanapara. Sub: Release of withheld money to the contractor against the work "Const, of Bull Shed No. 2" at FSBS Barapetta. Sir, With reference to the subject cited above, I am to inform you the following instructions made by the competent authority of ALDA:- 1. The withheld money couldn't be released to the contractor, being 28% of work value. As per the internal assessment of ALDA, 46% work has been completed. 2. The present contractor should be given a time frame in which he should complete the overdue work which may please be intimated to all concerned. 3. If the contractor refuses or express his inability to complete the work, the work order should be cancelled and steps should taken immediately to recover the excess amount paid to him i.e. (work complete 46%, payment made 50%) 4% S.D. money retained with ALDA will be forfeited if the recovery is not made. 4. Penal provisions mentioned in contract agreement for default/delay in completion of work may also be invoked against the contractor. Considering the above, necessary instruction may be issued to the concerned contractor immediately to complete the pending work. If there is no favorable response from the contractor, ALDA will be at liberty to complete the unfinished work (54%) departmentally. Thanking you Dr. Z. Hrangchal Chief Executive Officer". 7. In response to the letter dated 30.7.2020, a letter was sent by the respondent No. 3 on 31.07.2020 which was received in the office of the respondent No. 4 on 31.08.2020. It was stated that the petitioner resumed the work and assured for early completion as per the direction of the respondent No. 5 as such no disciplinary proceedings were proposed against the petitioner. 8. Mr. Nath referring the statements made in the affidavit-in-opposition submits that on 31.08.2020, the respondent No. 5 verified the status of the work and found that the petitioner had not resumed the work nor any action was taken by the respondent No. 3 against the contractor. Being dissatisfied with the role played by the respondent No. 3, the respondent No. 4 terminated the arrangement with the respondent No. 3 vide termination letter dated 31.8.2020 and forfeited the security deposit in terms of the letter dated 30.7.2020. Mr. Being dissatisfied with the role played by the respondent No. 3, the respondent No. 4 terminated the arrangement with the respondent No. 3 vide termination letter dated 31.8.2020 and forfeited the security deposit in terms of the letter dated 30.7.2020. Mr. Nath also submits that the arrangement with the respondent No. 3 was terminated because of non compliance of the direction of the respondent Nos. 4 and 5 in respect of completion of the work within a time period to be fixed by respondent No. 3 though on various occasions, the respondent No. 3 was directed to carry out the work within a specific time frame. On the other hand, the subsequent NIT which was published after the termination was almost finalized but for the leave of this court due to the interim order, the work order is yet to be issued to the prospective contractor as submitted by Mr. Nath. 9. I have given due consideration to the submissions made by the learned counsel for both the parties. From the factual matrix it is clear and apparent that the respondent No. 3 is the agent of the respondent No. 4. The contractor i.e. the petitioner entered into the agreement with the respondent No. 3. But the respondent No. 3 is an agent of respondent No. 4 ALDA. If there is any negligence on the part of the agent and for the said negligence if a third party is affected then the principal is liable. 10. In the present case in hand, from the factual matrix as hereinabove stated, the issue involves in respect of the completion of the work inasmuch as in the running bill it was projected that the petitioner completed 78% of the total work. However, it is stated in the affidavit-in-opposition that as at that relevant point of time in the month of March, 2019, the respondent No. 5 could not verify the actual work completed by the petitioner so it was decided to release 50% of the total work value of the contract and accordingly the said amount was received by the petitioner. However, the petitioner took stand that due to non release, of the rest amount of the bill he was unable to complete the work. However, the petitioner took stand that due to non release, of the rest amount of the bill he was unable to complete the work. Here it would be proper to take into consideration that on 17.02.2020 a meeting was convened wherein the petitioner requested for release of the withheld amount with an assurance to complete the work within five months without raising any more running bill through the respondent No. 3. Though the respondent No. 5 had come to the conclusion that the work completed by the petitioner is more or less 46% and the payment is made in respect of 50% of the total work value, it seems that at least on 30.07.2020 the respondent No. 5 accepted the work completed to the extent of the 46% and further directed the respondent No. 3 to give a time frame to the contractor in order to complete the overdue work and if the contractor refused and expressed his inability to complete the work it was directed to the respondent No. 3 to cancel the said work with other coercive measures for recovery of the excess amount paid to him. 11. It is submitted by Mr. Deka, the learned counsel for the petitioner that there was neither any fresh proposal nor time frame granted to him by the respondent No. 3 subsequent to the meeting held on 17.02.2020 and he was unaware in respect of the development between the respondent No. 5 and the respondent No. 3. As per the submission of Mr. Deka, the petitioner tried to carry out the construction work but he was disallowed to enter into the work site. On the other hand, Mr. Nath vehemently objected to the submission of Mr. Deka and stated that there was no progress of work at all since March, 2019 and under such circumstances, the letter dated 31.07.2020 issued by the respondent No. 3 is totally unacceptable and because of the said wrong information given to the respondent Nos. 4 and 5 that the petitioner resumed the work, the letter dated 31.08.2020 was issued thereby terminating the arrangement with the respondent No. 3. The submission by Mr. 4 and 5 that the petitioner resumed the work, the letter dated 31.08.2020 was issued thereby terminating the arrangement with the respondent No. 3. The submission by Mr. Deka that there was no communication or any intimation from the respondent No. 5 nor respondent No. 3 to the petitioner can very well be inferred if we take into consideration the Gmail dated 9th May, 2019 wherein the respondent No. 5 specifically asked the respondent No. 3 to resolve by way of discussion if there was any issue in respect of the contractor instead of allowing to communicate by the petitioner to the respondent No. 5. On 17.02.2020 there was a meeting wherein the petitioner was present along with the high power committee members wherein nothing adverse to the petitioner was discussed. The said Committee in the said meeting accepted the reasons for non completion of the work and the meeting ended with a direction to the Finance Officer to explore the possibility of disbursal of the left out amount of 28% of the running bill to the petitioner. The respondent more specifically the respondent No. 5 had not raised any dissatisfaction in respect of quality of the construction work. On the other hand, as per the subsequent NIT, total work value is more or less of Rs. 71 lakhs which is 50% of the total work value allotted to the petitioner. During the course of the argument, Mr. Deka submits that the petitioner is ready to complete the work within the time period of three months which is the time period granted to the contractor in the subsequent NIT and without claiming any advance or running bill. On a specific query to Mr. Nath to the proposal of Mr. Deka, he submits that the respondents more specifically the respondent Nos. 4 and 5 are not favoring the petitioner in granting the left out work considering the credibility of the petitioner. 12. I have given due consideration to the submissions of the learned counsel including the one of Mr. Nath. If the submission of Mr. Deka, he submits that the respondents more specifically the respondent Nos. 4 and 5 are not favoring the petitioner in granting the left out work considering the credibility of the petitioner. 12. I have given due consideration to the submissions of the learned counsel including the one of Mr. Nath. If the submission of Mr. Deka is taken into consideration that the petitioner is ready to complete the left out work within a period of the three months time and after the subsequent NIT is taken into consideration, the respondent No. 5 shall have to undertake a fresh exercise in computing the contractual formalities with the prospective successful bidder and the whole process shall have to be started de-novo. Similarly the petitioner had already completed more or less 50% of the total work and if he is disallowed to carry out the work he would be adversely affected coupled with the civil consequence moreso when he is the registered contractor under the respondent No. 3. Moreover, there was no hearing given to him by the respondent No. 5 as the principal of the agent respondent No. 3 who was dealing with the petitioner before issuance of the termination letter as such in order to do justice and applying the principle of equity, I am applying my discretion with a direction to the respondent No. 5 to allow the petitioner to carry out the work upon any terms and conditions what the respondent No. 5 desires and on the other hand, the petitioner shall make an endeavor to follow the direction of the respondent No. 5 and complete the work within a period of three months from the date of decision taken by the respondent Nos. 4 and 5. It is hereby clarified that the petitioner shall complete the left out works without seeking for the amount of 28% nor any amount on the basis of fresh R.A. Bills. Failure to complete the work within the stipulated time period, shall follow consequence as per the Agreement of Contract executed by the petitioner with the respondent No. 3. Accordingly the respondents shall take a decision within 7 (seven) days from the date of receipt of the copy of this order. Further the impugned NIT dated 11.09.2020 issued by the respondent No. 5, the Chief Executive Officer, Assam Livestock Development Agency is set aside and quashed. Accordingly, this writ petition stands disposed of.