IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.2107 of 2011 M/S BANSIDHAR CONSTRUCTION PVT. LTD. AT PATILA, MANER, PATNA THROUGH ITS DIRECTOR SUBHASH PRASAD YADAV, S/O SRI PREMDHAR RAI, R/O VILL.- HETANPUR, POST- MADHAWPUR, P.S.- SAHPUR, DISTT.- PATNA……………………………………………….....PETITIONER. VERSUS 1. THE STATE OF BIHAR THROUGH THE PRINCIPAL SECRETARY ROAD CONSTRUCTION DEPARTMENT, GOVERNMENT OF BIHAR, VISHESWARAIYA BHAWAN, BAILEY ROAD, PATNA 2. THE ENGINEER IN CHIEF - CUM - ADDITIONAL SECRETARY-CUM-SPECIAL SECRETARY ROAD CONSTRUCTION DEPARTMENT, GOVERNMENT OF BIHAR, VISHESWARAIYA BHAWAN, BAILEY ROAD, PATNA 3. THE CHIEF ENGINEER, SOUTH BIHAR WING, ROAD CONSTRUCTION DEPARTMENT, PATNA 4. THE SUPERINTENDING ENGINEER BHOJPUR ROAD CIRCLE, ARA, ROAD CONSTRUCTION DEPTT. 5. THE SUPERINTENDING ENGINEER ROAD CONSTRUCTION DEPARTMENT, CENTRAL CIRCLE, PATNA 6. THE EXECUTIVE ENGINEER, ROAD CONSTRUCTION DEPTT., PATNA CITY, ROAD DIVISION, GULJAR BAGH, PATNA-6 7. THE EXECUTIVE ENGINEER, SAHABAD ROAD DIVISION, ARA, ROAD CONSTRUCTION DEPTT……….RESPONDENTS. For the petitioner : Mr. Naresh Kr. Malhotra, Sr. Advocate with Mr. Shivendra Kishore, Advocate. For the respondents : Mr. Ashutosh Kumar, GP-2 with Mr. R.K. Singh, GP-15. P R E S E N T HON’BLE MR. JUSTICE S.N. HUSSAIN O R D E R 05/ 25.08.2011 This writ petition has been filed by the petitioner challenging letter no. 4475(E) dated 22.10.2010, so far it relates to the petitioner, by which the Engineer-In-Chief, Road Construction Department, Government of Bihar, Patna declared 59 contractors including the petitioner as defaulter and debarred them from participating in any notice inviting tender in any of the works - 2 - department and for quashing office order bearing memo no.487 dated 17.04.2009 (Annexure-2) by which the Executive Engineer, Sahabad Road Division Ara debarred the petitioner from participating in any tender in Sahabad Road Division Ara and also for quashing office order bearing memo no.908 dated 26.06.2009 by which Executive Engineer, Patna City Road Division, Patna debarred the petitioner from participating in any tender in the said division and further for directing the respondents to allow the petitioner to participate in the NIT of works department of the State Government with all consequential benefits. 2. Petitioner is a company incorporated under the Companies Act, 1956 and was a registered Class-I contractor bearing Registration No.11 of 2007 (Road) dated 25.06.2007 and in response to the notice inviting tender of 2007 issued by Executive Engineer, Sahabad Road Division Ara for widening and strengthening of Ara- Ekauna-Khaira-Sahar Road and other connected works, the petitioner submitted his tender along with documents and on 26.11.2007 he agreed to execute item no.2 of the works, namely widening and strengthening of Ara-Ekauna-Khaira-Sahar Road from KM.19 to 35 for the year 2007-08 on schedule rate, whereafter work order was issued by the Executive Engineer in favour of the petitioner on 12.02.2008 and agreement was executed between the parties on 05.02.2008 for the aforesaid works at the cost of Rs.12,35,93,460.00 vide Agreement No.21 S.B.D./07-08 in which the date of completion of work was 11.08.2009 (18 months). 3. Learned counsel for the petitioner stated that both the - 3 - parties had also signed Standard Bidding Document which contained the terms of contract, Clause 10 (C) of which provided that the respondents shall make payment on account of increase in price of materials/wages due to the statutory orders and hence when the price of material/wages escalated on 24.03.2008 and 01.04.2009 after issuance of work order dated 12.02.2008 and the RCD made the schedule of rates effective from the aforesaid dates, the petitioner claimed payment at the said rate under Clause 10 (C) of the terms of the contract as he had purchased the materials and paid wages on the escalated rates, but the claim of the petitioner was never settled. 4. Learned counsel for the petitioner also submitted that Dhamania Bridge collapsed and the petitioner had to carry stone chips and other materials through truck/tractor covering distance of about 200 KM and during that period the area experienced prolonged rainy season and within that period the general Lok Sabha Election of 2009 was also held and all these facts caused delay in the execution of the work. In addition to that, the petitioner was given extra work of earth filling on the same road by the authorities vide letter no.440 dated 17.03.2009 which was to be completed within the same period. Hence, the petitioner filed an application for extension of time till 31.03.2010 for completion of the works as only top layer work had remained to be completed. Finding the entire work except top layer work had been completed the said request of the petitioner was recommended by the Executive Engineer, Sahabad Road Division Ara vide his letter no.1076 dated 27.07.2009 and forwarded the request of the petitioner to the Superintending Engineer, RCD, - 4 - Central Circle, Patna with the recommendation of the Assistant Engineer of the Sub-Division for extension of time till 31.03.2010. In response, the Superintending Engineer vide letter dated 1261 dated 28.10.2009 called for a report from the Executive Engineer with regard to the details of work executed by the petitioner in order to settle his claim under Clause-10 (C), whereafter the Executive Engineer sent a detailed report with regard to work executed by the petitioner for necessary action vide letter no.1881 dated 21.12.2009. 5. Learned counsel for the petitioner averred that while the matter of extension of time and settlement of petitioner’s claim under Clause-10(C) of the Terms of Contract was under consideration before the Superintending Engineer, the Executive Engineer vide his memo no.487 dated 17.04.2009 debarred the petitioner from participating in any tender in Sahabad Road Division Ara, rescinded his Agreement No.21 S.B.D./07-08 and forfeited the security money and earnest amount including saving deposit of the petitioner. Learned counsel for the petitioner stated that the aforesaid action of the authority concerned was absolutely illegal and arbitrary and also violative of Clause 3 and 14 of the terms of the contract and principles of natural justice, as it was passed without giving any notice to the petitioner. 6. Learned counsel for the petitioner also argued that in the year 2007-08 the petitioner was also allotted the work for strengthening and widening of Agam Kuan – Kamal Dah (NH-30) 1st and 2nd KM of link road for a sum of Rs.4,24,93,476.00 for which Agreement No.35 F2 for the year 2008-09 was executed between the - 5 - parties, according to which the work was to commence from 11.07.2008 and was to be completed by 10.10.2009. He also claimed that he completed the G.S.B.,W.M.M. on some part of the aforesaid road and also completed B.M. and S.D.B.C. on other part of the road, but work on some part of the road could not be completed due to objection raised by the villagers on the ground of non-acquisition of land. Although the acquisition of land was yet to be made, the authorities vide memo no.908 dated 26.06.2009 debarred the petitioner from participating in any tender in the said division. No copy of the said order was either supplied to the petitioner nor has even been annexed to the counter affidavit filed by the respondents. 7. Learned counsel for the petitioner further argued that thereafter the Assistant Engineer of Patna City Road Sub-Division vide his letter no.630 dated 12.07.2010 informed the Executive Engineer of the Division that rest of the work with respect to widening of Agam Kuan – Kamal Dah can be completed only after acquisition of land in question, whereafter the Executive Engineer annexing the report of the Assistant Engineer sought guideline from the Superintending Engineer vide letter no.1807 dated 31.08.2010 as to whether the agreement with the petitioner be rescinded or the petitioner be allowed to complete the work. The Superintending Engineer did not respond and the matter was referred to the Engineer- In-Chief vide letter no.2250 dated 23.11.2010, but the Engineer-In- Chief also failed to give any guideline in that regard but in the meantime the impugned letter no.4475 (E) dated 22.10.2010 was issued by the Engineer-In-Chief, Road Construction Department, - 6 - Patna declaring the petitioner as defaulter and debarring him from participating in any tender along with others which was communicated to all the works department. 8. Learned counsel for the petitioner claimed that the petitioner has been punished for no fault on his part and without giving any show-cause notice to the petitioner, hence even the principle of natural justice has been violated and the entire actions of the respondents apart from being arbitrary, perverse and malafide, are colourable exercises of power. 9. On the other hand, learned counsel for the respondents contested the claim of the petitioner and stated that since the matter in dispute is a contractual matter and alternative remedy is available to the petitioner for approaching the Bihar Public Works Contracts Disputes Arbitration Tribunal according to the provisions of the Bihar Public Works Contracts Disputes Arbitration Tribunal Act 2008, there is no occasion for this court to interfere in the matter. 10. Learned counsel for the respondents also argued that when the petitioner did not complete the work in spite of his undertaking and several opportunities granted to him, the Executive Engineer vide memo no.1810 dated 10.12.2009 rescinded the contract, forfeited security money and earnest amount after considering the entire matter in detail and hence the said order is the main order against the petitioner but he has not challenged it in this writ petition and hence it has attained finality and accordingly the reliefs sought by the petitioner cannot be legally granted to him. 11. Learned counsel for the respondents also averred - 7 - that in the terms and conditions of NIT tenderers were clearly advised to inspect and examine the site and its surrounding and satisfy themselves before submitting their tenders as to the nature of the ground and sub soil, the forms and nature of the site etc. and that submission of a tender by a tenderer would imply that he had read the notice and all other contract documents and had made himself aware of the scope and specifications. He also argued that mere communications between two authorities of the department, namely letter dated 12.07.2010 written by Assistant Engineer to the Executive Engineer and letter dated 31.08.2010 written by the Executive Engineer to the Superintending Engineer cannot make out a case for the petitioner. 12. Learned counsel for the respondents also averred that there is no illegality in the impugned actions of the authorities nor there is any violation of the principles of natural justice as opportunities were given to the petitioner and time was extended on petitioner’s request, hence there is no occasion for this court to exercise its jurisdiction in the instant matter specially when the petitioner had not challenged and had accepted the main order dated 10.12.2009 by which his agreement was rescinded and the security money and earnest amount had been forfeited. 13. From the arguments of learned counsel for the parties as well as from the materials on record, it is quite apparent that the petitioner is aggrieved by two different and distinct acts of the authorities, namely (i) order of rescinding the contract vide office memo dated 10.12.2009 of the Executive Engineer, Sahabad Road - 8 - Division Ara and (ii) order of debarring the petitioner from participating in any future notice inviting tender in any of the works department declaring him defaulter vide memo dated 22.10.2010 issued by Engineer-In-Chief, Road Construction Department, Government of Bihar. 14. This writ petition has been filed against latter order dated 22.10.2010 with regard to debarring of petitioner from participating in any future inviting notice tender in any of the works department as well as its consequential orders, whereas the former office order dated 10.12.2009 issued by the Executive Engineer, Sahabad Road Division Ara rescinding the contract of the petitioner has been challenged by the petitioner before the Tribunal in Reference Case No.40 of 2010, which matter is pending. Hence, there is no question of petitioner’s accepting order dated 10.12.2009 issued by the Executive Engineer or the said order having become final. The said order is rightly under challenge before the Tribunal and its pendency cannot legally affect the reliefs claimed by the petitioner in the instant writ petition, as both the matters are independent of each other and depend on their respective facts and circumstances which are different. 15. From the notice inviting tender annexed to the writ petition it transpires that the tenderers were not asked to investigate about the title of the land for which the work was allotted, rather the tenderers were only advised to examine the site with respect to its nature, form, access etc. Hence there was no occasion for the petitioner to investigate about the title of the land offered by the authorities of the State of Bihar. On the other hand, it was the duty of the authorities - 9 - issuing NIT to enquire into and investigate about the title of the land before issuing any such notice and the authorities were not at all justified in including land of the people not belonging to the State of Bihar in such type of tender notices for public work. 16. Clause-10(C) of the contract provided that respondents shall make payment on account of increase in price of materials/wages due to statutory orders and there is no dispute that immediately after the execution of the said agreement the prices of materials/wages escalated on 24.03.2008 and 01.04.2009 vide schedule of rates issued by the Road Construction Department which were made effective from the aforesaid dates. Although the petitioner raised his claim on the basis of the aforesaid escalated rates as well as Clause 10(C) of the terms of contract but the claim of the petitioner was not settled and remained unheeded. It is also apparent that petitioner was given extra work for earth filling on the same rate vide letter no.440 dated 17.03.2009 to be completed within the same period and there were other hindrances also such as collapse of Dhamania Bridge, prolonged rainy season, interruption of supply due to general Lok Sabha Election of 2009 and to top it all objection of the villagers that some part of the road was private non-acquired land. 17. Even from the case as propounded on behalf of the respondents it does not appear that the said objections were contradicted to be wrong by any authority rather it was an admitted fact that people were up in arms against the constructions of part of road upon private non-acquired lands and it was also apparent from letter of the Junior Engineer dated 12.07.2010 and the letter of the Executive Engineer dated 31.08.2010 that constructions on some part of the proposed road - 10 - were not being allowed by the people as that part was being constructed on the private non-acquired land, whereas for the other parts of the road, the petitioner had completed G.S.B., W.M.M. and B.M., S.D.B..C work, but the Superintending Engineer sat over the matter and failed to respond although he was the authority to consider the same and extend the period. 18. From the aforesaid circumstances, it cannot be denied that both the matters with respect to settlement of petitioner’s claim as per Clause 10(C) of the contract for escalated rates for the work completed by the petitioner and with respect to the extension of time for the reasons which was even admitted by the authorities concerned, remained pending with the authorities concerned, namely the Superintending Engineer and the Engineer-In-Chief and without deciding it the impugned orders dated 22.10.2010, 17.04.2009 and 26.06.2009 had been passed by the respondents authorities without even considering the reasons and the applications of the petitioner and the recommendations made by the other authorities of the department. 19. The respective claims of the parties also clearly show that before passing the impugned orders no notice or information about the intention of the authorities was given to the petitioner and hence the said orders are in complete violation of the principles of natural justice. Although it was claimed by the respondents that some extension was given to the petitioner but even such letter was never served by the authorities upon the petitioner nor any receipt could be filed by them. Hence, the entire attitude of the respondents is absolutely illegal, arbitrary and perverse. - 11 - 20. So far the objection of respondents with respect to the availability of alternative remedy to the petitioner is concerned, no doubt this is a contractual matter but in the instant case the pleadings of the parties have been completed and they have been heard at length on all the issues involved. Furthermore, this matter also involves complete violation of the principle of natural justice by the respondents while passing the impugned orders as has been discussed above. Hence, there is no occasion for this court to shirk from its duty and to refrain from deciding the said issues, specially when it is fully empowered to decide the matter as per the provisions of Article 226 of the Constitution of India. 21. In view of the facts and findings detailed above, the impugned orders and actions of the authorities concerned dated 22.10.2010, 17.04.2009 and 26.06.2009 cannot be sustained in law and are hereby quashed and this writ petition is allowed with a direction to the concerned authorities to settle the petitioner’s claim as per Clause 10(C) of the Terms of Contract for escalated rates for the work completed by the petitioner and also the claim of petitioner for extension of time for completion of work on the grounds specified therein and forwarded by the Executive Engineer and Junior Engineer, within two months from the date of receipt/production of a copy of this order. Harish (S.N. Hussain, J.)