IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.3934 of 2005 RAVINDRA KUMAR DUBEY son of late Sahodar Dubey, resident of village- Narayanpur, P.S. Uchakagaon, via- Kuchaikote, District- Gopalganj. Versus 1.THE STATE OF BIHAR 2. The Engineer-in-Chief –Additional Commissioner-cum- Special Secretary Rural Development Department, Bihar, Patna. 3. The Chief Engineer-2, Rural Engineering Organization, Bihar, Patna. 4. The Executive Engineer, Rural Engineering Organization Work Division, District- Gopalganj. ----------- For the petitioner : Mr. Prabhat Ranjan-I For the State : Mr.P.K.Singh - 2 8.5.09 Petitioner is aggrieved by denial of payment in respect of two of his contracts under which certain works were done. A counter affidavit has been filed in which the letter of Chief Engineer dated 7.6.2005 has been appended as Annexure-A, which is based on the findings of the Liability Committee. So far as the first contract is concerned, the balance due, as claimed by the petitioner is about Rs. 49,830/-. The same is being denied on the ground that the Liability Committee, on inspection, found certain deficiency in the work and as such the balance was held to be not payable. What is not stated therein is that the work was completed way back in 1993 and the Liability Committee made inspection in the year 2005 i.e. after 12 years. After 12 years complain about fitness of bitumen and other things loose all relevance. This, in my view, is only a pretence of an excuse to deny the legitimate payment. The report of the Liability Committee is neither legal nor logical. It cannot be accepted. Then we come to the second claim wherein the balance due is about Rs.65,066/-. Here the denial of 2 payment is based on a Circular issued by the Cabinet (Vigilance ) Department of the year 1983. The Circular says that the Junior Engineer must verify the progress of the work every month in the measurement book. It is stated that this was not done. It is further stated that the Executive Engineer has not verified the measurement book and as such payment cannot be made to the petitioner. This Court cannot accept such an absurd stand. The stand is that because officer of the State failed to perform their duty the contractor must suffer. Often I have quoted from the judgment of Chief Justice Chagla in the case of All India groundnut Syndicate Ltd. –v- Commissioner of Income Tax, Bombay City, since reported in AIR 1954 Bombay 232 : “But the most surprising contention is put forward by the Department that because their own officer failed to discharge his statutory duty, the assessee is deprived of his right which the law has given to him under sub-section(2) of S.24. In other words, the Department wants to benefit from and wants to take advantage of its own default. It is an elementary principle of law that no person- we take it that the Income-tax Department is included in that definition- can put forward his own default in defence to a right asserted by the other party. A person cannot say that the party claiming the right is deprived of that right because “ I have committed a default and the right is lost because of that default.” If such a plea is permitted then State can easily get all works done and the Junior Engineer would then blackmail all contractors in refusing to verify the work and State would get the 3 work done and deny liability to pay. This manner, I do not think , is permissible. I ,therefore, allow this writ petition and direct that the payment be made in the light and observation made above in respect of both the contracts.. The respondent –Chief Engineer too would be under liability to ensure payment to the petitioner on both counts within two months from the date of a production of a copy of this order. SINGH (Navaniti Prasad Singh, J.)