IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.14568 of 2010 BINAY PRAKASH S/O LATE BINDESHWARI RAM R/O D-85, POLICE COLONY, ANISHABAD, P.S.- GARDANIBAG, DISTT.- PATNA…………………………….PETITIONER. Versus 1. THE STATE OF BIHAR 2. THE PRINCIPAL SECRETARY, ROAD CONSTRUCTION DEPARTMENT, GOVERNMENT OF BIHAR, BISHWESHWARAIYA BHAWAN, BAILEY ROAD, PATNA. 3. THE ENGINEER-IN-CHIEF - CUM - ADDITIONAL SECRETARY - CUM - SPECIAL SECRETARY, ROAD CONSTRUCTION DEPARTMENT, GOVERNMENT OF BIHAR, BISHWESHWARAIYA BHAWAN, BAILEY ROAD, PATNA. 4. THE CHIEF ENGINEER, GANGA BRIDGE PROJECT WING, ROAD CONSTRUCTION DEPARTMENT, GOVERNMENT OF BIHAR, PATNA 5. THE EXECUTIVE ENGINEER, GANGA BRIDGE PROJECT WING, ROAD CONSTRUCTION DEPARTMENT, GOVERNMENT OF BIHAR, PATNA 6. THE ASSISTANT ENGINEER, GANGA BRIDGE PROJECT WING, ROAD CONSTRUCTION DEPARTMENT, GOVERNMENT OF BIHAR, PATNA 7. THE JUNIOR ENGINEER, GANGA BRIDGE PROJECT WING, ROAD CONSTRUCTION DEPARTMENT, GOVERNMENT OF BIHAR, PATNA……………………….RESONDENTS. For the petitioner : M/s S.B. K. Manglam and Anita Kumari, Advocates. For the respondents : Mr. P.K. Verma, AAG-V with Mr. Saroj Kumar Sharma, AC to AAG-V ----------- 06/ 21.04.2011 Heard learned counsel for the petitioner and learned counsel for the respondents. 2. This writ petition has been filed by the petitioner challenging order dated 18.08.2010 (Annexure-11) by which the Engineer-in-Chief-cum-Additional Secretary–cum–Special Secretary, Road Construction Department, Government of Bihar (respondent no.3) rejected the application of the petitioner dated 12.07.2010 (Annexure-10) filed in compliance of order dated 28.06.2010 (Annexure-9) passed by a Bench of this court in C.W.J.C. No.8001 of - 2 - 2010 and also challenging letter dated 21.04.2010 (Annexure-7) sent by the Chief Engineer, Ganga Bridge Project Wing, Road Construction Department, Government of Bihar (respondent no.4) directing the Executive Engineer, Ganga Bridge Project Wing, Road Construction Department, Government of Bihar (respondent no.5) to cancel the agreement of the petitioner with respect to Pitambara Mandir Visthapit Colony Road and issue fresh tender for construction of the said road and further challenging letter dated 03.05.2010 (Annexure-8) issued by the Executive Engineer, Ganga Bridge Project Wing, Road Construction Department, Government of Bihar (respondent no.5) by which he cancelled the agreement of the petitioner bearing Agreement No.5F2/2008-09 dated 30.09.2008 (Annexure-1) in view of the aforesaid letter of respondent no.4 dated 21.04.2010 (Annexure-7). The petitioner has also sought direction to the respondents authorities to allow him to complete construction of the said road for which a revised agreement was entered into between the petitioner and respondent no.5 on 19.03.2010 (Annexure-3) and for other ancillary reliefs. 3. From the arguments of learned counsel for the parties and the materials on record, it is not in dispute that on 30.09.2008 (Annexure-1) an agreement was entered into between the parties for construction of Pitambara Mandir Visthapit Colony Road, part of which was to be constructed by bitumen and part by P.C.C. Thereafter objections were raised by the local people due to which a supplementary agreement was entered into between the parties on 19.03.2010 (Annexure-3) for construction of the entire road by P.C.C. - 3 - 4. It transpires that subsequently in view of order dated 19.04.2010 passed by a Division Bench of this court in case of Deepak Mukherjee and another Vs. The State of Bihar & others., reported in 2010 (3) PLJR 998, the Chief Engineer (respondent no.4) issued letter dated 21.04.2010 (Annexure-7) directing the Executive Engineer (respondent no.5) for cancellation of the agreement with the petitioner and for issuance of fresh tender for completion of the remaining construction work of the road. In view of the aforesaid letter, the Executive Engineer (respondent no.5) also issued letter dated 03.05.2010 (Annexure-8) cancelling the said agreement and directing the petitioner to remain present on 07.05.2010 for measurement of the work done by him. 5. Against the said orders of the authorities, petitioner filed C.W.J.C. No.8001 of 2010 which was dismissed as withdrawn by a Bench of this court vide order dated 28.06.2010 (Annexure-9) with liberty to the petitioner to approach the Engineer-in-Chief-cum- Additional Secretary-cum-Special Secretary, Road Construction Department, Government of Bihar (respondent no.3) along with a copy of that order within a period of 10 days and the said authority shall consider and dispose of his claims within a period of four weeks thereafter and till such time no third party rights should be created by the authorities. 6. In view of the aforesaid order of this court, petitioner filed an application before the above named Engineer-in-Chief on 12.07.2010 (Annexure-10) and the said application of the petitioner was rejected by the Engineer-in-Chief vide order dated 18.08.2010 - 4 - (Annexure-11) holding that the agreement of the petitioner had been cancelled in view of order of the High Court. This order is under challenge in the instant writ petition. 7. From the facts and circumstances of this case, it is quite apparent that the order of the High Court referred in the said order of the Engineer-in-Chief is dated 19.04.2010 passed by a Division Bench of this court in case of Deepak Mukherjee and another (Supra) by which the writ petitions were disposed of recording the agreed suggestions which were to be carried out as specifically provided in paragraph-5 of the said order. 8. A perusal of the said order shows that the Division Bench of this court had taken a very serious view with respect to construction of road by raising its level sometimes to the extent higher than the plinth level of the houses on the flanks of such road creating serious problems to the residents. It was held that the level of the road should not be normally raised and for that purpose existing road had to be scrapped so that fresh road is laid on the same height, but since the waste materials by scrapping the road were bound to create atmospheric pollution and environmental hazards, the same could be recycled through Cold Recycling Method or Hot Recycling Method which were necessary to be introduced to ensure that the height of the roads are not increased either it is made black top by bitumen or is made of concrete by P.C.C. It was also held that till the said new methods of recycling are taken recourse to for the purposes of construction of road, appropriate and adequate measures shall be taken by constructing the roads in such a manner that the height of the roads - 5 - are not increased ordinarily beyond the plinth area and under no circumstances cause any inconvenience to the inhabitants of the locality. 9. In view of the aforesaid directions of the Division Bench of this court, it is quite apparent that no construction of P.C.C. roads was possible unless the aforesaid recycling methods are adopted, but the agreement which is under consideration in this writ petition was with respect to constructions of P.C.C. road and was executed before passing of the aforesaid decision of the Division Bench of this court. Hence, the authorities were quite justified in cancelling the said agreement immediately after they came to know about the aforesaid order passed by the Division Bench of this court. 10. In the said circumstances, this court does not find any illegality in the impugned order of the Engineer-in-Chief (respondent no.3). Accordingly, this writ petition is dismissed. However, if the new method is adopted and the machines are brought for the said purpose and any allotment is to be made for constructions of road by the new method without raising the height of the road, the authorities concerned shall give preference to the petitioner if he takes part in the tender and his bid is found to be one of the lowest bids. Harish (S.N. Hussain, J.)