IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.7411 of 2009 AMAR SINGH, son of Birja Singh, resident of Shekhpura, P.S.-Shastri Nagar in the District of Patna. ……Petitioner Versus 1. The State Of Bihar 2. The I.G. Prison, Bihar, Patna 3. The Jail Superintendent Phulwari Sharif, Patna 4. The Jail, District Jail, Phulwari Sharif, Patna 5. The Chief Consultant Technical, Infrastructure Development Authority, Udyog Bhawan, East Gandhi Maidan, Patna. 6. The Managing Director, Infrastructure Development Authority, Udyog Bhawan, East Gandhi Maidan, Patna. 7. The Chief Consultant(BOT), Infrastructure Development Authority, Udyog Bhawan, East Gandhi Maidan, Patna. …….Respondents. ----------- 03. 16.12.2009 Heard learned counsel for the petitioner and learned senior counsel representing Infrastructure Development Authority. Annexure-8 dated 21.03.2009 is the subject matter of challenge in the present writ application. By virtue of this order the contract work awarded to the petitioner for construction of new ward and watch tower in the District Jail, Phulwarisharif was annulled and the security deposit made by the petitioner stood forfeited. The contract was floated by the Infrastructure Development Authority (hereinafter referred to as the Authority) for the construction of a new ward(G+1) and watch tower in the District Jail, Phulwarisharif. Since petitioner was the successful bidder, an agreement was entered between the parties on 26.05.2008. The terms and 2 conditions of the agreement are reflected from Annexure-1 to the writ application. The work order was also issued in favour of the petitioner in conformity with agreement which is reflected from annexure-2 to the writ application. Sometime after the work was sought to begin by the petitioner, there was a kind of change in the mindset of the Authority of the present dispensation that looking at the constraint in the said jail a G+1 construction of ward may not meet the required space. There is some reflection about the same in the communication i.e. the letter dated 23rd of June, 2008, contained in Annexure-C to the supplementary counter affidavit filed on behalf of the Authority. There is further material from the record to show that the respondent authorities wanted to go along of the suggestion of the I.G., Prison that instead of G+1, G+2 ward should be constructed. Petitioner was even handed over a so called drawing for construction of G+ 2 wards. Work could not begin in view of the said change having been effected as petitioner faced difficulties in accepting the changes unilaterally made by the respondents after the agreement was entered between the parties. It is not disputed that the work did not begin so was not completed and it is in this backdrop Annexure-8 came to be issued. Submission of the learned counsel for the petitioner is that the offer and the acceptance crystallized in 3 the form of agreement dated 26.08.2008. There was clear understanding that the petitioner had to carry out the work for construction of a new ward which was of G+1 along with a watch tower. He had quoted his rates based on the said nature of work but after the acceptance and execution of the agreement the very essence of the contract was changed by making a request upon the petitioner to complete G+2 with the same estimate and the rates which was initially quoted for G+1. The stand of the petitioner is that he did not demand a fresh contract to be executed but he surely made a request for revision of estimates and the rates since the award of the initial contract had lost its meaning in view of the changed nature of work which was required to be carried now. Since no positive response came from the respondents the petitioner did not proceed with the work and the contract stood frustrated. There are bonafide reasons available in favour of the petitioner not to carry out work in terms of the agreement and if that be so then there was no occasion for the respondent authorities to pass an order contained in Annexure-8. Counter affidavit has come to be filed on behalf of the Authority. Their stand is that after award of the work and the agreement the Authority did feel that instead of G+1, G+2 should be constructed. A revision in the BOQ was also effected. The revised drawing and BOQ was forwarded to the 4 contractor but he did not respond or cooperate with the Authority. The matter dragged on and since no work began the consequential order came to be passed. In support of what has been stated certain Annexures have been brought on record in the supplementary affidavit filed on behalf of the Authority. But from the submissions made by the authorities and the stand taken in the counter affidavit, one basic fact does emerge that after execution of the contract of the work in question the respondents wanted the petitioner to construct G+2 building instead of G+1. This may have been necessitated due to paucity of space and required demolition of certain old construction. There was clear understanding between the parties as to the nature of work which had to be carried out based on tender notice and the agreement. If it underwent substantial change, if not a drastic change which was now expected to be completed by the petitioner, then obviously the original contract stood frustrated as the respondent did not want to stick with the original contract and the nature of work which was required to be carried out by the petitioner. It is not difficult to understand the reluctance on the part of the petitioner to accept responsibility of completing work of constructing G+2 building instead of G+1 because the whole structure and the cost involved would undergo a change. It would have been in 5 the interest of things that either a fresh tender was called for due to change in the plans or a negotiated settlement entered between the parties. If the petitioner did not accept the revised BOQ on the basis of initial price quoted by him for the contract then the same could not be forced upon him. From what has been recorded in the earlier part of the order, the Court does reach a conclusion that the decision of the Respondent Authority was a hasty decision not based on sound reasoning and the petitioner can not be punished by rescinding the contract and forfeiting the security money. From the submissions and pleadings, it is evident that the petitioner is no longer interested in carrying out the contract contained in Annexure-1 on the rate and the price he had quoted but is willing to still shoulder the responsibility provided the rates are revised in consonance with the revision of price of raw material which has escalated over a period of time since the agreement was entered. That is the matter for the respondent authority and the petitioner to work out. The Court can not give a categorical direction in this regard. The Court however has no hesitation in recording that the respondents are duty bound to consider release of the security money which has been forfeited due to the so called non completion of the work in the above mentioned circumstances. The Court expects 6 the respondents to take a decision within a period of three months from the date of production of a copy of this order. The writ petition stands allowed and Annexure-8 dated 21.03.2009 stands quashed. Shageer (Ajay Kumar Tripathi, J)