IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC NO.8298 OF 2009 M/S GANPATI ENGINEERING THROUGH ITS PARTNER MR PRADIP KR RUKHAIYAR, SHIVPURI, ANISABAD, PATNA. VERSUS (1) THE STATE OF BIHAR (2) THE PRINCIPAL SECRETARY WATER RESOURCES DEPARTMENT, BIHAR, PATNA (3) THE ENGINEER IN CHIEF, CENTRAL, WATER RESOURCES DEPARTMENT, BIHAR (4) THE SECRETARY, WATER RESOURCES DEPARTMENT, BIHAR (5) JOINT SECRETARY, WATER RESOURCES DEPARTMENT, BIHAR & (6) THE CHIEF ENGINEER, WATER RESOURCES DEPARTMENT, ANISHABAD, PATNA. WITH CWJC NO.5118 OF 2009 NEELAM RAJ CONSTRUCTION PVT.LTD THROUGH MD MR NEELAM .KUMAR, HABIPURA, SOHSARAI, NALANDA VERSUS RESPONDENTS AS IN C.W.J.C.NO. 8298/09 WITH CWJC NO.6265 OF 2009 KUMAR SAROJ, S/O SRI PRASAD SINGH, BARA KHURD, NOOR SARAI, NALANDA. VERSUS RESPONDENTS AS IN C.W.J.C.NO. 8298/09 WITH CWJC NO.6728 OF 2009 ARVIND KUMAR DUBEY, S/O SRI S. N. DUBEY, MEYAR VIA SOH SARAI, NOOR SARAI, NALANDA VERSUS (1) THE STATE OF BIHAR (2) THE SECY, BUILDING CONSTRUCTION DEPT, PATNA (3) THE ENGINEER IN CHIEF - ADDL COMMISSIONER -SPL SECY BUILDING CONSTRUCTION DEPARTMENT, BAILEY ROAD, PATNA (4) THE JOINT SECY, BUILDING CONSTRUCTION DEPARTMENT, BAILEY RD, PATNA (5) THE CHIEF ENGINEER, BUILDING CONSTRUCTION DEPARTMENT, BAILEY ROAD, PATNA. WITH CWJC NO.6878 OF 2009 SANTOSH KUMAR, S/O SRI R.PRASAD, QUAMRUDDINGANJ, BIHARSHARIF VERSUS RESPONDENTS AS IN C.W.J.C.NO. 6728/09 WITH CWJC NO.5160 OF 2009 SANTOSH KUMAR, S/O SRI RAMESHWAR PRASAD, QUAMRUDDINGANJ, BIHARSHARIF VERSUS RESPONDENTS AS IN C.W.J.C.NO. 8298/09 WITH CWJC NO.5838 OF 2009 CHITRA GUPTA CONSTRUCTION PVT. LTD THROUGH ITS EXECUTIVE DIRECTOR MR J. SINHA, THAKURBARI ROAD, JEHANABAD VERSUS RESPONDENTS AS IN C.W.J.C.NO. 6728/09 WITH CWJC NO.6072 OF 2009 CHITRA GUPTA CONSTRUCTION PVT.LTD THROUGH EXE DIRECTOR MR J.SINHA, THAKURBARI ROAD, JEHANABAD VERSUS RESPONDENTS AS IN C.W.J.C.NO. 8298/09 WITH CWJC NO.6287 OF 2009 BISHWANATH PRASAD, S/O LATE BANDHU MAHTO, KAGAZI, MAIN ROAD, BIHAR SHARIF, NALANDA VERSUS RESPONDENTS AS IN C.W.J.C.NO. 6728/09. WITH CWJC NO.6343 OF 2009 M/S VISHWESHWARAIYA CONSTRUCTION THROUGH PARTNER MR SANJAY KUMAR, S/O SRI K.J.PRASAD, AMBAIR, BIHARSHARIF VERSUS RESPONDENTS AS IN C.W.J.C.NO. 6728/09 WITH CWJC NO.6616 OF 2009 NEELAM KUMAR, S/O LATE D. PRASAD, HABIBPURA, SOHSARAI, NALANDA VERSUS RESPONDENTS IN C.W.J.C.NO. 6728/09 - 2 - ----------- 4 10.08.2009. Heard learned counsel for the parties. 2. As the issues involved in all these eleven writ petitions are common, the same are taken up together for disposal. 3. Five of above cases, namely, C.W.J.C. Numbers 5118,5160,6072,6265 and 8298 of 2009 relate to Water Resource Department, Patna, Bihar, whereas rest six cases, namely, C.W.J.C.Numbers 5838, 6287,6343,6616,6728 and 6878 of 2009 relate to Building Construction Department, Vishweshwarraiya Bhawan, Bailey Road, Patna, Bihar. The case of petitioner of C.W.J.C.No. 5838 of 2009 is different from rest of petitioners of 2nd batch of cases relating to Building Construction Department. Thus this case would be dealt separately towards the end. 4. The petitioners of 1st batch of cases have prayed for quashing clause 9 of the notification dated 7.5.2007 containing Bihar Enlistment of Contractors Rules (hereinafter referred to as the 2007 Rules), issued under the signature of Joint Secretary, Road Construction Department, Patna, Bihar. Petitioners have also prayed for quashing the consequent notification dated 12.11.2008, issued by Joint Secretary (Engineering), Water Resource Department, whereby all the existing contractors were required to have fresh registration under 2007 Rules within six months from the date of issuance of same, failing which their earlier - 3 - registrations would lapse automatically. 5. The second batch of cases relate to Building Construction Department. The petitioners herein too have prayed for quashing clause 9 of notification dated 7.5.2007, issued by the Joint Secretary, Road Construction Department which was adopted by respondent- department. By publication of notice in the Newspaper, these petitioners too were requested to renew their registration within six months with effect from 16.10.2008, failing which their registration too would lapse automatically. 6. In other words, all petitioners are aggrieved by adoption of clause 9 of 2007 Rules by their respective departments in October-November, 2008 as far as it relates to compulsory registration under the aforesaid rules at new prescribed rate, failing which their registrations under the old rules would cease to have any legal sanctity. 7. This court first takes up batch cases pertaining to Water Resource Department, which are five in number. C.W.J.C. Numbers 5118,5160,6072,6265 and 8298 of 2009 8. All the petitioners are enlisted as clause 1A contractors duly registered under Bihar Enlistment of Contractors Rules, 1992 (hereinafter referred to as 1992 Rules) issued by Water - 4 - Resources Department. A copy of 1992 Rules has been annexed as annexure in almost all these writ petitions. The aforesaid rules have been annexed as annexure 2 in case of Neelam Raj Construction Private Limited vs. State of Bihar and ors (CWJC No. 5118/09), which I take up as lead case for reference. The facts and issues are more or less common in all the rest four writ petitions of this batach. 1992 Rules provides following seven different classes having the values and registration fees indicated in the box. Class Tender value Registration fee I-S Qualified to tender for works above Rs.200 lakhs Rs.15,000/- 1-A Qualified to tender for works upto Rs.200 lakhs Rs.10,000/- 1-B Qualified to tender for works upto Rs.50 lakhs Rs.5,000/- II Qualified to tender for works upto Rs.20 lakhs Rs.2,500/- III Qualified to tender for works upto Rs.5 lakhs Rs. 1000/- IV Qualified to tender for works upto Rs.1 lakh Rs.500/- V Qualified to tender for works upto Rs.50,000/- only Rs.250/- 9. Clause 13 of 1992 Rules provides that registration of contractors for different classes will be valid for three years from the date of registration. According to petitioners they have been registered in the year 2007-08 and as such their registration is valid up till 2010-11. In the meantime, Road Construction Department recently framed 2007 Rules for registration of contractors wishing to do work in that department. Rule 9 of 2007 Rules provides that contractors registered under the earlier 1996 Rules would be - 5 - required to renew their registration or to get fresh registration under the new rules within six months, failing which their earlier registration would have no sanctity in eye of law. 10. It is relevant to state here that prior to 2007 Rules, contractors of Road Construction Department were governed by Bihar contractors and Enlistment Rules, 1996. After coming into being of the aforesaid rules, the State government took a decision to make applicable to the Contractors Enlistment Rules, 2007 as framed by Road Construction Department to all the departments. The aforesaid decision of the Government was communicated to Water Resource Department, Building Construction Department and other departments by common letter bearing number 13211/S dated 16.10.2008 of Principal Secretary, Road Construction Department, Patna. Pursuant to the aforesaid decision of the Government, as contained in letter dated 16.10.2008, the Water Resources Department, Building Construction Department and other departments adopted Rules 2007. the Consequence of adoption meant that contractors enlisted under Water Resources Department as well as Building Construction Department were obliged either to renew their registration or to have a fresh registration effected under clause 9 of 2007 Rules. 11. It is relevant to state here that whereas 1992 Rules - 6 - of Water Resources Department visualized seven categories of contractors depending upon the value of the works for which they wanted to get registration. The new 2007 Rules has only three categories of contractors, namely, Class I, II and III. A contractor registered under class I only can apply for value of work of 3.50 crores and above, whereas class II contractor can take up work between 70 lakhs to 3.5 crores and Class III contractor can get work up to 70 lakhs. A person wishing to get registered under clause I, II and III categories were required to pay registration fees to the tune of Rs. 2 lakhs, 1 lakh and 25 thousand respectively. However the registration was to remain valid for five years. The case of petitioners is that as they have valid registration under earlier rules of the department which subsisted till the expiry of the period of registration, thus they could not be compelled to either renew or take a fresh registration in terms of new 2007 Rules. According to him, it would be only a case of migration which ought to have been accepted by the department. 13. Learned counsel for the State submits that 2007 Rules have been approved by the council of ministers and all the contractors are bound to abide by clause 9 and other clauses of the 2007 Rules as the same have been adopted by their departments. According to him, petitioners, at the most could be entitled to have - 7 - the amount already paid by way of registration adjusted against the new registration fees, on pro-rata basis. 14. After hearing the counsel for the parties, it appears that petitioners are registered under the 1992 Rules in 2007-08 which would be valid upto 2010-11 for a period of three years. The registration certificate could be cancelled midway only in terms of the conditions mentioned in the registration certificate itself. There is no contemplation stipulated in the registration certificate that the same will be subject to incorporation of any new rules. The petitioners thus have acquired a vested right under the old rules to continue work of the department at the old rates without taking registration under the new rules. Clause 9 would in no way bind the petitioners to renew the registration under the 2007 Rules. Similarly, other consequences flowing from 2007 Rules would also not bind the petitioners. Thus any insistence on the petitioners to get afresh registration under the new 2007 rules would be unreasonable and violative of Article 14 of the Constitution of India. 15. As such, I hold that clause 9 of the 2007 rules would not be applicable to the petitioners till the period of expiry of their registration, whereafter they would be liable to be registered under the new rules. - 8 - 16. In the result, all these five writ petitions stand allowed to the extent indicated above. 17. C.W.J.C.Numbers 6287,6343,6616,6728 and 6878 of 2009. This batch of five cases relate to Building Construction Department. Earlier Road Construction Department and Building Construction Department were one department under P.W.D.Code. Thus 1996 Contractors Rules of Road Construction Department equally applied to the contractors of Building Construction Department. The contractors desirous of taking work under Building Construction Department used to get themselves registered under 1996 Contractors Rules of Road Construction Department. 18. The case of instant petitioners differ in one material manner from case of petitioners of 1st batch of writ petitions who were registered under Water Resources Department. The registration certificate issued by Building Construction Department to these petitioners contained a stipulation that a new rule is in contemplation. The contractors concerned would be bound to get themselves registered under the new rules and would also be liable to pay new registration fees incorporated therein. However such stipulations were not incorporated in registration - 9 - certificate issued to 1st batch of petitioners which related to Water Resources Department. Thus the registration certificates of these petitioners are not in absolute terms but are subject to terms and conditions particularly one relating to registration under new rules which were in active consideration. 19. In backdrop of aforesaid findings, the petitioners do not have any valid ground for challenging clause 9 of 2007 Rules of Road Construction Department and its adoption by Building Construction Department. Accordingly, these writ petitions are dismissed. 20. However it would be open to the petitioners to have fresh registration under 2007 Rules. They may be at liberty to represent to the department for adjusting the fee already paid under the Old Rules. 21. C.W.J.C.No. 5838 of 2009. The petitioner herein was registered under the Building Construction Department under Contractors Enlistment Rules, 1996. It appears that the registration certificate of the petitioner does not contain any contingent condition as are the case of other petitioners of the Building Construction Department who have been enlisted under 1996 Rules. The reason could be that this petitioner was registered in early 2007 around which time, the 2007 - 10 - Rules may not yet have been under serious contemplation. The case of petitioner thus becomes similar to those of petitioners of the first batch of cases. As such, this court grants the same relief to the petitioner as has been granted to the petitioners of first batch relating to Water Resources Department. In other words, condition enumerated in 2007 Rules would not bind him till the period of expiry of registration which would come to an end in early 2010. 22. In the result, C.W.J.C.No. 5838/09 is allowed to the extent mentioned above. Shashi (S. P. Singh, J.)