WP 1811/10 - 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.1811/2010 Raosaheb Dadarao Patil Danve & another. ...Petitioners.. Versus The State of Maharashtra & others. ...Respondents... ..... Shri V.D. Hon, Advocate for petitioners. Shri K.G. Patil, AGP for respondent nos.1 to 5. Shri V.D. Salunke, Advocate for respondent no.6. ..... CORAM: B.R. GAVAI & M.T. JOSHI, JJ. DATE: 23.11.2011 PER COURT : 1] Heard learned counsel for the parties. 2] The present Public Interest Litigation is filed seeking a writ of mandamus directing the respondents to make an inquiry in respect of the work done by the respondent no.6 - Rawassa Constructions on State Highway No.181 i.e. Jalna - WP 1811/10 - 2 - Rajur (Ganpati) - Bhokardan road. The petitioner has also prayed for writ of mandamus directing the respondent nos.1 to 4 to invoke the Clause No.1 of the Tender issued to the respondent no.6. 3] The perusal of the record would reveal that this Court had issued notice on 5.3.2010. It was the basic contention of the petitioner that though the work was allotted to the respondent no.6, he has not done the work in a satisfactory manner and as such has sought the reliefs as prayed for. However, it is the case of the respondent no.6 that since he did not receive the amount from the respondent authorities, he could not complete the work within the stipulated period. The stand of the respondent no.6 is substantiated by the respondent authorities by stating in the affidavit in reply that the speed of the work was slow due to the department being not able to make the payment on account of the sanctioned budget being very low. However, an additional affidavit was filed on 13.9.2011 stating therein that the State Government had sanctioned an amount of Rs.802.31 lakhs and further that necessary steps will be taken for getting further amount for the financial year 2012-13. 4] Taking into consideration the grievance of the petitioner that the work carried out by the respondent no.6 was of inferior quality, we had directed the Superintending Engineer, Quality Control and Vigilance, Public Works Department, Aurangabad, to personally visit the road and find out as to whether the work as WP 1811/10 - 3 - claimed by the respondent no.6 and for which the funds have been released by the State Government, has been done satisfactorily or not. We had permitted the petitioner as well as the respondent no.6 to accompany the said officer while carrying out the inspection and also to support the documents in respect of their claims. Accordingly, a report is submitted by the Superintending Engineer, Vigilance and Quality Control Circle, Aurangabad. Though the Superintending Engineer has stated that the payments made to the respondent no.6 and the work executed appears to be proportionate, he has pointed out certain lacunae regarding the work carried out. They are as under: 1] The Black Topping items of B.M. and B.B.M. has to be sealed by carpet and sealcoat as early as possible. But in this case the B.M. and B.B.M. work completed before two years and not sealed immediately which has resulted into damages to pavement. 2] In order to exercise proper control on execution it is necessary to follow proper sequence of work while executing the same. It is also necessary to ensure that the work is completed in all respect in a particular length (km.wise). However, in this case it is observed that the work is tackled at many places in small lengths of about 100 to 200 meters length in a haphazard manner. Consequently proper control on the work could not be observed. 3] The respondent no.6 is bound by contractual obligations to rectify the damaged portions at his own cost. However, so far he has failed to do necessary rectification. WP 1811/10 - 4 - 4] As seen during the inspection, to drain out the rain water from black top surface proper precautions are not taken for example excavating gutters on both sides in proper slope and also not executing the side shoulder works in proper cross slope which resulted in damage of black top area as rain water get stagnated on the black topped surface and in road side gutters also." This position is disputed by the respondent no.6. Relying on various technical aspects, the respondent no.6 has stated that he does not accept the report of the Superintending Engineer. According to the respondent no.6, the work carried out is satisfactory. 5] We need not go into the contentions raised by the respondent no.6, in his affidavit inasmuch as the report is given by an independent officer, who is concerned with the Vigilance and Quality Control Department of the State of Maharashtra and further the said report is given after the inspection was carried out in the presence of the petitioner and the respondent no.6. On being confronted with this position, Shri V.D. Salunke, the learned counsel appearing on behalf of the respondent no.6, on the basis of the instructions from Shri Nafees Iliyas Khatri, who is partner of the respondent no.6, makes a categoric statement that the lacunae, which are pointed out in the report would be cured by the end of December, 2011. We accept the said statement by the respondent no.6 as an undertaking to this Court and direct him to cure the lacunae found by the WP 1811/10 - 5 - Superintending Engineer on or prior to 31.12.2011 as assured by him. 6] The respondent no.6 has also assured that if he receives timely payments, he will complete the entire work by 31.5.2012. The respondent - State has also filed an affidavit of even date stating therein that a budgetary provision to the tune of Rs.806.76 lakhs is available for the financial year 2011-12. It has been stated that upon completion of the necessary formalities and as per the clauses in the agreement entered between the State and the respondent no.6, the payments as per these clauses in the agreement will be made to the contractor. In this view of the matter, we do not find any impediment in the completion of the work in question prior to 31.5.2012. It is further to be noted that as per the clause of the agreement itself, the respondent no.6 would be bound to maintain and repair the road in question and rectify the damages upto a period of three years from the completion of the work. In that view of the matter, after the work is complete, the maintenance thereof would be taken care of, in view of the clause in the agreement entered between the respondent no.6 and the Public Works Department. 7] As already stated hereinabove, in the inquiry report conducted by the Superintending Engineer, Vigilance and Quality Control itself, it has been found that the payments made to the respondent no.6 are proportionate to the work already undertaken by him. WP 1811/10 - 6 - 8] In that view of the matter, the petition has served its purpose and the same is disposed of as such. (M.T. JOSHI, J.) (B.R. GAVAI, J.) ndk/c23111110