IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.12662 of 2008 M/S Sharma & Company having its office situated at Exhibition Road, Behind Abhishek Plaza, Ratnawati Vidya Mandir Lane, P.S.-Gandhi Maidan, Town and District-patna through it’s one of partner Sri Harishchandra Sharma S/o late Kameshwar Singh Versus 1.The State of Bihar. 2.The Principal Secretary, Department of Road Construction, Bihar, Patna. 3.Engineer-in-Chief, Road Construction Department, Bihar, Patna. 4.Chief Engineer, South Bihar Wing, Road Construction Department, Bihar, Patna. 5.Executive Engineer, Road Construction Department, Road Division Sheikhpura. W I T H CWJC No.12746 of 2008 M/S Sharma & Company having its office situated at Exhibition Road, Behind Abhishek Plaza, Ratnawati Vidya Mandir Lane, P.S.-Gandhi Maidan, Town and District-patna through it’s one of partner Sri Harishchandra Sharma S/o late Kameshwar Singh Versus 1. The State of Bihar. 2. The Principal Secretary, Department of Road Construction, Bihar, Patna. 3. Engineer-in-Chief, Road Construction Department, Bihar, Patna. 4. Chief Engineer, South Bihar Wing, Road Construction Department, Bihar, Patna. 5. Executive Engineer, Road Construction Department, Road Division Sheikhpura. -------------------- Advocate for the Petitioner: Mr. D.K. Sinha, Sr. Advocate Mr. Manoranjan Kr. Sinha No. 1, Advocate Advocate for the State : AAG-11 ---------------------- 04 01.10.2008 The petitioner in both these cases had undertaken certain contracts for road widening and strengthening. He could not complete the work in time as fixed under the contract. He points out that this was because of various difficulties beyond his control like non-availability of stone chips, bitumen and other reasons. He sought for extension of period, in stead, the contract has been rescinded and fresh tenders issued. He thereafter approached the Engineer-in-Chief seeking extension and giving an affidavit in undertaking to complete the work, if additional time was given even though the contract was rescinded and retendered. The Engineer-in-chief first sought for comments from the 2 Executive Engineer concerned who reported favorably. Now, in the counter affidavit with reference to Executive Engineer, it is stated that Engineer-in-chief has asked the Executive Engineer to send a formal proposal through proper channel. Having considered the matter and with consent of parties these writ petitions having disposed of at the stage of admission itself. In my view, the power to rescind a contract is basically in aid of seeking its performance. If petitioner had delayed performing the contract, the authorities under the contract had the authority to rescind the same but where that power should be exercised or not was discretion of the authority. While exercising the said discretion the authority had to keep in mind that the action is taken for due performance. If by rescinding the contract and giving fresh tender as noticed in this case the time stands extended by more than a year as against about three months sought by the petitioner and the tender would now involved additional cost at enhanced rate. I fail to appreciate for what purpose the contract was rescinded. It fails to achieve the time period and results in extra expenses at the cost of public exchequer, both are not desirable. Thus, in my view, if work quality and standard is otherwise in order ordinarily extensions can be granted. This would not only save time but also money of public exchequer. This would void prolonged harassment of the public at large also. Thus, in my view, the authorities themselves not being averse to extending the time and even otherwise as indicated above the extension would in interest of all 3 concern, the order rescinding the contract should be reconsidered in view of the observations made above. So far as various bank guarantees given are concerned they have stood lapsed because of time. If the authorities consider granting extension then the petitioner would be obliged to renew the bank guarantees. In the end, I would only like to observe that merely because a power to penalize is available to the authorities it does not mean that for any breach penalty must follow. The power being discretionary, the authorities must weigh both sides of the problem that is the loss to the public and the convenience to the public exchequer and the efficiency of the contractor. I say no more and leave it to the authorities to take a decision appropriate to the facts of the case. Till such decision is taken the tenders floated again shall not be negotiated. The writ petitions are thus disposed of. Trivedi/ ( Navaniti Prasad Singh, J.)