IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No 14176 of 2008 M/S Chandra Enterprises having its office at MIGH 83, Lohia Nagar, P S - Kankarbagh, Town and District - Patna through Amit Kumar, one Of the Partners - Petitioner Versus 1 The Union of India through Ministry of Rail 2 East Central Railway having its office at Hajipur 3 Divisional Rail Manager, East Central Railway, Samastipur 4 Senior Divisional Engineer (Special), Samastipur 5 Assistant Engineer (Bridge), East Central Railway, Raxaul - Respondents *** 2 26.03.2009 The petitioner is aggrieved by retender issued by the Railways in respect of part of the contract which was earlier settled with the petitioner and then cancelled. His grievance in fact is related to “Risk and Cost of Petitioner”. Counter affidavit and rejoinder having been filed, with the consent of parties, the writ petition is being disposed of at this stage itself. The original tender, that petitioner had undertaken, was for unloading of and placement of Pre Stressed Concrete (PSC) slab on 5 bridges on the Muzaffarpur-Narkatiyaganj Section. What had happened was that Railways constructed bridges and the PSC slabs were dumped on the land adjoining the bridges. In order to lay the railway tracks, PSC slabs were required to be put on bridge space. It is not in dispute that so far as bridge No 139 is concerned, petitioner completed the work on extended time. So far as bridge No 332 is concerned, as the petitioner was unable to do the job immediately and it was affecting passenger traffic, Railways did the job themselves. At this stage, they rescinded the entire contract. Petitioner states and it is not contested 2 that at that time, petitioner could do no further work as inspite of extensions being granted, the 3 remaining bridges itself that is bridges No 274, 341 and 347 had not been completed as yet. Thus, they were not available for laying the PSC slabs. Now effectively, the retender is in respect of these 3 bridges that is bridges No 274, 341 and 347 at the risk and cost of the petitioner. On behalf of petitioner, this is what is challenged as unreasonable and arbitrary. In my view, the writ petition must clearly succeed. Even at the time when the contract was cancelled, petitioner was waiting for these 3 bridges to be completed so that he could commence the work. The bridges itself, not being completed, the petitioner was not in a position to commence the work and now to laying down of completing the work on those 3 bridges on the petitioner is clearly arbitrary. If the bridges were ready at the time when the contract was rescinded, it would be totally a different matter. Here, even if petitioner did everything in his command, he could not even have commenced the work so far as these 3 bridges are concerned. Law is established that impossibility cannot be sought to be executed. Placing PSC slabs on bridges yet to be completed was impossibility at that time. Mr Kesri, learned counsel has strenuously, vehemently and faithfully argued on behalf of the Railways that as the petitioner was not in a position to complete the contract, the contract was rescinded. This argument is to be noticed to be rejected as petitioner was in no position to complete the contract within the time stipulated as the bridges itself were, admittedly, not ready for that purpose. 3 That being the position, the “Risk and Cost Clause” in the retender prejudicing the petitioner cannot be sustained. The writ petition is, thus, allowed and the “Risk and Cost Clause” is set aside. M.E.H./ (Navaniti Prasad Singh)