IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.6547 of 2011 M/S RAM PRAVESH RAI ESTATE PVT. LTD., A COMPANY REGISTERED UNDER COMPANY ACT 1956 HAVING ITS REGISTERED OFFICE GOHARUA HOUSE SRI NAGAR SIWAN, DISTRICT SIWAN. AT PRESENT 44, PATLIPUTRA COLONY, PATNA, P.S. PATLIPUTRA, PATNA 800013, DISTRICT PATNA THROUGH ITS MANAGING DIRECTOR SRI RAM PRAVESH RAI S/O SRI KAMLA RAI, R/O 19, PATLIPUTRA COLONY, PATNA, P.S. – PATLIPUTRA, PATNA 800013, DISTRICT PATNA………………………………………….PETITIONER. Versus 1. THE STATE OF BIHAR THROUGH COMMISSIONER CUM SECRETARY, ROAD CONSTRUCTION DEPARTMENT, VISHESWARAIYA BHAWAN, PATNA. 2. THE ENGINEER-IN-CHIEF CUM ADDITIONAL COMMISSIONER CUM SPECIAL SECRETARY, ROAD CONSTRUCTION DEPARTMENT, VISHESWARAIYA BHAWAN, PATNA, DISTRICT PATNA. 3. THE EXECUTIVE ENGINEER, ROAD CONSTRUCTION DEPARTMENT, ROAD DIVISION NO.1, MUZAFFARPUR, DISTRICT MUZAFFARPUR…………….RESPONDENTS. For the petitioner : Mr. N.K. Malhotra, Sr. Advocate with Mr. Sheo Narayan Singh, Advocate. For the respondents : Mr. P. Pratap, GP-6 ----------- 09/ 28.07.2011 Heard learned counsel for the petitioner and learned counsel for the respondents. 2. This writ petition has been filed by the petitioner challenging order of the Executive Engineer, Road Construction Department, Road Division No.1, Muzaffarpur (respondent no.3) dated 13.04.2009 by which the petitioner was debarred from participating in future tenders as having become incompetent and also for restraining the respondents from floating any tender for Saraiya-Jaitpur-Motipur Road from K.M.7, 8 10 to 16 and from K.M. 25 to 28 in Muzaffarpur district under plan head for the year 2008-09 and also for direction to the respondents to allow the petitioner to complete - 2 - the remaining contract work and pay to him the bills for the completed works. 3. From the impugned order dated 13.04.2009 (Annexure-6), it is quite apparent that it was passed only on the assumption that the petitioner had nothing to say in the matter as he failed to file any show-cause in response to the notice given by the respondents dated 26.03.2009 (Annexure-C to the counter affidavit) as according to the said authority the petitioner had failed to complete the contractual work allotted to him for I.R.Q.P. IN KM-7, 8, 10 to 16 & 25 to 28 of Saraiya-Jaitpur-Motipur Road in Muzaffarpur district under plan head for the year 2008-09 under Road Construction Department, Road Division No.1, Muzaffarpur vide Agreement No.31F2 of 2008-09 dated 19.05.2008. 4. Challenging the aforesaid impugned order, learned counsel for the petitioner has specifically stressed upon the statements made in paragraph-13 of his writ petition in which it was clearly stated that the petitioner had submitted his show-cause by way of reply to the said notice on 01.04.2009 which is annexed to the writ petition as Annexure-5. It is also stated in the said show-cause that the delay, if any, caused in the works is due to non-cooperation of the respondents authorities and due to non-payment for the work already completed by the petitioner admittedly. In the said circumstances, the claim of the petitioner is that he had already filed a show-cause which was not considered at all by the - 3 - authorities concerned and under wrong assumption that no show-cause has been filed the impugned order, declaring the petitioner incompetent for taking part in future tender in the department, has been passed. 5. In reply to the aforesaid statement made in paragraph-13 of the writ petition, the respondents made their statements in paragraph-21 of their counter affidavit in which they had only stated that the petitioner was asked to explain delay in work through various show-cause but the contractor never took notice of any show-cause and was hell bent on not completing the work in time and instead replied by asking for another extension of time. Thus it is quite apparent that the said statement was made only with respect to the show-cause notices earlier sent by the department for explaining the delay caused in completion of the work. Hence, no statement of denial had been made by the respondents with respect to the show-cause notice sent by the respondents with respect to declaring him incompetent for taking part in future tender of the department. 6. However, during the course of hearing of the case on earlier occasion when the said point was raised and a rejoinder to the counter affidavit was filed on behalf of the petitioner, a second supplementary counter affidavit was filed by respondent no.3 in paragraph-3 of which it was stated that in response to notice dated 26.03.2009 sent by the respondents, no reply or show-cause was filed by the petitioner before the - 4 - respondent concerned. 7. The respondents have also produced letter dated 10.04.2009 (Annexure-K) sent by the petitioner to the Executive Engineer which was a reply to letter of the authorities dated 12.03.2009 with regard to cancellation of the agreement. This letter is not in dispute rather it has been produced by the respondents themselves. In the said circumstances and in view of regular steps taken by the petitioner and also in view of clear statements made in the writ petition and its non-denial in counter affidavit and subsequent denial by the respondents in the second supplementary counter affidavit, it transpires that the subsequent denial is only an after thought when the question was discussed before this court. Thus, the denial of the respondents in another second supplementary counter affidavit appears to be doubtful. 8. Learned counsel for the respondents has stated that with respect to the alleged show-cause filed by the petitioner before the respondent authority, no receipt has been produced. This point raised by him appears to be frivolous and misconceived as the respondents have themselves not denied in their counter affidavit to the specific statements made by the petitioner in his writ petition with regard to the filing of his show-cause before the concerned respondent. Mere taking a plea in a second supplementary counter affidavit is clearly an after thought only to fill up the lacuna and to take ‘U’ turn, which cannot be allowed as due to non-denial in their counter - 5 - affidavit with respect to the statements made in the writ petition, the respondents had impliedly admitted the statements made in the writ petition. 9. Furthermore, the impugned order dated 13.04.2009 not being on merit and being only on the assumption that petitioner had nothing to say as he had not filed any show-cause appears to be violative of the principles of natural justice and fair decision by the authorities. 10. In the said circumstances, this writ petition is allowed. The aforesaid impugned order dated 13.04.2009 is hereby quashed and the petitioner is directed to approach the Executive Engineer, Road Construction Department, Road Division No.1, Muzaffarpur (respondent no.3) within 15 days from today along with a copy of this order as well as a copy of his show-cause (Annexure-5). If these directions are complied by the petitioner, the said authority shall reconsider the matter without being influenced either by this order or by the impugned order and take a decision in accordance with law keeping in view the settled principles of law, expeditiously preferably within two months from the date of receipt/production of a copy of this order. Harish (S.N. Hussain, J.)