IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.6055 of 2011 Binay Prakash, son of Late Bindeshwari Ram, Resident of D- 85, Police Colony, Anishabad, P.S. Gardanibag, District Patna……………………………………………………..Petitioner. Versus 1. The State of Bihar 2. The Principal Secretary, Road Construction Department, Government of Bihar, Bishweshwaraiya Bhawan, Bailey Road, Patna. 3. The Engineer-in-Chief-cum-Additional Secretary-cum-Special Secretary, Road Construction Department, Government of Bihar, Bishweshwaraiya Bhawan, Bailey Road, Patna. 4. The Chief Engineer, Ganga Bridge Project Wing, Road Construction Department, Government of Bihar, Patna. 5. The Executive Engineer, Ganga Bridge Project Wing, Road Construction Department, Government of Bihar, Patna. 6. The Assistant Engineer, Ganga Bridge Project Wing, Road Construction Department, Government of Bihar, Patna. 7. The Junior Engineer, Ganga Bridge Project Wing, Road Construction Department, Government of Bihar, Patna………………....................................................Respondents. For the petitioner : Mr. S.B.K. Manglam, Advocate. For the respondents : Mr. J.S. Arora, SC-6 with Mr. Indrajeet Singh, AC to SC-6 P R E S E N T HON’BLE MR. JUSTICE S.N. HUSSAIN O R D E R 09/ 09.09.2011 This writ petition has been filed by the petitioner for the following reliefs:- (i) For issuance of an appropriate writ in the nature of CERTIORARI for quashing order dated 03.11.2010 passed by Respondent no.2 and communicated to the petitioner by Respondent no.3 under his letter no.4641 dated 03.11.2010, whereby and where under Respondent no.2 has directed Respondent no.5 that because the petitioner did not complete the work before expiry of the time as mentioned in the agreement, therefore, the amount deducted from the bills of the petitioner for not completing the work within time would not be refunded to him. (ii) For issuance of an appropriate writ in the nature of MANDAMUS commanding and directing the Respondent Authorities to refund/pay the amount deducted from the - 2 - bills of the petitioner with interest at the rate of 12% per annum on the ground of non-completion the work within time on the ground that the petitioner had completed the permitted work well within time mentioned in the agreement and further work was stopped by the Respondents themselves as a result of which the petitioner did not complete total work within time. (iii) For issuance of any other appropriate writ/writs, order/orders, direction/directions for which the writ petitioner would be found entitled under the facts and circumstances of the case. 2. Learned counsel for the petitioner stated that for construction of Pitamber Mandir Visthapit Colony Road in Patna notice inviting tender was published by the respondent authorities to which the petitioner responded and filed his tender, which having been found to be in order was accepted and the contract was awarded to him and an agreement was executed by the petitioner and the Executive Engineer, Ganga Bridge Project Wing, Road Construction Department, Patna (respondent no.5) vide Agreement No.5F2/2008-09 dated 30.09.2008 (Annexure-1). The contract amount was fixed at Rs.69,28,859.00 i.e. 01% below the rate quoted in the Tender Notice and the time for completing the work was fixed as six months i.e. by 16.03.2009. 3. It was also submitted by learned counsel for the petitioner that work order was issued by the authority concerned on 15.10.2008 according to which some portion of the road was to be made bituminous, whereas the remaining road was to be made P.C.C. However, learned counsel for the petitioner claimed that the petitioner started his work immediately thereafter, but in February 2009 local residents started demanding that the entire road should be P.C.C. as it was low lying area which experienced water logging in every rainy season and for that purpose a public petition was filed on 24.02.2009 (Annexure-2). Due to the public outcry the Executive Engineer - 3 - wrote to the Assistant Engineer on 28.02.2009(Annexure-3) to prepare and submit a fresh estimate for P.C.C. Road in place of the earlier sanctioned Bituminous Road. 4. It was further averred by learned counsel for the petitioner that on the basis of the aforesaid communications estimate was revised, whereafter both the parties executed a supplementary agreement on 19.03.2010 for construction of the entire road as P.C.C. However, the said construction was stopped vide order dated 29.03.2010 (Annexure-9) passed by the Executive Engineer due to non-approval of the rate by the Chief Engineer and finally the Chief Engineer without giving any information to the petitioner cancelled the agreement vide order dated 21.04.2010 (Annexure-10) and directed the work to be completed after fresh tender. 5. Learned counsel for the petitioner argued that the petitioner could not complete the bituminous road due to public outcry and disturbances as they wanted P.C.C. road to be constructed and this fact has been acknowledged by the respondents in paragraph-4 (VI) of their counter affidavit. He also argued that the authorities did not take steps and hence the delay was caused either due to the objection of public or due to the inaction of respondents authorities, but not due to any fault of the petitioner, who completed the P.C.C. portion of the road as per the agreement within time, but in spite of the aforesaid fact the respondents deducted the amount of P.C.C. construction also. The work shown by the respondents were regarding both the P.C.C. part and Bituminous part of the road for which only partial payment has been made, whereas the remaining amount is still to be paid. 6. It is also submitted by learned counsel for the petitioner that earlier the petitioner was blacklisted by the said authorities to which the - 4 - petitioner objected before the higher authority, namely the Engineer-In-Chief, who vide order dated 22.01.2010 (Annexure-13), directed for withdrawal of blacklisting after finding that the delay was caused not due to the petitioner but due to the inaction of the department. In the said circumstances, he prayed that the impugned order dated 03.11.2010 is not only illegal, arbitrary and perverse but is also against the findings of the authorities themselves. 7. On the other hand, learned counsel for the respondents submitted that an agreement bearing no.5F2/2008-09 was executed on 30.09.2008 according to which six months time was stipulated for completion of work from the date the work was ordered to commence, whereafter the commencement order was passed. He also submitted that under the said contract total length of road to be constructed was 1339 meters out of which the petitioner was to construct 748 meters by Bitumen work and the remaining 591 meters by P.C.C. work. He stated that as per the agreement the contract work involved four items, namely (i) GSB Work-1436.508m3 @ Rs.1242.21 per m3 ; (ii) Per work-539.29 per m3 @ Rs.3851.40 per m3; (iii) Sand filling in the foundation 21.76 m3 @ Rs.224.72 per m3; and (iv) Brick edge soling 1418.4 m2 @ Rs.174.86 per m2. 8. Learned counsel for the respondents also stated that as per the aforesaid agreement the entire contracted work (Bitumen and P.C.C.) was to be completed by the petitioner by 16.03.2009, but till then the work even as per the original contract was not completed although against the said work there was no hindrance and since the petitioner did not complete even the P.C.C. work till the said date, the amounts were deducted which was in accordance with the agreement entered into between the parties. Learned counsel for the respondents further averred that there were objections/pressure - 5 - raised by local residents only against the construction of bituminous road, as they wanted that part also to be made P.C.C., but since the said parts of the road were to be made bituminous as per the agreement with the petitioner, a supplementary/revised agreement was executed on 19.03.2010 by which the original agreement stood supplemented only to the extent that in respect of quantities/rates/items of work on the same terms and conditions of original agreement and the supplementary agreement was made part of the original agreement. He also stated that the said supplementary agreement was only with respect to that part of road which was to be made bituminous by the earlier agreement and it did not affect that part of the road which was to be made P.C.C. as per the earlier agreement which was not completed within the time prescribed and due to the aforesaid reason the Chief Engineer, Ganga Bridge Project Wing, Road Construction Department, Patna vide letter dated 21.04.2010 directed to cancel the original Agreement No.5F2/2008-09 with the petitioner and to invite fresh tender for completion of the remaining work and in consequence thereof the Executive Engineer, Ganga Bridge Project Division, Guljarbagh, Patna vide his letter dated 30.05.2010 cancelled the agreement and directed the petitioner to remain present for final measurement, whereafter final measurement of the work was completed and only Rs.2,22,576.00 was found payable to the petitioner, which has already been paid to him. The details of payment are described in paragraph-21of the counter affidavit. 9. Learned counsel for the respondents argued that the first and the second running on account bill was paid in full to the petitioner without any deduction, but thereafter since the petitioner did not maintain the work schedule, deductions were made in the third, fourth and fifth running on - 6 - account bill as during the said period the agreement was continuing but the petitioner had to maintain the work schedule as per the agreement in which he miserably failed and hence the authorities were constrained to cancel the agreement as per the terms of the agreement itself and accordingly the petitioner is not entitled to any relief sought by him. 10. From the averments made by learned counsel for the parties and from perusal of the materials on record, it is quite apparent that the cancellation of the agreement between the parties has not been challenged in this writ petition, rather the reliefs sought here are for quashing the impugned order dated 03.11.2010 by which the authorities had refused to refund the amount deducted from the bills of the petitioner due to non-completion of the work within the time prescribed in the agreement and for directing the authorities to refund/pay the aforesaid deducted amount with interest at the rate of 12% per annum. Hence the petitioner has no grievance against the cancellation of his work contract. 11. It is also apparent from the aforesaid facts and findings that under the said agreement there were two types of roads to be constructed, namely Bituminous and P.C.C. but the reason for delay, namely the objection of public, even as per the claim of the petitioner and accepted by the respondents, was with respect to the construction of that part of road which was to be made bituminous, whereas there was no objection by the public with respect to that part of road which was to be made P.C.C. Hence, no valid reason has been shown by the petitioner for delay in the construction of that part of road which was to be made P.C.C. as per the agreement. The petitioner has been able to show the reason for delay in the construction of that part of road which was to be made bituminous as per the original agreement, but that - 7 - is not in dispute as that part of road was subsequently directed to be made P.C.C. by way of supplementary agreement. 12. Furthermore, learned counsel for the respondents has been able to prove their contentions that the deductions were made only due to the delay in the construction of the road which was to be made P.C.C. as per the original agreement and since the said work was not completed within the period granted by the agreement, the said deductions had to be made which were in accordance with the terms of the agreement. Hence, if the petitioner was aggrieved by any such act of the authorities which he deemed to be violative of the agreement, he could have moved for arbitration before the appropriate authority as per the specific provisions of law. 13. Furthermore, the petitioner has neither filed any application for arbitration before the authority concerned nor he had challenged the order of cancellation of his agreement which was passed on 21.04.2010 and 03.05.2010 (Annexure-10 & 11) specifically on the ground of non-completion of the said work within the time prescribed in the agreement. Hence when the petitioner had accepted the cancellation of his agreement on the basis of delay he cannot be justified in claiming refund of deductions which were also made due to the same cause, namely delay in completion of the work as per the agreement. 14. In these circumstances, this court does not find any illegality in the impugned order of the authority concerned nor does it find the petitioner entitled for any other relief and hence this writ petition is dismissed. Harish (S.N. Hussain, J.)