IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.547 of 2009 1. THE STATE OF BIHAR THROUGH THE PRINCIPAL SECRETARY, ROAD CONSTRUCTION DEPARTMENT, GOVT. OF BIHAR, PATNA, 2. SUPERINTENDING ENGINEER, ROAD CONSTRUCTION DEPARTMENT, NORTH BIHAR, ROAD CIRCLE, MUZAFFARPUR, 3. EXECUTIVE ENGINEER, ROAD CONSTRUCTION DEPARTMENT, ROAD CONSTRUCTION DIVISION NO. 1, MUZAFFARPUR, 4. SUB DIVISIONAL OFFICER, ROAD CONSTRUCTION DEPARTMENT, ROAD CONSTRUCTION SUB-DIVISION NO. 1, MUZAFFARPUR … RESPONDENTS - APPELLANTS Versus SHYAM BIHARI, S/O SHRI MAHENDRA NARAYAN CHOUDHARY, R/O VILLAGE KHARAUNADIH, P.S. KUDHANI, DISTRICT – MUZAFFARPUR …. WRIT PETITIONER - RESPONDENT with LPA No. 550 of 2009 1. THE STATE OF BIHAR THROUGH THE PRINCIPAL SECRETARY, ROAD CONSTRUCTION DEPARTMENT, GOVT. OF BIHAR, PATNA, 2. SUPERINTENDING ENGINEER, ROAD CONSTRUCTION DEPARTMENT, NORTH BIHAR, ROAD DIVISION, MUZAFFARPUR, 3. EXECUTIVE ENGINEER, ROAD CONSTRUCTION DEPARTMENT, ROAD CONSTRUCTION SUB DIVISION NO. 1, MUZAFFARPUR, 4. SUB DIVISIONAL OFFICER, ROAD CONSTRUCTION DEPARTMENT, ROAD CONSTRUCTION SUB-DIVISION NO. 1, MUZAFFARPUR … RESPONDENTS - APPELLANTS Versus SHYAM BIHARI, S/O SHRI MAHENDRA NARAYAN CHOUDHARY, R/O VILLAGE KHARAUNADIH, P.S. KUDHANI, DISTRICT – MUZAFFARPUR …. WRIT PETITIONER - RESPONDENT ----------- 2 8. 29.04.2010. Heard Mr. P.K. Verma, learned Additional Advocate General-XI for the State and Mr. Sanjay Singh, learned counsel for the respondent. In both these appeals, the challenge is to a common order dated 29.01.2009 passed by the learned single Judge in CWJC No. 873/2009 with CWJC No. 874/2009. Be it noted, the learned single Judge had issued many a direction which did include that the contractor- respondent shall complete the work in ten months and not delay the work on any pretext. On appeal being preferred, the Division Bench of this Court on 12.10.2009 had passed the following order: “Prima facie this Court is in agreement with the submission advanced on behalf of the appellants that in exercise of writ jurisdiction no interference should have been made in relation to non-statutory contract leading to delay in construction of road However, the order of the writ court has created a situation where the contractor has time till 30th November, 2009 to complete the contract otherwise, the earlier order of cancellation would revive. There is no 3 mechanism to cancel the contract in the meantime even if their work is found to be of poor quality. Considering that the contract work has been resumed by the writ petitioner under orders of the writ court and specially when period of about 8 months has already expired out of ten months granted to the contractor to complete the work, we feel that for the sake of equity it would be proper to take a final decision only after 30th November, 2009. Let this matter be listed under the same heading on 1st. December, 2009. Let the fact be noted that subsequent developments on account of order of the writ Court under appeal will not stand in the way of this Court in deciding the case on merits, specially with a view to clarify the law relating to exercise of writ jurisdiction in respect of non-statutory contract.” Today when the matters were called, on a query being made, Mr. Verma, learned Additional Advocate General-XI for the State submitted that the respondent in respect of one contract has completed 54 percentage of work while in respect of other contract, he has completed 49 percentage. 4 Mr. Singh, learned counsel for the respondent, submitted that the time to complete the work would expire on 7th of May, 2010 and if the running bills are paid he would be in a position to complete the work. Without entering into the aforesaid facets we are inclined to dispose of the appeals on the following terms and conditions on the basis of the concessions given by the learned counsel for the parties: (i) The respondent shall complete the work given under the two contracts by 31st of May, 2010 positively. (ii) After completion of the work, a communication shall be made to the concerned Executive Engineer, who shall get the work measured within fifteen days and pay the admissible amount to the contractor- respondent. (iii) As the respondent is carrying on the work, the appellant-State may consider releasing the running bills, if the same have not yet been released. (iv) Non-payment of the running bills though would not be a ground to procrastinate the period, yet 5 there should be objectivity in the approach of the owner to pay the running bills regard being had to the work carried out by the contractor. (v) If the appellant-owner does not extend the time, the contractor is obliged to complete the rest of the work within the stipulated time. Regard being had to such concessions, both the appeals are disposed of. There shall be no order as to costs. Be it noted, we have passed the order on the concessions and this cannot be treated as a precedent that the High Court in exercise of 226 jurisdiction had interfered with in a contractual matter of this nature. Dilip ( Dipak Misra, C.J. ) ( Mihir Kumar Jha, J. )