WP(C) 6318/2010 BEFORE THE HON’BLE MR. JUSTICE B.P. KATAKEY The petitioner, who was initially awarded the contract for improvement a nd widening of Barpeta Patbausi Keotkuchi Road under A.P. for 2009-10 from Ch. 1 900.50m to Ch. 2176.25m vide order dated 08.04.2010 passed by the Superintending Engineer, PWD Nalbari Road Circle, by the present petition has challenged the a ction on the part of the respondent authority in awarding the said contract in f avour of the respondent No.5 and also has prayed for a direction to the responde nt authority to allow him to carry out the said contract in terms of the aforesa id preliminary work order dated 08.04.2010 issued in his favour. 2. The facts relevant for the purpose of disposal of the writ petition may be noticed as under: The notice inviting tender was issued by the Superintending Engineer, PW D Nalbari Road Circle on 26.03.2010 inviting sealed tender from APWD(R) register ed Class-1(A), (B), (C) and Class-II category of contractors for different works including the work for improvement and widening of Barpeta Patbausi Keotkuchi R oad under Barpeta district during A.P. 2009-10 with the approximate value of Rs. 25,00,000/-. The petitioner as well as the respondent No.5 submitted their respe ctive bids. On opening of the tenders on the date and time fixed for that purpos e, it was found that both the petitioner and the respondent No.5 offered the sam e rate being Rs.25,00,000/- for execution of the work. Facing with that situatio n, the Superintending Engineer, PWD Nalbari Road Circle divided the work in two groups, namely, Group-I from Ch. 1900.50m to Ch. 2176.25m and Group-II from Ch. 2176.25m to Ch. 2530.00m and awarded the contract in favour of the petitioner an d the respondent No.5 in respect of Groups-I and II respectively by two prelimin ary work orders, both dated 08.04.2010. By the said preliminary work order the v alue of the work in both the Groups was fixed at Rs.12,50,000/- each and the pet itioner and the respondent No.5 were asked to deposit the security money and als o to sign the required documents within 7 days from the date of issuance of the letters. The work initially allotted to the petitioner in Group-I vide order dat ed 08.04.2010, however, was cancelled by the Superintending Engineer vide order dated 13.10.2010, on the ground that the petitioner has failed to deposit the se curity money even after lapse of 23 days from the date of issuance of the prelim inary work order. By the said order the petitioner was informed about the withdr awal of the preliminary work order dated 08.04.2010. The Superintending Engineer vide order dated 28.10.2010 issued the preliminary work order in respect of Gro up-I work, which was initially allotted to the petitioner, in favour of the resp ondent No.5 and thereafter the formal work order in favour of the respondent No. 5 was issued by the Superintending Engineer vide order dated 29.11.2010. 3. The petitioner has challenged, as noticed above, the action on the part of the Superintending Engineer in allotting the work in Group-I in favour of the respondent No.5, basically contending that he was never informed about the prel iminary work order issued in his favour on 08.04.2010, as he was not served with the said order. It is also the case of the petitioner that he on a number of oc casions visited the office of the Superintending Engineer to know about the fate of the tender process initiated, about which, however, he was not informed and only on 09.11.2010 when he again visited the office, he could know about issuanc e and subsequent withdrawal of the aforesaid preliminary work order by the Super intending Engineer. 4. The Superintending Engineer, PWD Nalbari Road Circle, the respondent No. 3 in the affidavit-in-opposition filed has contended that the copy of the prelim inary work order dated 08.04.2010 issued in favour of the petitioner was served on the agent of the petitioner and was also pasted in the notice board apart fro m sending by post. It has further been contended that as the petitioner despite receipt of the said preliminary work order did not deposit the security money wi thin 1(one) week as stipulated in the said order dated 08.04.2010, the Superinte nding Engineer had no other alternative but to withdraw such order dated 08.04.2 010, which was communicated vide communication dated 13.10.2010. It has also bee n stated in the affidavit that the said work was eventually allotted in favour o f the respondent No.5 by issuing the preliminary work order on 28.10.2010 and th en the final work order was issued on 29.11.2010 and in the meantime 70% of the work has been completed. The said respondent has denied non-service of the preli minary work order dated 08.04.2010 on the petitioner. 5. I have heard Mr. K.K. Phukan, learned counsel for the petitioner, Ms. De ka, learned standing counsel PWD appearing for the respondent Nos.1 to 4 and Mr. Barman, learned counsel appearing for the respondent No.5. I have also perused the relevant records produced by the learned standing counsel PWD including the peon book, which has been produced in support of the contention of the Superinte nding Engineer relating to the service of the work order dated 08.04.2010 on the agent of the petitioner. 6. The learned counsel for the petitioner referring to the averments made i n the writ petition as well as in the additional affidavit filed and also the re cords including the peon book as produced by the learned standing counsel, has s ubmitted that it is apparent from such record more particularly the peon book th at the copy of the preliminary work order dated 08.04.2010 was never served on t he petitioner but was served on one Mr. K. Dutta, who has no connection with the petitioner whatsoever. According to the learned counsel the copy of such work o rder was shown to have been served to Mr. K. Dutta only with a view to deprive t he petitioner and to favour the respondent No.5 with the work. The learned couns el, therefore, submits that the preliminary work order dated 28.10.2010 and the final work order dated 29.11.2010 issued by the Superintending Engineer in favou r of the respondent No.5 in respect of Group-I work may be set aside and the pet itioner may be allowed to execute the remaining work of Group-I. Mr. Phukan furt her submits that because of such illegal action on the part of the respondent au thorities since the petitioner has suffered the loss, adequate compensation may also be awarded and directed to be paid by the respondent authorities. 7. The learned standing counsel appearing for the respondent Nos.1 to 4 ref erring to the averments made in the affidavit-in-opposition filed by the respond ent No.3 as well as the records produced before this Court has submitted that it is not a fact that the copy of the preliminary work order dated 08.04.2010 was never served on the petitioner and the petitioner did not know about such order. According to the learned counsel as requested by the petitioner over telephone, the copy of the preliminary work order dated 08.04.2010 was supplied to his age nt, one Mr. K. Dutta, as is revealed from the peon book of the department. The l earned standing counsel, therefore, submits that no illegality has been committe d by the Superintending Engineer in awarding the contract for Group-I work to th e respondent No.5, since the petitioner has failed to deposit the security depos it even after expiry of 23 days from the date of issuance of the preliminary wor k order. The learned standing counsel has also submitted that in the meantime al most 70% in Group-I work has been completed by the respondent No.5. 8. The learned counsel appearing for the respondent No.5 adopting the argum ents advanced by the learned standing counsel also submits that pursuant to the final work order dated 29.11.2010 issued by the Superintending Engineer for Grou p-I work he has furnished the security deposit and executed all necessary docume nts and almost completed the work. According to the learned counsel only premixe d carpeting and seal coat covering full width of the hard crust remains to be ex ecuted. The learned counsel, therefore, submits that the petitioner is not entit led to relief as claimed in the writ petition. 9. I have considered the submissions of the learned counsel for the parties and also perused the records as aforesaid. 10. The dispute is relating to the service of the preliminary work order dat ed 08.04.2010. According to the petitioner the said work order was not served on him and though he repeatedly made enquiry in the office of the Superintending E ngineer, he was not informed about such work order issued, for which he could no t deposit the security money and also could not execute other documents as requi red. The stand taken by the respondent authority is that the copy of the prelimi nary work order dated 08.04.2010 was served on Mr. K. Dutta as per instruction o f the petitioner, copy of which was also pasted in the notice board and sent by post. The record as produced by the respondent authorities does not reveal issua nce of such work order in the name of the petitioner and sending of the said pre liminary work order dated 08.04.2010 to the petitioner by post. The peon book wh ich has been produced before this Court to substantiate the stand taken by the S uperintending Engineer that the copy of the work order was served on the agent o f the petitioner, reveals that the copy of such work order in fact was served on one Mr. K. Dutta. There is absolutely no indication in the record, even not a n oting in the note sheet that the petitioner has informed the Superintending Engi neer or any Officer in the department authorizing the said Mr. K. Dutta to recei ve the work order dated 08.04.2010 on his behalf. In the absence of any such mat erial on record, it cannot be said that the petitioner was served with a copy of the work order dated 08.04.2010 enabling him to deposit the security money and to execute the documents. The petitioner having not been served with the copy of the preliminary work order, the Superintending Engineer ought not to have award ed the contract in favour of the respondent No.5 as has been done in the instant case. 11. This leads to a question as to whether this Court would issue a directio n to the respondent authority to allow the petitioner to execute the remaining w ork of Group-I. Since there was a dispute relating to the extent of work execute d by the respondent No.5 in Group-I, this Court vide order dated 11.08.2011 dire cted the Executive Engineer, PWD(Roads), Guwahati Division No.1 to visit the wor k site in question and submit a report relating to the extent of work done by th e respondent No.5. The Executive Engineer, PWD(Roads), Guwahati City Division No .1 accordingly visited the site and submitted the report through the learned sta nding counsel PWD dated 29.08.2011, which is kept on record, wherefrom it appear s that out of the 4(four) items in Group-I, the respondent No.5 has completed 3( three) items leaving the premixed carpeting and seal coat to be executed. Accord ing to the Executive Engineer, the respondent No.5 has executed the work to the extent of 72.27%. 12. That being the position, no direction can be issued to the respondent au thorities to allow the petitioner to execute the remaining work, as it may give rise to further complication. Hence the prayer made by the petitioner for allowi ng him to execute the work cannot be accepted. However, if, because of the actio n on the part of the respondent authorities, the petitioner has suffered any bus iness loss, it would be open to him to initiate appropriate civil proceeding cla iming damages in the appropriate Civil Court having jurisdiction over the matter , as the damage as claimed by the learned counsel during the course of argument, cannot be awarded by a writ court which requires examination of evidences to be adduced by the parties. 13. The writ petition is accordingly disposed of. 14. No costs.