IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.11017 of 2011 1. M/S Bam Bam Construction, Registered Contractor through its Partner Bambahadur Singh 2. Bam Bahadur Singh son of Sri Rangjee Singh, All R/o Mohalla Amir Chand Kothi, Pakari, Arrah Town, P.S. Ara Nawada, Distt. Bhojpur (Ara)…………….……..Petitioners. Versus 1. The State of Bihar 2. The Commissioner, Patna Division, Patna. 3. The Collector of the Distt. and District Magistrate, Buxar at Buxar. 4. The Engineer in Chief, Rural Works Department, Bihar Patna. 5. The Chief Engineer-1, Rural Works Department, Bihar, Patna. 6. The Superintending Engineer, Rural Works Department Work Circle, Sasaram at Sasaram, Distt. Rohtas. 7. The Executive Engineer, Rural Works Department, Works Division, Buxar at Buxar, Distt. Buxar…………….Respondents. For the petitioners : Mr. Brij Mohan Kumar Singh, Advocate. For the respondents : Mr. Indrajeet Singh, AC to SC-6 ---------------------------------- 04/ 20.09.2011 Heard learned counsel for the petitioners and learned counsel for the respondents. 2. This writ petition has been filed by the petitioners challenging order dated 22.02.2011 (Annexure-3) passed by the Engineer-in-Chief (respondent no.4) which according to the petitioners frustrated the agreement in question and the work was stopped not due to the fault of the petitioner but due to the fault of respondent nos.4 to 7. The petitioners have also sought that the respondents be directed to refund earnest amount of Rs.2,65,000.00, security money of Rs.4,05,000.00, security deposit of Rs.1,50,309.00 and royalty above Rs.5,000.00 deposited in terms of the contract agreement (Annexure-4) and also Rs.10 lacs for loss of materials on the spot and further compensation of Rs.10 lacs only for damages for Rs.23 lacs. - 2 - 3. The claim of the petitioners is that petitioner no.1 being registered Class-1 contractor recognized by the State of Bihar to undertake contract works vide letter no.3183 dated 30.08.1999 entered into a valid and legal contract arising out of an agreement with the Executive Engineer, Rural Works Department, Works Division, Buxar (respondent no.7) being authorized persons in the name of the Governor of Bihar who had invited tenders from eligible contractors for completion of a welfare scheme called „Improvement of a Road from Khairapati to Keshopur Road” in rural side in the district Buxar under Mukhyamantri Zila Vikash Yojna at an estimated cost of Rs.1,33,42,700.00, whereafter the petitioners competed with other tenderers and the tender of petitioner no.1 was accepted whereafter Agreement No.19F2/2007-08 was executed by petitioner no.2 as representative of petitioner no.1 and the authority concerned. 4. Learned counsel for the petitioners submits that he has raised this point earlier also in C.W.J.C. No.18460 of 2008 which was disposed of by a Bench of this court vide order dated 08.10.2009 (Annexure-1) with the following directions:- “Let the Executive Engineer forward the representation of the petitioners with his comments to the Superintending Engineer, who in turn forward the representation to the Chief Engineer and Chief Engineer forward the same to the Engineer-in-Chief as early as possible in any case within one month from the date of receipt/production of a copy of this order before the authorities whereafter the Engineer- in-Chief should pass appropriate orders in accordance with law. While passing the orders, the Engineer-in-Chief should not only consider the question of refund of the Security/Royalty money to the petitioners, but also the amount of damage which he has suffered on account of loss of material. In the event, petitioners are not satisfied with the order passed by the Engineer-in-Chief, they are at - 3 - liberty to approach the other forum available to them under law.” 5. Learned counsel for the petitioners further submits that in view of the aforesaid directions given by this court the impugned order dated 22.02.2011 was passed by the authority which was violative of the directions given by this court and hence the petitioners filed M.J.C. No.4031 of 2009 for initiating a proceeding of contempt against the authorities concerned. The said petition was however disposed of vide order dated 24.02.2011 (Annexure-2) by a Bench of this court with a liberty to the petitioners to challenge the aforesaid order, hence the petitioners have filed the instant writ petition. 6. The main point raised by learned counsel for the petitioners is that the impugned order dated 22.02.2011 (Annexure-3) passed by respondent no.4 is an ex-parte order without giving any opportunity to the petitioners to place their case and the said order was passed summarily behind the back of the petitioners. 7. Although learned counsel for the respondents resisted the claim of the petitioners but the said statement made in the writ petition was not denied by them in their counter affidavit. In the said circumstances, it is quite apparent that the said impugned order passed by respondent no.4 is an ex-parte order without giving any opportunity to the petitioners to place their case and hence it cannot be sustained. 8. In the said circumstances, the said order dated 22.02.2011 is hereby quashed and the petitioners are directed to - 4 - approach the Engineer-in-Chief, Rural Works Department, Government of Bihar (respondent no.4) within 15 days from today along with a copy of this order, whereafter the said authority shall fix a date giving opportunity to the petitioners to place their claims with the materials and thereafter shall decide the matter by a speaking order within two months thereafter. 9. It may be noted that this court has not considered or expressed its view with regard to the merit of the case and the respondents will be at liberty to decide the matter in accordance with law. 10. However, if the petitioners are aggrieved by any order passed by the said authority they will avail the opportunity as had also been given to them vide order dated 08.10.2009 passed in C.W.J.C. No.18406 of 2008 and will be at liberty to approach the authority concerned under the Bihar Public Works Contract Disputes Arbitration Tribunal Act, 2008 for getting their dispute settled as per the provisions of the Arbitration and Conciliation Act, 1996. Harish (S.N.Hussain, J.)