IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No 17251 of 2008 Subodh Kumar Singh s/o late Ram Pravesh Singh, resident of village - Chatar, P O : Babhangama, P S : Barhara, Dist : Bhojpur (Ara) presently Residing in H/o Chhotan Sao, Surhi Tola, Mahendru, P O : Mahendru, P S : Pirbahore, Dist : Patna, Proprietor of Shivan Enterprises, Yadav Bhawan, Naya Tola, Patna - Petitioner Versus 1 The State of Bihar 2 The District Magistrate, Patna 3 The Deputy Development Commissioner, Patna 4 District & Rural Development Agency, Patna through its Project Director, Dy Development Commissioner, Patna - Respondents *** For the petitioner : M/s Yogendra Mishra & Ram Das Singh, Advocates For the S t a t e : Mr A Amanullah, S C XVII For the D D C : Mr Nivesh Kumar, Advocate For the intervener : M/s S D Sanjay & Gautam Kejriwal, Advocates *** 4 11.02.2009 The petitioner was directed by the DDC, Patna to supply job cards for being used in the National Rural Employment Guarantee Scheme. Petitioner was firstly given order to supply one thousand job cards which he supplied on 19.07.2008. He was given further orders to supply one lac job cards. The time for supply was upto 25.07.2008 which was extended to 31.07.2008. He supplied ninety eight thousand five hundred job cards, thus, the supply being short of one thousand five hundred job cards. He was then again ordered to supply three lacs copies of job cards upto 30.10.2008 which order was given to him on 2 17.10.2008. Before the expiry of the said period or on the next day of the receipt of order, petitioner applied to DDC that because of ensuing Diwali and Chhath festivals, there would be delay because workers are not available. DDC did not respond. Petitioner then attempted to deliver some job cards later which were not accepted by the DDC. His order was then cancelled and on 14.11.2008, having cancelled the order of petitioner, fresh orders were issued in favour of the intervener respondent who was the second lowest tenderers (L2). Being aggrieved by this cancellation order which had the effect of leaving the petitioner with allegedly almost three lacs printed job cards, petitioner filed this writ application on 27.11.2008. In the meantime, the intervener respondent was given the serial numbers to be printed on the job cards and he started his supply when the matter was taken up for the first time by this Court on 06.01.2009. This Court, while adjourning the matter, directed status quo to be maintained. This was communicated by the State counsel to DDC but when the order was taken out, the order of status quo was found missing which has been noticed by this Court in subsequent order dated 23.01.2009. In the meantime, the intervener- respondent completed the supplies. Mr Yogendra Mishra, learned counsel for the petitioner submits that the respondent-DDC acted in undue haste and not in bona fide in cancelling petitioner’s order merely on ground of a couple of days delay and then placing orders with the intervener-respondent whereby giving the intervener-respondent virtually two months’ time to complete the supplies. Petitioner was in a position to complete the supplies by the time his tender was cancelled. 3 If time was really the essence of contract then instead of giving two months’ further time to the intervener-respondent only two days extra time could have been given to the petitioner who would have completed the supplies. Thus, the cancellation was bad. It is further stated that petitioner had immediately, on receipt of the order, sought for extension. No order thereon was passed. Petitioner was not even informed that no extension would be granted and keeping the petitioner in dark, delay was made an excuse to cancel the contract causing petitioner irreparable loss and injury. He, accordingly, submits that the order of cancellation, without notice, without hearing be set aside and respondent-DDC be directed to accept the supplies as made ready by the petitioner. Having heard the parties, with their consent, this writ petition is being disposed of at the stage of admission itself. In my view, certain intervening facts have changed the course of this litigation. Even if it be assumed that the cancellation of petitioner’s order was inappropriate and/or illegal, the question would arise as to what relief he can be given. Mr Mishra submits that if the cancellation order was bad then all subsequent actions of DDC were bad. Even accepting this, for sake of argument, the result would be that the intervener-respondent must suffer though he had nothing to do with the cancellation or wrongful cancellation of petitioner’s order by DDC. That surely cannot be permitted in law or in equity. For a fault of DDC or for a dispute as between the petitioner and the DDC, the intervener- respondent cannot suffer, for he has made supplies. If that be so then 4 substantially no relief can be granted to the petitioner. On behalf of DDC, a fair stand for the present has been taken. They are in requirement of one lac copies of the job cards which are to be used as duplicate for the one lac as already supplied by the petitioner. They are ready to accept the same at the price negotiated already with the petitioner. To that extent, petitioner would make the supplies on the serial numbers being given to him and DDC would accept and pay for them within 15 days on receipt of delivery. So far as balance about two lacs job cards with petitioner is concerned, in my view, this Court can only direct that there is further requirement of the job card of the similar nature at Patna, petitioner would be given a chance to supply the same as he has already printed and as it available in stock and would be preferred as against any other person at the price already negotiated. In my view, the directions aforesaid are fair, just and equitable. All I would like to observe is that merely because there is a power to cancel, it is not necessary that the power has to be exercised. The power is discretionary and it is only under compelling circumstances, such a power has to be exercised because the very premise of the power is in aid of the contract. Power being there does not have to be exercised merely because it is there. It is for a purpose. As facts have revealed, there was really no purpose for the exercise of power. Few days’ delay on part of the petitioner has visited petitioner with adverse circumstances. On the plea of a programme collapsing, orders were cancelled but it is not in few days that supplies were solicited from the intervener-respondent, he was granted indulgence of 5 two months. So much for the plea of urgency as shown by the DDC and justification for exercise of power of cancellation, this Court says nothing more. The writ application, thus, stands disposed of. M.E.H./ (Navaniti Prasad Singh)