IN THE HIGH COURT OF JUDICATURE AT PATNA C.W.J.C. NO.19298 OF 2010 OM PRAKASH SHARMA SON OF LATE JITWAHAN SINGH, MANAGING DIRECTOR OF M/S OM LALITA CONSTRUCTION CO. RESIDENT OF VILLAGE-CHIRAURA, P.S.-NAUBATPUR, DISTRICT-PATNA. ….. PETITIONER. VERSUS 1. THE STATE OF BIHAR. 2. THE PRINCIPAL SECRETARY, BUILDING CONSTRUCTION DEPARTMENT, VISHWARAIYA BHAWAN, BAILEY ROAD, PATNA. 3. THE PRINCIPAL SECRETARY, DEPARTMENT OF HEALTH, EDUCATION & FAMILY WELFARE, NEW SECRETARIAT, BAILEY ROAD, PATNA. 4. THE SUPERINTENDENT, PATNA MEDICAL COLLEGE AND HOSPITAL, PATNA. 5. THE DIRECTOR, INDIRA GANDHI INSTITUTE OF CARDIOLOGY, PATNA MEDICAL COLLEGE & HOSPITAL, PATNA. 6. THE CHIEF ENGINEER, BUILDING CONSTRUCTION DEPARTMENT, VISHWARAIYA BHAWAN, BAILEY ROAD, PATNA. 7. THE SUPERINTENDING ENGINEER, BUILDING CONSTRUCTION DEPARTMENT, SOUTH CIRCLE, BIHAR, PATNA. 8. THE EXECUTIVE ENGINEER, BUILDING CONSTRUCTION DIVISION, NORTH OF GANDHI MAIDAN, PATNA. 9. SUB-DIVISIONAL OFFICER, BUILDING CONSTRUCTION DEPARTMENT, MEDICAL SUB-DIVISION, PATNA MEDICAL COLLEGE HOSPITAL, PATNA. 10. RAJIV RANJAN THEN JUNIOR ENGINEER, BUILDING CONSTRUCTION DEPARTMENT, MAHILA SECTION, PATNA MEDICAL COLLGE HOSPITAL, PATNA. 11. THE JUNIOR ENGINEER, BUILDING CONSTRUCTION DEPARTMENT, MEDICAL SECTION, P.M.C.H., PATNA. 12. THE JUNIOR ENGINEER, BUILDING CONSTRUCTION DEPARTMENT, MAHILA SECTION, P.M.C.H., PATNA. 13. THE DIRECTOR, PUBLIC HEALTH INSTITUTE, P.M.C.H., PATNA. 14. THE ACCOUNTANT GENERAL, BIHAR, PATNA. ….. RESPONDENTS. ------------- For the petitioner : M/s. Ajit Kumar & Birendra Kumar, Advocates. For the respondent-State : Mr. Subhash Prasad Singh, G.A.-7 Mr. Indeshwari Prasad, A.C. to G.A.-7 For Accountant General : Mr. J.P.Karn, Senior Advocate. ---------------- - 2 - P R E S E N T HON’BLE MR. JUSTICE S. N. HUSSAIN ------- O R D E R 07/ 20.05.2011 This writ petition has been filed by the petitioner challenging order dated 27.10.2010 (Annexure-14) by which the Secretary, Building Construction Department, Bihar, Patna (respondent no.2) refused to make payment of the outstanding dues for the work done by the petitioner as per verbal order of the Executive Engineer, Building Construction Division, Patna (respondent no.8) and also for directing the respondents to ensure payment of outstanding legal dues of the petitioner for the work done by him in Indira Gandhi Institute of Cardiology and Indira Gandhi Central Casualty Building in Public Health Institute situated in the precincts of Patna Medical College and Hospital, Patna and also for restraining the respondents from awarding NIT No.17/PBD/10-11 and NIT No.20/PBD/10-11 which were published in daily Hindi Newspaper on 22.07.2010 and 03.09.2010 in Hindustan Daily Newspaper and on 30.07.2010 in Dainik Jagaran respectively to any one. 2. The claim of the petitioner was that the State Government considering the requirement of the patients and the capacity of the hospital for vital diseases sanctioned huge amount for construction, renovation, purchase, upkeep of different hospitals in the State out of which Patna Medical College and Hospital is one of the most ancient hospitals in the country attracted the attention of the State Government, specially its prime departments, namely Indira Gandhi Institute of Cardiology and Indira Gandhi Central Casualty Building which cater - 3 - large number of patients of Kidney and Heart diseases etc. from all over the State and even beyond. 3. It has been stated by learned counsel for the petitioner that in the budgetary provision of the Health Department, the State Government ear-marked special fund for Patna Medical College and Hospital out of which some funds were allocated to construct the boundary wall along Ashok Raj Path and at the embankment of the ganges in south and north side of the hospital respectively. When even after the said construction, the fund was not exhausted, the Superintendent, Patna Medical College and Hospital wrote a letter to the Executive Engineer, Building Construction Division, Patna on 05.09.2008 and 01.10.2008 (Annexures -1 and 2) stating that as the funds were still available, renovation work of 1st and 2nd floors of Indira Gandhi Central Casualty Building as well as of the Indira Gandhi Institute of Cardiology both situated in the Patna Medical College and Hospital be completed at once on priority basis as per urgent requirement. It was also stated that in view of the aforesaid two letters of the Superintendent, Patna Medical College and Hospital, the Executive Engineer, Building Construction Division, Patna after due deliberations asked the petitioner-firm M/s Om Lalita Construction Company, which was a duly registered firm with the Building Construction Department of the State of Bihar having registration no.1488 of 2009 and was doing Government allotted work in the Hospital, to do the said works also. Learned counsel for the petitioner submitted that although some more steps were required in that regard, but the authorities of the Hospital as well as the authorities of the Building Construction Department seeing the exigencies and urgency - 4 - of the work gave oral orders to the petitioner’s concern for completing the said work, with the intention to meet the legal paraphernalia later on. Learned counsel for the petitioner further submitted that in such extreme urgent and exigent circumstances, such custom is prevalent in the Department and hence the petitioner started the said work, information regarding which was given by the Department of Head of Nephrology to the Superintendent of Patna Medical College and Hospital regarding remodeling of the Nephrology Department of the 2nd floor of the building of Indira Gandhi Institute of Cardiology vide letter dated 29.01.2009 (Annexure-3). 4. Learned counsel for the petitioner averred that on the estimate forwarded by the Building Construction Department, Deputy Secretary of the Health Department wrote a letter to the Accountant General, Bihar on 25.06.2009 (Annexure-4) to sanction the budgetary provision of Rs.95,87,000.00 for construction and upgradation work of Indira Gandhi Institute of Cardiology, Patna for the financial year 2009-10 in which it was stipulated that the Director of Indira Gandhi Institute of Cardiology will be drawing and disbursing officer and Director in Chief, Health Services will be its controlling officer. In that view of the matter, the Building Construction Department wrote a letter to the Principal Secretary, Health Department on 24.09.2009 (Annexure-5) for the said work attaching thereto estimate for the two projects for a tune of Rs.75.548 lacs and Rs.88.698 lacs respectively from the fund of the Health Department. Learned counsel for the petitioner also averred that pursuant to the aforesaid estimate and approval by the Department, the Executive Engineer, Building Construction Department, Patna asked the petitioner to complete the - 5 - work seeing its urgency without waiting for any written agreement from the Department. The petitioner started the work in anticipation that after issuance of N.I.T. for the said work, the same will be allotted to him. 5. It is also claimed that vide letter dated 23.11.2009 (Annexure-6), the Head of the Department of Nephrology wrote to the S.D.O., P.W.D (Building Construction Department) that the petitioner had completed the work in hameo-dailysis unit in Indira Gandhi Institute of Cardiology building satisfactorily. Thereafter the Director, Indira Gandhi Institute of Cardiology wrote a letter to the Executive Engineer Electricity Estimation Division, Patna on 26.11.2009 (Annexure-7) that the estimate of wiring electricity connection may be submitted as the renovation is in progress on the 1st floor of the Institute which was being done by the Building Construction Department through its contractor and it was expedient that the same contractor will complete the work of the electric wiring because it was to be done on urgent basis due to essential requirement of the Institute. The Junior Engineer, Female Section of Patna Medical College and Hospital also wrote to the S.D.O. Medical Sub-Division, Building Construction Department, Patna on 25.03.2010 (Annexure- 10) stating that renovation work was in progress at 2nd floor of the Emergency Ward of the Patna Medical College and Hospital and Indira Gandhi Central Casualty Building within Patna Medical College and Hospital clearly stating that as per the direction the work is being done by the petitioner-Company. 6. Learned counsel for the petitioner submitted that at the instance of the authorities of the Building Construction Department, - 6 - Patna and the Patna Medical College and Hospital, the petitioner completed the aforesaid work as per the estimate and specifications after investing huge amount from his pocket which was appreciated by the authorities who issued certificates for completion of work also and was inaugurated by Hon’ble the Chief Minister, Bihar in the month of May, 2010 in the premises of the Indira Gandhi Institute of Cardiology as well as in Indira Gandhi Central Casualty Building. It is also stated that in spite of the aforesaid facts and inspite of having full knowledge of the entire development when the petitioner demanded the amount from the Executive Engineer, Building construction Department, Patna he refused to oblige him and issued order to float tender for the said work pursuant to which two notice inviting tenders were issued on 22.07.2010 and 30.07.2010 in daily Newspapers, namely Hindustan and Dainik Jagaran Patna Edition (Annexure-11 series), hence the petitioner filed his representation dated 11.08.2010 (Annexure-12) before the Secretary, Building Construction Department, Govt. of Bihar, Patna stating the entire facts mentioned above, but the said representation remained unheeded and un-replied. 7. Learned counsel for the petitioner also argued that finding no other way, the petitioner had to approach this Court vide CWJC No.13997 of 2010 and a Bench of this Court after considering the entire matter in detail disposed of the aforesaid writ petition vide order dated 27.08.2010 (Annexure-13) directing the Secretary, Building Construction Department to consider and dispose of the representation of the petitioner dated 11.8.2010 (Annexure-12) within a period of four weeks bearing in mind that if a contract is allotted as per the E-tender invited and the work is started, then it may not be possible - 7 - to find out as to whether the petitioner has done any work or not as claimed by him and, accordingly, he must take immediate steps to get a report as to whether any and, if so what type of work, was performed by the petitioner on the direction of the Executive Engineer. In compliance of the said order, Secretary Building Construction Department, Govt. of Bihar, Patna passed his impugned order dated 27.10.2010 (Annexure-14) holding that though the petitioner is a contractor in the Building Construction Department, but his claim that he had done the work on the verbal instruction of the Executive Engineer, Building Construction Department, Patna is false as notice inviting tender for the said work was sent to Public Relation Department for publication by the Executive Engineer himself and the said notice was published on 02.08.2010. The notice contained works relating to P.M.C.H. at serial no.1, 2 and 3 and 4th out of which the last related to Shiksha Bhawan. It was held that the petitioner participated in E-Tendering work of all the three works related to PMCH, hence it was amply clear that after participating in tender the claim of the petitioner that he had done the tendered work prior to tendering on the verbal orders of Executive Engineer was not tenable. 8. Learned counsel for the petitioner further argued that the Secretary of the Department while rejecting the claim of the petitioner vide his aforesaid impugned order completely failed to appreciate the materials on record which clearly proved that the petitioner had completed the works in the Indira Gandhi Institute of Cardiology, P.M.C.H and had also completed major work in the Indira Gandhi Central Causality Building (Public Health Institute) situated in the P.M.C.H., but he did not make any investigation in the matter as to - 8 - whether any work was done as claimed and if any work was done whether it was done by the petitioner. In this regard, he also relied upon a certificate dated 09.11.2010 (Annexure-15) issued by the Professor and Head of the Department of Orthopedic Surgery, Patna Medical College in which it was specifically mentioned that Emergency Building of PMCH 2nd floor has been renovated by the petitioner (contractor) and the work done is up to the mark. Hence, he submitted that the order of the authority is absolutely frivolous and misconceived and without any basis and as such it is fit to be quashed with a direction to the authorities to make payment to the petitioner as per the work done by him. In this connection, he relied upon a decision of a Bench of this Court in case of Ram Pravesh Prasad Vs. State of Bihar & ors, reported in 2006 (4) P.L.J.R.318 in which it was held that when estimate has been duly sanctioned by the Superintending Engineer and if the work has been done by the petitioner on the direction of the authorities, he will be entitled to compensation. It was also held that the work of the authorities were not only to find reasons for denial of any liability as in a democratic Government this is least expected because the State cannot deny or should not deny the legitimate claim of the petitioner if he had completed the work notwithstanding any technicalities as the works were not done for the Superintending Engineer or the Executive Engineer personally, rather they were the work of public nature for the public benefit. 9. On the other hand, learned counsel for the State of Bihar and its authorities submitted that the impugned order had been passed by the Secretary of the Department in compliance of the order of the High Court dated 27.08.2010 after hearing the petitioner and perusing - 9 - the record. It was also submitted that neither any agreement was entered into between the parties nor any work order was passed by the competent authority with respect to the works claimed by the petitioner, nor the site was ever handed over to the petitioner and hence the Secretary has passed a reasoned order which is quiet justified. 10. Lastly, learned counsel for the respondents submitted that subsequently in response to notice inviting tender published in newspapers on 22.07.2010 and 03.09.2010 (Annexure-11 series), the petitioner participated in the tender, but he could not be selected as he was a single tenderer for the said work which was pending for sanction at the level of Chief Engineer and hence there was no question of awarding the work to some other contractor. 11. The Executive Engineer Building Construction Division, respondent no.8 has filed his separate counter affidavit in which he has stated that letter dated 23.11.2009 issued by the Head of Department of Nephrology to the S.D.O. P.W.D, P.M.C.H was doubtful as it was prior to issuance of sanction letter dated 14.12.2009 (Annexure-8). It was also claimed in paragraph 15 of the counter affidavit that Junior Engineer, Female Section had denied before the Secretary of the Department that he had not written any letter to the Sub-Divisional Officer, P.M.C.H. which was also apparent from the impugned order dated 27.10.2010 and hence letter dated 25.03.2010 relied upon by the petitioner and Annexed as Annexure-10 to the writ petition was not genuine. 12. A counter affidavit has also been filed by the Superintendent of Patna Medical College and Hospital, Patna (respondent no.4) in which it was specifically claimed that letter dated - 10 - 23.11.2009 (Annexure-6) said to have been written by the Head of Department of Nephrology to the S.D.O. P.W.D. P.M.C.H. was not written by the said Head of Department who has informed the Superintendent of P.M.C.H that no such letter had been issued by him. This information was sent by the Head of Department, of Nephrology to the Superintendent, P.M.C.H vide letter dated 24.12.2010 which is Annexed as Annexure-B to the counter affidavit. 13. Another counter affidavit has been filed by the Director of Indira Gandhi Institute of Cardiology (respondent no.5) in which he admitted that he had written letter dated 26.11.2009 (Annexure-7) to the Executive Engineer Electric Estimation Division, but he did not know which contractor was granted work order for the renovation work of the institute as it was the affair of the Building Construction Department. 14. Although learned counsel for the petitioner has very arduously and thoroughly argued the case of the petitioner in extensive details, but from the facts and circumstances of the case as well as from the materials on record, it is quite apparent that the petitioner is a contractor and is claiming to have the work done for which neither any work order was passed by the competent authority nor any agreement was entered into between the parties for the said work, nor there is any material to show that the sites in question were at all handed over to the petitioner for the construction, renovation etc. of the Indira Gandhi Institute of Cardiology and Indira Gandhi Central Casualty Building in the Public Health Institute, both situated in the precincts of Patna Medical College & Hospital. So far the works claimed by the petitioner to have been done by him are concerned, there is no communication - 11 - from the authorities of the Department to show that the said works had been completed to any extent whatsoever. 15. So far the letters on which the petitioner has relied upon, namely Annexure-8, Annexure-7 and Annexure-6 are concerned, they had been issued by some of the authorities of the Hospital, but subsequently the said authorities have denied sending any such letter in the counter affidavit. Furthermore in the said letters, neither they have detailed the work done, nor they have mentioned the name of the person who did the work, rather it had been specifically stated that the Director of the Institute did not know which contractor was granted work order for renovation of the Institute as it was the affair of the Building Construction Department. In the said circumstances, no reliance can be validly placed on such communications, especially in absence of any acceptance or communication from the authorities of the Department. 16. So far the reliance of the petitioner upon a decision of this court in case of Ram Pravesh Prasad (supra) is concerned, it cannot be made applicable to the instant case as in that decision work order had been issued in favour of the petitioner of that case, but here in the instant case no such work order had been issued by the authorities in favour of the petitioner of this case. 17. Furthermore, from the respective pleadings of the parties, it is quite apparent that the question involved in this case is with regard to permission being granted by the authorities and construction being made by the petitioner which are questions of facts seriously disputed by the parties for which evidence is required and hence it cannot be decided by this court in a petition under Article 226 - 12 - of the Constitution of India. In this connection, reference may be made to a decision of a Full Bench of this Court in case of M/s Pancham Singh Vs. The State of Bihar and others, reported in 1991 (1) P.L.J.R. 352 in which it was held that in cases where the contract entered into between the State and the person aggrieved is non statutory and purely contractual and the petitioner complains about the breach of such contract by the State, no application invoking jurisdiction of the High Court under Article 226 of the Constitution of India was sustainable. 18. The Supreme Court also has deprecated considering question of fact regarding contractual obligation in a writ case. Reference in this regard may be made to a decision of the Supreme court in case of Food Corporation of India & Ors Vs. Jagannath Dutta and others, reported in1993 S.C. 1494 in which it was held that the High Court was not justified in quashing the impugned notice especially when the terms and conditions of the contract permitted the termination of the agreement by either of the parties and the High Court should not have gone into the question of contractual obligation in its writ jurisdiction under Article 226 of the Constitution. 19. In the aforesaid facts and circumstances, this court does not find any reason to interfere in such a matter especially in its writ jurisdiction under Article 226 of the Constitution of India and hence this writ petition is, accordingly, disposed of. However, the petitioner will be at liberty to approach the forum which is provided in law for deciding such disputed questions of facts on the basis of pleadings and evidence of the parties. Sunil (S. N. Hussain, J.)