IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5177 of 2008 M/S Raghav Construction, Singhwara, Darbhanga, a partnership firm through one of it’s Partner Raghav son of Late Baidyanath Thakur, resident of Mohalla-Rajkumarganj, P.O. Lal Bagh, P.S.- Darbhanga, District-Darbhanga. ….Petitioner. Versus 1. The State f Bihar through the Secretary, Rural Development Department, Government of Bihar, Patna. 2. The Chief Engineer, Rural Engineering Organization, Rural Development Department, Government of Bihar, Patna. 3. The Superintending Engineer, Rural Engineering Organization, Works Circle, Darbhanga. 4. The Executive Engineer, Rural Engineering Organization, Works Division, Benipatti, Darbhanga. 5. The Assistant Engineer, Rural Engineering Organization, Works Division, Benipatti, Darbhanga. ----------- 05. 20.03.2009 The petitioner had entered into an agreement being Agreement No. 31F2/2005-6 with the State for widening and strengthening of Simri-Muruliya Chak Road. As per the said Agreement which was signed by the Executive Engineer, Rural Engineering Organization (W) Division, Benipatti, the Executive Engineer was the Engineer In- charge. While the work was being executed, under written orders of the said Executive Engineer, Assistant Engineer and Junior Engineer, petitioner was directed to undertake additional work. The present writ petition is with regard to payment for additional work under the said Agreement. The Executive Engineer, repeatedly by his communication from 2006 onwards, has been requesting for - 2 - additional fund allocation for payment of additional work done by the petitioner in respect of earth filling along the roads but no funds were being allocated, for which petitioner has come to this court. A counter-affidavit has been filed today regrettably sworn by the Executive Engineer, Rural Works Department, Benipatti, Madhubani, who professes to be well acquainted with the facts. In paragraph 5 of the counter-affidavit, it is stated that the petitioner has been paid for the work under the Agreement. “However it is humbly submitted that there is no provision for executing extra work in the Agreement”. This is deliberately made false statement if, we refer to Clause 11 of the said Agreement itself. It clearly provides that the contractor is bound to do extra work as is assigned under written orders of the Engineer In-charge. This is fully complied with, in the present case, as is evident from Annexure-1. Then what is stated is that the work was got done against estimate and beyond norms, which itself shows that work was got done. This is further clear from the entries in the measurement book, which were verified in respect of extra work done. In the counter-affidavit, it is clearly stated that as the then Executive Engineer did not follow proper - 3 - procedure before getting the extra work done, petitioner’s claim for extra work done was being rejected. A reference also has been made in Clause 23 of the Agreement which was deleted by Government Notification of the year, 1992. I regret to find any relevance to the present dispute in this regard. If the clause has been deleted, then no arbitration is possible under the Agreement. Petitioner does not want arbitration, but wants fund allocation for payment of his bills. In view of the aforesaid, it is undisputedly clear that there is no dispute with regard to petitioner having done the extra work. The liability to pay is being disputed only because prior to giving orders to the petitioner for doing extra work, certain formalities were not complied with by the State Officer. In my view, this is a question of indoor management. A contractor is not supposed to look into the government procedures and files and ensure whether all internal procedures are followed or not. Additional work having been assigned by Executive Engineer, the direction being there and the work having been done, the liability can not be denied. It is well settled, that no work is gratuitous. If - 4 - this is permitted then all governmental work would be done in such an irregular manner and at the time of payment, payments would be denied. Thus leading to unjust enrichment on the part of the government, who would be benefited from the work and not have pay for it. That surely is not the law. All that I can do is to refer from a very old judgment in the case of All India Groundnut Syndicate Ltd., Assessee v. Commr. of Income Tax, Bombay City reported in AIR 1954 Bombay page 232 wherein Chief Justice Chagla said thus: “But the most surprising contention is put forward by the Department that because their own officer failed to discharge his statutory duty, the assessee is deprived of his right which the law has given to him under sub-section (2) of Section 24. In other words, the Department wants to benefit from and wants to take advantage of its own default. It is an elementary principle of law that no person—we take it that the Income-tax Department is included in that definition— can put forward his own default in defence to a right asserted by the other party. A person cannot say that the party claiming the right is deprived of that right because “I have committed a default and the right is lost because of that default.” In the present case, what is stated in the counter- affidavit is that he did the work, but my officer committed some mistake somewhere, because of that mistake - 5 - committed by my officer the petitioner shall not be paid. There can not be anything more arbitrary than this for the State. It can not be now disputed that even on the contractual matters State is bound under Article 14 of the Constitution. Thus State is bound to comply with Article 14 and this case exemplifies violation thereof. I, therefore, allowed the writ application, set aside the directions issued not to make payment to the petitioner and direct that to the extent, as admitted by the Executive Engineer, the payment will have to be made to the petitioner for the extra work, within one month from today. In case government finds that the order was given unauthorizedly or in breach of government rules or regulations, Government would be free to realize the same from the concerned Executive Engineer but that would not delay the payment to the petitioner. The payment would be ensured within one month from today by concerned the Executive Engineer. The writ application is accordingly disposed of. Vikash/- (Navaniti Prasad Singh, J.)