IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.3525 of 2011 ----------- M/s Star Construction through its Proprietor namely Parwej Ahmad Khan, Son of Sri Hasin Ahmad Khan, R/O Baluatal, Motihari, P.S. Motihari, District East Champaran. …. Petitioner Versus 1. The State of Bihar through Principal Secretary, Road Construction Department, Government of Bihar, Patna. 2. Principal Secretary, Road Construction Department, Government of Bihar, Patna. 3. Engineer-in-Chief-cum-Additional Commissioner-cum-Special Secretary, Department of Road Construction, Government of Bihar, Patna. 4. Chief Engineer, National Highway, Road Construction Department, Government of Bihar, Patna. 5. Superintending Engineer, National Highway, Darbhanga Division, Darbhanga. 6. Executive Engineer, National Highway, Sitamarhi Division, Sitamarhi 7. Assistant Engineer, National Highway, Sitamarhi Division, Sitamarhi . …….. Respondents ------ For the Petitioner : M/s Naresh Dikshit and Kunal Tewary, Advocates For the State : Mr. Ajay Bihari Sinha, S.C. 19 ------ 06/ 29.04.2011 Heard learned counsel for the petitioner and learned counsel for the respondents. 2. This writ petition has been filed by the petitioner challenging order dated 13.01.2011 (Annexure 1), by which the Engineer-in-Chief, Road Construction Department, Government of Bihar (respondent no. 3) debarred several persons including the petitioner, who is at serial no. 57 of the list, from participating in any future contract till he completes the contract, which has already been awarded in his favour, on account of delay and also challenging order dated 20.11.2010 (annexure 2), by which the Executive Engineer, Sitamarhi Division, recommended for debarring the petitioner-firm - 2 - and also for directing the authorities not to obstruct the petitioner from participating in any contractual bid on the basis of the impugned order and for other ancillary reliefs. 3. The admitted fact of this case is that in pursuance of the advertisement published for construction of NH-104 in the Hindustan daily newspaper, the petitioner-firm participated in the tender and was selected, whereafter on 28.02.2009 work order in favour of the petitioner was issued and technical approval was granted to the petitioner on 20.07.2009 (Annexure 3) and finally an agreement was also executed with the petitioner-firm on the same day i.e. 20.07.2009 (Annexure 4) according to which the work was to be completed within one year i.e. by July, 2010. 4. Learned counsel for the petitioner submits that petitioner could not complete the work during the said period i.e. by July 2010 due to delay caused by the respondents themselves, which they admitted in the letter of the Executive Engineer dated 28.08.2010 (Annexure 12) and on that basis the Superintending Engineer issued letter dated 15.09.2010 (Annexure 13) for extension of time up to 28.03.2011 as there was serious problems due to naxal and local disturbances. 5. Learned counsel for the petitioner further submits that impugned order dated 13.01.2011 (Annexure 1) was passed due to absolute non-application of mind specially when the letter of the Executive Engineer debarring the petitioner was dated 24.01.2011 (Annexure 15). Learned counsel for the petitioner also states that the - 3 - petitioner had completed more than 80% work despite all odds and the remaining work could not be done due to non-removal of encroachments, which was to be done by the Collector. 6. Learned counsel for the petitioner also argues that Clause 5.2 of the general rules and directions, issued by the Government of Bihar regarding performance of contract, stipulated reasons, on the basis of which extension of time can be granted to the contractor and the said conditions have been fully detailed in paragraph no.12 of the writ petition. 7. Learned counsel for the petitioner also relies upon a circular of the Road Construction Department issued under the signature of the Principal Secretary of the Department of Road Construction, Government of Bihar dated 13.03.2009, in which it was provided that the bidders shall not be under declaration of ineligibility for delay, failure or corrupt & fraudulent practices by the authorities of any of the State Government or Central Government or Public undertaking or any Autonomous Body. 8. Learned counsel for the respondents vehemently opposes the contentions of learned counsel for the petitioner and submits that the entire claim of the petitioner was absolutely frivolous and he did not complete the work even till the time, which was recommended for extension and till date the work is still incomplete causing hardship to the public. 9. So far the first point raised by learned counsel for the petitioner is concerned, it is quite apparent that the naxal and local - 4 - disturbances were not new for the area, regarding which the petitioner must have been fully aware before entering into the contract but inspite of that he agreed for completion of work within one year, which is apparent from the agreement itself. 10. Furthermore, had any encroachment been made by any person or any group of persons, it was incumbent upon the petitioner to file an application before the Collector under the provisions of Bihar Public Land Encroachment Act ( hereinafter referred to as `the Act’ for the sake of brevity ), but there is nothing on record to show that any such step had been taken by the petitioner. Inspite of the aforesaid facts, the Executive Engineer and the Superintending Engineer had issued letters dated 28.08.2010 and 15.09.2010 recommending extension of time granted in the agreement for completion of work. It is also quite apparent from the arguments of learned counsel for the parties as well as from perusal of the records that no heed was paid to the said letters by the authorities and in view of this Court that was rightly done as the said letters were issued absolutely without considering the facts and circumstances of the case and appear to have been issued at the instance of the petitioner only without looking into the materials and the aforesaid facts, which were available to the said authorities. 11. So far second question raised by learned counsel for the petitioner with regard to non-application of mind is concerned, it is quite apparent that by Annexure-1, a decision had been taken by the Engineer-in-Chief on 13.01.2011 for debarring the contractors - 5 - including the petitioner from participating in any future contract till completion of the contracts, which have already been awarded to them earlier, whereas, in the letter of the Executive Engineer dated 24.01.2011 (Annexure 15) same matter has been reiterated . Hence there is no contradiction between the two orders, rather the subsequent one is apparently a follow up action of the earlier one. Hence plea of non-application of mind raised by learned counsel for the petitioner fails. 12. So far the third question raised by learned counsel for the petitioner is concerned, Clause 5.2 of the general rules and directions, issued by the Government of Bihar regarding performance of contract, provides that extension of time can be granted to the contractor with certain conditions, specially regarding time limit for early completion of such most urgent works. From the discussions made above, it is quite apparent that in the present situation the said Rule cannot be made available to the petitioner as the delay has been caused clearly due to his own laches and that too for such an important project concerning public requirement. 13. So far the fourth point raised by learned counsel for the petitioner with respect to the circular of the Road Construction Department dated 13.03.2009 is concerned, although it is specifically provided that the bidders shall not be under declaration of ineligibility for delay, failure or corrupt & fraudulent practices by any of the authorities of State Government or Central Government or Public undertaking or any Autonomous Body if the bidders meet the - 6 - qualifying criteria, but in furtherance thereof the circular further provides that even though the bidders meet the above qualifying criteria, they are subject to be disqualified if they have record of poor performance such as abandoning the works, not properly completing the contract, inordinate delays in completion, litigation history, or financial failure etc. Thus, the petitioner comes under the purview of this provision as there was inordinate delay by the petitioner in completing the work allotted to him and, admittedly, he could not complete the work even till the date, which was recommended for extension by the Superintending Engineer. 14. So far question of filing of the first information report by the petitioner against the naxals is concerned, such a case is filed only for punishing the offenders, whereas, for removal of the encroachment, the petitioner had to file a case against the encroachers before the Collector under the relevant Act, but, admittedly, it was not done and the matter remained pending for such a long period. If the claim of the petitioner was genuine, he should have filed the aforesaid case for removal of encroachment, but that having not done he has absolutely failed to discharge his duty due to which the authorities had no option but to pass the impugned orders. 15. In the aforesaid facts and circumstances, this Court does not find any merit in this writ petition, which is, accordingly, dismissed. MPS/ (S.N.Hussain, J.) - 7 -