IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.1756 of 2008 M/S YOGENDRA RAI Versus THE STATE OF BIHAR & ORS ----------- 5 24.07.2008 A notice inviting tender was issued by the Executive Engineer, Kamla Canal Division, Jainagar, District- Madhubani for construction of cross drainage over Cachhraja river. The petitioner being interested to purchase the document the initial work that was to be done was to dismantle the old structure and then to construct the new one. It is not in dispute that as per still bill of quantity (B.O.Q) the cost of dismantling work was worked out by the State on basis of manual labour that the work of dismantling had to be manually performed. Consequent to petitioner’s selection, when petitioner started the dismantling work he found that the old structure was too large to be dismantled manually and could only be dismantled mechanically. It is submitted that this fact was even admitted in the inspection report (Annexure-1) of the Superintending Engineer, who had inspected the site. In the said inspection report, the Superintending Engineer had noted that no work was being done at the site as it was not possible to manually demolish the old cross drainage, yet instead of amending the contract and providing for mechanically dismantling the old structure, the authorities insisted on the petitioner to carry out the work undertaken and on failure of the petitioner to undertake the work in time, the agreement has been cancelled and subsequently security deposited by petitioner to the extent of about Rs.25,00,000/- 2 has been ordered to be forfeited. On fresh tenders being issued, this court permitted the petitioner to participate in the fresh tender, but my interim order held that the fresh tender could not be finalized. In the counter affidavit that has been filed by the State it is stated that though it may be that the old cross bridge could be demolished only by mechanical process but the petitioner should have had no grievance because the bid paper for mechanical demolition was less than the bid paper for manual demolition. On the direction of this court further affidavit has been filed by the State giving comparative figures and further stating that even in subsequent tender the provision has been made for manual demolition and in that case tenders have been finalized. Petitioner abstaining, but because of interim order no formal agreement or work order can be issued. In view of the fact that the petitioner has not participated in the fresh tender it clearly shows that the petitioner is not interested in the tender any more. As such the interim stay granted earlier is vacated forthwith. So far as the forfeiture of security is concerned, In my view, though it is justified for the authorities to rescind the contract which was granted in favour of the petitioner, but in law, the authorities were not justified in forfeiting the security. The reason for the same is that both, the petitioner and the Superintending Engineer who inspected the site, formed an opinion that manual breaking of the old bridge structure was not possible. 3 That was the stipulation under the agreement. Therefore, both, the petitioner and the authorities, were apparently under a mistaken notion about how the work had to be done. This, in my view, was a fundamental mistake and inter alia, in view of Section 20 of the Contract Act could relieve the parties on their obligations under the agreement. The contract had to be rescinded and it was so done rightly but the order of forfeiture cannot be sustained. The same is quashed. Writ application partly succeeds. Mkr. (Navaniti Prasad Singh, J)