IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.7712 of 2008 M/S Komal Construction, Chhawani, Mohalla, Ward No. 1, Bhabhua(Kaimur)through its partner Komal Singh, son of Late Bachnu Singh, Ward No. 1(Chhawani Mohalla)Bhabhua, P.S. Bhabhua, District- Kaimur ………Petitioner Versus 1. The State Of Bihar through The Secretary, Water Resources Department, Government of Bihar, Patna. 2. The Chief Engineer, Water Resources Department, Dehri(Rohtas). 3. The Superintending Engineer, Durgawati Circle, Bhitari Bandh, Chenari, District-Rohtas(Sasaram). 4. The Executive Engineer, Durgawati Right side Canal Division, Chenari Rohtas(Sasaram). 5. The Deputy Director, Quality Control Control Division, Dehri(Rohtas). ………..Respondents ----------- For the petitioner : Mr. Ram Balak Mahto, Sr. Adv. Mr. Mrigank Mauli, Adv. Mr. Vinay Mistry Mr. Sajal Sinha For the State : Mr. Lalit Kishore, Sr. Adv.(A.A.G.III) ----------- 03. 05.02.2009 The petitioner is aggrieved by memo No. 430 dated 04.10.2007(Annexure-17) issued by the Executive Engineer, Durgawati Right side main Canal Division whereby petitioner has been asked to refund the sum of Rs. 15,41,119/- being alleged excess payment given to him following directions of this Court in C.W.J.C. No. 7309 of 2006. Petitioner states that this demand is not only arbitrary but mala-fide. State has filed counter affidavit and the facts not being in dispute, with consent of parties, the matter has been heard for final disposal. The petitioner had entered into an agreement - 2 - being 14F2/ 2001-02 for reinforcement of the left bank of Durgawati Canal. This involved substantial earth filling work. When work started petitioner found that the soil quality was not soft but hard which enhanced his expenditure for the work. He got the soil tested from the quality control division of the State itself and demanded enhanced payment. As per agreement, cost calculation was done for soft soil and not at the rate applicable for hard soil. This was the first dispute in the earlier writ application. The second dispute was that while the work was being done the concerned Executive Engineer asked for some additional work to be done by altering the “lead” and “lift” of the project. Petitioner’s second claim was with regard to payment of additional amount for this enhanced work. These grievances not having been redressed the petitioner filed C.W.J.C. No. 7309 of 2006 before this Court which was disposed of by judgment and order dated 03.07.2007(Annexure-8). In the said writ petition in paragraph-5 of the judgment it is clearly noted and found in paragraph-6 thereof, that petitioner had in fact abandoned his claim so far as based on soil quality and this Court thus refused to entertain the said claim. The only relief that was granted to the petitioner is to be found in Paragraph- 6 of the judgment which is quoted hereinafter. - 3 - However, if the petitioner represents before the competent authority regarding his claim for enhanced amount for upliftment of lead and lift of the project, such representation be considered by the Chief Engineer, Water Resources Department, Dehri, Rohtas(respondent No. 2), on merit and decide within six weeks from the date of communication of this order. If decision is taken for any payment that should be paid to the petitioner within six weeks of the disposal of the representation. In the writ application itself the stand of the State is clearly noted that the petitioner had completed his work in the month of April, 2002 itself and his claim with regard to enhanced expenditure because of soil condition based on report dated 18.10.2002 was belated and after work was done. State had denied liability on this count. Once the said writ application was disposed of, petitioner made his claim with regard to “lead” and “lift”. This claim was rejected by the Chief Engineer by his order dated 24.08.2007(Annexure-A to the counter affidavit). The basis of this rejection is that the Executive Engineer was not competent to order additional work and as such in absence of any specific order the claim could not be entertained. Petitioner in this writ application is not challenging the correctness of this order and reserves his right to challenge the same as and when advised as the present writ application is only against the demand as being made by the State. Thus seen in terms of the order of this Court in C.W.J.C. No. 7309 of 2006 the only direction that was given was to consider the claim of the petitioner with regard to “lead” and “lift” and petitioner having made the representation the same was rejected on 28.08.2008(Annexure-A by the Chief Engineer), nothing - 4 - thereafter remain with reference to the said writ application. In the said writ application there was no direction of this Court to re-measure and re-evaluate the claim of earth filling work for which final payments were made long back. In my view, the respondents have malafidely used the earlier order of this Court to reopen the chapter that was closed and make a claim against the petitioner. It is arbitrary and malafide for more than one reason. The total estimated cost of work as per respondents own showing was about Rs. 23.50 lakhs. The petitioner on final work being completed was paid Rs. 24.58 lakhs which is in conscience with the scope of work. Respondent’s own stand is that the work was completed in April, 2002 and now on measurement in the year 2007 they are demanding a refund of about Rs. 15.50 lakhs which means that not even 1/3 of the work had been done by the petitioner which can not stand to reason when State’s own stand had been that the work was fully completed in April, 2002 itself. Secondly as noticed earlier, the claim of the petitioner was rejected by the Chief Engineer on 28.08.2007 but this letter of demand itself shows that measurements were done thereafter i.e. on 18, 19, 21 of September, 2007. Thus on the face of it respondents themselves were aware that the measurement was not being done pursuant to this Court’s order. Why authorities chose to measure earth filling work after a span of five years remains to be explained. In my view, the arbitrariness is writ large if one is to refer a report Superintending Engineer which is annexed as Annexure-5 and is dated 30th August, 2002. apart from other things one very important fact - 5 - that has been noted therein is that at that time itself i.e. August 2002, the canal was inundated with flood and was under water. It may be noted here that the earth filling work as per State itself had been completed in April, 2002 and immediately thereafter State’s own reports states that there were unprecedented floods and the Canal was damaged and inundated therein then what is relevance of any measurement done of work done after five years. It not only to create a pretence of a dispute where originally there was no dispute. This Court would not like to speculate the reason behind. It may be a mere coincidence that petitioner’s claim for extra labour because of soil condition was about Rs. 15.19 lakhs now the State’s claim against the petitioner is about Rs. 15.50 lakhs in retaliation. In view of the facts aforesaid which are all matters of record and not in dispute, it is clear that this Court never directed the authorities to re-measure and recalculate the work done and it has been so falsely stated in the impugned order. Even otherwise a measurement of earth filling work done more than five years back ravaged by floods in between is of no relevance and as such the whole basis of demand as contained in Annexure-17 has neither any factual basis nor any scientific basis. It smacks of arbitrariness and can not be sustained. It is thus quashed and respondents are restrained from enforcing the same. Before closing any of fairness of the learned State counsel I may refer to a decision cited by the State in the case of Pimpri Chinchwad Municipal Corporation and others versus Gayatri Construction company and another reported in 2008(8) SCC 172. - 6 - In my view, in that case there were disputed questions, conflicting contentions that were involved and it is in that view of the matter that the Court held that the party should resort to internal remedies. In the present case respondents State has sought to take aid of this Court’s order to raise a charge against the petitioner whereas in fact this Court did not gave any such direction or any such liberty to the respondents. That is per-se arbitrary on the part of the State and that gives cause to the petitioner to come to this Court. Further the facts noted above are not in dispute and that being so, writ petitions in such matters are maintainable as held by the Apex Court in the case of ABL International Ltd And Another Versus Export Credit Guarantee Corporation Of India Ltd And Others reported in 2004(3) SCC 553 and Food Corporation of India and another Versus SEIL Ltd and others reported in 2008(3) SCC 440. Respondents cannot, on false plea of orders of this Court, reopen a matter already settled between the parties over five years back. This cannot be permitted. This is what is arbitrary and against fair play and contra Article 14 of the Constitution. Thus in my view, the writ petitioner succeed and is allowed, Annexure-17 is quashed. Shageer (Navaniti Prasad Singh, J)