IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.7636 of 2009 M/S VATSA CONSTRUCTION PVT.LTD. KASTURBA PATH, NORTH SRI KRISHNA PURI, PATNA, P.S. SRI KRISHNA PURI, DISTIRCT PATNA THROUGH ITS DIRECTOR SRI KISHORE KUMAR SINGH SON OF LATE JANKI PRASAD SINGH RESIDENT OF KASTURBA PATH, NORTH SRI KRISHNA PURI, PATNA, P.S.SRI KRISHNA PURI, DISTRICT PATNA. …. PETITIONER Versus 1. THE STATE OF BIHAR THROUGH THE PRINCIPAL SECRETARY, ROAD CONSTRUCTION DEPARTMENT, VISHESHWARAIYA BHAWAN, PATNA 2. THE CHIEF ENGINEER, KENDRIYA NIRUPAN SANGHATAN, ROAD CONSTRUCTION DEPARTMENT, BIHAR, PATNA 3. THE CHIEF ENGINEER (YATAYAT), NORTH BIHAR UPBHAG, ROAD CONSTRUCTION DEPARTMENT, DARBHANGA 4. THE EXECUTIVE ENGINEER, ROAD CONSTRUCTION DEPARTMENT, ROAD DIVISION, SITAMARHI, DISTRICT SITAMARHI ….RESPONDENTS ----------- 8 9.9.2009 In the instant writ petition the petitioner prays for quashing the order dated 6.6.2009 contained in memo no.846 by which contract allotted to the petitioner vide agreement no.52 F2/06-07 for widening and strengthening of Sitamarhi-Riga- Dheng road from Kilometer 00 to 23.02 Kilometer in Sitamarhi district under plan head for the year 2006-07, has been rescinded at the risk and cost of the petitioner. The Road Construction Department issued tender notice bearing no.52 F2/06-07 for widening and strengthening of Sitamarhi-Riga-Dheng Road, from 00 KM to 23.02 KM in Sitamarhi district for the year 2006-07, at an estimated cost of Rs.1262.50281 lacs after completion of all formalities. The petitioner was awarded the aforesaid tender. The agreement, contained in Annexure-1, was signed on 20.3.2007 and the date 2 of completion of the work was 22.11.2008. The petitioner deposited the requisite Bank guarantee of Rs. 22,25,800/-. At the request of the petitioner, the respondent authorities extended the work period up to 31.3.2009 and also approved the revised estimate for a sum of Rs.14,37,26,000/- vide memo no.5535 dated 20.1.2009, contained in Annexure-3. The petitioner states that he faced various difficulties in completing the work in time. He submits that he got the delivery order for supply of Bitumen and emulsion belatedly issued by the Executive Engineer vide memo no.771 dated 22.5.2009, contained in Annexure-4. The Executive Engineer further vide his order dated 2.1.2009, contained in Annexure-5, also extended the validity period of the same up to 31.8.2009. He submits that the traffic of roadways of West Bengal and Orrisa was badly affected due to unnatural heavy storm like Ila toofan. Due to short production of bitumen and emulsion, the supply of the same could not be made available to the petitioner in time resulting in non-completion of the work in time. Learned counsel for the petitioner states that in spite of all hindrances the petitioner completed 50% of the work and payment to the tune of Rs.6 crores has also been made to it. He further submits that recent Lok Sabha election also hampered the progress of the work as vehicular carrier came almost to a stand still. The transportation of materials also suffered contributing to delay in completion of the work. Further more delayed orders of 3 Bitumen and emulsions also slowed the progress of works. Non- payment of bills pending to the tune of Rs.70 lacs also caused difficulties in harnessing the resources for the work. The petitioner states that as per letter dated 24.11.2008 of the Principal Secretary, contained in Annexure-16, a contractor could be allowed further time which could stretch to half of the original time envisaged for completion of the work. However, the respondents in most arbitrary manner rescinded the contract at the risk and cost of the petitioner without allowing the full permissible time limit. The petitioner asserts that the contract has been rescinded on the premises that it violated the terms of the agreement and did not complete the work within time. The petitioner states that the reasons assigned in the impugned order is non est as it could not complete the work due to various insurmountable factors including non-responsive attitude of the respondents. A counter affidavit has been filed on behalf of the respondents wherein, in paragraph 5, it has been stated that non- available of Bitumen and vehicles are only lame excuses and in any view of the matter the time was extended up to 31.3.2009. It is further stated that the petitioner did sub-standard work, rectification of which further delayed the work causing great inconvenience to the people. In paragraph 6, the respondents have denied the averments that the bills were submitted by the petitioner, on the contrary the departmental Engineer prepared 4 the same and payments were made as per the rules. Further more during inspection and supervision of work many irregularities were found in quality of the work. In paragraph 8 of the counter affidavit it has been stated that a bill of Rs.61.66 lacs was paid to the petitioner on 4.5.2009 and no further payment is due to the contractor. Moreover, an advance of about Rs.25.00 lacs is outstanding against the petitioner out of Rs.52.74 lacs advanced in account of machinery. It has been stated that the petitioner was directed to appear at site for final measurement on 15.6.2009, but neither the petitioner nor his representative was present at site. Further more, it has been alleged that the petitioner misbehaved with some of the officers for which an F.I.R. has been lodged. The respondents further alleged that stone metals from Nepal have been used instead of stones from the Shekhpura Store query. Besides this, bitumen has not been used in correct proportion. The petitioner has filed reply to the counter affidavit controverting the stand of the respondents. The petitioner, however, denies the allegation of misbehaving with the officer concerned and states that a complaint case has been filed on his behalf also. He states that from perusal of Annexure-5 it would be manifest that on 2.1.2009 the respondent no.4 extended and recommended the date of upliftment of bitumen up to 31.8.2009, and on 6.6.2009 the respondent no.4 rescinded the agreement. In paragraph 8 it has been stated that not even a single work 5 worth about Rs.1 crore has been completed under plan head during 2006-07, 2007-08 and 2008-09 under Road Division, Road Construction Department, Sitamarhi. The respondents admit that due to heavy rain, flood and water logging at the work site at several places on the road KM 0 to 23 have got completely damaged on Sitamarhi-Riga-Dheng Road. The aforesaid factor also caused delay in completion of the work. He submits that the circumstances were unforeseen and beyond one’s control. It is also his claim that the delivery order for uplifting of emulsion was issued on 2.6.2009 and it was valid up to 31.12.2009. Further more, the respondent no.4 on 2.1.2009 had extended and recommended the date of upliftment of bitumen up to 31.8.2009 and as such he could not have rescinded the contract on 6.6.2009. It has been further stated that the authorized representative of the petitioner was present, but still final measurement was not taken on 15.6.2009. Thus, he controverts the stand of the respondents that no authorized representative of the petitioner was present for the measurement of the work or materials stacked at the site. The petitioner states that it did not use the stone metal from Nepal as has been alleged in the counter affidavit, rather it used the stone chips/metals of good and sound quality lifted from Shekhpura Store query as provided under the agreement. In support of its contention, the petitioner relies upon royalty challans issued from the aforesaid query, contained in Anenxures-17, 18 and 18/A. The petitioner 6 further states that the agreement provides that the bitumen should have been checked immediately after it was discharged from the hot mix plant on the road at least twice a day. However, if the test for bitumen content in bituminous mix is done after loss of time, there is definite change of bitumen content in the post work bituminous mix. It has been further stated that the use of local sand is prescribed in prescription approved as sub based material in widening portion of the road in view of Annexure- 22(a). Heard counsel for the parties and perused the records. So far as measurement of work is concerned, both the respondents and the petitioner have put blame on each other for not undertaking the measurement scheduled for 15.6.2009. In paragraph 8 of the counter affidavit, the respondents have stated that a bill of Rs.51.66 lacs was paid to the petitioner on 4.5.2009 and he was asked to appear for final measurement on 15.6.2009. On the other hand, the stand of the petitioner is that though his authorized representative was present at the site on 15.6.2009, still no measurement was taken. In the backdrop of the aforesaid circumstances, this court directs the Executive Engineer, Road Construction Department, Road Division, Sitamarhi, respondent no.4 to complete the measurement of the work done by the petitioner within a month from the date of receipt/production of a copy of this order after due intimation of the date of measurement . On the date so fixed, 7 the petitioner or its representative must be present at the site for final measurement. The prayer of the petitioner so far as it relates to termination of contract, on risk and cost, the same would involved scrutiny of facts and rival contentions, which would not be possible for this court to decide in this writ petition. For instance, the petitioner has stated that he was prevented from sufficient cause from completing the work in time. He has also attributed placement of the delayed order of Bitumen and emulsion and withholding of heavy outstanding dues as cause of delay. On the other hand, the respondents claimed that the work of the petitioner was slow and suffered from irregularities. The bitumen, GSB and local sand mixed did not contain appropriate mixture and were not up to requisite parameters. However, the petitioner would be at liberty either to take resort to arbitration or to file a civil suit before a court of competent civil jurisdiction. It would further be open to the petitioner to file a representation in respect of his grievance against impugned office order dated 6.6.2009 of the respondent Executive Engineer, before the Principal Secretary, Road Construction Department, Patna in justification of the circumstances under which it could not complete the work in time. In case such representation is filed, the Principal Secretary/Incharge Principal Secretary, Road Construction Department, would dispose of the same after affording opportunity to the petitioner in accordance 8 KHAN with law preferably within a period of four weeks from the date of receipt of the representation. With the aforesaid observations and directions, this writ petition stands disposed of. (S.P.Singh,J)