IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No 3144 of 2008 Vishwanath Choudhary, son of late Mein Choudhary, resident of Village – Sarari, P O : Khagoul, P S : Shahpur, Dist : Patna - Petitioner Versus 1 The State of Bihar through Secretary, Road Construction Department, Patna 2 Secretary, Road Construction Department, Government of Bihar, Patna 3 Engineer-in-Chief, Road Construction Department, Government of Bihar, Patna 4 Chief Engineer, South Bihar (Traffic), Road Construction Department, Government of Bihar, Patna 5 Superintending Engineer, Bhojpur Road Sub Division, Road Construction Department, Government of Bihar, Ara 6 Executive Engineer, Shahabad Road Division, Road Construction Department, Ara - Respondents ----------- 2 13.02.2009 The petitioner had filed this writ application under very peculiar circumstances. He had executed three contracts for the Government being Contract No 47F2 1993-1994, Contract No 46F2 1993-1994 and Contract No 49F2 1992-1993. As is usual when matters for payment came, on one pretext or the other or on one pretence or the other, payments were not made. Ultimately good sense prevailed on the State and the matter was referred to a Liability Committee headed by the Chief Engineer to enquire into the matter. The Liability Committee enquired into the matter and, so far as the first two contracts are concerned, accepted the State’s liability in full, as claimed by petitioner. Even though the Liability Committee accepted it, the Engineer-in-Chief then, as an appellate authority, the propriety whereof this Court doubts, went into the question but fortunately, for the petitioner, did not differ. The Engineer-in-Chief also accepted the full liability of State in respect of the first two contracts and payment was ordered to be made by order dated 03.12.2007 though payment in this respect was being made after 15 years. Petitioner, in this writ petition, seeks compensation. 2 So far as the third contract is concerned, the claim of petitioner was rejected in toto by the Liability Committee and affirmed by the Engineer-in-Chief. The reasons are to be found in the deliberation of the Liability Committee in this regard. Petitioner challenges the rejection of his claim. The deliberation is contained in the proceedings of Liability Committee dated 22.03.2007 (Annexure-10 to the writ petition) and once again it is the often repeated stand. In nutshell, the stand of the State is that their officers failed to verify the work, therefore, the claim was doubtful. Exactly what has been stated can now prevail be discussed. Contract No 49F2 1992-1993 was for supply of stone metal and chips alone. It is clearly stated that the first running bill was submitted for Rs 52,047/- but in view of paucity of funds and lack of allocation, it was limited to Rs 50,000/- as paid, in my view, an absolute preposterous illegality on part of the State. Then it is stated that the second and the final bill is reflected in the measurement book for the balance sum. It is not in dispute that the measurement book, which is Government’s own document and maintained by the Government itself and the contractor had nothing to do with it, clearly showed receipt and measurement on 27.12.1992. The verification of measurement was partially done by the Junior Engineer and, thereafter, the Executive Engineer did not do anything. I may specifically state that it does not say that anyone disagreed with the measurement or doubted the measurement or found it nugatory. The Junior Engineer and the Executive Engineer simply failed to act as they were dutybound to act, thus, the Liability Committee doubts the liability. Thus, what the 3 State is saying that because their officers failed to discharge their statutory duty in a lawful manner, the petitioner must be hanged. Again most preposterous proposition, I cannot reply it better than in the words of Chief Justice Chagla in the case of All India Groundnut Syndicate Limited -Versus- Commissioner of Income Tax, Bombay City, AIR 1954 Bombay 232 : “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 S 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.” Let us not forget that if such a stand is permitted to Government, it will lead to rampant corruption with a premium on inefficiency. No citizen would be safe. What is more regrettable is that having noticed failure on part of Government officers to discharge their statutory duty in a lawful manner, no action is proposed against them. They are left scot-free with no responsibility to answer and the innocent citizen is made to suffer for the vagaries committed by Executive. No Court can countenance such a behaviour or such an action for it is well settled by now that State and its instrumentality, even in contractual matters, are not relieved of their obligation under Article 14 of the Constitution of India. They have to act fairly and reasonably and within 4 reasonable time. Merely because they have all empowering dominant position, they cannot act like a big brother bully. Gone are those days for we are living in a democratic society governed by rule of law and not rules of whims and fancies. I, therefore, set aside the finding of the Liability Committee so far as third contract is concerned which is perverse on the face of it and direct them to enquire into the matter within one month from the date of production of a copy of this order and within month thereafter, the Liability Committee would decide about State’s liability thereon. The supplies having been measured and if they have been utilized, the petitioner would be paid. The tenure of the order of the Liability Committee clearly shows that the officers failed to verify the stocks as there was shortage of fund and no allocation in that regard and, therefore, they also chose to give up their responsibility. If it is found that as per measurement book, supplies were received then petitioner would be paid. State cannot shirk its liability and must do what is just and fair. So far as the first two contracts, in respect of which payments have been made, as noted above, are concerned, petitioner’s grievance is for compensation for delayed payment. In the counter affidavit, there is not a single whisper as to why payment was delayed for more than a decade and a half. All that is said is that under the agreement for delayed payment, no interest is payable. Again, a most preposterous submission. Even if there is a provision for no payment of interest on delay, State cannot take shelter of that provision for that provision 5 would be ultra vires of Article 14 of the Constitution of India. State cannot say that I will hold back the payment at my whims and fancies as long as I can and deprive you, the citizen, of your money ad infinitum without any liability to compensate. It is hightime State realized its responsibility for prompt payment otherwise if such actions are countenanced by this Court, it will again lead to rampant corruption and will put premium on inefficiency. I, therefore, direct that the petitioner is liable to be compensated with interest at the rate of 6% per year since the payment was due till the time the payment has been made. The said payment must be made within one month of the order of this Court being produced before the Chief Engineer, South Bihar (Traffic), Road Constructions Department, Government of Bihar, Patna. The Chief Engineer would also inform this Court within a period of one month as to what action is proposed to be taken against the erring the then Junior Engineer and Executive Engineer. This writ petition is, accordingly, disposed of except in so far as awaiting the report of the Chief Engineer in the matter, referred to above, for which the writ application must be listed under the heading For Orders on 16th of March, 2009. Let a copy of this order be given to the learned State Counsel. M.E.H./ (Navaniti Prasad Singh)