IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No 8798 of 2008 M/S B K SINGH & CO Versus THE STATE OF BIHAR & ORS ----------- For the petitioner : M/s Tej Bahadur Singh, Sr Advocate & Brajesh Kr, Gyan Shankar, Advocates For the S t a te : Mr Nirmal Chand Singh, J C to A A G II ---------- 2 17.09.2008 Counter affidavit and supplementary counter affidavit have been filed by the State. Heard the parties and with their consent, this writ application is being disposed of at the stage of admission itself. Petitioner is aggrieved by the order, as contained in Annexure-10 dated 08.03.2007 by which his agreement for doing certain work has been cancelled and his security ordered to be forfeited. During pendency of the writ application, the balance work, which profusely was urgently required to be completed, was given to another contractor but over a year has gone by, it is yet to be completed. In that situation, the petitioner now restricts his grievance to forfeiture of security and settlement of pending bills for work already done. Petitioner had entered into an agreement No 2F2 of 1999- 2000 with the Executive Engineer, North Koel Nahar Programme. The total estimated cost of the project was about Rs 2.60 crores and the work was to be commenced on 17th December 1999 and was stipulated to be completed by 16.08.2000. By the impugned letter dated 08.03.2007 (Annexure-10), the petitioner has been informed that inspite of his undertaking to complete the work by February/March 2007, the 2 progress being slow the agreement was being cancelled and security being forfeited. Petitioner has submitted that on the facts as available on record and not in dispute, there was no delay on part of the petitioner. Delay, if any, was on part of the respondents and, as such, not only was the cancellation not justified and was arbitrary and unreasonable, the forfeiture of security amounting to about Rs 20 lacs was totally unjustified. From the fact noted above, it would prima facie appear that a work that had to be completed in August 2000, petitioner was unable to complete it even by March 2007 and a gross case of delay appears. But this, on facts to be noted hereinafter, is totally misplaced. In the counter affidavit, it is not disputed that no sooner work was started it was found that there were serious design flaws and, accordingly, work was stopped and the whole project went back to the Drawing Board for redesign. This took over three years when the work remained totally suspended. The work was ordered to be resumed in February 2003. Then again, the work suffered and the date of completion was extended to 30.06.2004. As per Annexure-A to the counter affidavit which is application for extension of time as available to the respondents themselves and annexed by them the reason for extension upto 2004 was due to non- availability of fund and pending of sanctioning of designs by the Central Design Office, Patna. This document (Annexure-A) itself shows that again the period for completion of work was extended upto 30.04.2006 and again the reason was due to non-availability of fund after March 3 2005 and rates not being sanctioned as yet. It would, thus, be seen that for six long years, the work, either remained suspended in part or dragged because of no fault of the petitioner. Regrettably, these facts have been suppressed in the order of cancellation of forfeiture of security by the respondents and the blame has been sought to be put solely on the petitioner. The petitioner has, with reference to letter dated 13.09.2006 of the Executive Engineer Incharge to the Superintending Engineer, pointed out that the petitioner had completed almost 80% of the work and only 20% was remaining and had sought extension at least upto February 2007 to complete the work. This was favourably being recommended as any change of contractor at that stage would mean getting the work done at the new rates at a substantially higher price where petitioner himself was only to complete the work at the old rate subject to extension of time. In paragraph-15 of the counter affidavit, it is admitted that the recommendation was accepted and time for completion of work was extended upto February/March 2007. Petitioner now states that as per agreement itself for several concrete span castings, petitioner was required to do the same by using wooden shutterings. He did the same but the casting did not hold and collapsed with the shuttering and centering. This was inspected by the Superintending Engineer on 03.01.2007 whose inspection report is annexed to the supplementary affidavit and was communicated to the Chief Engineer and the Executive Engineer. Here, he has noticed the said fact and he has ordered that the centering and shuttering work have 4 howsoever to be done with pipes and steel plates instead of wooden shuttering. Immediately on the very next day, petitioner wrote to respondent-State that this would entail change in costing inasmuch as, as per agreement, cost sanctioned and worked out was on basis of wooden shuttering and what was now required was steel shutterings and, accordingly, rates had to be revised and/or sanctioned. Reminders were also sent with no response. It is for this reason that because of this change at the last leg of the work, the work got delayed. Shri Tej Bahadur Singh, learned counsel appearing in support of the writ application submits that had the Department responded to these requests, the work would have been completed but the change coupled with no response to the request for change already delayed the completion of the work for which the petitioner cannot be blamed and the petitioner cannot be made to suffer forfeiture of security at any cost. In my view, the facts aforesaid are not in dispute. Only thing that the State says is enough extension was granted and the petitioner was not completing the work in time. As such, the agreement had to be cancelled. One thing must be taken note of is if price revision because of change of nature of work was sought for and was granted then the work could have been completed more than a year back itself but it was not so done. The result is that for the balance work, fresh tenders had to be called at much higher rates and even though one and half years have gone by, work is still to be completed. Court wonders as to who has gained and in what manner by these actions. The above facts, not being in dispute, the only conclusion that 5 can be made is that petitioner was not at fault or at least not solely at fault so as to visit him with cancellation of the agreement or forfeiture of his security. The object of the agreement was to get a particular work done. The object of agreement is never to forfeit security or to penalize anybody. It is a public work and, therefore, the conduct of the respondents has to be in conformity with Article-14 of the Constitution of India. Their actions must be reasonable and fair. Mindless exercise of power yields no results and this case is an example thereof. I, thus, find that a work that was to be completed in the year 2000 itself got delayed for over seven years solely because of unpreparedness and fault of the State. Regrettably, the blame is sought to be pushed on the petitioner wrongly. In that view of the matter, I hold that the order forfeiting security is an order based on no material rather contrary to the material on record and cannot be supported by any reason. Thus, the writ application is allowed and the respondents are directed to complete formalities for settling the pending bills of the petitioner for work already done and within one month, from the date of production of a copy of this order before the concerned Executive Engineer, refund the security so forfeited to the petitioner. M.E.H./ (Navaniti Prasad Singh)