IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No 15544 of 2006 Birendra Kumar Singh, son of Ram Bachan Singh, resident of House of Keshav Pd Singh, Shastri Nagar, Post Office Road, (Opp of Central Bank), P S : Shastri Nagar, Dist - Patna - Petitioner Versus 1 The State of Bihar through Secretary, Road Constructions Department, Patna 2 The Engineer-in-Chief, Road Constructions Department, Bihar, Patna 3 The Chief Engineer (Traffic) South Bihar Circle, Road Constructions Department, Patna 4 Executive Engineer, New Rajdhani Pramandal, Road Constructions Department, Patna 5 The Superintending Engineer, Central Division, Road Constructions Department, Patna - Respondents ----------- 2 28.11.2008 The petitioner had executed ten works in relation to Road Constructions Department at Patna. Works having been completed and payments not being made, he filed a writ application in this Court being CWJC No 5732 of 1997 which was disposed of by order dated 07.10.1998 (Annexure-6). By that, the petitioner was directed to file a representation before the Engineer-in-Chief who would consider and pass necessary reasoned order. Nothing having been done, the petitioner then filed another writ application being C W J C No 10155 of 2004 for seeking a direction to dispose of petitioner’s representation for payment in respect of work done. During pendency of the writ petition, the representation of the petitioner, as filed pursuant to orders in the first writ application was disposed of by the Engineer-in-Chief, Road Constructions Department and, as such, the writ petition being CWJC No 10155 of 2004 was disposed of by order dated 23.11.2006 giving liberty to the petitioner to challenge the order of the Engineer-in- Chief either by a fresh writ application or in any other proceedings, as advised to him (Annexure-10). It is pursuant to the leave granted by 2 this Court that the present writ application has been filed bringing the order of the Engineer-in-Chief on record as Annexure-9. An apology of a counter affidavit has been filed by the State. It merely states that the petitioner having come to this Court earlier for the same relief, the writ petition was not maintainable. It was secondly urged that the claim of the petitioner being rejected, the writ Court should not interfere in the matter. I am afraid both these grounds are totally misconceived. Firstly, earlier writ applications are not par to the present writ application inasmuch as in the earlier writ application, as noted above, specifically leave was granted to the petitioner to challenge the order of Engineer-in-Chief in a fresh writ application. The order had never been made subject matter of challenge in any earlier writ application for the simple reason that when these writ applications were filed, the order was non-existent. So far as the second ground is concerned, it is equally misconceived if one looks to the order by which the liability has been denied. It is an obnoxious order which cannot stand scrutiny of law. As against about ten contracts executed by the writ petitioner, the Engineer- in-Chief has dealt only with seven. While dealing with the seven contracts individually, it would be seen that a stock ground of denial of liability has been made in respect of all seven contracts. They are that the tender notice issued was not in accordance with a letter of the Government issued in the year 1982. It is then said that measurement book has not been maintained in accordance with another letter of the year 1983. Then it is said that Rule 130A of the Bihar Public Works Department Code has been violated as per letter of the year 1986. 3 When the State Counsel was confronted firstly with regard to whose liability was to comply with the three aforesaid deficiencies, he was very fair to state that the petitioner had nothing to do with them and those were the obligations of the Government officials themselves. Then as to whether work was done or not, the learned State Counsel fairly submitted that he had no instructions in the matter as the order did not advert to this fact at all. Then again when the State Counsel was asked as to what action did the Engineer-in-Chief take against the erring officers for violating Governmental letters as found by him, again his answer is that apparently nothing had been done and he has not been instructed in this matter. Thus, the net result is that the petitioner, who had satisfactorily completed the contract and who was entitled to payment as would be evident from letter of the Executive Engineer to the Superintending Engineer of the year 1985 itself on which the Superintending Engineer had recommended for allocation of funds to make payment, the payment is now being denied not because of any fault or deficiency in the work of the petitioner but because the Government’s own employee failed to make certain technical compliances. I may emphasize that neither in the counter affidavit nor any other document produced is there any denial with regard to work done. As such, it stands admitted that work was bona fide done. Annexure-2 has not been controverted in any manner. If work was done then petitioner is entitled to compensation for the work done which compensation would be equal to the value of the work done as indicated 4 in Annexure-2. The Government cannot say that we took the work, the work was done at the expense of the contractor but because an officer made a technical breach in either issuing the tender or maintaining his records even though the officer was not concerned with the contractor, the contractor would suffer. This principle has been very well culled out by Chief Justice Chagla in the case of All India Groundnut Syndicate Ltd -Versus- Commissioner of Income Tax, Bombay City, AIR 1954 Bombay 232 wherein it was held thus : “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 Section 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.” I may note here that this is a well settled principle because if it were not so, the result would be disaster and chaos and would lead to unjust enrichment. State would get works done and when time for payment come, find some technical flaw in their own delay and deny the payment. In a democratic society, State must do what is just and fair. As apparent from Annexure-9, the order of the Engineer-in-Chief, the reason for disputing the liability is mere pretence for an excuse. It is a pretext to deny legitimate payment which cannot be countenanced by this Court. I, therefore, set aside Annexure-9 and direct the Engineer-in- Chief to reexamine the matter in accordance with law and observations 5 made above and if it is found that work was done but payment could not be made merely because fund allocation was not made as evident from Annexure-2 then he would act fairly and direct the payment consequent to fund’s allocation being made. The same shall be done within two months of production of a copy of this order of this Court before him. If it is found that any payment is due for work actually done, as noted above, the payment should be made within two months from today failing which the payment would be made alongwith interest at the rate of 6% from the time it was due. The writ application is, thus, allowed with the aforesaid observation. M.E.H./ (Navaniti Prasad Singh)