Letters Patent Appeal No.786 of 2007 (Against judgment and order dated 18.8.2007, passed by a learned single Judge, in CWJC No. 6060 of 2007) 1. BIHAR STATE BRIDGE CONSTRUCTION CORPORATION an undertaking of Government of Bihar, through its Managing Director, 07- Sardar Patel Marg, Patna -800015 2. The Deputy Chief Engineer, Sough Bihar Circle, Bihar State Bridge Construction Corporation, 07-Sardar Patel Marg, Patna -800015 ……Appellants Versus M/S MAGADH ADVERTISING BUREAU, through its authorized signatory Mr. Parimal, S P Verma Road, Police Station Gandhi Maidan, District Patna ……Respondent ******* For the Appellants : Mr. P K Shahi, Advocate General with Mr. Vikas Kumar, Advocate For the Respondent : Mr. Santosh Kumar Sinha no.II ******* P R E S E N T THE HON'BLE MR. JUSTICE SUDHIR KUMAR KATRIAR THE HON'BLE MR. JUSTICE KISHORE KUMAR MANDAL S K Katriar, J. This appeal under Clause 10 of the Letters Patent of the High Court of Judicature at Patna raises a grievance with respect to the order dated 18.8.2007, passed by a learned single Judge of this Court in CWJC NO.6060 of 2007 (M/s Magadh Advertising Bureau vs. Bihar State Bridge Construction Corporation), whereby the order dated 9.4.2007, issued by the Corporation, cancelling allotment of the advertising work in favour of the petitioner, has been set aside and the Corporation has been directed to execute the agreement. 2. A brief statement of facts for the disposal of this appeal may be indicated. We shall go by the description of the parties occurring in the writ petition. The Bihar State Bridge Construction Corporation (hereinafter referred to as `the Corporation’) is a public sector undertaking of the Government of Bihar, and is engaged in the task of construction of bridges within the State of Bihar. The Corporation has constructed a bridge in the township of Patna known as Chiriyatand Bridge. It appears to have monopoly rights for advertisement on the bridge as a measure to recover the cost of construction and maintenance. The Corporation had issued an advertisement which had appeared in the local dailies inviting tenders to award contract(s), giving advertisement rights on the bridge. The writ petitioners had submitted its application for award of such a contract which was 2 ultimately accepted. By order dated 15.1.2007, the work was awarded to the petitioner on the terms and conditions stated therein. One of the conditions in the communication dated 15.1.2007 was headed `Execution of Agreement’, and is reproduced hereinbelow:- “Execution of Agreement You will have to execute an Agreement on non-judicial stamp paper of Rs.100/- (Rupees One Hundred) within 15 days from the date of issue of this letter. All terms and conditions shall be incorporated in the Agreement which would be binding on both the parties. As per N.I.Q. all the papers you will have to produce before the agreement.” In other words, according to the Corporation, the writ petitioner had to execute the final agreement on non-judicial stamp paper within fifteen days from the date of issue of this order. The same was not executed in time leading to the impugned order dated 9.4.2007, whereby the aforesaid order dated 15.1.2007, awarding the contract in favour of the writ petitioner, was recalled leading to the writ petition. The writ petition has been allowed, and the order dated 9.4.2007, has been set aside. The learned single Judge has held that it was an arbitrary action on the part of the Corporation, and has accordingly set aside the order dated 9.4.2007. 3. While defending the order of cancellation, learned Advocate General submits that the issues are in the realm of contract and writ jurisdiction is normally not exercised for implementation of the terms of an agreement. He submits in the same vein that a writ of mandamus in such circumstances can be issued only if over-whelming public interest demands it, which is completely absent in the present case. He next submits that at best a suit for damages may lie. He relies on the following reported judgments:- (i) Master Marine Services (P) Ltd. Vrs. Metcalfe & Hodgkinson (P) Ltd. (2005) 6 SCC 138 (ii) Noble Resources Ltd. V. State of Bihar (2006) 10 SCC 236 He also submits that the revised contract has already expired. 4. Learned counsel for the writ petitioner has supported the order of the learned single Judge, and submits that the learned writ court has rightly found the action of the Board as unreasonable and arbitrary. 5. We have perused the materials on record and considered the submissions of learned counsel for the parties. The admitted position is that the contract was awarded to the writ 3 petitioner in pursuance of the terms of the advertisement inviting tenders. It was awarded by communication dated 15.1.2007, wherein two conditions are of relevance in the present situation. One of which has already been set out hereinabove, and the second condition indicating the time span of such a contract is reproduced hereinbelow:- Contract period of Lease Agreement Contract period of lease agreement can be renewed for another 01(one) year after completion of initial one year period on the request of lessee on the existing terms and conditions. 6. The primary question for decision is that on whom was the duty to supply the draft agreement. The clause of the communication dated 15.1.2007 reproduced hereinabove and headed `Execution of Agreement’, does show that the agreement had to be executed within a period of 15 days of the issue of this letter. However, learned single Judge has found that the entire duty was on the Board to provide the draft copy of the agreement which is for the protection of the Board itself so that there is uniformity of contracts, and the State Government and its public sector undertakings are not subjected to varying contracts at the instance of unscrupulous contractors. No fault can be found with this part of the finding. This has to be seen in the back-ground of the factual position that by its communication dated 19.1.2007, the writ petitioner had requested the respondent Board to supply a copy of the draft agreement. The learned single Judge has further found that such draft agreement was not supplied for which the entire duty was on the Board. This has to be read with the finding of the learned single Judge that by the communication dated 3.4.2007 of the Board, the time for execution of the agreement was extended for a further period of 10 days, i.e. up to 13.4.2007. The petitioner complied with all the formalities including supply of finally typed copy of the agreement along with a non-judicial stamp of appropriate amount within the stipulated time, namely, on 7.4.2007. We are of the view that the Board did not act reasonably and allowed injustice to be done to the Corporation. We are also of the view that time was not the essence of the contract. We, therefore, entirely agree with the learned single Judge. 7. In the result, this appeal is dismissed. The Corporation is directed to execute the agreement in terms of the agreement, namely, 1 year plus 1 year, which shall commence from the date of the execution of the agreement. This Court will be pleased if the entire 4 process is completed within a period of four weeks from today. In the facts and circumstances of the case, there shall be no order as to costs. ( S K Katriar ) Kishore K Mandal, J. I agree. ( Kishore K Mandal ) Patna High Court, Patna The 4th of May 2010 NAFR/mrl