IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.14273 of 2007 M/S KUMAR ELECTRIC,PATNA THROUGH ITS PROPRIETOR BRAJESH KUMAR SON OF SRI JALIM PRASAD YADAV RESIDENT OF MOHALLA PUNAICHAK, NEAR DEVI ASTHAN, P.S. SHASTRINAGAR, DISTRICT PATNA. Versus 1. THE STATE OF BIHAR 2. THE SECRETARY, ENERGY DEPARTMENT, GOVT. OF BIHAR, PATNA. 3. THE CHIEF ENGINER, ENERGY DEPARTMENT, GOVT. OF BIHAR, PATNA. 4. THE SUPERINTENDING ENGINEER, ELECTRIC WORKS CIRCLE, PATNA. 5. THE ELECTRICAL EXECUTIVE ENGINEER, ELECTRIC WORKS DIVISION, BHAGALPUR COMBINED BUILDING, BHAGALPUR. ----------- For the Petitioner :- Mr. Amitesh Kumar For the State :- Mr. S. Rahman, A.C. to S.C. XVII ------ 2 05/03/2010 Vide office order dated 4.12.2002 which is letter no. 842 the petitioner was awarded contract for special repair and remodeling of electrical installations (E.I.) in the ground floor of laboratory building of Govt. Polytechnic at Bhagalpur. The work was awarded is not disputed. It is the stand of the petitioner that on completion of work even final bill came to be prepared which is annexure-2 to the writ application but thereafter no step was taken for releasing money in favour of the petitioner. When the respondents did not respond to the - 2 - request of the petitioner, the present writ application came to be filed. In the counter affidavit which has been filed on behalf of the State, their objection is that no writ is maintainable for payment of dues even if the liability is admitted by the government. Therefore, the remedy for the petitioner is not a writ but may be a suit or arbitration. The decision cited for such a proposition in paragraph 7 of the counter affidavit may not be the correct law as things have developed and evolved since 1998. Such an objection on behalf of the State is basically a lame defence which cannot be entertained. Other things which have been stated in the counter affidavit is that there is failure on the part of the Executive Engineer and the Assistant Engineer who verified the Measurement Book and if the bills after proper check and verification has not been made, then there is no liability on the part of the respondents to pay the money. This stand of the State is also not understood and appreciated by the Court because if there was a failure to follow the procedure laid down in the Bihar P.W.D. Code, then the failure is on the part - 3 - of the concerned authorities who are the limbs of the government and not on behalf of the petitioner. Allowing such a defence would allow the State to take a premium of its own failure or its officials’ failure which the Court cannot permit. If such a defence is accepted, then it is going to lead to many kind of problems and even the rule of law may be affected. With no serious denial with regard to the claim and the averment made in the writ application with regard to the payment in question and the work done by the petitioner, the writ application is disposed of with a direction to the Electrical Executive Engineer (respondent no. 5) that he shall now take steps for settling the bills of the petitioner on due verification within a period of three months from the date of production or communication of a copy of this order. If he requires any other approval or sanction at a higher level, he shall obtain the same within the same time frame. This writ application stands allowed with the above direction. AMIN (Ajay Kumar Tripathi, J.)