IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.12260 of 2009 M/S RUNGTA ENTERPRISES, A PROPRIETORSHIP FIRM AT GANDHI NAGAR, KAHALGAON,DISTT- BHAGALPUR THROUGH ITS PROPRIETOR MAHESH KUMAR RUNGTA, S/O RAM SWAROOP RUNGTA, R/O GANDHI NAGAR KAHALGAON BHAGALPUR--------------------PETITIONER Versus 1. THE UNION OF INDIA THROUGH THE SECY., MINISTRY OR RURAL DEVELOPLMENT, KRISHI BHAWAN, NEW DELHI 2. THE NATIONAL BUILDINGS CONSTRUCTION CORPORATION LTD. A GOVERNMENT OF INDIA UNDERTAKING, THROUGH THE EXECUTIVE DIRECTOR (EAST) NBCC BHAWAN LODI ROAD, NEW DELHI-11003 3. THE GENERAL MANAGER, NATION BUILDINGS CONSTRUCTION CORPORATION LTD. NBCC BHAWAN LODI ROAD, NEW DELHI 4. THE GENERAL MANAGER HEAD SBG (BIHAR) NBCC LTD. B- 6,VIJAY NAGAR RASH BIHARI PATH, RUKANPURA, BAILEY ROAD, PATNA 5. THE ASSTT. GENERAL MANAGER, NBCC LTD. B-6 VIJAY NAGAR RASH BIHARI PATH, RUKANPURA, BAILEY ROAD,PATNA 6. THE PROJECT MANAGER NBCC LTD. PRADHAN MANTI GRAMIN SADAK YOJNA WORK, LOCAL OFFICE, 2ND FLOOR C/O ARUN PRASAD YADAV, GAUTAM BUDDHA COLONY JAIL ROAD, TILKA MANJHI, BHAGALPUR 7. THE DEPUTY PROJECT MANAGER NBCC LTD. PRADHAN MANTI GRAMIN SADAK YOJNA WORK, LOCAL OFFICE, 2ND FLOOR C/O ARUN PRASAD YEDAD GAUTAM BUDDHA COLONY, JAIL ROAD, TILKA MANJHI BHAGALPUR 8. M/S SANDILYA SYNDICATE & COMPANY, SUSHILA SADAN OPPOSITE ROAD NO.5 PUNAICHAK, PATNA-800023--RESPONDENTS ----------- For the petitioner: Mr. Y.V.Giri, Sr. Advocate,& Mr. Surj Samdarshi,Advocate For the UOI: Dr. Maya Nand Jha, CGC. For respondents: Mr. S.K.Sinha,Advocate. NBCC ----------- 6 12 /3/2010 Petitioner was awarded work for construction of road from Anandipur to Pirpaiti via Bateshwar Asthan under Pardhan Mantri Gram Sadak Yojna in the district of Bhagalpur. This work was numbered as Package No. BR/06/09. The agency which awarded contract to the petitioner is National Building Construction Corporation Ltd., a Government of India Undertaking. The tender awarded to the petitioner was a composite one meaning thereby that the petitioner had the responsibility of upgradation of the road as well as its maintenance - 2 - for five years. Since the petitioner was the successful bidder, work came to be awarded to him and an agreement between the parties was entered on 15.3.2005. Agreement is annexure-3 to the writ application. It is the stand of the petitioner that he was granted a satisfactory completion certificate on completion of the work by the concerned Project Manager on 31.3.2006. It is also the contention of the petitioner that besides the completion certificate issued by the Project Manager a site inspection was also carried out by Quality Manager of National Rural Roads Development Agency. The execution of the work in terms of the contract was certified to be O.K. The said certification report is annexure-5 to the writ application. Petitioner states that in terms of the contract he even undertook maintenance of the concerned road in the first year. But he found certain hurdle and problems because of plying of heavy vehicles on the road constructed by the petitioner where wear and tear or damage to certain portions of the road became disproportionate to the fund allotted for the said maintenance. He brought the said fact to the notice of the respondent authority and stopped maintenance work after June, 2007. On 23.5.2008 the Project Manager wrote a letter to the petitioner enclosing an inspection report dated 25.1.2008 stating therein that the road in question requires rectification as well as proper maintenance. Petitioner was directed to ensure that - 3 - both these aspects are taken care of and the work was completed as per standard laid down in the contract. Failure on the part of the petitioner would compel the respondents to get the work done through another agency at the risk and cost of the petitioner. The letter in question is annexure-7 to the writ application. Petitioner responded to the above communication by placing his point of view that the road in question was not meant to take heavy load. One of the reasons for excessive damage was diversion of certain traffic from National Highway through this stretch. He stated that the present specification was not meant to take such heavy traffic and that was the reason why there was more damage to the road than normal wear and tear. The plea and explanation offered by the petitioner did not satisfy the respondents and they finally decided to award the rectification of defective work of road Package No. BR/06/09 to yet anther contractor, namely respondent no.8. Petitioner was communicated the decision as per annexure-12 which is dated 26.2.2009. It is this letter which is under challenge in the present writ application. Submission of learned Senior counsel representing the petitioner is that the decision of the respondents to award rectification of defective work of the road in question to yet another contractor as well as its maintenance for next five years was unwarranted, arbitrary as well as unnecessary because the facts being what they are it did not require a decision of the kind - 4 - which has adversely effected the interest of the petitioner. There was evidence to show that the work had been completed satisfactorily and the concerned Project Manager had certified the completion of the work in terms of PMGSY guidelines. Since two years after certification if major wear and tear has been caused to the road, the petitioner cannot be held responsible. There was evidence to show that heavy traffic of National Highway came to be diverted through this road and the village road was not capable of taking the excessive load and traffic. If damage to the road was caused by the reason unforeseen then no case for awarding the contract to yet another contractor on risk and cost basis was made out. It is also the contention of the petitioner that the fact of diversion of heavy traffic was not imaginary but it is borne out from the official notification which has been issued by the Executive Engineer of National Highway Road Division of Bhagalpur. The said notification is annexure-13 and the above fact also stands corroborated by the Project Manager of the respondent in a communication dated 8.8.2006 contained in annexure-14. A counter affidavit on behalf of the National Building Construction Corporation Ltd. has been filed. Their stand is that besides the construction of the road in question clause-32 of the agreement and the standard bidding document makes it obligatory upon the petitioner to carry out maintenance for the defect liability period which has been fixed for five years for this - 5 - road. Though some kind of certification has been made by the local Project Manager on completion of the work but when a detailed enquiry was made by the Central Agency, namely, NRRDA the work was stated to be unsatisfactory. The detailed report of the National Quality Monitor (MQM) has been brought on record as annexure-A. Petitioner had been reminded and given opportunity to rectify the defective work through various communications, extended over a year but as he chose to ignore the directions of the respondents, respondents had to take recourse to Clause-33 of the standard bidding document. It is also their stand that it was because of the poor quality of the construction that the wear and tear of the road was excessive. The petitioner is liable since he refused to heed the advice or direction of the respondents. Looking at the importance of the link road the decision contained in annexure-12 had to be taken. There are certain materials with regard to diversion of heavy traffic on the road upgraded and constructed by the petitioner but how much of it is attributable to diversion and how much attributable to poor quality of construction cannot be certified in a proceeding under Article 226 of the Constitution of India. These are technical matters where data and inputs would be required by the experts. On the limited plea and material it is not possible for this Court in exercise of its power under Article 226 of the Constitution of India to put blame at the door step of either - 6 - the petitioner or the respondents. It is because of this reason that the Court is inclined to relegate the petitioner to the Dispute Redressal System which has been provided under Clause 24 of the standard bidding document. It will be in the interest of the petitioner as well as the respondents that in case the petitioner raises a dispute over the present issue the respondents would take step for resolution of the dispute in terms of the dispute redressal mechanism put in place. This writ application is disposed of with liberty to the petitioner to approach the respondents and invoke Clause 24 of the standard bidding document and the respondents are bound to respond to the request of the petitioner on this issue. RPS (Ajay Kumar Tripathi,J.)