IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.6667 of 2009 SRI ASHOK KUMAR SINGH, son of Brahmdeo Singh, resident of College Road, Barauni, P S – Garharha, District – Begusarai, Bihar Versus 1. THE UNION OF INDIA through General Manager, East Central Railway, Hajipur, Bihar. 2. The Chief Engineer (Con) East Central Railway, Hajipur, Bihar. 3. The Dy. Chief Engineer (con) East Central Railway, Danapur. 4. The Senior Divisional Engineer (III), E . C. Rly Danapur. 5. The Divisional Railway Manager, E C Railway, Danapur. ----------- 03. 17.12.2009 Heard learned counsel for the petitioner and learned counsel representing the respondent Indian Railways. The challenge in the writ application is to the order dated 27.4.2009 passed by the Senior Divisional Engineer (3), Eastern Central Railway, Danapur, which is annexure-1 to the writ application. By virtue of this communication petitioner has been informed that contract awarded to him stands terminated on his risk and cost basis leading to forfeiture of earnest money amounting to Rs.50,000/-. It was further directed to deposit additional three lacs of rupees in the head of security deposit within fifteen days. Some basic facts are not in dispute at all that the contract in question for construction of a washable apron on platform No.1, line No.1 at Danapur Station was awarded to the petitioner by virtue of annexure-3 dated 7.5.2008. The work was to be completed within a period of four months meaning thereby that the date of completion was scheduled for 6.9.2008. From the very nature of the work a line block was required to be given by the respondent authorities to facilitate the construction of washable apron. For whatever the reason best known to the - 2 - respondents, the power and traffic block on line No.1 was not given during the period the contract subsisted. Petitioner was informed about the block period vide letter dated 9.2.2009 for the first time which is evident from annexure-5 to the writ application. The block period granted was to begin from 20th February, 2009 and was to subsist for a period of 45 days. Submission of the learned counsel representing the petitioner is that the period of work long being over and the time being an essence of the contract, coupled with the fact it was contingent to the respondents providing the power and traffic block on line no.1, the whole contract stood frustrated because line block was offered by the respondents only in February, 2009 i.e. many many months after the initial completion period of 6th September, 2008. Now by terminating the contract on risk and cost basis the respondents are trying to draw advantage of their wrong and inaction. Petitioner has brought on record some communications expressing his inability to complete the contract since the delay caused by the respondents has led to rise in cost of materials and men and it is not possible to complete the work on the original quoted price. His submission is that the respondents having realized this aspect insisted on the petitioner completing the work in terms of the original contract awarded to him on 7.5.2008. The fact that the line block was approved and granted by the respondents beginning 20th February, 2009 is not disputed. There are some explanations offered for the said delay but the question - 3 - which arises for consideration is whether the respondents in the above accepted factual position can be allowed to draw advantage by fixing responsibility upon the petitioner of failing the contract and non- performance. The answer is a clear ‘no’. If the contract had to be completed within a time-frame it was also incumbent upon the respondents to ensure that fair working condition was provided to the petitioner within the said time-frame. It was not done and if the line block was granted many many months after the period of completion, then the respondents have no right to claim or demand completion of work thereafter and failing thereof to forfeit the security or the earnest money. The petitioner has made out a case for interference. Annexure-1 stands quashed and the writ application is allowed. rkp (Ajay Kumar Tripathi,