IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.13037 of 2008 M/S SHARDA CONSTRUCTION, a partnership firm having its office at New Area, Maharajanj Road,Aaurangabad, Bihar through it’s Partner Kaushal Kumar Singh son of late Ambika Narayan Singh, resident of New Area, P.S. & District- Aurangabad,Bihar. Versus 1. THE STATE OF BIHAR through the Principal Secretary, Water Resources Department, Govt. of Bihar,Patna. 2. The Engineer-in-Chief, Water Resources Department, Govt. of Bihar,Patna. 3.The Chief Engineer, Water Resources Department, Aurangabad. 4.The Executive Engineer, Sone High Level Canal Division, Aurangabad. 5.The Sub-divisional Officer, Eat Sone High Level Canal Sub-divisionm Bharthauli, District- Aurangabad. ----------- 2 20.2.2009 This case depicts a sorry state of affairs on the part of the State. A tender was issued for construction of service road at Sone High Level Main Canal. Petitioner filed his tender in April,2006. He subsequently entered into an agreement, started work but then the contract was closed. Petitioner requested for final measurement and settlement of outstanding bills. Measurements were allegedly done and demand of payment rejected holding that there was no work left unpaid. Petitioner seriously disputes this position. A comprehensive counter affidavit has been filed. It makes a very interesting reading as to how a responsible State conduct itself and that too to the detriment of contractor. The authorities have no idea of law or law implication of their own action. It appears that they considered themselves either above the law or law by themselves. The reason for this extreme expression against the authorities was anguish which arises from the facts, as narrated in the 2 counter affidavit itself. No part of the facts herein noted adverted by the petitioner, it is a part of the counter affidavit itself. As noticed above, petitioner had filed his tender pursuant to notice inviting tender issued in April,2006 at the rate then prevailing. Once tenders were filed, the respondents, who should have work expeditiously, took their queer time to finalise the tender process. The tender process was finalized after eight months in December, 2006. Petitioner was conveyed the State’s acceptance and asked to sign an agreement. Petitioner immediately protested that because of the delay in finalizing the tender, the rates of basic commodity requirement in the contract had escalated unreasonably and as such the petitioner is ready and willing to enter into an agreement provided State revises the rates. Contemporaneous correspondences have been shown where Superintending Engineer persuaded the petitioner to enter into an agreement on written assurance that once agreement is entered into and work started, rates would be revised. It is because of this conduct, the Court was constraint to observe that either authorities were unaware of law or they themselves were the law. The Court further feels that if the two are not there then the third possibility, that is, they were lying trap for the petitioner. This is so because once petitioner under ordinary circumstances entered into an agreement, then the parties are bound by the agreement and the same can only be varied either by mutual consent or by the order of the Court.This Court wonders what authorities were trying to achieve. However, on the written assurance 3 of an officer of the State like Chief Engineer, of rate revision, petitioner started work, then specifications of work were drastically altered. Again petitioner requested for rate revision before he could undertake the work and burn his fingers. Again as per counter affidavit itself assurance was given that rate would be revised, petitioner should progress the work Ultimately, petitioner finding himself trapped in option choice narrated the whole episode and requested the closer of the agreement to the Chief Engineer. All concerned Engineers accepted the predicament in which the petitioner has been left by the State and as such noticing abnormal rise in prices, change in design and rise in cost of the contract even the Chief Engineer recommended for closer of the contract and retender at fresh rate. As per counter affidavit itself this ultimately led to closer of contract. Now the petitioner is praying for verification of work done and settlement of payment due. All it is said in the counter affidavit is that hardly 1% of work was done, payment whereof was made and no further payment is due. Petitioner submits that the conduct of the State authorities right from the beginning has been most arbitrary. It has not only cost gravely to the State itself but it has cost gravely to the petitioner as well. Petitioner states that since the contract was closed, till now no further work has been done and the work can be assessed by an independent agency. Petitioner now states that substantial work is being done by IRCON where Superintending Engineer and Technician of IRCON are available, they being independent agency and part of the Central Government 4 establishment, they should be directed to assess the work done. State, on the other hand, states that they have made measurement but the petitioner also states that no measurement book has been signed by the petitioner. Be that as it may, the matter to this Court is simple and is being complicated by the State right from the beginning.It is well settled that the State must do what is just and fair,while the State acting as an independent agency believing the correctness of its stand I, therefore, direct IRCON, which have their establishment at Aurangabad, to assist in the matter and after noticing to both the parties i.e. Executive Engineer, Water Resources Department, Aurangabad and the petitioner , fix a convenient date for measurement and assessment of work done by the petitioner and give a copy of the report to both the parties. It is expected that the State would abide by the finding arrived at and make payment accordingly and settle the dispute rather than court’s litigation and wasting time of the Court. With the above observations and direction, this writ petition stands disposed of. SINGH (Navaniti Pd. Singh, J.)