IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.789 of 2007 STATE OF BIHAR & ORS Versus VIJAY KUMAR SHARMA & ANR For the Appellants : M/s Prabhakar Tekriwal & Manoj Kr. Jha, JC to GA1 For the Respondents : M/s Dr. U.N. Singh, Sandeep Kumar & Sishir Kumar Mukesh 5 30.04.2008 Respondent writ petitioner entered into a works contract with the appellant-State. In terms of the said works contract the respondent was entitled to payment of running account bills. First, second and third running account bills of the respondent were paid. Dispute arose pertaining to payment of the fourth and the final bill. The dispute pertaining to refusal to pay the fourth and the final bill is a sequel to the call attention motion moved by a member of the Legislative Council of the State of Bihar in the 147th Session of the Bihar Legislative Council. In order to sort out the matter, the Divisional Commissioner, Saran Chapra, was requested on 28th January, 2004 to conduct an enquiry and to submit a report. In compliance thereof, the Divisional Commissioner, Chapra, sent a Technical Team of Officers on 08th June, 2004 for a preliminary spot - 2 - enquiry and then on 09th June, 2004 the Divisional Commissioner himself inspected the work done by the respondent. He thereupon submitted a report and thereby held out that the respondent has not done certain work and has done some work in full but in relation to others he did not work to the level of expectation. He made recommendation that the respondent be paid a certain percentage of the contract value for the work done. This report , on being received by the appellant, it decided to appoint yet another committee comprising of the Chief Engineer and the Superintending Engineer of the Department and also the Superintending Engineer, National Highway, Quality Control Circle, Patna to evaluate the work done by the respondent under the said works contract. The members of the Committee then inspected the work done and then reported that the respondent has completed the work assigned to him in terms of the contract. In other words, it was reported that the respondent has completed his part of obligations under the works contract. The respondent approached this court seeking a direction upon the appellant to discharge its part of obligations under the - 3 - contract on the plea that the respondent has discharged its part of obligation under the contract. During the pendency of the writ petition the second report was obtained. In the second report the Committee also opined that the findings of the Divisional Commissioner, as contained in his report, are incorrect. In view of the second report, the writ petition was allowed and the appellant was directed to act upon the second report. Being aggrieved, the appellant is before us. It is the contention of the appellant that the appellant has accepted the first report of the Divisional Commissioner and is, accordingly, ready and willing to proceed on the basis of the findings recorded therein. It is also the contention of the appellant that it is up to the appellant to accept either of the reports and it has ultimately accepted the first report. In such view of the matter, the appellant is contending in this appeal that the judgment and order under appeal should be modified by issuing a direction upon the appellant to act in terms of the report of the Divisional Commissioner. One of the contracting parties to the works contract - 4 - was the appellant State. In terms of the works contract, upon the other contracting party, namely the respondent, discharging its obligations under the contract, it was obligatory on the part of the appellant to discharge its part of the obligations thereunder. In order to ascertain whether the respondent has discharged its obligations under the contract, the appellant sought the assistance of the Divisional Commissioner. The Divisional Commissioner recorded his findings and reported the same to the appellant. It was well within the competence of the appellant to accept the said report or not to accept the same. By acting on the same, the appellant could demonstrate that it has accepted the same. The appellant, however, did not act on the said report, instead it appointed a Committee for the self same purpose and in the said Committee invited an Officer not in the employment of the appellant. The said state of affair suggests that while the appellant decided to appoint the Committee, it had some doubt in relation to the report submitted by the Divisional Commissioner. After the Committee submitted its report it was again well within the competence of the appellant to accept the said report or not - 5 - to accept the same. However, having doubted the first report by constituting the Committee, it was a requirement of law on the part of the appellant to bring on record as to how such doubt stood removed by the second report. This having not been done, the legal consequence of the action of accepting the doubtful first report and totally rejecting the second report is plain and simple ipsi dixit on the part of the appellant, arbitrary to the core and not sustainable. We, therefore, see no reason to interfere. The appeal fails and the same is dismissed without any order as to costs. (Barin Ghosh, J.) (Chandra Mohan Prasad, J.) AAhmad/