IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.15570 of 2008 M/s Brajendra Kumar, at & P.O. Brahmapura, P.S. & District Muzaffarpur, Through its partner Sudeep Kumar, S/o late Brajendra kumar, Resident of New Colony, behind Sanjay Cinema, Muzaffarpur. ………. Petitioner. VERSUS 1. The State of Bihar. 2. The Commissioner-cum-Secretary, Department of Rural Works Department, Government of Bihar, Patna. 3. The Engineer-in-Chief-cum-Special Secretary, Rural Works Department, Government of Bihar, Patna. 4. The Chief Engineer, Rural Works Department, Government of Bihar, Patna. 5. The Superintending Engineer, Rural Works Department, Government of Bihar, Darbhanga Circle, Darbhanga. 6. The Executive Engineer, Rural Works Department, Benipatti, District- Madhubani. ............. Respondents. ----------- 02 13.01.2009 One Brajendra Kumar was a contractor of Class 1-A, duly registered with the Rural Work Department, Government of Bihar. He had undertaken certain road related works, pursuant to which agreement no. 01 of 2004-05 was executed. On 31.12.2004 while the work was being carried out, he along with Executive Engineer and his friend were shot dead. The contract which was individually entered into between the said Brajendra Kumar thus stood frustrated. Brajendra Kumar’s son and his widow then formed a partnership firm M/s Brajendra Kumar, the petitioner and applied to the respondent for transfer of registration and work to the firm aforesaid, because substantial amount of their money was involved in it. As stated above, the work was to be completed on 09.06.2005 and the said Brajendra Kumar was shot dead on 31.12.2004. Application for transfer for registration and work was ultimately allowed on 25.03.2006 - 2 - and petitioner was ultimately directed to complete the work by 31.12.2007. Petitioner requested that as the work had got delayed beyond reasonable time because of the said death and transfer. State should consider cost escalation to be given neither because escalation was given nor because of intervening floods extra further time was extended and ultimately by Annexures 6 and 7 agreements had been cancelled, security forfeited and recommendation made to blacklist the petitioner. It is this action that the petitioner had come up against. Considering the fact that Brajendra Kumar died on 31.12.2004, while executing the work, which was to be completed by 09.06.2005 and the agreement stood frustrated as a consequence of death aforesaid and that it was transferred to the petitioner on 25.03.2006, as also the intervening floods. In my view, the petitioner was entitled to consideration of cost escalation enhancement because of the undue delay in completion of the work, which is beyond his control. The remaining work is incomplete. State had a right to rescind and reallott the work but to the extent work was done by Brajendra Kumar or the petitioner, payment had to be made in the peculiar circumstances. As noted above, ordering forfeiture of security and recommending blacklisting was totally uncalled for. Thus, on these facts alone, I direct that work has been done by the let Brajendra Kumar or the petitioner firm, a proper measurement be taken and payments made and the earnest money/security be refunded to the petitioner. Petitioner shall not be recommended for blacklisting that having been unable to complete the work. Respondent-State would - 3 - however be at liberty to retender the matter for balance work but not at the risk and cost of the petitioner. The payment should be made as early as possible preferably within two months. With the above observations and directions, the writ petition stands disposed of. Trivedi/ (Navaniti Prasad Singh,J.)