IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.873 of 2009 with CWJC No. 874 of 2009 SHYAM BIHARI son of Shri Mahendra Narain Chaudhary, resident of village Kharauna,P.S. Kudhani,District-Muzaffarpur. ... Petitioner in both cases. Versus 1. THE STATE OF BIHAR through the Principal Secretary, Road Construction Department, Govt. of Bihar,Patna. 2. Superintendent Engineer, Road Construction Department,North Bihar Road Division,Muzaffarpur. 3. Executive Engineer, Road Construction Department, Road Construction Sub-division No.1, Muzaffarpur. 4. Sub- divisional Officer, Road Construction Department, Road Construction Sub-division no.1, Muzaffarpur. ...Respondents in both cases. ----------- For the Petitioner: Mr. Sandeep kumar, Mr. Shishir Kumar For the State : Mr. P.K.Verma,AAG-11, Dr. Mankeshwar Tiwari, A.C to AAG-11. - - --- 2 29.1.2009 Petitioner in both the cases is a contractor entrusted with re- enforcement and widening of Muzaffarpur-Pusa Road from 0 to 15 kilometers and 15 to 30.08 kilometers respectively. As per the contract , he had to complete the work in March, 2008. There was a considerable delay in execution of the work and the petitioner was repeatedly informed to speed up. Ultimately, show cause were issued for slow progress and consequently cancellation of the contract. Petitioner field his detailed reply. In the reply , petitioner stated that the delay was not attributable to the petitioner. He stated that the work having been awarded , specifications were changed repeatedly. Obstructions on the roads were not removed timely by different authorities over which petitioner had no control. In between there were 22 bridges/culverts. Those had to be constructed by another 2 agency over which petitioner had no control. Those constructions are considerably delayed because of which petitioner does not get connectivity for making the road and it hampered its progress. These reasons are not exhaustive but merely illustrative. It is also submitted that mobilization resources, which have to come from the government at the very beginning, have yet not come and the petitioner had to invest his own fund contrary to the agreement for setting up of the infrastructure. Show cause having been filed, petitioner has now been visited with cancellation order issued by the Executive Engineer, the thrust of which is that by not completing the road work in time, petitioner has caused severe embarrassment to the Government and, as such, by order dated 12.12.2008, the two contracts have been cancelled. Consequent to cancellation of the contract, the security and the performance guarantee in the shape of Bank guarantee have been forfeited/ invoked. The petitioner has thus come to this Court challenging the order dated 12.12.2008 in respect of both the contracts. On behalf of the petitioner, Mr. Sandeep Kumar states that in view of the fact, stated above, in fact, there was no delay on the part of the petitioner . At the very beginning mobilization resources having not been made, which was the part of the agreement by the Government, the Government could not expect the petitioner to fulfill his part of the bargain. The reasons given are not disputed but what is disputed is that within the time available upto the time of cancellation notwithstanding those impediment, petitioner could have shown 3 substantial progress and not the meager amount for work, as done. To this, Mr. Kumar , for the petitioner, on instruction, submits that the petitioner is ready to complete the project to the satisfaction of the State within a period of ten months.He will not raise objection of any kind in this respect and seek no extension except on ground of “Forced Measure”. He submits that if re-tender is permitted and that too at the risk and cost of the petitioner, the result would be that the completion of project get further delayed and it would be at a considerable higher cost whereas if the extension,as prayed for, is granted , it would sub serve early completion and cost saving as well. Lastly, it is submitted that the order of cancellation cannot be sustained on the ground that apart from referring to the filing of show cause nothing contained in the show cause has at all been noticed , much less adverted to. Respondent is dealing with a legal right of the petitioner and being State instrumentality it would require to give proper reason or require to meet the explanation of the petitioner. References in this regard have been placed in the case of Mahindra and Mahindra Limited –Vrs. Union of India & anr. since reported in AIR 1979 SC 798 and Bhikhubhai Vithlabhai Patel & ors. –v- State of Gujrat & anr. since reported in (2008) 4 SCC 144. where the Apex Court has found that notwithstanding application of mind, the reasons have to be disclosed clearly for accepting or not accepting the point of views. Having considered the matter, in my view, it would be just and proper to keep the cancellation order in abeyance for a period 4 of ten months and give an opportunity to the petitioner to complete the work to the satisfaction of the respondents. Petitioner would not claim any further extension except on ground of “Act of God” or natural calamities ,as the case may be. He must show considerable progress every month, which he admits that he is capable of. While granting this time, it is made clear that the State would also ensure timely payment and settlement of his bill for the work done, after due verification. The Bank guarantee, if encashed by the State would be refunded to the petitioner immediately on petitioner’s furnishing a fresh Bank guarantee valid for a period of twelve month on the same terms to the earlier Bank guarantee. If the petitioner has any other claim against the State, he would make representation in appropriate forum and before the appropriate authority under the agreement and would be dealt with in accordance with law by the said authority. In case the petitioner is unable to complete the work within the period aforesaid , the order of cancellation dated 12.12.2008 would immediately take effect and the respondent- State would be free to proceed against the petitioner in accordance with law.This order is passed in the hope of early completion of work, which is the object of the contract and the power to terminate the contract, as contained therein. The period of ten months would start from 1st week of February, 2009, and as this Court has already ordered that the cancellation orders to be kept in abeyance, parties agree that there will be no difficulty in petitioner resuming the work from the said 5 date. I may also clarify that if petitioner raised any dispute or issue before the authority, he will not use it as a pretext to delay the work and the work would be completed in ten months, as indicated above. This, in my view, disposes of the writ petition. Let a copy of this order be given to learned AAG-11. SINGH (Navaniti Pd. Singh, J.)