KASHISH DEVELOPERS LIMITED Vs. STATE OF BIHAR

JUDGEMENT

(1.) The present writ petition has been filed seeking the following reliefs:-

(2.) The brief facts of the case, according to the petitioner, are that a fresh NIT bearing No. 17 / 2014-15 was published on 26.03.2015 by the respondent department for "Construction of remaining work of Administrative Training Institute and Bihar Rural Development Institute at Gaya including electrification", which was finally awarded to the petitioner company. A letter of acceptance was granted vide Memo No. 685 dated 04.06.2015, an agreement in this regard was executed on 09.06.2015, in between Kashish Developers Limited (petitioner) and the Executive Engineer, Building Division Gaya, Building Construction Department, vide Agreement No. SBD 13 of 2015-16 and on the same day a work order was issued vide letter no. 713 dated 09.06.2015. The petitioner was then directed to proceed with the work vide Letter No. 719 dated 10.06.2015. The petitioner company had then vide its letter dated 13.06.2015, requested the respondents executive engineer to provide certain documents. It is the case of the petitioner that even after termination of the ex-agency from the work in question and the same being awarded to the petitioner, the representatives of ex-agency were present at the construction site and had tried their level best to create hindrance and ensure that the work could not be started by the petitioner. The exagency is stated to have also refused to remove its plant and machinery, construction materials and the security guards from the construction site. The petitioner is stated to have requested the Executive Engineer, Building Construction Division Gaya, for resolution of these problems and to make the construction site free from hindrances, vide letters dated 13.06.2015, 13.06.2015 and 20.06.2015. In spite of all the hindrances, the work of cleaning and construction of structures were started by the petitioner but suddenly on 02.07.2015, an office order dated 2.7.2015 was served upon the petitioner by the Executive Engineer, Building Construction Division Gaya, directing the petitioner to stop the construction work, in compliance of the order dated 29.4.2015, passed by the Hon'ble Patna High Court in CWJC No. 6745 of 2015, in the case of M/s Remky Infrastructures Limited Vs. The State of Bihar and others. The petitioner company is stated to have not at all been aware about pendency of the aforementioned writ petition bearing CWJC No. 6745 of 2015, and therefore, had already arranged adequate quantity of construction material, plant and equipment, manpower etc. at the construction site, thus it sustained additional financial burden because of the sudden stay. A letter in this regard is stated to have been written by the petitioner to the Principal Secretary, Building Construction Department, Bihar, Patna on 21.09.2015. Subsequently, the petitioner had filed an interlocutory application bearing I.A. No. 6184 of 2015 in the aforesaid writ petition bearing CWJC No. 6745 of 2015 for its impleadment as party respondent, which was allowed. The said writ application filed by M/s Remky Infrastructure Ltd. was allowed vide judgment dated 07.10.2015, passed by the Hon'ble Patna High Court and the order of termination of contract along with other penal action, qua M/s Remky Infrastructure Ltd. was set aside, apart from the agreement entered into with the petitioner company being declared a nullity. The State of Bihar and the petitioner herein had then challenged the aforesaid judgment dated 07.10.2015 by filing an appeal bearing L.P.A. No. 1192 of 2016 and L.P.A. No. 550 of 2016 respectively, which were heard by the Ld. Division Bench of this Court and the Hon'ble Court vide order dated 01.12.2016 had granted stay of the impugned judgment dated 07.10.2015 as also had granted liberty to the State to proceed with the contract awarded to the petitioner herein. The aforesaid appeals bearing L.P.A. No. 1192 of 2016 and L.P.A. No. 550 of 2016 were disposed of vide order dated 04.12.2017, passed by the Ld. Division Bench, with a direction to the competent authority to release funds in favour of the petitioner herein so that the contract is executed and the institution becomes functional at the shortest possible time. Nonetheless, the respondent authorities delayed payment of several crore of rupees of the petitioner company. The petitioner had then written a request letter dated 07.12.2016 to the Chief Engineer (South), Building Construction Department, Bihar to allow it to commence the work. Thereafter, the Engineer-in-Chief-cumAdditional Commissioner-cum-Special Secretary, Building Construction Department, Bihar, vide letter no. 12581 (Hk) dated 28.12.2016, had directed the Executive Engineer, Building Division, Gaya, to issue a letter to the petitioner to start the Construction work, whereafter the Executive Engineer, Building Division Gaya, vide letter no. 01 dated 02.01.2017, allowed the petitioner company to start the work. It has been stated by the petitioner that the expenses incurred for making available the preliminary construction materials, plant and machinery and deployment of human resources at the site to commence the said construction work was around Rs. 4.00 crores approx..

(3.) It is the further case of the petitioner that despite several reminders issued to the previous contractor vide letters dated 09.06.2015, 13.12.2016 and 22.12.2016, the site was not vacated up to 1st March, 2017. In fact, the previous contractor had also failed to clear the electricity bills resulting in delay in the petitioner firm getting a new electricity connection. Moreover, funds were belatedly made available to the petitioner firm after five months of the commencement of work and the first running bill was paid only on 30.05.2017, resulting in the petitioner company utilizing its own fund for executing the contract in question. The respondents had also delayed in release of the mobilizing advance and the same was made available after a delay of about 12 months from the date of the commencement of the work. The petitioner has also alleged that undue delay has been made in making payment of the outstanding dues of the petitioner firm for the work completed by it. The respondent authorities, without considering the facts stated by the petitioner in its letter regarding delay being caused in execution of the contract in question and without taking into account the fact that a sum of Rs. 15.00 crore approximately was outstanding for payment, had issued a show cause notice dated 27.11.2018 to the petitioner company regarding debarment, whereafter the petitioner had submitted a detailed reply dated 29.11.2018, highlighting the aforesaid facts, nonetheless, the Executive Engineer, Building Division, Building Construction Department, Bihar, Patna, by an order dated 17.12.2018, had debarred the petitioner from participating in future contracts, which was then challenged by the petitioner by filing a writ petition before this Court bearing C.W.J.C. No. 318 of 2019 and this Court, by an order dated 11.01.2019 passed in the aforesaid writ petition, had set aside the order of debarment and had further observed as follows:- "It is not in dispute that the reply dated 29.11.2018 (Annexure-28) was submitted by the petitioner with the respondent authorities on 30.11.2018 but the same has not been considered as is apparent from the debarment order (Annexure-1). In the opinion of this Court, non-consideration of the reply of the petitioner alone is a sufficient ground to hold and declare that Annexure-'1' suffers from an inherent defect and is in violation of principles of natural justice. Annexure-'1' is, the petitioner, consider the same with the materials available on record and take an appropriate decision afresh thereon. This Court has been informed that the petitioner has already completed 70% of the work and is ready to complete the entire work by 31.05.2019 subject to the respondents making available the drawings which are yet not made available to the petitioner and consideration of the running bills and payment thereof which are still pending. The Court thinks it just and proper to observe that the offer made by the petitioner is required to be considered by the authority concerned in the light of materials available and a decision in that respect be also taken at the earliest so that in case the petitioner company is given an opportunity by extending the time they can complete the ongoing work." Thereafter, the respondents had again passed a fresh order dated 21.02.2019, again debarring the petitioner company without considering the reply of the petitioner company dated 29.11.2018, hence, the same was again challenged by the petitioner company by filing a writ petition bearing C.W.J.C. No. 3568 of 2019 and this Court had granted stay of the said debarment order vide order dated 22.02.2019 passed in the aforesaid writ petition.