RAM PRAVESH PRASAD Vs. STATE OF BIHAR

JUDGEMENT

(1.) Heard the parties, State has filed a counter affidavit and a supplementary counter affidavit.

(2.) The petitioner is a contractor and was carrying out some work on Jehanabad-Arwal State High way. It appears that some part of the road in vicinity to the worksite got damaged due to floods causing a total disruption in traffic. Being an important road the Engineers immediately decided to get the same repaired to restore the traffic. As petitioner was working near the site of that damaged road and considering the urgency of the work, the petitioner was asked to carry out the said repair. The Superintend ing Engineer, Road Constructions Department, Magadh Circle, Gaya sanctioned the repair work allotted to the petitioner at Rs. 2,45,694/-. It is clear from Annexure-6 that the cost of the work was sanctioned by the Superintending Engineer. From Annexure-7, it is clear that it is the petitioner who was assigned the work by the Executive Engineer and the Executive Engineer, by Annexure-8 notified, that the work had been satisfactorily completed but the post facto approval was still awaited. From the aforesaid facts, it would be seen that it is at the request of State officials that the petitioner undertook to make emergent repair to public highway. It is also not in dispute that repair work was duly carried out. It is also not in dispute that the cost of the work was termed and sanctioned by the Superintending Engineer. When necessary fund allocation for payment to the petitioner was not being made, the petitioner made several representations and getting no favourable response, came to this Court. This writ application was filed in the year 2004. It appears as a consequence of the writ application being filed, the State woke up and as is usually done, referred the matter to the "Liability Committee" constituted by it. The Liability Committee then examined the matter in 2006 that is almost eleven years after road repair work had been done. The decision of the Liability Committee, as contained in the communication of Deputy Secretary, is contained in annexure-A to the counter affidavit. A reference to Annexure-A would show that it is not in dispute that it has not been disputed that work was not done. Only reason for rejection of the claim of the petitioner is that before allotting the work to the petitioner, no advertisement was issued or tenders invited. There was no order for the work nor was there any agreement for the work nor any authenticated measurement book for the work. In substance, the plea was that the work may have been done but the payment cannot be made as the officers of the State had not done their paper work. In the said communication, there was no reference to the letter sanctioning the amount of the Superintending Engineer, no reference to the communication of the Executive Engineer showing that the work was allotted to the petitioner and that he had executed the same satisfactory within time and was required to be paid. It is, in that view of the matter, that this Court passed the order dated 7-9-2006 : As pointed out by Sri Tekriwal, learned counsel appearing on behalf of the State that the counter affidavit was ready but could not be filed because of change of Government counsel. As per this Court's order dated 19-8-2006 imposing cost is recalled. Let the case be listed after two weeks retaining its position to enable counsel for the State to file a comprehensive counter-affidavit reverting to Annexures-6, 7 and 8 as also whether any action is proposed against the State officials who wrongly and unauthorisedly, took work.

(3.) Today a supplementary counter affidavit has been filed. With specific reference to Annexures-7 and 8, it is stated that the contents thereof are not disputed. The effect of this admission by the State is that it remains undisputed or in other words admitted that the Superintending Engineer had sanctioned the estimated cost of the work. Further, that the work was allotted and done by the petitioner, from this, it follows that petitioner had performed his part and what remained was the part on behalf of State Government. In the supplementary counter affidavit while not being disputing the aforesaid fact, it is now said that as no formal agreement was entered into no formal work order issued, payment cannot be made to the petitioner. To my mind, it is a pretence of an excuse to deny legitimate payment of the petitioner. Had the respondents disputed the work, it would be another matter? They have chosen not to dispute the work rather they have accepted that the work was done. The question then is firstly whether for the fault of officers of the State can the citizen suffer and secondly what is the consequence of the actions or inactions of the State?