NIRANJAN KUMAR NANDA Vs. STATE OF BIHAR

JUDGEMENT

(1.) THE petitioner had entered into a work contract agreement with the respondent -State for construction of Primary Health Centre at two places in Nalanda district The agreement was executed on the 10th of April, 2006 when work orders were issued and the work had to be completed by 9th of October, 2006. The petitioner could not even start the work as the sites were flood inundated. Work in fact started in December 2006. While the work was continuing, part payments were also made because the authorities were cognizant of the reasons for delay in taking up the project and finishing it. All of a sudden, the contract was rescinded on the ground that the work had to be completed in October, 2006 but till 7.5.2007, it had not been completed. Consequent to rescinding of the work, petitioner was made liable to pay damages for delayed work as also his security was forfeited. The balance work was retendered at the risk and cost of the petitioner. By subsequent affidavit, petitioner has brought on record that pursuant to retender, he was the only person who retendered and was granted the tender for remaining work with time upto 4th of March, 2008 to complete the work. The work is nearing completion. In that view of the matter, the petitioner now restricts his relief to refund of security money in respect of the first contract and for a direction not to make deductions on account of delay in executing the work under the first agreement.

(2.) COUNTER affidavit has been filed and a rejoinder thereto has been filed. With the consent of parties, this writ petition is heard and is being disposed of at the stage of admission itself. As consequent to cancellation of petitioner 'sfirst contract, the matter was retendered and resettled with the petitioner there remains nothing to quash so far as cancellation of the first tender is concerned. What now remains is to consider the two prayer of the petitioner. Petitioner submits that it was within the knowledge of the authorities that the work had got delayed because of floods. It is because of that reason that even though there was inordinate delay in starting the work, his bills thereafter were partly paid. In my view, the respondents should take note of such natural calamities and raise no technical objections on the ground of agreement shutting their eyes to the ground reality. The conduct of the respondents clearly shows that they were aware of the reasons for the delay but for some intervening reason, they would not have normally taken action against the petitioner. Action having been taken, it was resettled with the petitioner. This, in my view, virtually amounts to extending the time of the first contract itself as the rates were not revised but tender given for the balance work alone at the old rates merely amounted to extension of time as per the first tender itself. This, I see no reason why the security deposited in the first tender should be forfeited. I, accordingly, direct that the security of the first tender subject to security having been deposited in the second tender be refunded and the order of forfeiture is, thus, set aside.

(3.) SO far as deduction on account of delay is concerned, this Court cannot decide the justifiability or otherwise of the delay. The petitionen is given liberty to make a proper representation to the authority in this regard who would consider the ground realities as obtaining at the site and take a decision in this regard and communicate the same to the petitioner with reasons in support thereof within a period of six weeks from the date this order is produced before them.