KALIKA SWACHCHHANDA JOINT VENTURE PRIVATE LIMITED, KALIMATI, KATHMANDU, NEPAL Vs. SECRETARY, BIHAR RURAL WORKS DEPARTMENT, RURAL WORKS DEPARTMENT

JUDGEMENT

(1.) Heard learned counsel for the petitioner and the learned counsel appearing on behalf of the State.

(2.) The petitioner seeks following reliefs:

(3.) The facts of the case is that the petitioner was allotted work order and an agreement was entered into between the petitioner and Respondent No.5 under Agreement No. 01-SBD/2009-10 for construction of road under the Bihar Rural Roads Development Agency in the district of Sheohar bearing Package No. BR32R/ Sheohar II ( No. of Road 07, Total length - 31.755 Kms.). The period of commencement of work was 18.05.2009 and was to be completed within one year i.e. 17.05.2010. After commencement of the work, there were certain obstructions for which the petitioner corresponded with the respondent - authorities, but having not completed the work order within the time frame, a notice was published in the daily newspaper Prabhat Khabar dated 30.09.2013 mentioning that since the petitioner had not completed the work, he was directed to file show cause on or before 209.2013, failing which the process to rescind the agreement shall be made. A show cause notice by Letter No. 633 dated 14.09.2013 requiring compliance by 209.2013 was served on the petitioner on 24.09.2013, a day after the date fixed for filing show cause reply, which the petitioner replied on 30.09.201 However, the termination order dated 05.10.2013, Annexure-P/2 was issued without taking notice of the show cause reply. Aggrieved by the termination order, the petitioner moved this Court in CWJC No. 6186 of 2014 and by order dated 24.08.2015, termination order dated 05.10.2013, Annexure-P/2 was set aside on account of being in violation of principles of natural justice with liberty to the respondents to issue a fresh show cause. A fresh show cause was issued by the respondents asking the petitioner to submit reply within a period of 7 days, which is Annexure-P/4. Petitioner submitted reply stating therein that as per clause 24 of the terms of contract, there was a Dispute Redressal System by referring the matter to the Empowered Standing Committee and requested to constitute an Empowered Standing Committee to settle the disputes. Empowered Standing Committee having not been constituted, the petitioner moved this Court in CWJC No. 6389 of 2014, which was disposed of on 05.11.2015 wherein this Court directed the petitioner to approach the Empowered Standing Committee as per clause 24 of the agreement, yet when the respondents failed to constitute an Empowered Standing Committee, the petitioner again approached this Court in CWJC No. 6357 of 2016 and CWJC No. 9157/16. The petitioner had challenged the letter dated 09.05.2016 in CWJC No. 9157/16 whereby his tender- agreement was rescinded and in CWJC No. 6357 of 2016, the petitioner had sought constitution of Empowered Standing Committee. During course of hearing of the said two writ applications, respondents informed this Court that an Empowered Standing Committee has already been constituted on 11.07.2016. Hence, this Court disposed of the writ application on 17.02017, Annexure-P/8 with a direction to the petitioner to nominate any one person by him and approach the Empowered Standing Committee, which will be obliged to adjudicate the dispute between the parties. The petitioner has challenged the order dated 18.12.2017 passed by the Empowered Standing Committee which was constituted to settle the disputes. During course of adjudication, it came to light that the bank guarantee submitted by the petitioner is of a bank situated in Nepal, hence, as per Standard Bidding Document, clause 32.2, the bank guarantee had to be of a Schedule Bank. The Empowered Standing Committee also opined that although the bank guarantee of Nepal bank was accepted, but the said acceptance is not in accordance with the Standard Bidding Document, hence, the order passed by the Executive Engineer dated 11.11.2013 and subsequent order dated 09.05.2016 calls for no interference and the order rescinding the contract also calls for no interference.