PRASAD SINGH Vs. STATE OF BIHAR THROUGH THE PRINCIPAL SECRETARY, ROAD CONSTRUCTION DEPARTMENT, VISHESHWARAIYA BHAWAN, PATNA

JUDGEMENT

(1.) IN the instant writ petition the petitioner prays for quashing the order dated 6.6.2009 contained in memo no. 846 by which contract allotted to the petitioner vide agreement no. 52F2/06 -07 for widening and strengthening of Sitamarhi -Riga - Dheng Road from Kilometer 00 to 23.02 Kilometer in Sitamarhi district under plan head for the year 2006 -07, has been rescinded at the risk and cost of the petitioner.

(2.) THE Road Construction Department issued tender notice bearing no. 52F2/06 - 07 for widening and strengthening of Sitamarhi -Riga -Dheng Road, from 00 KM to 23.02 KM in Sitamarhi district for the year 2006 -07, at an estimated cost of Rs. 1262.50281 lacs after completion of all formalities. The petitioner was awarded the aforesaid tender. The agreement, contained in Annexure -1, was signed on 20.3.2007 and the date of completion of the work was 22.11.2008. The petitioner deposited the requisite Bank guarantee of Rs. 22,25,800/ -. At the request of the petitioner, the respondent authorities extended the work period up to 31.3.2009 and also approved the revised estimate for a sum of Rs. 14,37,26,000/ - vide memo no. 5535 dated 20.1.2009, contained in Annexure -3. The petitioner states that he faced various difficulties in completing the work in time. He submits that he got the delivery order for supply of Bitumen and emulsion belatedly issued by the Executive Engineer vide memo no. 771 dated 22.5.2009, contained in Annexure -4. The Executive Engineer further vide his order dated 2.1.2009, contained in Annexure -5, also extended the validity period of the same up to 31.8.2009. He submits that the traffic of roadways of West Bengal and Orrisa was badly affected due to unnatural heavy storm like lla toofan. Due to short production of Bitumen and emulsion, the supply of the same could not be made available to the petitioner in time resulting in non - completion of the work in time. Learned counsel for the petitioner states that in spite of all hindrances the petitioner completed 50% of the work and payment to the tune of Rs. 6 crores has also been made to it. He further submits that recent Lok Sabha election also hampered the progress of the work as vehicular carrier came almost to a stand still. The transportation of materials also suf fered contributing to delay in completion of the work. Furthermore delayed orders of Bitumen and emulsions also slowed the progress of works. Non -payment of bills pending to the tune of Rs. 70 lacs also caused difficulties in harnessing the resources for the work. The petitioner states that as per letter dated 24.11.2008 of the Principal Secretary, contained in Annexure -16, a contractor could be allowed further time which could stretch to half of the original time envisaged for completion of the work. However, the respondents in most arbitrary manner rescinded the contract at the risk and cost of the petitioner without allowing the full permissible time limit. The petitioner asserts that the contract has been rescinded on the premises that it violated the terms of the agreement and did not complete the work within time. The petitioner states that the reasons assigned in the impugned order is non est as it could not complete the work due to various insurmountable factors including non -responsive attitude of the respondents.

(3.) A counter affidavit has been filed on behalf of the respondents wherein, in paragraph 5, it has been stated that nonavailability of Bitumen and vehicles are only lame excuses and in any view of the matter the time was extended up to 31.3.2009. It is further stated that the petitioner did sub - standard work, rectification of which further delayed the work causing great inconvenience to the people. In paragraph 6, the respondents have denied the averments that the bills were submitted by the petitioner, on the contrary the departmental Engineer prepared the same and payments were made as per the rules. Furthermore during inspection and supervision of work many irregularities were found in quality of the work. In paragraph 8 of the counter affidavit it has been stated that a bill of Rs. 61.66 lacs was paid to the petitioner on 4.5.2009 and no further payment is due to the contractor. Moreover, an advance of about Rs. 25.00 lacs is outstanding against the petitioner out of Rs. 52.74 lacs advanced on account of machinery. It has been stated that the petitioner was directed to appear at site for final measurement on 15.6.2009, but neither the petitioner nor his representative was present at site. Furthermore, it has been alleged that the petitioner misbehaved with some of the officers for which an F.I.R. has been lodged. The respondents further alleged that stone metals from Nepal have been used instead of stones from the Shekhpura Stone query. Besides this, bitumen has not been used in correct proportion.