SHYAM BIHARI SON OF SHRI MAHENDRA NARAIN CHAUDHARY Vs. STATE OF BIHAR THROUGH THE PRINCIPAL SECRETARY, ROAD CONSTRUCTION DEPARTMENT, GOVT. OF BIHAR, SUPERINTENDENT ENGINEER,

JUDGEMENT

(1.) PETITIONER in both the cases is a contractor entrusted with re - enforcement and widening of Muzaffarpur -Pusa Road from 0 to 15 kilometers and 15 to 30.08 kilometers respectively.

(2.) As per the contract , he had to complete the work in March, 2008. There was a considerable delay in execution of the work and the petitioner was repeatedly informed to speed up. Ultimately, show cause were issued for slow progress and consequently cancellation of the contract. Petitioner field his detailed reply. In the reply , petitioner stated that the delay was not attributable to the petitioner. He stated that the work having been awarded , specifications were changed repeatedly, Obstructions on the roads were not removed timely by different authorities over which petitioner had no control. In between there were 22 bridges/culverts. Those had to be constructed by another agency over which petitioner had no control. Those constructions are considerably delayed because of which petitioner does not get connectivity for making the road and it hampered its progress. These reasons are not exhaustive but merely illustrative. It is also submitted that mobilization resources, which have to come from the government at the very beginning, have yet not come and the petitioner had to invest his own fund contrary to the agreement for setting up of the infrastructure. Show cause having been filed, petitioner has now been visited with cancellation order issued by the Executive Engineer, the thrust of which is that by not completing the road work in time, petitioner has caused severe embarrassment to the Government and, as such, 'by order dated 12.12.2008, the two contracts have been cancelled. Consequent to cancellation of the contract, the security and the performance guarantee in the shape of Bank guarantee have been forfeited/ invoked. The petitioner has thus come to this Court challenging the order dated 12.12.2008 in respect of both the contracts.

(3.) ON behalf of the petitioner, Mr. Sandeep Kumar states that in view of the fact, stated above, in fact, there was no delay on the part of the petitioner . At the very beginning mobilization resources having not been made which was the part of the agreement by the Government, the Government could not expect the petitioner to fulfill his part of the bargain. The reasons given are not disputed but what is disputed is that within the time available upto the time of cancellation notwithstanding those impediment, petitioner could have shown substantial progress and not the meager amount for work, as done. To this, Mr. Kumar , for the petitioner, on instruction, submits that the petitioner is ready to complete the project to the satisfaction of the State within a period of ten months. He will not raise objection of any kind in this respect and seek no extension except on ground of "Forced Measure". He submits that if re -tender is permitted and that too at the risk and cost of the petitioner, the result would be that the completion of project get further delayed and it would be at a considerable higher cost whereas if the extension, as prayed for, is granted , it would sub serve early completion and cost saving as well.