PARTNER AJAI KUMAR JHA Vs. STATE OF BIHAR THROUGH THE COMMISSIONER-CUM-SECRETARY, WATER RESOURCES (IRRIGATION) DEPARTMENT, GOVERNMENT OF BIHAR, SICHAI BHAWAN, PATNA

JUDGEMENT

(1.) THE petitioner was to construct a one way concrete bridge over Purnea Branch Canal. Petitioner constructed the same but due to excessive discharge of water in the Canal, on 15.7,2000 one of the pillars thereof sank. Petitioner was accordingly noticed by notice dated 5.8.2000 by the Joint Secretary, Water Resources Department to show cause why for negligence in constiuction he should not be blacklisted. Petitioner filed his reply. As a part of his contract, he repaired the entire structure. From time to time by various authorities it was tested including by the Chief Engineer who noted that a eleven ton road roller was now easily test driven over the bridge. Those reports are of the year 2005 - 06. This was so reported by the Chief Engineer himself under his communication dated 21.7.2006 who was in fact entrusted to enquire into the matter. Notwithstanding the aforesaid facts and without taking cognizance of the said, the Secretary -cum - Commissioner of the said Department cancelled the registration of the petitioner and blacklisted him by his order dated 9.1.2007 passed after seven years.

(2.) ON behalf of the petitioner primarily two submissions are made. Firstly for an occurrence that took place in the year 2000 a proceeding for blacklisting was initiated in that very year passing an order blacklisting after seven years is too stale, it serves no purpose. If act of the petitioner was such which deserves to be taken a note of then the action should have been taken immediately, The second contention is a reference to the order blacklisting would show that the authorities had taken note of a report of the Chief Engineer dated 10.4.2006 by which he had reported that bridge was still not functional. At the same time the authority failed to take into note the report of the Chief Engineer dated 21.7.2006 which clearly said that the bridge had been tested with a road roller of eleven ton and was safe. These material facts were not taken into account and facts irrelevant to the issue were taken into account. The third submission is that the show cause notice was issued by the Joint Secretary, petitioner filed his show cause to the Joint Secretary but the order has been passed by the Secretary which is not permissible. In my view, the writ petition must succeed. The order impugned of blacklisting cannot be sustained. Behind every power including a punitive power, there is a purpose. The purpose is not to mechanically act but to punish a person. While it was relevant to start proceeding for blacklisting of the petitioner in the year 2000, it was given up but now all of a sudden, in the year 2007 the order is being passed which is a delayed action and is not only an abuse of authorities but also an abuse of discretionary powers of the authorities. For any action to be reasonable it must be taken within a reasonable time or not at all.

(3.) THEN we come to the impugned order itself. It refers to a report of the Chief Engineer of April 2006. wherein it notices that defects are still there but in the same very order, it refuses to take notice of the report of the Chief Engineer of July 2006 to whom the task of enquiry was given in which he had categorically stated with regards to soundness of structure. He used eleven ton road roller and found the bridge safe. The petitioner rightly submits that irrelevant materials were taken into account and relevant materials were left out which vitiated the order itself.