ECI ENGINEERING & CONSTRUCTION Vs. STATE OF BIHAR

JUDGEMENT

(1.) HOW State Officials work at cross purposes is illustrated by this Court. Petitioner had got road repair -cum -construction contract for five sets of roads. Allegedly finding the progress to be tardy and slow, he was asked to show cause and not being satisfied with the show cause, all contracts were cancelled at the risk and cost of the petitioner. Petitioner had assured that within the time prescribed, he would complete the work. Petitioner had clearly identified the reasons for the slow progress. Without discussing any explanations as noticed above, contracts were cancelled merely because of delay.

(2.) THE work was to finish in October, 2008 and we are in April, 2009. Fresh tenders have yet to be issued except for one road in which tenders have been issued but work has not been started. If State had permitted the petitioner to continue either he would have finished the work within the time frame as undertaken by him or within a short period thereafter and by now the work would long been completed without unnecessary disputes and complications. But what has now happened is that the very reason for which the contract was cancelled itself stands frustrated inasmuch as the whole project has got delayed by over six months to begin and would take another six months for completion. It would thus get delayed by more than a year. Who has gained? Public suffered. Work has not been completed, litigations generated, extra cost incurred and as against this what has been the gain, nothing. The question is then why such an action. It appears that such actions were repeatedly being taken indiscriminately merely because such a power vested in the authority. This Court has repeatedly pointed out that the power to cancel, the power penalize are powers in aid of a contract. A power though vested is not to be exercised merely because a person is possessed of the power. The exercise of power more so when it is punitive, has to be with a purpose. The purpose being furtherance of the contract. Here in this case, it is evident that no cause nor any contract has been benefited, in fact no one has benefited. Such an exercise would be neither in public interest nor in the interest of the contract. This rampant indiscriminate move having been noticed by the State Government the State Government issued a circular under the Signature of the Principal Secretary of the Road Construction Department dated 10.10.2008 (Annexure -24) in which this very aspect has been emphasized and it has been stated that instead of taking action to cancel the contract to complete the work or granting suitable extension may be resorted to. Unfortunately this circular was issued five months too late for the petitioner. Petitioner 'scontract was cancelled by order dated 23.5.2008 (Annexure -21).

(3.) HOWEVER in the facts noted above, firstly only one out of five projects tenders have been issued and even in the fifth when tender has been issued the same not having been finalized, the respondent authorities would be well advised to reconsider the decision because letting the petitioner complete the work would be in larger interest of the public. It would take shorter time for completion. It would be without any extra cost and it would be with man and material already available. This is so because State itself realizing the said difficulties and position issued the circular as referred to above.