S.K.V. CONSTRUCTION Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) The present writ petition has been filed for issuance of direction upon the respondents to forthwith release the outstanding dues of the petitioner for construction work of Samudayik Toilets in Ward No. 12 (old) / 14 (new) as well as in Ward No. 13 (old) / 15 (new), both under Municipal Corporation, Adityapur (hereinafter referred to as 'the said work') as the petitioner has already completed the said work within the stipulated time as per the terms and conditions of the agreements both dtd. 18/6/2018 and the constructed sites have also been handed over to the respondents. Further prayer has been made for quashing part of the minutes of the 7th Board Meeting dtd. 27/8/2019 of the Adityapur Municipal Corporation presided over by the Mayor, Adityapur Municipal Corporation whereby a unilateral decision has been taken that payment of the bills of the contractors will be made only after recommendations of the Mayor, the Deputy Mayor and the concerned Ward Councillor of Adityapur Municipal Corporation.

(2.) The factual background of the case, as stated in the writ petition, is that the petitioner, who is a proprietorship firm, was allotted the said work having agreement value of Rs.23,96,892.00 for each work. The agreements for the said work were executed separately between the petitioner and the respondent No.4 on 18/6/2018 and the work orders as contained in letter Nos. 2029 & 2030 both dtd. 26/6/2018 were also issued under the signature of the respondent No.4. The petitioner completed the said work within the stipulated period in accordance with the terms and conditions of the contract and thereafter submitted the final bills after verification made by Junior Engineer, Assistant Engineer, Executive Engineer and Special Officer of the Adityapur Municipal Corporation. The respondent authorities, after being satisfied with the construction made by the petitioner, took over the site and also put it for public use. However, they did not pay the bills of the petitioner, rather in the 6th Board Meeting dtd. 23/1/2019 presided over by the Mayor, Municipal Corporation, Adityapur, decided to debar the petitioner from participating in future bids of the respondent-Corporation and proposal was sent to the Department of Urban Development and Housing, Government of Jharkhand for blacklisting it. Accordingly, an order as contained in memo No. 208 dtd. 25/1/2019 was issued by the respondent No.4 whereby the petitioner was debarred from participating in future bids. The petitioner challenged the said decision of the respondent No.4 by filing a writ petition being W.P.(C) No. 1415 of 2019 before this Court wherein vide order dtd. 16/4/2019, part of the order by which the petitioner was held to be not eligible for participating in future bids, was quashed and the matter was remanded to the competent authority of the respondentCorporation to issue show cause notice to the petitioner specifying the allegation/irregularity leveled against it. Thereafter, the respondent No.4 issued show cause notice to the petitioner vide letter No. 1605 dtd. 30/5/2019 which was replied by the petitioner demanding a copy of the complaint filed against it by Sri Nathuni Singh, Ward Councillor of Ward No. 15, Adityapur Municipal Corporation also stating that the petitioner is a registered contractor under the Urban Development Department, Government of Jharkhand against whom any action can only be taken under Jharkhand Nagarpalika Samvedak Nibandhan Niyamavali, 2016 and the Board of Adityapur Municipal Corporation has no jurisdiction to debar a contractor from participating in the tender, until the contractor is blacklisted by the Urban Development Department. Thereafter, the petitioner filed various representations before the respondent authorities along with copies of measurement book and bills duly verified by Junior Engineer, Assistant Engineer, Executive Engineer and Special Officer of the Adityapur Municipal Corporation, however, the respondents, with an ulterior motive, did not make the remaining payment to the petitioner due to which it is suffering huge financial loss. The Board of the Adityapur Municipal Corporation, without making payment of the petitioner's bills, convened the 7th Board Meeting on 27/8/2019 presided over by the Mayor, Municipal Corporation, Adityapur whereby it was decided that no payment would be made to contractors, until a recommendation is made by concerned Ward Councillor as well as by the Mayor and Deputy Mayor. Hence, the present writ petition.

(3.) Learned counsel for the petitioner submits that the petitioner has made various representations before the respondent authorities for release of remaining payment for execution of the said work, however, due to personal grudge, they are not paying the same, as a result of which it is facing financial crisis and the proprietor of the petitioner is also suffering mental agony. Non-payment of the outstanding dues to the petitioner even after completion of the allotted work with due diligence within the stipulated time is nothing but to make the petitioner suffer financially by the respondent authorities taking advantage of their dominant position. The act of putting new condition contrary to Clause 7 & 8 of the conditions of contract by the respondent authorities cannot be justified as after completion of the said work to the satisfaction of the Engineer-in-Charge, they have already taken over the sites and have put those for public use. Since the respondent authorities could not debar the petitioner from participating in further bids pursuant to the order dtd. 16/4/2019 passed by this Court in favour of the petitioner, they are again victimizing it by not making payment of its remaining bills also by taking arbitrary and unilateral decision in the 7th Board Meeting of the Adityapur Municipal Corporation held on 27/8/2019. The said decision regarding payment to the contractors only after the recommendations made by concerned Ward Councillor, Deputy Mayor and Mayor, is arbitrary which shows the vested interest of the respondent authorities. The said decision will give rise to corruption which is primarily for personal pecuniary gain of decision makers and the concerned authorities. Though the work orders were issued to the petitioner by the respondent No.4, however, the Ward Councillor of Ward No. 15 was unnecessarily harassing it and when the petitioner did not please him, a frivolous complaint was made by him, though there was no issue regarding quality of the work executed by the petitioner. The said agreement was executed by the respondent No.4 whereas the Engineer-inCharge, on verification of the work, entered the details of the work in the measurement book. The said work can be inspected any time by the respondent No.4. However, the proposal passed in the 6th Board meeting of the Adityapur Municipal Corporation held on 23/1/2019 to the extent that on completion of development works, a certificate of satisfaction of the concerned Ward Councillor regarding execution of the work has to be mandatorily submitted by the contractor, is wholly illegal, as the same is only perpetuating corruption. Moreover, this proposal has been passed after execution of the said work and as such the same is not applicable to the petitioner.