Disposed

Isamuddin Ahmed and 6 Ors. v. the State of Assam and Ors.

Gauhati HC1 Feb 2018WP(C)/1702/2012

Case brief

AI extract

What is this about?

A writ petition by Class-I contractors seeking payment for road repairs executed in 2007 due to floods, despite lack of formal work orders, was disposed of. The Court directed respondents to verify claims and pay dues if genuine, by obtaining ex-post-facto approval within three months.

What did the court decide?

Directing respondents to verify petitioner claims and pay dues within three months if genuine, by obtaining ex-post-facto approval.

Isamuddin Ahmed and 6 Ors. Vs the State of… — Public Procurement and Tenders | Gauhati HC (2018)

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GAHC010004402012

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : WP(C) 1702/2012

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1:ISAMUDDIN AHMED and 6 ORS

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CLASS-I CONTRACTOR, P.W.D. ROADS S/O LT. LALMIA VILL- JAGIROAD, MASJID ROAD, P.O. and P.S. JAGIROAD, DIST. MORIGAON, ASSAM.

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2: MUTASIN ALI BORBHUIYA CLASS-I CONTRACTOR P.W.D. ROADS SON OF LATE ABDUL AZIZ BORBHUIYA VILL- MINALPUR WARD NO. 3 P.O. MORIGAON DIST. MORIGAON ASSAM.

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3: TAZEL HUSSAIN

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CLASS-I CONTRACTOR P.W.D. ROADS SON OF LATE ABDUL MAZID VILL- INDIRA NAGAR P.O. and P.S. JAGIROAD DIST. MORIGAON ASSAM.

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4: AMDAD HUSSAIN

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CLASS-I CONTRACTOR P.W.D. ROADS SON OF LATE ABUL KALAM VILL- ULUBARI P.O. DULAIGAON P.S. LAHORIGHAT DIST. MORIGAON ASSAM.

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5: SAMSUL HOQUE CLASS-I CONTRACTOR P.W.D. ROADS SON OF ALIMUDDIN VILL- NO. 1 BORKUR P.O. BHURAGAON P.S. LAHARIGHAT DIST. MORIGAON ASSAM.

6: SAMSUDDIN AHMED

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CLASS-I CONTRACTOR

P.W.D. ROADS SON OF LATE JAINUDDIN MOROL VILL and P.O. BHURAGAON P.S. LAHARIGHAT DIST. MORIGAON ASSAM.

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7: SIRAJUL ISLAM CLASS-I CONTRACTOR P.W.D. ROADS SON OF MD. HATEM ALI VILL and P.O.- P.S. LAHORIGHAT DIST. MORIGAON ASSAM

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VERSUS

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1:THE STATE OF ASSAM AND ORS

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REP.BY THE COMMISSIONER AND SECRETARY, REVENUE and DISASTER MANAGEMENT DEPARTMENT, DISPUR.

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2:THE PRINCIPAL SECRETARY TO THE GOVT. OF ASSAM REVENUE and DISASTER MANAGEMENT DEPARTMENT DISPUR.

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3:THE DEPUTY COMMISSIONER MORIGAON

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4:THE EXECUTIVE ENGINEER PWD MORIGAON RURAL ROAD DIVISION MORIGAON

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Advocate for the Petitioner : MS.L N CHOUDHURY

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Advocate for the Respondent : MS.R DEKA

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BEFORE

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HONOURABLE MR. JUSTICE SUMAN SHYAM

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JUDGMENT & ORDER (ORAL)

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Date : 01-02-2018

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Heard Ms. M. Deori, learned counsel for the writ petitioners. I have also heard Ms. M. Bhattacharjee, learned Addl. Sr. Govt. Advocate, Assam appearing on behalf of the official respondents.

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The case projected in this writ petition is that the writ petitioners herein are Class-I contractors registered under the PWD(Road) Assam. During the year 2007, there was heavy damage to the roads, bridges and culverts in various places within the district of Morigaon due to the floods, as a result of which, emergent action from the district administration for repair of the same was called for. As such, on the instructions of Deputy Commissioner, Morigaon, the then Executive Engineer, PWD (Road) had asked the petitioners to carry out certain works on an assurance that the work orders would be issued to the petitioners at a later date after preparing the estimate and obtaining sanction from the concerned authorities. It is the case of the petitioner that they had executed the works as per the instruction issued by the Executive Engineer, PWD, Mangaldoi but despite the completion of the work, their bills have not been paid till today. Under the circumstances, the petitioners have approached this Court by filing the present writ petition.

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The respondent No. 3, i.e. the Executive Engineer, PWD (Road), Mangaldoi has filed an affidavit responding to the claim made in the writ petition. The statements made in paragraph 3 of the affidavit would be relevant and is therefore, quoted herein below:

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“3. That with regard to the statements made in paragraph 3, 5, 6 and 7 of the writ petition, the deponent begs to state that it is a fact that in the year 2007 heavy flood had occurred in Morigaon District. There is no record/ minutes of any such meeting between the Deputy Commissioner/ Addl. Deputy Commissioner and petitioners. No completion report is found to be submitted by the then Executive Engineer, PWD Morigaon Rural Road Division to this office. The Executive Engineer, PWD Morigaon Rural Road Division vide his letter No. TB/MRRD/FDR(TR)/4/2007, dtd. Nil submitted estimate for temporary restoration of PWD Roads, Bridges damaged by flood for 2007-08 (Volumn-III). Thereafter vide office letter NO. MRR.42/2006/Pt/9, dtd.4.10.2007, Deputy Commissioner, Morigaon submitted estimate for temporary restoration under FDR(CRF) 3^rd phase for the year 2007-08 under Morigaon Rural Road Division to the Principal Secretary to the Govt. of Assam, Revenue Department, Dispur after due countersignature. Again Deputy Commissioner, Morigaon wrote to the Principal Secretary to the Govt. of Assam, Revenue Department, Dispur for necessary sanction of the aforesaid schemes vide letter No. MRR.42/2006/96, dtd. 04/08/2008.

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Further the Deputy Commissioner, Morigaon vide his letter No. MRR.42/2006/Pt/45, dtd. 3.3.2009 wrote to the Principal Secretary to the Govt. of Assam, Revenue and Disaster Management department, Dispur for necessary sanction against the works which have actually been completed during 2007-08 as per plain and estimate.”

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The respondent No. 2 has also filed separate affidavit but it has not been specifically denied that no work, as claimed by the petitioners had been executed by them. The stand taken in the affidavit filed by the respondent No. 2 is that in the absence of the any formal work order/ sanction, the bills of the petitioners cannot be processed.

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As noted above, the respondents have not denied that repair of the bridges, roads, culverts was required to be carried out on an urgent basis. Therefore, due to the emergent nature of work, it is possible that the departmental contractors at times are required to carry out such work even without a formal work order. Although, there is no evidence to substantiate the claim of the petitioners that they had actually executed a particular work of a definite value yet, the pleadings on record indicates that the respondents have not denied the claim of the petitioners in its entirety.

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If the petitioners have been made to execute work of public nature not intended to be done gratuitously, they cannot be denied payment in respect thereof. The petitioners obviously could not have executed the work of repair and construction of road without the approval of the departmental authorities and hence, the department cannot be permitted to feign total ignorance in the matter. If the petitioners have actually executed the works as per the instruction of the authorities, their payments cannot be denied merely on the ground that there was no formal work order permitting execution of the work.

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In view of the above, I dispose of this writ petition with a direction upon the respondent Nos. 2 and 3 to verify the claims of the petitioner and if the same are found to be

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genuine, dues of the petitioners may be paid, if necessary, by obtaining ex-post-facto approval.

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The aforesaid exercise be carried out within a period of 03 months from the date of receipt of a certified copy of this order.

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Writ petition stands disposed of.

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JUDGE

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Comparing Assistant

Isamuddin Ahmed and 6 Ors. v. the State of Assam and Ors.

Case brief

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Isamuddin Ahmed and 6 Ors. v. the State of Assam and Ors.

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