Dismissed

M/S Ved Construction through Its Proprietor v. State of Jharkhand And Ors.

Jharkhand HC19 Jul 2022WPC/6418/2009

Case brief

AI extract

What is this about?

The High Court of Jharkhand dismissed a writ petition seeking directions to release withheld payments and National Saving Certificates. The court held that a writ is not available to adjudicate disputed questions of fact arising from the petroleum/contract execution.

What did the court decide?

The application for direction to return National Saving Certificate and release deducted amounts was dismissed.

M/S Ved Construction through Its Proprietor… — Civil Procedure and Limitation | Jharkhand HC (2022)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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[Civil Writ Jurisdiction]

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W.P.(C ) No. 6418 of 2009

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M/s Ved Construction through its Proprietor Prakash Kumar, S/o Sri Ram Prasad Sahu, R/o Anandpuri, P.O. + P.S.+ District Hazaribagh.... .. ... Petitioner

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Versus .. ... ... Respondents

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The State of Jharkhand & Ors.

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........... CORAM : HON'BLE MR. JUSTICE KAILASH PRASAD DEO

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......... For the Petitioner : Mr. Prashant Kumar, Advocate Mr. Ashish Kr. Shekhar, Advocate For the respondents-State : Mr. Devesh Krishna, S.C. (Mines)-III

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08/ 19.07.2022 .

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Heard, learned counsel for the parties.

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Learned counsel, Mr. Prashant Kumar assisted by learned counsel for the petitioner, Mr. Ashish Kr. Shekhar has submitted, that petitioner- M/s Ved Construction has preferred this writ petition for direction upon the respondent- The State of Jharkhand through the Secretary, Water Resources Department, Jharkhand, Ranchi as agreement entered with the petitioner vide Agreement No.43F2- 2003-04 has been rescinded (Residual work) in terms of order dated 04.08.2008 and also for return of National Saving Certificate of Rs.2.74 lacs and also other amount which has been deducted from each and every running bill of the petitioner.

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Learned counsel, Mr. Prashant Kumar has further submitted that petitioner was allotted a contract of residual work of aqueduct of Rs.54,63,284/- and pursuant to that Agreement No.43F2- 2003-04 has been executed, but entire work could not be completed, which is apparent from the report submitted by the Superintending Engineer, Tenughat Bandh Anchal, Tenughat as contained in Letter No.944 dated 23.08.2007 whereby the Superintending Engineer has recorded that as per report submitted by Executive Engineer sanctioned revised estimate is defective, as such, there is difference between the work done and the agreed work and this is main reason for non-completion of work.

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Learned counsel for the respondents-State, Mr. Devesh Krishna, SC (Mines)-III has submitted that a detail supplementary counter-affidavit has been filed on 23.06.2022 by the Chief Engineer, Water Resources Department, Hazaribagh, wherein relevant facts have been brought on record at paras 12, 13, 18 and 21, which may profitably be quoted hereunder:-

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“12 .That a meeting was called for on 27.07.2005 by respondent authorities and the petitioner also participated and petitioner stated that presently, there is no problem in execution of work and agreed as well as gave assurance to an Execution plan on 27.07.2005 and accordingly, set out the date of completion of all works by

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-2-

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31.12.2005.

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That from aforesaid Execution Plan date 27.07.2005, it is apparent that the proceedings of the meeting explicitly made it clear that the various components of work and other issues that needed to be dealt with and works needed to be executed was likewise directed to the petitioner and that the petitioner had accordingly accepted and assured the department for completion of every component of work. This makes it very clear that in case of apparent change in scope of work according to the estimate, the Department acted in accordance to Clause 11 giving all necessary instructions to the petitioner in writing, after facing changes according to the approved estimate of the said work, but the petitioner failed to perform his part of obligations as per the agreement.

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That having already delayed the work, in the said meeting date 27.07.2005 the petitioner assured the Department vide a letter dated 28.07.2005 that he would complete all works by 31.12.2005 after being well aware of site conditions and all possibilities of deviation and revised estimates and other issues of concern. 13 .That the Department well within the terms as laid out in the F2 Agreement has exercised jurisdiction in giving approvals to deviations and granting time extension so that the Contractor could complete the work as required. 18. That Executive Engineer vide Letter No.481, dt. 23.05.2007 addressed to Superintendent Engineer submitted that no genuine payment of petitioner was kept pending and only an amount of Rs.94,111.00 was however withheld against work done because the petitioner had done no work since March of 2006, i.e., more than a year had passed with absolutely no work on the ground and the petitioner had not even executed the quantities of work as provisioned in the original agreement, let aside the quantities of work already sanctioned in Deviation. 21 .That humble reply on questions raised by this Hon'ble Court in reference to letter No.944 dt. 23.08.2007 of Superintendent Engineer (Annexure-3 of the writ petition) is being clarified as under:

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Wrong Estimate - An agreement consists of scope of work, cost involved, and time required to complete the work. According to the terms of the agreement, change in work volume was accompanied with subsequent approval of all variations and proportionate Extension of time to complete all works under variation. All deviation in the work was properly sanctioned and accordingly Time Extension was granted to the petitioner till 31.10.2006 and amount of variation from Agreement amount was merely, Rs.1816/-, since not only there had been increase in rates of commodities rather reduction also.

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Payment withheld – That the petitioner was pre-determined of not completing the work and run away which is evident from the fact that the petitioner has not done any work since March, 2006 and hence a Nominal Amount of Rs.94111/- was withheld and reasons for withholding the amount were explained vide letter no.481 dt. 23.05.2007 and 464 dated 21.05.2007 issued by Executive Engineer (Annexure02 and 03 of supplementary counter-affidavit.

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Claims of payment not done because of non-approval of deviation items- It is completely false to say payment was not made due to non-approval of deviation items. The contents of this letter describe scenario prior to the sanction of Deviation and Grant of Time Extension, as superintending Engineer, Tenugaht Dam Circle, Tenughat himself directed Executive Engineer to submit the proposal of reassignment against the petitioner to his letter no.699 dated 05.07.2007.

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The original Date of Agreement was 12.03.2004 and date of completion of work was 11.12.2004 which later got revised to 31.12.2005 as decided in the meeting held on 27.07.2005 which was fully agreed, accepted and signed by the petitioner and hence it cannot be said that the deviations were not approved.

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Learned counsel for the respondents-State, Mr. Devesh Krishna, SC (Mines)-III has further submitted, that under such disputed question of fact, writ cannot be granted.

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Learned counsel for the respondents-State, Mr. Devesh Krishna, SC (Mines)-III has further submitted, that if the Superintending Engineer is satisfied with letter written by the Executive Engineer, then what prompted

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him not to pay the amount and not to release the amount and why such report has been submitted, instead of redressal of the grievances of the petitioner by the Executive Engineer and the Superintending Engineer rather it appears that, the petitioner wants some direction under the garb of the orders of the High Court. Such illegality committed by the Executive Engineer and the Superintending Engineer may not be allowed whereby the payment as well as security may be returned to the petitioner, which is not permissible under the law.

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Considering the rival submissions of the parties, looking into the facts and circumstances of the case, it appears that work in question has not been completed and the reason assigned by the Chief Engineer in the counteraffidavit as stated in paras 12, 13, 18 and 21 as referred above are sufficient to establish the same.

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Accordingly, the instant writ petition is dismissed.

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(Kailash Prasad Deo, J.)

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R.S.

M/S Ved Construction through Its Proprietor v. State of Jharkhand And Ors.

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M/S Ved Construction through Its Proprietor v. State of Jharkhand And Ors.

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