Allowed

Janki Construction Pltd. v. the State of Bihar and Ors.

Patna HC25 Sept 2012CWJC/342/2012

Case brief

AI extract

What is this about?

Writ petition challenging a communication debarbing the petitioner from future tenders for alleged non-completion of work. Court quashed the order citing a subsequent progress report confirming work completion, granting liberty for fresh action on defects.

What did the court decide?

Impugned letter dated 31.12.2009 debarbing petitioner from future tenders is quashed with liberty to respondents to take appropriate action after due notice.

Janki Construction Pltd. Vs the State of Bihar and Ors. — Landlord and Tenant | Patna HC (2012)

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IN THE HIGH COURT OF JUDICATURE AT PATNA

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Civil Writ Jurisdiction Case No.342 of 2012

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Janki Construction (P) Ltd., through its Director, Ashok Kumar, Son of Baidyanath Prasad, Resident of Village-Shankar Chauk Dumra, P.O. Sitamarhi, District Sitamarhi

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.... .... Petitioner Versus 1. The State Of Bihar. 2. The Secretary, Building Construction Department, Bihar, Patna 3. The Chief Engineer, Building Construction Department, North Sub Division, Patna 4. The Superintending Engineer, Building Circle, Muzaffarpur 5. The Executive Engineer, Building Engineer, Sitamarhi 6. The Assistant Engineer, Building Construction Sub Division, Pupri .... .... Respondents ====================================================== Appearance : For the Petitioner : M/s. Alok Kumar, Anirudh Mishra, Virendra Kumar, Advocates For the Respondents : Mr. Dhurendra Kumar, AC to SC16 ====================================================== CORAM: HONOURABLE MR. JUSTICE JAYANANDAN SINGH ORAL ORDER 3 25-09-2012 In this writ application, petitioner has challenged a communication from the Executive Engineer, Building Division, Sitamarhi contained in letter no.1666 dated 31.12.2009 (Annexure-1) by which on the allegation that the work allotted for upgradation of Primary Health Centre, Belsand, which was to start from 21.11.2006 and was to be completed by 20.03.2007, has not been completed by it, hence, till the pending work is completed, it was debarred from participating in any other tender in future.

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Learned counsel for the petitioner submits that petitioner completed the work and measurement was taken, vide Annexure-4 with the supplementary affidavit and, as admitted in the counter

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Patna High Court CWJC No.342 of 2012 (3) dt.25-09-2012

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affidavit, the amount of third bill of petitioner was paid on 16.07.2009. Hence, he submits that the allegation that he had completed the work was false and non est. He also submits that the impugned letter was issued by the Executive Engineer without giving any opportunity to the petitioner to explain and demonstrate that in fact it had completed the work covered by the Agreement within the time limit.

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A counter affidavit has been filed in this case and learned counsel for the respondents submits that the amount of third bills was paid under some misconception that petitioner had completed the work. Later on, it was found that some work was left over and hence, the impugned letter was issued by the Executive Engineer restraining petitioner from participating in any other tender till he completed the work. In this regard, prior to issue of Annexure-1, letters were issued to petitioner, vide Annexure-A with the counter affidavit.

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Learned counsel for the petitioner submits that Annexure-A was never received by the petitioner and hence, no prior intimation or show cause notice was issued to it before the impugned letter was issued. He submits that progress report was prepared by the respondent-Executive Engineer, vide Annexure-5, in which it is mentioned that the work was completed and site was handed over.

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Patna High Court CWJC No.342 of 2012 (3) dt.25-09-2012

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He submits that the progress report shows that petitioner had completed the work.

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This Court finds that payment of third bills of petitioner was released on 16.07.2009. It appears that at the time of such payment, it was overlooked that some work in the building were still pending. Hence, Annexure-A was issued to the petitioner on 22.10.2009 to complete the left over works. Learned counsel for the petitioner submits that this was not received by the petitioner.

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Be that as it may, the progress report with regard to different works executed under the respondent-Executive Engineer, as contained in Annexure-5, is dated 12.09.2011 i.e. prepared almost two years after issue of Annexure-A. This shows that petitioner had completed the work and handed over the site. Thus, it appears to this Court that after receiving payment and when respondents pointed out that it had left over the work unfinished, petitioner completed the said work and thereafter this report was prepared. Copy of the measurement as contained in Annexure-4 shows that the last endorsement of the Executive Engineer is dated 09.07.2009. This means that on the basis of this measurement, the amount of third bill of the petitioner was paid but unfinished works were not noticed at that stage.

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In the circumstances, in view of the endorsement made in

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Patna High Court CWJC No.342 of 2012 (3) dt.25-09-2012

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the progress report it appears that the impugned order as contained in Annexure-1 has apparently lost its force. If, in spite of progress report submitted by the Executive Engineer, vide Annexure-5 on 12.09.2011, respondents were not in a position to allow the petitioner to participate in any other tender for any reason, they were required to issue fresh notice to the petitioner in this regard and then take appropriate action in accordance with law. Since, in view of the entry made in Annexure-5 in respect of the work, the work stands completed at least as on 12.09.2011, the impugned order of the Executive Engineer dated 31.12.2009 becomes inoperative. The same is, accordingly, quashed.

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At this stage, Annexure-C is required to be noticed which is dated 25.11.2011 and shortly after the progress report dated 12.09.2011 was submitted. This letter issued to petitioner shows that it was pointed out to it by the Executive Engineer that quality of work done by the petitioner was substandard and cracks/defects in the tiles have started appearing in the building. Petitioner, therefore, was asked by this letter to rectify the defects positively within one week. This is the last letter issued to the petitioner available on record. If, in spite of this letter, petitioner has not taken any step to rectify the defects in the work done by it in the building, respondents were/are at liberty to take fresh action

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Patna High Court CWJC No.342 of 2012 (3) dt.25-09-2012

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against the petitioner in accordance with law after compliance with the Principles of Natural Justice but surely Annexure-1 cannot be validated on the basis of Annexure-C.

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In the circumstances, the impugned letter, as contained as Annexure-1, which has apparently lost its force is quashed with liberty to the respondents to take any appropriate action in accordance with law after due notice to the petitioner, if necessary.

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This writ application is allowed in the manner indicated above.

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(Jayanandan Singh, J)

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B.T/-

Janki Construction Pltd. v. the State of Bihar and Ors.

Case brief

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Janki Construction Pltd. v. the State of Bihar and Ors.

Case brief

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