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Nevilal Rohita Construction Pvt. Ltd. v/s State of Bihar

    CWJC 6749 Of 2005

    Decided On, 31 August 2005

    At, High Court of Bihar


    For the Appearing Parties: Sadanand Jha, K.K. Mandal, Advocates.

Judgment Text

(1.) Heard Dr. Sadanand Jha for the petitioner, and Mr. K. K. Mandal, learned Govt, Pleader No. IV, for the respondents. This writ petition is directed against the order dated 18-5-2005 (Annexure-23), passed by the Joint Secretary, Department of Water Resources, Govt. of Bihar, whereby he has disposed of the petitioner's representation in pursuance of this Court's order on the previous writ petition, and has in substance refused to extend the time for execution of the contract in question.

(2.) The basic facts needed for the disposal of this writ petition are not in controversy. The petitioner entered into a contract with the State Government which was signed on 21-5-2004 for "Repair and blacktopping of W.F.E. cum Road from 15.00 km. to 23.00 km." at an estimated cost of Rs. 150.00 lacs. The same was on behalf of the State Government executed by respondent No. 6 (the Executive Engineer, Water R

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esources, West Embankment Division, Kunauli, Birpur). The agreement, inter alia, stipulated that the work had to be completed on or before 30-6-2004. The petitioner was unable to complete the work within the time so stipulated. It was on his request and representation extended upto 31-12-2004. The petitioner did not complete the work leading to cancellation of the contract by letter bearing No. 01/Birpur, dt. 1-1-2005 (Annexure-B to the counter affidavit) for the detailed reasons discussed therein. Suppressing this vital fact, the petitioner approached the State Government directly for extension of time which was allowed till 31-5-2005, vide order bearing letter No. 6/94 dated 2-3-2005 (Annexure 17), passed by the Joint Secretary of the Department. This was followed by the letter dated 23-3-2005 (Annexure F/ 3 to 2nd Supplementary Counter Affidavit of respondent Nos. 1 to 6), issued under the signature of the Engineer-in-Chief (North), whereby he recalled the said order dated 2-3-2005 (Annexure-17), and directed for fresh tenders. This led to CWJC No. 4724 of 2005 which was disposed of by a learned Single Judge of this Court by order dated 4-5-2005 (Annexure-21), whereby the petitioner was directed to represent his case before the Joint Secretary, Department of Water Resources, for further extention of time. The petitioner submitted the representation which has been rejected by the impugned order. Hence this writ petition.

(3.) Learned counsel for the petitioner in his elaborate submissions has submitted that the Joint Secretary did not properly appreciate the content and the nature of the direction of this Court and has passed an erroneous order. He further submits that the petitioner has been beset with diverse problems which have not been taken into account by the respondent authorities. He, therefore, submits that the period for execution of the contract in question may be suitably extended.

(4.) Learned Govt. Pleader No. IV has opposed this writ petition and has, inter alia, submitted that the power to rescind the contract is with the Executive Engineer. The petitioner is completely incapable of undertaking such a big project and is not in a position to execute the same. The order dated 2-3-2005 from the Joint Secretary granting extension of time was passed in complete ignorance of the order of cancellation and, therefore, the Engineer-in-Chief was right in passing the order dated 23-3- 2005 (Annexure B/III), and calling for fresh tenders.

(5.) I have perused the materials on record and considered the submissions of learned counsel for the parties. The aforesaid order dated 1-1-2005 (Annexure-B) presents a comprehensive picture of the entire matter. It gives the detailed facts and circumstances stating with full evidence and the conclusion that the petitioner started the work at an abnormally low speed, being completely unmindful of the position that time was practically the essence of the contract. It had to be executed in a period of five weeks. It states that the petitioner never brought materials on the site nor the equipments, like hot mix plant and other equipments needed to carry out the project mentioned in detail in the order. The royalty was not deposited to obtain the stone materials. In spite of repeated requests, letters and inspections, the petitioner never took up the work seriously as a result of which he was not able to complete the work in the enlarged period of seven months and one week, in a situation where the contract stipulates that it had to be completed within a period of five weeks. The order in its comprehensive analysis of the whole situation concludes that the petitioner is entirely incapable and ill-equipped to take up and complete the work of this magnitude. It has been needlessly wanting extension of time. In view of the detailed discussion in this order and the valid reasons assigned therein, in my view, there is absolutely no scope for further extension of time. The Executive Engineer was perfectly justified in passing the order dated 1-1-2005 (Annexure B).

(6.) It further appears to me from the materials on record that the petitioner had admittedly received copy of the order dated 1-1-2005 on 8-1-2005, notwithstanding which he approached the Joint Secretary of the Department for extension of time overlooking two aspects of the matter. The Executive Engineer is the authority in terms of the agreement to extend the time, also to rescind the same and, secondly, he did not disclose in his representation that the contract had already been rescinded. Therefore, unless the order dated 1-1-2005 is reconsidered and the contract is revived, there was no scope for the Joint Secretary to pass the order dated 2-3-2005 which seems to have been done in ignorance of the order dated 1-1-2005. Law is well settled that no person can retain a benefit obtained by fraud, misrepresentation, suppression of facts or the like. The following observations of Lord Denning in the judgment in the case of Lazarus Estates Ltd. v. Beasley, reported in (1956) 1 All ER 341, of the Court of Appeal in England, is illuminating, and has been quoted with approval by Indian Courts repeatedly :-

"I cannot accede to this argument for a moment. No Court in this land will allow a person to keep an advantage which he has obtained by fraud. No judgment of a Court, no order of a Minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels everything. The Court is careful not to find fraud unless it is distinctly pleaded and proved; but once it is proved it vitiates judgments, contracts and all transactions whatsoever."

In that view of the matter, the Engineer- in-Chief was perfectly right in passing the order dated 23-3-2005, in substance setting at naught the order dated 2-3-2005, and calling for fresh tenders.

(7.) I must deal with the contention advanced on behalf of the petitioner that the Joint Secretary has not appreciated and carried out the terms and conditions of the order of this Court. The contention completely overlooks the nature and the extent of liberty given to the petitioner, namely, he had to explain the detailed facts and circumstances justifying further extension of time. By his representation to the Joint Secretary, he did the mechanical act of submitting a copy of the order of this Court and did not in the least state the circumstances Justifying extension of time. After a perusal of the aforesaid order dated 1-1-2005 (Annexure-B), I would indeed think it very difficult for the petitioner to make out a case for extension of time. In view of the extra-ordinary onus on him to explain that a time- bound contract like the present one, meant to be completed in five weeks time, was not completed in the enlarged period of seven months and one week. It needs overwhelming circumstances to justify extension. In that view of the matter, the Joint Secretary rightly states in his order that no material at all had been placed before him for application of the mind. The relevant portion of the impugned order is set out hereinbelow for the facility of quick reference :-

(8.) On a consideration of the materials on record and the foregoing discussion, the irresistible conclusion is that the petitioner is absolutely incapable of taking up the work of the present magnitude. He is wholly unequipped and equally lacks the requisite seriousness to execute a contract of this magnitude, particularly where time was practically the essence of the contract, as is obvious from the limited time of five weeks agreed upon between the parties for completion of the work. The fact that it was a contract for repair of embankment-cum-road, it was obviously an anti-flood project, and had to be completed within the stipulated period. It is in this background that I see that due to incompetence of the petitioner, the project which had to be concluded within a period of five weeks, could not be completed even during the enlarged period of seven months and one week. The respondent authorities had, therefore, no option but to pass the order dated 1-1-2005, and the consequential order calling upon fresh tenders. The impugned order cannot be faulted. The writ petition is dismissed. Petition dismissed