Manoranjan Brahma vs The State Of Assam And 3 Ors
2022 Latest Caselaw 1237 Gua

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GAHC010060782022




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

                                 Case No. : WP(C)/2292/2022

            MANORANJAN BRAHMA
            S/O SRI BANESWAR BRAHMA, R/O VILL-BAGANSHALL, P.O. AND P.S.-
            KOKRAJHAR, BTC, DIST-KOKRAJAHR, ASSAM, PIN-783370



            VERSUS

            THE STATE OF ASSAM AND 3 ORS
            REPRESENTED BY THE CHIEF SECRETARY TO THE GOVERNMENT OF
            ASSAM, DISPUR, GUWAHATI-06

            2:THE PRINCIPAL SECRETARY
             BODOLAND TERRITORIAL COUNCIL
             KOKRAJHAR
             DIST-KOKRAJHAR
            ASSAM

            3:THE ADDL. CHIEF ENGINEER
             PWD (ROAD DIVISION)
             DIST-KOKRAJHAR
            ASSAM

            4:THE EXECUTIVE ENGINEER
             PWD (RURAL ROAD DIVISION)
             DIST-KOKRAJHAR
            ASSAM
             PIN-78337

Advocate for the Petitioner   : MS D DAS

Advocate for the Respondent : GA, ASSAM
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                                     BEFORE
                    HONOURABLE MR. JUSTICE MANISH CHOUDHURY

                                              ORDER

Date : 06-04-2022

Heard Mr. M.K. Das, learned counsel for the petitioner; Mr. B.J. Talukdar, learned Additional Senior Government Advocate, Assam for the respondent no. 1; and Ms. R. B. Bora, learned Standing Counsel, Bodoland Territorial Council [BTC] for the respondent nos. 2, 3 & 4.

2. The case projected on behalf of the petitioner is that he is a registered contractor with the Public Works Department [PWD], Government of Assam. The respondent no. 2 gave Administrative Approval [Annexure - I] for a contract work : "Improvement of Baganshali to Kokrajhar Railway Station Road via Kokrajhar College under BTC for the year 2015-16" ['the Contract-Work', for short] for the period of 2 [two] years at an estimated cost of Rs. 91,53,500/- on 06.08.2015. Technical sanction for the Contract-Work was granted on 13.01.2016 [Annexure- II]. A tender process was initiated for award of the Contract-Work where the petitioner participated. The petitioner emerged as the successful bidder and the respondent no. 3 had issued a Letter of Acceptance dated 02.02.2016 [Annexure-III] in respect of the Contract-Work at a contract price of Rs. 90,62,793/-, subject to observance of formalities. Thereafter, the Notice to Proceed with the Contract-Work was issued on 09.02.2016 [Annexure - IV].

2.1 According to the petitioner, the petitioner proceeded to execute the Contract-Work and when he had completed a substantial part of the Contract-Work, he submitted a bill amounting to Rs. 33,77,069/- towards part-payment of the expenses he had incurred for the extent of works he had executed in relation to the Contract-Work.

2.2. When the said amount was not released he had approached this Court earlier by a writ petition, W.P.[C] no. 2160/2021 seeking a direction to the respondent authorities in the BTC to disburse the said amount of Rs.33,77,069/-. The said writ petition was disposed of by an order dated 19.08.2021 and the operative part of the order dated 19.08.2021 reads as under : -

"Having considered the case projected on behalf of the petitioner and upon hearing the learned counsel for the parties, I am of the considered view that instead of keeping the writ petition Page No.# 3/5

pending here, it is the respondent BTC authorities who shall examine and consider the grievance of the petitioner. Accordingly, this writ petition is disposed of at the admission stage itself, with a direction to the respondent nos. 2 & 3 to examine the claim of the petitioner as regards entitlement of the petitioner for the bill amount of Rs. 33,77,069/- in respect of execution of the contract work under reference and, if after such examination and verification, the petitioner is found entitled to any balance amount, then the respondent BTC authorities would process the claim of the petitioner in accordance with law and in the light of the direction contained in Tamsher Ali (supra)."

3. It is submitted by Mr. Das, learned counsel for the petitioner that the tendered value of the Contract-Work was Rs. 90,62,793/- and thereafter, the estimated amount was revised at Rs. 91,53,500/- as per the Revised Administrative Approval dated 03.12.2018 [Annexure- V]. It is submitted by him when the previous writ petition, W.P.[C] no. 2160/2021, was filed by the petitioner, the petitioner inadvertently mentioned that he had submitted his final bills in respect of the Contract- Work for an amount of Rs. 33,77,069/- but at that point of time the Contract-Work was not completed. The petitioner completed the Contract-Work on 12.11.2019 and the Contract-Work was physically verified by the respondent authorities in the BTC and thereafter, a completion certificate [Annexure - VI] was issued to that effect. As per the Completion Certificate, the total value of the Contract-Work was Rs. 90,59,954/- and after deduction of the bill amounting to Rs. 33,77,069/-, the remaining amount payable to the petitioner is Rs. 56,82,885/-. After the completion of the Contract- Work on 12.11.2019, the respondent authorities have not released the said amount despite submission of the final bills for the said amount by the petitioner. The petitioner has approached this Court by the present writ petition seeking a direction to the respondent authorities to release the remaining amount of Rs.56,82,885/-.

4. Ms. Bora, learned Standing Counsel, BTC has submitted that though from the documents annexed to this writ petition it is prima facie reflected that the petitioner had completed the Contract- Work there is requirement for further verification of the matter. It is submitted that a decision has been taken by the respondent BTC authorities to examine all the pending claims relating to contract works and to that effect the respondent no. 2 has passed an order on 15.11.2021. As per the said order, the respondent BTC authorities have undertaken to examine all the cases relating to outstanding liabilities within a period of 6 [six] months from the date of issuance of the said order. Ms. Page No.# 4/5

Bora has placed a copy of the said order before this Court.

5. The order bearing No. BTC/F(Audit)/49/2021/Pt-I/1] dated Kokrajhar, the 15 th November, 2021 reads as under :-

" BODOLAND TERRITORIAL COUNCIL SECRETARIAT

BODOFA NWGWR::KOKRAJHAR

No. BTC/F(Audit)49/2021/Pt-I/1 Dated- Kokrajhar, the 15th November, 2021

ORDER WHEREAS it has been noticed that huge number of outstanding liabilities have been created by the erstwhile BTAD authority since 2011 to February, 2020 through contractual work orders to the Contractors/Suppliers, etc. under various entrusted departments of BTC without corresponding budget provisions

WHEREAS the outstanding liabilities created by the erstwhile BTAD authority are required to undergo detail examination and verification in the context of proposals of such works made, NIT, selection of successful bidders, quality of works, completion of works, fund position, part payment, etc.

WHEREAS it is further noticed that a good number of court cases have been filed before the Hon'ble Gauhati High Court as well as in the District Courts of respective District Jurisdictions under BTAD by the Contractors/Suppliers, etc. praying for release of payments to the Contractors/Suppliers, etc. against their respective work orders

WHEREAS, reportedly, out of the aforesaid contractual works, some part payments also made against portion of works completed by the Contractors/Suppliers, etc. by the erstwhile BTAD authority in certain cases. However, such fund flow does not follow any rationale and is found to be arbitrant

AND THEREFORE, in view of the above facts and circumstances, the BTC has decided to verify all such works by conducting comprehensive audit, financial verification and physical verification wherever applicable, against all such contractual works in the Govt. level and further to complete the whole exercise in this regard within 6 (six) months from the date of issue of this order. After verifying the same, if it is found that the claims are admissible after following all established financial norms, the same shall be processed in accordance with law and as per decision contained in Tamsher Ali and others vs. State of Assam and others reported in 2008 (4) GLT 1 accordingly. Furthermore, if instances of wrongdoing or misappropriation are found during such comprehensive audit, financial verification and physical verification wherever applicable, appropriate legal action would be taken against the persons/agencies/firms concerned in accordance with the applicable laws.

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This order shall come into force with immediate effect."

6. Mr. Das, learned counsel for the petitioner having gone through the said order, has submitted that the process regarding payment of the outstanding dues to the petitioner shall be completed within the stipulated time period as mentioned in the said order.

7. Having considered the contents of the said order dated 15.11.2021 and the decision of the Full Bench judgment of this Court, rendered on 29.09.2008, in Writ Appeal No. 484/2005 [ Tamsher Ali and Ors. vs. State of Assam and Ors .], reported in 2008 [4] GLT 1 [FB] and similar other 194 writ petitions, it is considered appropriate that the respondent authorities in the respondent BTC shall undertake the exercise in terms of the said order dated 15.11.2021 in respect of the claims of the petitioner also and complete the exercise within the time frame mentioned in the order. If after such exercise, the petitioner is found entitled to the amount of Rs. 56,82,885/- or any other amount, the same shall be released in favour of the petitioner forthwith thereafter.

8. The petitioner shall submit a certified copy of this order along with a copy of the writ petition with annexures, to the respondent no. 2 i.e. Principal Secretary, Bodoland Territorial Council, Kokrajhar for his doing the needful.

9. The writ petition stands disposed of in terms of the above directions.

JUDGE

Comparing Assistant