Bakul Chandra Brahma vs The State Of Assam And 4 Ors
2022 Latest Caselaw 2206 Gua

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GAHC010124082022




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

                         Case No. : WP(C)/4294/2022

         BAKUL CHANDRA BRAHMA
         S/O LATE JOGENDRA NATH BRAHMA, R/O VILL- NO. 2 SHIALMARI, P.O.-
         KOKRAJHAR, DIST- KOKRAJHAR, BTAD, ASSAM, PIN-783346



         VERSUS

         THE STATE OF ASSAM AND 4 ORS
         REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE
         GOVT. OF ASSAM, WATER RESOURCES DEPARTMENT, DISPUR,
         GUWAHATI-781006

         2:THE BODOLAND TERRITORIAL COUNCIL
          REPRESENTED BY THE PRINCIPAL SECRETARY
          BODOFA NWGWR
          KOKRAJHAR (BTR)
         ASSAM
          PIN-783370

         3:THE CHIEF ENGINEER
         WATER RESOURCES DEPARTMENT
         ASSAM
         ASSAM WATER CENTRE
          BASISTHA
          GUWAHATI-29

         4:THE ADDL. CHIEF ENGINEER
          KOKRAJHAR WATER RESOURCES DIVISION
          BTC
          KOKRAJHAR
         ASSAM
          PIN-783370
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              5:THE EXECUTIVE ENGINEER
               KOKRAJHAR WATER RESOURCES DIVISION
               BTC
               KOKRAJHAR
              ASSAM
               PIN-78337

Advocate for the Petitioner   : MR. B J MUKHERJEE

Advocate for the Respondent : SC, WATER RESOURCE




                                   BEFORE
                  HONOURABLE MR. JUSTICE MANISH CHOUDHURY

                                           ORDER

Date : 27.06.2022

Heard Mr. B.J. Mukherjee, learned counsel for the petitioner; Mr. R.M. Das, learned Standing Counsel, Water Resources Department for the respondent nos. 1 & 3; and Mr. S.R. Rabha, learned Standing Counsel, Bodoland Territorial Council [BTC] for the respondent nos. 2, 4 & 5.

2. The subject-matter of this writ petition is execution of a contract-work viz. 'Protection of village Sikarbil from the erosion of river Gangia on L/B under BTC for the financial year 2018-19' ['the Contract-Work', for short] and non-disbursal of an amount of Rs. 77,61,244/- in favour of the petitioner which the petitioner has claimed to be due from the authorities in the BTC.

3. The case projected by the petitioner in this writ petition, in brief, is that the petitioner was awarded the Contract-Work by a Work Order dated 03.07.2018 [Annexure-4]. The Administrative Approval for the Contract-Work was accorded on 24.04.2018 [Annexure-2] and the Technical Sanction for the Contract-Work was given on 02.05.2018 [Annexure-3]. The petitioner has asserted that after completion of all the requisite formalities, he proceeded to execute the Contract-Work as per the specifications, drawings and agreement and completed the same. The authorities in the respondent BTC physically verified the Page No.# 3/5

Contract-Work and found that the Contract-Work had been completed as per the specifications, drawings, and agreement. In that connection, the respondent authorities had issued a Completion Certificate dated 15.02.2019 [Annexure-5] certifying that the petitioner had executed the Contract-Work fully to the extent of Rs. 1,12,01,909/-. The respondent no. 5 had also issued an Utilization Certificate in respect of the Contract-Work on 08.01.2021 [Annexure-6]. The petitioner has annexed a Statement showing Demand for Fund for the Contract-Work as Annexure-7 which bear the signature of the respondent no.

5. By referring to a letter of the respondent no. 5 dated 08.01.2021 [Annexure-8]. It is submitted on behalf of the petitioner that there was already a demand for disburse of balance amount. It is the case of the petitioner that out of the total amount of Rs. 1,11,98,494/-, the petitioner has been paid an amount of Rs. 22,77,524/-. The petitioner has approached this Court by this writ petition seeking a direction to the respondent authorities to disburse the remaining amount of Rs. 77,61,244/-, which, according to the petitioner, is an outstanding liability.

4. Mr. Rabha, 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 but still there is requirement for 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 had 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 from the year 2011 onwards within a period of 6 [six] months from the date of issuance of the said order. Mr. Rabha has submitted that the case of the petitioner can be considered by undertaking an exercise in similar line like the one indicated in the order dated 15.11.2021. Mr. Rabha has placed copies of the order dated 15.11.2021 and another order bearing no. BTC/F[Audit]-49/2021/Pt-l/21 dated 17.06.2022. It is submitted by Mr. Rabha that the audit on liabilities are being examined by the respondent authorities in the BTC with the assistance of a third party.

5. The order bearing No. BTC/F(Audit)/49/2021/Pt-I/1] dated Kokrajhar, the 15 th Page No.# 4/5

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.

This order shall come into force with immediate effect."

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6. Mr. Mukherjee, learned counsel for the petitioner having gone through the order dated 15.11.2021, has submitted that the process regarding payment of the outstanding dues to the petitioner may be completed by undertaking a similar kind of exercise 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 .], and similar other 194 writ petitions reported in 2008 [4] GLT 1 [FB], it is considered appropriate that the respondent authorities in the respondent BTC shall undertake and complete similar kind of exercise, like the one mentioned in the order dated 15.11.2021, in respect of the claim of the petitioner also within a period of 3 [three] months. If after such exercise, the petitioner is found entitled to the amount of Rs. 77,61,244/-, as claimed herein, or any other amount, the same shall be released in favour of the petitioner in terms of the decision in Tamsher Ali [supra]. The petitioner shall submit a certified copy of this order to the respondent no. 2 i.e. the Secretary, Bodoland Territorial Council [BTC], Kokrajhar within 7 [seven] days from today for doing the needful by his office.

8. The writ petition stands disposed of in terms of the above observation and direction.

JUDGE

Comparing Assistant