Muslim Ali vs The State Of Assam And 4 Ors
2022 Latest Caselaw 3369 Gua

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GAHC010022802015




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

                         Case No. : WP(C)/6154/2015

         MUSLIM ALI
         S/O LT. MAKBUL ALI, R/O SUNDARBORI, P.S. JALUKBARI, GHY-14, DIST-
         KAMRUP METRO, ASSAM



         VERSUS

         THE STATE OF ASSAM AND 4 ORS
         REP. BY THE COMMISSIONER and SPECIAL SECY. TO THE GOVT. OF
         ASSAM, PWD ROADS, DISPUR, GHY-6

         2:COMMISSIONER and SPECIAL SECY. TO THE GOVT. OF ASSAM
          PWDROADS
          DISPUR
          GHY-6

         3:THE CHIEF ENGINEER
          PWDROADS
         ASSAM
          CHANDMARI
          GHY-3
          DIST- KAMRUP METRO
         ASSAM

         4:SUPERINTENDING ENGINEER
          PWD
          NALBARI ROAD CIRCLE
          NALBARI
          DIST- NALBARI
         ASSAM

         5:THE EXECUTIVE ENGINEER
          NALBARI RURAL ROAD DIVISION
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             DIST- NALBARI
             ASSA

Advocate for the Petitioner    : MS.S PHUKAN

Advocate for the Respondent : MR.H BURAGOHAIN

BEFORE HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA

Date : 06-09-2022

JUDGMENT & ORDER (ORAL)

Heard Mr. D. Das, learned senior counsel for the petitioner and Mr. R Dhar, learned standing counsel for the respondents in the PWD, Government of Assam.

2. The petitioner, who is a Class-I(A) contractor registered with the PWD (Roads) [in short PWRD) of the Government of Assam, participated in a tender process for construction of road from (i) Kathalbari to Dangapara and Kasimpur to Towmura, including cross drainage works and routine maintenance of the works for five years under PMGSY (RRS-II, ADB-Batch-II), (Ph-VI) of 2006-07, packages bearing number AS-20-39 (ADB) in the Nalbari district. The work comprised of construction of the road for a value of Rs. 3,04,68,909/- and for maintenance of the road for the next five years upon completion for a value of Rs. 14,26,091/-, where the completion period of the construction work was nine months.

3. In the aforesaid circumstance, the petitioner was issued the letter of acceptance dated 07.07.2007. As per the terms of the contract, 5% from the amount of every running bill is to be deducted as security deposit and in the process, an amount of Rs. 7, 01, 798/- was deducted. The petitioner completed Page No.# 3/6

the part of the contract for construction of the road for which he was paid a total amount of Rs. 2, 44, 34, 001/- as per the statement of payments produced before the Court and the payments were made in respect of eight different bills submitted by the petitioner.

4. A dispute has been raised by the respondents in the PWRD that although the petitioner may have completed the part of the contract of construction of the road, but the other part of the contract of maintaining the road for the next five years had not been undertaken or performed by the petitioner.

5. In the circumstance, by the office order No. 146-A of 2014-15 dated 12.12.2014 of the Executive Engineer, PWRD, Nalbari division, the security deposit money retained from the petitioner from the bills which amounted to Rs. 7, 01, 798/- stood forfeited as the petitioner had not undertaken the work of maintenance of the road by further providing that the said amount would be required for not undertaking the defect correction maintenance work.

6. The petitioner makes a representation dated 09.04.2014 stating that he had completed the work of construction of the road to the complete satisfaction of the department, but due to hardship of money, he could not carry out the routine maintenance work. The petitioner states that in the meantime, he had received the order dated 12.12.2014, by which the security money stood forfeited. In his representation dated 09.04.2014, the petitioner takes a stand as extracted:-

"In this matter, I would like to inform you that SD money is not related with routine maintenance. Therefore, it is unjustified as per Tender clause 43.2."

7. The respondents in the PWRD by their communication dated 01.06.2015 had informed the petitioner that clause 43.2 of the tender agreement also provides that the Engineer has to certify that all defects notified by the Engineer Page No.# 4/6

to be corrected by the contractor prior to release of the security deposit and further that if the routine maintenance work is not carried out by the contractor as per the contract agreement, the employer will be at liberty to carry out the routine maintenance work and the amount required for the purpose will be recovered from the amount of performance security.

8. In other words, by the communication dated 01.06.2015, the respondents had rejected the claim of the petitioner for release of the security deposit which stood forfeited as per the office order dated 12.12.2014. Being aggrieved, this writ petition is instituted.

9. Mr. R Dhar, learned standing counsel for the PWRD takes the stand that as the part of the contract for routine maintenance is also a part and parcel for the same contract work and as the petitioner having not performed the other part of routine maintenance, therefore, the security deposit is liable to be forfeited, which accordingly had been done in the present case.

10. A reading of the stand of the petitioner as per the representation dated 09.04.2015 as quoted hereinabove is that according to the petitioner the security money deposited was for the part of the contract work for construction of the road and it is not related to the routine maintenance part of the work and therefore, the part of the contract work of construction of the road having been satisfactorily completed, the respondents under the terms of the contract agreement cannot forfeit the security deposit although the petitioner may have not performed or completed the other part of the work of routine maintenance.

11. On the other hand, it is the stand of the respondents in the PWRD that as per the clause 43.2 of the tender agreement, the Engineer has to satisfy that all defects notified by the Engineer has to be corrected by the contractor prior to Page No.# 5/6

release of security deposit.

12. In the instant case, we have noticed that there is no such stand of the respondents that the original work performed by the petitioner in construction of the road was defective or that any such defect has been pointed out which the contractor is required to rectify and had not done so, so as to enable the respondents to forfeit the security deposit. The stand that has been taken by the respondents in the PWRD is that the petitioner had not performed the other part of the contract work i.e. routine maintenance of the work, which was otherwise satisfactorily completed.

13. Non performing of the other part of the contract work for routine maintenance would be a violation of the terms of the contract by the petitioner contractor and for such violation, the petitioner can be subjected to the procedure under any relevant provisions of law that may be available including any such penal provisions that also may be available for not performing a particular requirement of a contract work. But at the same time, the security money that has been forfeited is directly related to the part of the contract work of construction of the road, which work even according to the respondents otherwise been satisfactorily performed and further no defects thereof could be pointed out by the respondents, so as to entitle them to deduct the security deposit.

14. From such point of view, we are unable to accept the stand of the respondents that as because the other part of the contract work for performing the routine maintenance work had not been performed by the petitioner, therefore the security deposit which pertains to the part of the work of construction of the road also liable to be forfeited.

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15. Accordingly, we direct the respondents in the PWRD to pay the security deposit pertaining to the part of the contract work related to the construction of the road. But, however, as the petitioner had not performed the other part of the contract work in undertaking the routine maintenance, liberty remains with the respondents to take any action under the law as may be available including any other penal provisions for not performing the other part of the work. But, in doing so, the appropriate procedure of law be followed.

16. The part of the payments schedule dated 05.09.2022 provided to the Court is kept on record.

The writ petition is disposed of in the above terms.

JUDGE

Comparing Assistant