Jharkhand High Court
Himanchal Construction Company ... vs The State Of Jharkhand & Ors on 9 November, 2022
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Civil Writ Jurisdiction)
WP(C) No. 3675 of 2019
Himanchal Construction Company Pvt. Ltd. ..... ...... Petitioner
Versus
The State of Jharkhand & Ors. .... .... Respondents
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CORAM : HON'BLE MR. JUSTICE KAILASH PRASAD DEO
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For the Petitioner : Mr. Shresth Gautam, Advocate
For the Respondents-State : Mr. Mohan Kumar Dubey, AC to AG
For the respondent nos.2 to 4: Mr. Shivam Singh, Advocate
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The matter is being taken up through Video Conferencing. Learned counsel
for the parties have no objection with it and submitted that audio and video
qualities are good.
Order No.05 /Dated: 09th November, 2022
Heard, learned counsel for the petitioner, Mr. Shresth Gautam.
The writ petition has been preferred by Himanchal Construction
Company Pvt. Ltd., a company incorporated under companies act, 1956 for
quashing the order dated 12.06.2019 (Annexure-38) as contained in Memo
No.110/17/1103 as well as the order dated 24.12.2018 (Annexure-36) as
contained in Memo No.110/17/3109, whereby and where under the
respondent-authority, in compliance of the order passed by the co-ordinate
Bench of this Court in W.P.(C) No.433 of 2018 dated 19.06.2018, has
rejected the claim of the petitioner on the ground that the executive engineer
has already terminated the contract of the petitioner on 22.06.2009.
Learned counsel for the petitioner has further prayed for quashing
the order dated 22.06.2009 (Annexure-37) as contained in letter no.178,
passed by the executive engineer, Khunti, whereby the contract of the
petitioner has been illegally cancelled.
Learned counsel for the petitioner has further prayed, that upon
quashing these orders, this court may direct the respondent-authority to give
effect to the directions issued by the Chief Engineer for foreclosing of the
contract of the petitioner, executed for road construction under the PMGSY
scheme under package no.Jh-1810 phase IV Khunti Division and declare the
order dated 22.06.2009 as contained in Letter No.178, passed by the
executive engineer, Khunti is bad in law.
Learned counsel for the petitioner has submitted, that in pursuance
of the Notice Inviting Tender vide Notice no.1/2006-07 for construction of
rural roads, the petitioner participated in the bids for construction of roads
under Package No.JH-1810 of P.M.G.S.Y. 4th phase. Thereafter the petitioner
was allotted the work vide Letter No.1616 dated 18.07.2006, issued by the
then Chief Engineer, R.E.O., Ranchi. The said contract is of Rs.363.749 lakhs
for construction of 5 roads dated 07.08.2006 within nine months. The details
of the progress of the work, and the roads to be completed may be recorded
hereunder:-
SL. No. Name of Road Length
(i) Salgadih Canal to Dimbojarda 1.3 Km
(ii) Salgadih Canal to Janumpiri 4.56Km-completed
(iii) Sarjamdih to Birgaon 3.50Km
(iv) Jiling Sering to Kurkutta 3.685Km
(v) NH 33 to Gango 2.20Km-completed
Learned counsel for the petitioner has further submitted, that out of
five works, two works i.e., Salgadih Canal to Janumpiri, 4.56 Km length and
NH 33 to Gango, 2.20 Km length have been completed. The remaining three
works were not completed as because the land for construction of road has
never been acquired by the State and this is a practice in the State of
Jharkhand, which has been deprecated in the judgment passed in the case of
National Projects Construction Corporation Limited vs. The State of
Jharkhand & Ors. In L.P.A. No.312 of 2018, passed by the Hon'ble Division
Bench of this Court on 25.06.2018. Paragraphs-6 to 9 of which may be
quoted hereunder.:-
"6.Thus, the State Government has not fulfilled the aforesaid two
conditions. The work of the aforesaid road construction was not completed within
a period of 18 months. Land acquisition is sovereign power vested in the State.
Land acquisition power cannot be assigned to the contractor, and hence, unless
the full site is available, full road cannot be constructed by the contractor. This
aspect of the matter was neither properly appreciated by the respondents - State
while issuing the impugned order dated 26.02.2018 (Annexure - 5), nor it was
properly appreciated by the learned Single Judge while disposing of the writ
petition being W.P.(C) No.2701 of 2018. We, therefore, quash and set aside the
order passed by the learned Single Judge in W.P.(C) No.2701 of 2018, dated
07.06.2018 as well as the impugned order dated 28.02.2018, which is at
Annexure- 5 to the memo of this Letters Patent Appeal.
7. No reply is filed of paragraph nos.15 & 17 of the writ petition, by
the State Government. Much has been argued out by the counsel for the
respondents - State that no error has been committed by the Government while
issuing the impugned order. It ought to be kept in mind that whenever any road is
to be constructed, the land site must be given to the contractor free form all
encumbrances. If the land acquisition is to be done, it ought to have been clear
prior to the notice inviting tender.
8. It has become a fashion in the State of Jharkhand to publish a notice
inviting tender for a particular work and within the time bound, schedule work is to
be completed, without, obtaining clearance of the forest department or without
acquiring land or without providing proper and adequate police protection in
naxalite affected areas. Thus, one or other type of work is yet to be completed by
the Government, a notice inviting tender is published. This case is no exception of
such type of general behaviour of the Government.
9. In the facts of the present case land acquisition process is yet to be
completed for few patches of land. In such eventualities notice inviting tender
should not have been published at all. No work can be completed within 18 months
without the land acquisition. If such type of work is completed within 18 months of
road construction, the land acquisition should have been completed within 8
months by the State Government. Those who are living in a glasshouse beware of
throwing stones at others. Thus, if the State Government has failed to acquire the
land in question, then it should not have issued the impugned order dated
28.02.2018 (annexure - 5), hence, we also quash and set aside the impugned
order."
Learned counsel for the petitioner has further submitted, that even
this Court has found that roads have been constructed by the Road
Construction Department in the District of Gumla, Koderma, Deoghar and
Giridih but without acquisition of land work has been done, money has been
spent illegally. When the matter came up before this Court in the writ
jurisdiction, this Court has directed to the Chief Secretary, Government of
Jharkhand to enquire into the matter that before the land is being acquired,
how the roads have been constructed and how the tenders are being issued
and how the funds are being allotted and released? This shows that there is
organized crime in the State of Jharkhand to siphoned off the money. This
Court has passed such order in W.P.(C) No.1224 of 2020 in the District of
Gumla, W.P.(C) No.2847 of 2020 in the District of Koderma, W.P.(C)
No.2466 of 2020 in the District of Deoghar, and W.P.(C) No.3174 of 2020 in
the District of Giridih. Apart from that the Hon'ble Division Bench of this
Court has already considered the same in the year 2018. This means that the
State Officials are not taking any lesson from the judicial order and they are
working as per their whims and fancies to siphoned off the money from the
State Exchequer.
Learned counsel for the petitioner has further submitted, that before
acquisition of land a file cannot be moved for construction of road and for
allotment of funds, though it has been mentioned in the Notice Inviting
Tenders at Column-3 of Section 1 which is at page no.79 of the writ petition,
where a wrong statement has been made by the State-authorities that the site
for the work is available but it will be apparent, from their own record that
the land has been never been acquired, that is why the road could not be
completed in three allotted works.
Learned counsel for the petitioner placed reliance upon the letter
issued by the Superintending Engineer, as contained in Memo No.454 dated
10.06.2009, where they have categorically mentioned in serial no.1-xzkeh.k ls
iwNus ij crk;k x;k fd mDr Hkkx esa laosnd }kjk dk;Z fd;k tk jgk Fkk ysfdu tehu fookn
ds dkj.k dk;Z ugha fd;k tk ldkA
Learned counsel for the petitioner has further submitted, that all the
three works which have not been completed only because of the objection
made by the land lord or raiyat and thus it appears that even in the State of
Jharkhand, false information are being given in the Notice Inviting Tenders
and they are not taking any lesson from the judicial order passed by this
Court.
Learned counsel for the petitioner has further submitted, that the
Junior Engineer, Bundu has also submitted his report to the Executive
Engineer, Khunti on 25.05.2012, stating therein that dzekad 4 esa of.kZr ftfyax
flfjax ls dqjdqÍk iFk ds rhljs fd0eh0 esa yxHkx 100 eh0 iFkka'k jS;rh Hkwfe gS ftldk
LokehRo Jh ujs'k egrks xzk0& dksMk+Mhg lksukgkrw ds iklk gSA HkwLokeh us mDr iFkk"k esa dk;Z
iwjh rjg ls cUn djok fn;k gSA vusdksa ckj lEidZ djus ds ckn Hkh iFk fuekZ.k gsrq Hkweh nsus
bUdkj fd;k gS lkFk gh Hkwfe ls lacaf/kr fdlh Hkh rjg dk dkxtkr fyf[kr :i esa nsus ls Hkh
bUdkj fd;k gSA
Learned counsel for the petitioner has thus submitted, that this itself
shows that whatever the State have mentioned in their Notice Inviting
Tenders at page no.79 in Column-3 of Section-1 of the writ petition the site
for the work is available, is a false statement.
Learned counsel for the petitioner has further submitted, that in
year 2012 the then Executive Engineer, Khunti in terms of letter no.1246
dated 24.12.2012 addressed to the petitioner, has submitted, that the work
granted to the petitioner vide Argeement No.SBD No.KH01/2006-07 of
Package No.JH-1810 of fourth phase under P.M.G.S.Y is foreclosed and all
the earlier orders issued with this respect are hereby rectified or amended.
Learned counsel for the petitioner has submitted, that this letter is
of dated 24.12.2012, but respondents are still relying upon the letter, issued
under Letter No.178 dated 22.06.2009, whereby Executive Engineer xzk0dk0fo0
dk;Z izea.My] [kw¡Vh has mentioned in the last paragraph, that the agreement is
hereby cancelled, the security money is confiscated and name of the company
is being recommended to the higher authorities for blacklisting.
Learned counsel for the petitioner has thus submitted, that once
letter no. 1246 dated 24.12.2012 has been issued by the same officer i.e.,
Executive Engineer, Khunti making all correction in the previous orders, the
letter No.178 dated 22.06.2009 itself merges with rectification letter dated
24.12.2012.
Learned counsel for the petitioner has placed reliance upon Clause
24, 24.1, 24.2 and 24.5 of the Notice Inviting Tenders, which are at page 109
and 110 of the writ petition, to submit, that in case of any dispute there is a
Dispute redressal system before the Chief Engineer.
Thus petitioner being aggrieved of such act of the respondent has
filed an application before the Chief Engineer, JSRRDA, Ranchi on
23.04.2012, which was sent under speed post, which has been brought on
record as Annexure-24 to the writ petition at page no.209 to 210 and
thereafter the Chief Engineer, JSRRDA, Ranchi in terms of letter no.
JSRRDA-84/09-1457 dated 12.05.2012 has issued notice to the v/kh{kd vfHk;ark]
xzkeh.k dk;Z foHkkx dk;Z vapy] jk¡ph] dk;Zikyd vfHk;ark] xzkeh.k dk;Z foHkkx dk;Z ize.My]
[kw¡Vh as well as to the petitioner esllZ fgekapy da'VªD'ku da0 iz0 fy0] 11 H/G
vkn'kZuxj te'ksniqj for their appearance on 24.05.2012 at 12:30 P.M.
Learned counsel for the petitioner has further submitted, that it is
surprising that thereafter a report was called for and the same has been
submitted by the Junior Engineer, Bundu on 25.05.2012, which has been
brought on record as Annexure-26 at page no.213 of the writ petition,
whereby the Junior Engineer, Bundu in his report addressed to dk;Zikyd
vfHk;ark xzkeh.k dk;Z foHkkx] dk;Z ize.My] [k¡qVh has admitted, that the land has been
given for construction. The Chief Engineer, JSRRDA, Ranchi, on the basis of
the materials available on record has passed an order on 15.09.2012 as
contained in Letter No. JSRRDA-84/09-3136, stating therein that the
agreement is foreclosed, take necessary action for resolution of land and
other dispute on urgent basis so that connectivity of the target habitations be
achieved and expenditure be fruitful. This letter/order has been issued with
the approval of Principal Secretary-cum-CEO, JSRRDA, Ranchi, (File
No.JSRRDA-84/09-N.S. Page 22).
Learned counsel for the petitioner has further submitted, that once
the agreement is foreclosed as because the land has not been acquired, there
is no occasion for the respondent to confiscate the security money or to black
list of the petitioner.
Learned counsel for the petitioner has further submitted, that in the
counter-affidavit dated 14.11.2019, filed by Prem Nath Ram, son of Late
Kashi Nath Ram, the then Executive Engineer RDD (KWA) works Division,
Khunti, wherein Annexure-N at page 78 states the order passed by the
Hon'ble Division Bench of this Court in W.P.(PIL) No.7015 of 2012, which
was preferred by one Ranjit Kumar Mahato against the State of Jharkhand &
Ors. for the work allotted to the petitioner, where they have wrongly stated
that respondents have filed counter-affidavit and submitted that security
money of Rs.23,20,382/- has been forfeited and the said contractor has
already been black listed for which a communication dated 22.06.2009 has
been given to the said contractor.
Learned counsel for the petitioner has further submitted, that this
letter has already been brought on record in the writ petition as Anenxure-37,
as contained in Letter No.178 dated 22.06.2009, whereby the
recommendation has been with regard to black listing and subsequently the
Executive Engineer, Khunti has categorically mentioned in his order, as
contained in Letter No.1246 dated 24.12.2012 that all earlier orders issued
with respect.
Learned counsel for the petitioner has further submitted, that the
petitioner has applied under the R.T.I. Act to have a copy of the counter-
affidavit filed in W.P.(PIL) No.7015 of 2012, but a wrong statement has been
issued by the Executive Engineer, RDD (RWA) works Division, Khunti on
16.01.2017 which is at page no.62 of the rejoinder filed by the petitioner on
09.10.2021, whereby at column no.5 they have stated no counter-affidavit in
W.P(PIL) 7015 of 2012, Ranjit Kumar Mahto v/s State of Jharkhand has been
filed.
Learned counsel for the petitioner has further submitted, that it
appears that in the State of Jharkhand, no law is prevailing. The State is
working as per their own choice, own pleading without perusal their own
record. If the Chief Engineer has already foreclosed the account of petitioner,
meaning thereby no officer below the rank of Chief Engineer can pass any
order and till date no black listing order has been brought on record, but only
by shouting that blacklisting has been done, the respondents have confiscated
the security money of the petitioner.
Learned counsel for the petitioner has further submitted, that the
counter-affidavit is being filed by the Executive Engineer without taking note
of the judgment passed by the Hon'ble Division Bench of this Court in the
year 2018 as well as the orders passed by this Court, whereby this Hon'ble
Court has referred several matters to the Chief Secretary, Government of
Jharkhand to look into the matters, where financial irregularities is being
committed in the State of Jharkhand, without acquisition of land the road is
being constructed and funds have been allotted but till date nothing has
improved.
Learned counsel for the petitioner has further submitted, that the
Secretary, Rural Works Department-cum-CEO, JSRRDA, Ranchi may be
directed to file a detail counter-affidavit, so that being a senior officer he can
look into the order passed by the Chief Engineer as per the agreement as well
as orders of Superintending Engineer, Executive Engineer and Junior
Engineer with regard to the fact and a heavy cost may be imposed upon the
Executive Engineer for misleading the court and filing a fresh affidavit
before this Court with regard to the counter-affidavit filed in W.P.(PIL)
No.7015 of 2012.
Learned counsel for the respondents/State Mr. Mohan Kumar
Dubey, AC to AG has submitted, that let the detail and fresh counter-affidavit
be filed.
The Secretary, Rural Works Department-cum-CEO, JSRRDA, FFP
Building, 2nd Floor, H.E.C, Campus, Dhurwa, P.O.-Dhurwa, P.S.
Jagannathpur,Ranchi is directed to file detail counter-affidavit in this matter
as there are conflicting orders passed by their officers like Chief Engineer,
Executive Engineer and Junior Engineer. The affidavit must be filed with
approval of the Chief Secretary, Government of Jharkhand within a period of
four weeks.
Put up this case on 20.12.2022 under the same heading.
It is made clear that if, the affidavit is not filed in compliance of the
order, this Court may withheld the salary of the Secretary of the Department.
Let a copy of this order be communicated to the Chief Secretary,
Government of Jharkhand and the Secretary, Rural Works Department-cum-
CEO, JSRRDA through FAX/e-mail.
(Kailash Prasad Deo, J.)
Rohit/-
