Indra Narain Singh Contractors ... vs The State Of Bihar
2023 Latest Caselaw 878 Patna

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                    Civil Writ Jurisdiction Case No.7847 of 2022
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Indra Narain Singh Contractors Pvt. Ltd. having its registered office at 76, Vidhayak Colony, Kautilya Nagar, Patna 800014 and represented through its Managing Director namely Manoj Kumar Singh aged about 50 years (M) Son of Late Indra Narain Singh.

... ... Petitioner/s Versus

1. The State of Bihar through the Chief Secretary Bihar, Patna.

2. The Principal Secretary, Building Construction Department, Bihar Patna.

3. The Secretary, Building Construction Department, Bihar Patna.

4. The Engineer in Chief cum Additional Commissioner cum Special Secretary, Building Construction Department, Bihar Patna.

5. The Chief Engineer (North), Building Construction Department, Bihar Patna.

6. The Superintending Engineer, Building Construction Department, Building Circle Saharsa.

7. The Executive Engineer, Building Construction Department, Building Division Madhepura.

... ... Respondent/s ====================================================== Appearance :

For the Petitioner/s : Mr.Aditya Prakash Sahay, Advocate For the Respondent/s : Mr.Manoj Kr. Ambastha (Sc26) Mr.Subodh Kumar, AC to SC26 ====================================================== CORAM: HONOURABLE MR. JUSTICE P. B. BAJANTHRI and HONOURABLE MR. JUSTICE ARUN KUMAR JHA ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE P. B. BAJANTHRI)

Date : 22-02-2023

In the instant petition, petitioner has prayed for the

following reliefs:-

"I. For issuance of a writ in the nature of certiorari for quashing of letter no.

315 dated 26.02.2022 issued by the Executive Engineer, Building Construction Department, Building Division Madhepura whereby and Patna High Court CWJC No.7847 of 2022 dt.22-02-2023

whereunder the petitioner company has been debarred for indefinite period and without considering the show-cause reply dated 25.01.2022 filed by the petitioner.

The impugned order of debarment is also without jurisdiction as the same has been passed by Executive Engineer and was passed without considering the fact that the delay in completion of the work was due to the fact that the site area was under encroachment by the local people and it was on 10.05.2020, the said site was made available to the petitioner during complete lockdown due to pandemic. Later on the area was hit by flood due to heavy rainfall which was also informed to the respondent authorities. Both the situation comes under Force Majeure and was beyond the control of the petitioner.

II. For issuance of a writ in the nature of mandamus for directing the respondent authorities to make payment of the amount of the petitioner for which the bill/invoice has been raised and approved by the Executive Engineer, Madhepura for an amount of Rs. 3.5 Crores till 21.04.2022 by which time the petitioner company has completed 65% of the work and by now further 15% of the work i.e. total 80% of the work has been finished.

III. For issuance of other writ/writs, order/orders or direction/directions for which the petitioner is entitled for."

2. The petitioner and Executive Engineer, Bihar

Construction Department, Madhepura entered into an agreement

on 16.06.2020 in respect of construction of Administrative-cum-

workshop building, staff hostel, canteen, Principal's residence,

Vice-Principal's residence, boundary wall, approach road, Patna High Court CWJC No.7847 of 2022 dt.22-02-2023

furniture, etc., in the ITI campus at Madhepura including fire

fighting and electrical work.

3. The petitioner could not complete the work within the

time limit stipulated, thereafter official respondent proceeded to

issue show-cause notice to furnish stages of the work. The

petitioner is stated to have submitted his explanation along with

the document on 25.01.2022. Since the official respondent were

not satisfied with the progress of the work undertaken by the

petitioner proceeded to issue show-cause notice as to why he shall

not be debarred with reference to the allotment of the work on

22.11.2021. Consequently, there was no response from him, the

Executive Engineer proceeded to debar the petitioner.

Communication of the Executive Engineer dated 26.02.2022 reads

as under:-

dk;Zikyd vfHk;ark dk dk;kZy;] Hkou fuekZ.k foHkkx] Hkou ize.My] e/ksiqjkA i=kad %& 315 @ fnukad& [email protected]@22 izs'kd%& bZ0 "kksHk ukFk dqekj] dk;Zikyd vfHk;ark] Hkou ize.My] e/ksiqjkA lsok esa] Jh bUnz ukjk;.k flag] laosnd izk0 fy0 76 fo/kk;d dkWyksuh dksVY;k uxj iVuk&800014 fo'k;%& iwoZ ls lapkfyr ckyd vkS|ksfxd izf"k{k.k laLFkku] /kqjxkWo] e/ksiqjk ds fuekZ.k dk;Z dks le; ij iw.kZ ugha djus ds dkj.k fMckj ds laca/k esaA Patna High Court CWJC No.7847 of 2022 dt.22-02-2023

izlax %& bl dk;kZy; ds i=kad&1345 fnukad& 22-11-2021] i=kad&44 fnukad&11-01-2022 egk"k;] mi;qZDr fo'k; ds laca/k dguk gS fd fo'k;kafdr dk;Z dh dk;Z lekfIr frfFk ,djkjukek ds vuqlkj 23-10-2021 dks gh lekIr gks pqdh gSA fo'k;kafdr dk;Z izklafxd i= }kjk iw.kZ djus gsrq Lekfjr fd;k tk pqdk gS] fdUrq vkt fnukad rd fo'k;kafdr dk;Z dks iw.kZ ugha fd;k x;k gS blfy, vkidks fMckj fd;k tkrk gSA vr% vkns"k fn;k tkrk gS fd fo'k;kafdr dk;Z ls lacaf/kr vo"ks'k dk;Z dks "kh?kz iw.kZ djsa] vU;Fkk ck/; gksdj dk;Z ds izfr mnklhurk cjrus ,oa mPp inkf/kdkjh ds vkns"k ds vogsyuk ds fy, vkids fuca/ku dks dkyhd`r djus gsrq foHkkx dks vuq"kalk dj fn;k tk,xkA bls vfrvko";d le>saA fo"oklHkktu [email protected]& vLi'V [email protected]@2022 dk;Zikyd vfHk;ark Hkou ize.My] e/ksiqjkA

4. Learned counsel for the petitioner submitted that

Executive Engineer is not the competent authority to pass the

impugned order in the light of decision of this Court in the case of

Universal Interior Dacorator vs. State of Bihar & Ors. passed in

CWJC No. 3683 of 2019 decided on 19.11.2019. The competent

authority under the Rule 11(c) of the Bihar Contractor Registration

Rules, 2007 is Chief Engineer.

5. It is also submitted that show-cause notice was not

served on him before passing of an impugned order dated

26.02.2022 vide Annexure-1.

Patna High Court CWJC No.7847 of 2022 dt.22-02-2023

6. Per contra, learned counsel for the respondents

resisted the aforementioned contentions of the petitioner stating

that agreement was executed between petitioner and Executive

Engineer, therefore, Executive Engineer is the competent authority.

For the purpose of blacklisting Chief Engineer is the competent

authority under Rule 11(c) Bihar Contractor Registration Rules,

2007. It is also submitted that petitioner has suppressed material

information like in not producing copy of the agreement and office

letter no. 1345 dated 22.11.2021 to contend that Chief Engineer is

the competent authority and impugned action is without issuing

notice. In other words, the petitioner has approached this Court in

not apprising relevant documents and on this score itself writ

petition is liable to be dismissed.

7. Heard the learned counsel for the respective parties.

8. Undisputed facts are that petitioner and Executive

Engineer have entered into an agreement. The petitioner has not

produced copy of the agreement. If the Executive Engineer has

entered into an agreement with the petitioner in that event he is

competent to take a decision insofar as debarment. Insofar

blacklisting is concerned only the Chief Engineer who is the

registering authority is empowered to take a decision under Rule

11(c) of Bihar Contractor Registration Rules, 2007. Patna High Court CWJC No.7847 of 2022 dt.22-02-2023

9. The petitioner has not apprised this Court relating to

communication of show-cause notice dated 22.11.2021 which has

been cited in the impugned decision vide Annexure-1 to the writ

petition.

10. The petitioner has not approached this Court with

complete material information like in not producing copy of the

agreement and show-cause notice. Further, the contentions of the

petitioner is that before passing of impugned action he has not

been heard in the matter. To that effect there is only a statement

and it is not supported by material information to the extent that he

is not in receipt of show-cause notice or office letter no. 1345

dated 22.11.2021. Assuming that for the first time he is noticing

the 22.11.2021 communication he must have approached the

concerned authority to provide office letter no. 1345 dated

22.11.2021, before approaching this Court he has not undertaken

such exercise.

11. In view of these facts and circumstances and the

petitioner has not approached this Court with clean hands on this

score itself writ petition is liable to be dismissed. The petitioner

has not made out a case so as to interfere communication dated

26.02.2022 and consequential orders.

12. Accordingly, writ petition stands dismissed.

Patna High Court CWJC No.7847 of 2022 dt.22-02-2023

13. At this stage, learned counsel for the petitioner seeks

permission to withdraw this petition. Accordingly, petition stands

dismissed as withdrawn, reserving liberty to avail remedy, if any,

in accordance with law.

(P. B. Bajanthri, J)

( Arun Kumar Jha, J) abhishekkr/-

AFR/NAFR              NAFR
CAV DATE              NA
Uploading Date        27.02.2023
Transmission Date     NA