Patna High Court
D.B.S. Constructions Pvt. Ltd vs The State Of Bihar on 19 April, 2025
Author: Partha Sarthy
Bench: Partha Sarthy
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.10478 of 2024
======================================================
D.B.S. Constructions Pvt. Ltd. having its Registered Office at Tar Banglow
More, Dehri On Sone, P.S.- Dehri, District Rohtas, Bihar through its Director,
Sunil Kumar Singh, aged about 60 years, Male, Son of Sri Daroga Singh,
resident of Mohalla Samdika Nagar, P.S.- Dehri, District- Rohtas, Bihar.
... ... Petitioner/s
Versus
1. The State of Bihar through Principal Secretary, Department of Energy cum
Chairman, Bihar State Hydroelectric Power Corporation, (A Government of
Bihar Enterprise), Sone Bhawan, Patna.
2. Managing Director, Bihar State Hydroelectric Power Corporation, (A
Government of Bihar Enterprise), Sone Bhawan, Patna.
3. The Chief Engineer, Bihar State Hydroelectric Power Corporation Ltd., (A
Government of Bihar Enterprise), Sone Bhawan, Patna.
4. The Executive Engineer, Bihar State Hydroelectric Power Corporation Ltd.,
(A Government of Bihar Enterprise), Sone Bhawan, Patna.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. Prabhat Ranjan, Advocate
For the Respondent/s : Mr. Mritunjay Kumar, Advocate
======================================================
CORAM: HONOURABLE THE ACTING CHIEF JUSTICE
and
HONOURABLE MR. JUSTICE PARTHA SARTHY
CAV JUDGMENT
(Per: HONOURABLE MR. JUSTICE PARTHA SARTHY)
Date : 06-05-2025
1. Heard learned counsels for the parties.
2. The petitioner has filed the instant application
praying for quashing the order contained in Letter no. 105 dated
1.3.2024
issued under the signature of the Chief Engineer of the
Bihar State Hydroelectric Power Corporation Ltd. (herein after
referred to as the 'Corporation') whereby while closing the
agreement entered into with the petitioner, order was passed
Patna High Court CWJC No.10478 of 2024 dt.06-05-2025
blacklisting the petitioner for a period of three financial years
and further the security deposit was directed to be forfeited.
3. The relevant facts in brief are that the respondent-
Corporation having come out with a Notice Inviting Tender no.
05/Civil/18-19 dated 6.3.2019 which was for completion of the
balance work of projects in various stages of construction, the
petitioner applied for the work of Amethi MHP (1x500 kW). A
Letter of Intent dated 21.8.2019 was issued for execution of
work at a total cost of Rs.5,33,68,345/- and an agreement was
entered into between the Corporation and the petitioner on
14.10.2019. The work was to be completed within a period of
12 months from the date of agreement.
4. It is the case of the petitioner that the site of work
having been flooded, on the water receding, there was
considerable change in the condition of the site and a year
having passed since the agreement was entered into and the site
not having been handed over to the petitioner, he prayed that the
site be handed over, the same be dewatered and further a
representation was filed for revision of the rates at the rate of
5% of the agreed amount. The petitioner has brought on record
his representations dated 10.10.2020, 18.12.2020 as also
22.1.2021 to substantiate his above contention.
Patna High Court CWJC No.10478 of 2024 dt.06-05-2025
5. Learned counsel for the petitioner submits that not
having received any response to the representations filed by
him, the petitioner moved this Court in CWJC no. 371 of 2023
which was disposed of by order dated 20.7.2023 directing the
Chief Engineer of the Corporation to consider the petitioner's
representations in accordance with law and pass a speaking
order thereon.
6. The respondent-Corporation by their order
contained in Letter no.105 dated 1.3.2024 was pleased to close
the agreement, blacklist the petitioner for three financial years
and ordered for forfeiture of the security deposit.
7. Learned counsel for the petitioner submits that
against the time for completion of work being 12 months though
the agreement was entered into between the parties on
14.10.2019, the site for the work was not handed over to the
petitioner even on the time for completion of the work having
expired. It was further submitted that the order of blacklisting
was not preceded by a show-cause contemplating such an
action. Further, there was no application of Clause 1.2.21 of the
General Conditions of the Contract which deals with
negligence. It is thus submitted that the order impugned is
illegal, arbitrary and not sustainable and thus be set aside.
Patna High Court CWJC No.10478 of 2024 dt.06-05-2025
8. In response, Mr. Mritunjay Kumar, learned counsel
appearing for the respondent-Corporation submitted that though
the agreement was signed between the Corporation and the
petitioner on 14.10.2019, however the petitioner did not intend
nor took interest to start the work for reasons best known to
him. It is for this reason that the Corporation sent several letters
including dated 6.10.2020 and 15.1.2021 asking him to start the
work, failing which steps would be taken in accordance with the
agreement. The petitioner Firm not having submitted any bar/
part chart of the projects works to the Corporation and the work
which was to be concluded in 12 months, as such the
Corporation sent a notice to the petitioner on 15.1.2021 as to
why the agreement be not cancelled. On receiving the reply of
the petitioner and considering the contents thereof as also
complying with the directions contained in order dated
20.7.2023 passed in CWJC no. 371 of 2023, the Corporation
issued the order dated 1.3.2024, impugned herein.
9. Heard Mr. Prabhat Ranjan, learned counsel for the
petitioner and Mr. Mritunjay Kumar, learned counsel for the
Corporation. Perused the material on record.
10. Pursuant to the petitioner having applied against
N.I.T. dated 6.3.2019 floated by the respondent-Corporation, the
Patna High Court CWJC No.10478 of 2024 dt.06-05-2025
petitioner was issued with the L.O.I. with respect to the work for
Amethi MHP (1x500 kW) and an agreement was entered into
between the parties on 14.10.2019. As per the terms of the
agreement, the work was to be executed at a total cost of
Rs.5,33,68,345/- and the same had to be completed within a
period of 12 months ie by 14.10.2020.
11. From the record it transpires that the Corporation
wrote a letter dated 6.10.2020 to the petitioner stating therein
that the period of the agreement was coming to an end on
14.10.2020. Further referring to the communication on
telephone, the petitioner was requested to submit the part chart
and revised item and quantity as per the approved drawings
within a period of one week and to commence work at site at the
earliest or else further action would be taken as per the
agreement. The petitioner in response mentioned about the work
site being inundated with water, the site having changed
considerably and also with respect to the revision, deviation and
variation in the plan and estimate proposed by the Corporation.
12. On further perusal of the communications it
transpires that though the petitioner kept reminding the
Corporation of handing over the site after dewatering the same
and also to provide them with a copy of the agreement with the
Patna High Court CWJC No.10478 of 2024 dt.06-05-2025
revised item and quantity, the Corporation only proceeded to
write to the petitioner about the fact that the work had to be
completed by 13.10.2020 and the same had not been started yet.
The response/letters of the Corporation do not show that any of
the issues raised by the petitioner were dealt with. Not having
received any effective response to his representations led to the
petitioner filing CWJC no. 371 of 2023, which was disposed of
by this Court on 20.7.2023 directing the respondent-Corporation
to dispose of the petitioner's representations by a speaking
order.
13. Subsequent thereto, the respondent-Corporation
sent a letter dated 12.1.2024 to the petitioner which contained
the schedule of the deviated quantities and prices, however it
needs to be noted that by this time more than 4 years had passed
of the petitioner having entered into an agreement with the
Corporation. It is soon thereafter that the respondent-
Corporation came out with the order dated 1.3.2024, impugned
herein.
14. In view of the facts and circumstances of the case
and as dealt with herein above, the Court is of the opinion that
the Corporation itself having delayed in handing over the site
for carrying out the work, free from water, the further inordinate
Patna High Court CWJC No.10478 of 2024 dt.06-05-2025
delay in issuing the schedule of deviated quantities and prices
which was done more than 4 years after the parties entered into
an agreement and of which the work was to be completed within
12 months, the petitioner cannot be held solely responsible for
non-performance of the work in question.
15. Clause 1.2.21 of the Terms and Conditions of the
Contract deals with negligence and provides that if the
contractor neglects to execute the work with due diligence and
expedition or refuses to comply with the orders given to him in
writing by the Engineer in connection with the work, after
giving due notice the owner shall have the option to take the
work out of the contractor's hand and to get the same done
himself. Further Clause 1.1.12(iii) reserves to the owner the
right to encash the Bank guarantees if sufficiently convinced of
the contractor's negligence and lack of dedication to work and
failing the milestones against the agreed date on part of the
contract. It is in exercise of these two Clauses 1.2.21 and
1.1.12(iii) that the order impugned has been passed closing the
agreement blacklisting the petitioner for three financial years
and forfeiting the Bank guarantee.
16. As already held, in the facts of the case, it cannot
be said that the petitioner was solely responsible for the work
Patna High Court CWJC No.10478 of 2024 dt.06-05-2025
not being done in view of the facts as narrated herein above.
17. In view of the facts and circumstances of the case,
the order impugned is not sustainable and the same is set aside
so far as the blacklisting of the petitioner for a period of three
financial years and forfeiture of his Bank guarantees are
concerned.
18. The writ application is allowed to the above extent
and is accordingly disposed off.
(Partha Sarthy, J)
Ashutosh Kumar, ACJ: I agree.
(Ashutosh Kumar, ACJ)
avinash/-
AFR/NAFR
CAV DATE 18.02.2025
Uploading Date 06.05.2025
Transmission Date
