Dhiraj Dhar vs The State Of Tripura
2021 Latest Caselaw 1182 Tri

                           HIGH COURT OF TRIPURA
                                 AGARTALA
                              W.P(c) No.298/2019
Dhiraj Dhar
Son of late Sudhangshu Ranjan Dhar, R/o-Vill -
Ronaldsay Road, P.O. - Agartala, P.S. - West Agartala,
District - West Tripura.
                                              ............... Petitioner(s).
                                 Vs.
1.     The State of Tripura.
Represented by its Secretary-cum-Commissioner to the
Public Works Department (R and B), Govt. of Tripura,
P/O. - Kunjaban, P.S. - New Capital Complex, District -
West Tripura.

2.    The Executive Engineer,
Agartala Division No. III, Public Works Department (R
and B), Govt. of Tripura, P/O- Kunjaban, P.S.- New
Capital Complex, District- West Tripura.
                                              ............... Respondent(s)

BEFORE HON'BLE THE CHIEF JUSTICE MR. INDRAJIT MAHANTY HON'BLE MR. JUSTICE S. G. CHATTOPADHYAY For Petitioner(s) : Mr. Arijit Bhowmik, Advocate Mr. Akan Tilak Paul, Advocate Mr. S. Dey, Advocate.

        For Respondent(s)         : Mr. D. Sharma, Addl. Govt. Advocate
        Date of hearing and
         Judgment & Order         : 29th November, 2021
        Whether fit for reporting :   YES/NO

                      JUDGMENT AND ORDER(Oral)
(Indrajit Mahanty, C.J.)

Heard learned counsel for the respective parties.

[2] This writ petition came to be filed by the petitioner seeking

refund of earnest money which he had submitted pursuant to a Notice

W.P(c) No.298/2019 Page - 2 of 4

Inviting Tender under Annexure-1. The petitioner has averred in the writ

petition that although he had made necessary bid pursuant to the tender and

had provided the necessary Earnest Money Deposit (EMD), the purported

work order dated 22.02.2017 was never received by the petitioner and as a

consequence of which, the petitioner could not commence his work as per

work order. It is asserted by the learned counsel for the petitioner that the

respondent No.2 issued a show cause notice to the petitioner on 18.04.2017

alleging that the petitioner had not commenced the work as per the work

order. In response to the said notice, the petitioner again wrote the

communication to the respondent No.2 indicating that the above work

order dated 22.02.2017 had not been received by him and consequently, he

could not commence the work unless he received the work order in

question.

[3] In the counter affidavit filed by the respondents, the

respondents referred to various clauses in the tender document and submit

that since the work order had been issued to the petitioner on 22.02.2017

and he had failed to commence work within the period as stipulated in the

NIT, the EMD submitted by the petitioner was likely to be forfeited and

accordingly, necessary directions were issued forfeiting the EMD

submitted by the petitioner and consequently prayed for dismissal of the

writ petition.

W.P(c) No.298/2019 Page - 3 of 4

[4] In response, the respondents in their affidavit submitted that

the letter of award was sent to the petitioner from Agartala Head Post

Office on 27.02.2017 under registered post. In paragraph-9 it is also stated

as follows:

"**** though Sri Dhar, the petitioner then requested the office to hand over the letter of award by hand but the department had followed the standard procedure for sending the letter of award by India Post.*****"

As evident thereof, the respondents have filed under

Annexure-R/1, the evidence of sending of the letter by registered post and

under Annexure-R/2 they have provided the Track Consignment issued

from the website of the India Post which indicates that a registered

communication was booked at Agartala Head Office on 27.02.2017 and

had been delivered at Agartala Head Office on 28.02.2017. This receipt

which has been relied upon by the respondents does not in any manner

confirm the fact of delivery of the registered package to the "addressee"

i.e. the petitioner. Learned counsel appearing for the respondents fairly

submits that except Annexure-R/1 and R/2, the respondents have no other

evidence of delivery of the registered letter on the petitioner.

[5] On a consideration of the aforesaid limited facts, it is clear

from them that the respondents have no other evidence of delivery to the

„addressee‟ i.e. the petitioner available on record. Even apart from that the

respondents in their counter affidavit at para-9 had categorically admitted W.P(c) No.298/2019 Page - 4 of 4

that the petitioner had approached the office of respondent No.2 and

sought for handing over the work order by hand, which was turned down

by the respondents. Consequently, no fault can be found on part of the

petitioner for not having carried out or taken up the work since he all along

has claimed that the work order had not been served on him.

[6] Consequently, the writ petition is allowed. Orders passed by

the respondents forfeiting the EMD deposited by the petitioner are set

aside and directions are issued to the respondent No.2 to release the EMD

to the writ petitioner within a period of four weeks from today.

[7] With the aforesaid directions and observations, the writ

petition stands disposed of.

(S.G.CHATTOPADHYAY), J (INDRAJIT MAHANTY), CJ

Dipankar

W.P(c) No.298/2019