Patna High Court · 2011
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.24843 of 2011 ====================================================== 1. Ram Chandra Singh S/O Late Habu Singh @ Babu Singh Resident Of Mohalla- Inai (Professor Colony), Station Road, At & P.O.- Sheikhpura, Pin- 811105 Versus 1. The State Of Bihar Through The Additional Director General (A.D.G.) Of Police, Vigilance, Bihar, Patna .... .... Petitioner/s .... .... Opposite Party/s ====================================================== Appearance : For the Petitioner/s : Mr. Tara Kant Jha, Sr. Adv. For the Vigilance : Mr. Rama Kant Sharma, Sr. Adv. Mr. Smt. Babita Kumari, Adv. Mr. Arvind Kumar, Adv. ====================================================== CORAM: HONOURABLE MR. JUSTICE SHIVAJI PANDEY ORAL ORDER 7 23.01.2013 This is an application for quashing the order dated 8th July 2011 passed by the Special Judge, Vigilance, Patna in Special Case No. 12 of 2008 arising from Vigilance P.S. case No. 21 of 2008 by which the court below refused to discharge the petitioner.
Legal Reasoning
2. It appears from the record that an FIR was instituted by the Vigilance Department being Vigilance P.S.Case No.21 of 2008 for the offence, mentioned above, where one Kapildeo Yadav, Executive Engineer (since retired), Building Construction Division, Sheikhpura and other nine persons have been made accused . It appears from the record that the petitioner was a contractor under PWD, Building Construction Department at Sheikhpura. 3. The brief facts as mentioned in the FIR is that 2 Patna High Court Cr.Misc. No.24843 of 2011 (7) P2 / 5 during the financial year 2005-06 and 2006-07, on various dates, the P.W.D. entered into contract with contractors for the construction of building and allied constructions. The petitioner was one of the contractors awarded the contract of Rs. 12,21,602/- On enquiry it was found that though money for the work was paid to the contractors concerned but the work allotted was not done or not complete. Altogether the team found different works incomplete or not done at all. Works were for fitting three hand-wash basin, use of local wood in place of Sal wood, brick drain etc., not fitting of iron grille and construction of 15’x18’ perimeter wall of the jail. For different works, different contractors were appointed. Brijnandan Prasad was appointed vide Agreement No.60F/2006-07, value of work was of Rs.3,10,343/-, Khalid Aziz Siddique was a contractor for Agreement No.127AF2/2006-07 having value of Rs.9,87,643/-, M/s Atlantic Construction Pvt. Co. was contractor for Agreement No.5F2/2006-07 hving value of for Rs.9,59,566 and for agreement No.11 F2/2005-06 Ram Chandra Singh was the contractor having the value of Rs.12,21,602/-. 4. From the enquiry report, the facts emerging is, that under Agreement No.5F2/2006-07, a brick drain cemented was to be constructed but the team found that the drain was not constructed but in the Measurement Book, it has been shown to have been constructed/completed and payment was made having the work value of Rs.10,895/-, whereas in Agreement No.11F2/2005-06 valued at Rs.12,21,602/- for the purpose of 3 Patna High Court Cr.Misc. No.24843 of 2011 (7) P3 / 5 construction of wall with the fitting of grille gate and it was found that neither the wall was constructed nor the grille was fitted there, but in the Measurement Book, it was shown to have been competed and the payments were made. 5. After this report, the FIR was lodged but it appears from the record that after lodging of the criminal case the irregularity/defects which were found by the Committee were rectified. The order of cognizance was challenged by the different contactors as Brijnandan Prasad challenged the order of cognizance against him vide Cr.Misc.no. 19201 of 2010 and the same was quashed by order dated 3rd January 2011 relying on the terms of contract holding that the deficiency in execution of work was mere irregularity and it cannot be a case of illegality and for that the criminal case was not required to be instituted against him and, accordingly, the application was allowed and the order dated 26th October 20098 passed in this case was quashed against the petitioner of that case. Khalid Ajit Siddique had also filed Cr.Misc.No. 45660 of 2009 where the allegation was made against him for using local wood in place of Sal wood. This Court considered terms of agreement, Clause-13 which reads as follows: “If it shall appear to the Engineer-in- charge or his subordinate in-charge of the work that any work has been executed with unsound, imperfect or unskillful workmanship or with materials of any inferior description, or by any materials or articles provided by him for the execution of the work are unsound of a quality inferior to that contracted for at otherwise not in accordance with the contract, the contractor shall on demand in writing from the Engineer-in-charge specifying the inadaverentaly passed certified and paid for, forthwith rectify or remove and re- contract the work so specified, and provided other 4 Patna High Court Cr.Misc. No.24843 of 2011 (7) P4 / 5 proper and suitable materials or articles at his own proper charge and cost, and in the event of failing to do so within period to be specified by he Engineer-in-charge in his demand aforesaid the contractor shall be liable to pay compensation at the rate of one percent on the amount of the estimate for every day not exceeding t en days while his failure to do so shall continue and in the case of any such failure the Engineer-in-charge may certify or remove, and re-execute the work or remove and replace with others, the materials or articles complained of as the case may be at the risk and expense in all respects of the contractor. and the Court on the basis of terms of agreement held that these were the defects and according to terms of agreement, defects would have been rectified or removed. 6. It has also been provided in the terms of contract that in the event of not doing so within the period specified, the contractor shall be liable to pay compensation @ 1 per cent of the amount of the estimate for every day, not exceeding 10 days. In case of continuation of the defect, the Chief Engineer would rectify/remove or re-execute the work at the risk and expenses of the contractor. The Court allowed the case and
Legal Reasoning
thereby quashed the order of cognizance against Sri Khalid Azith Siddique. 7. One Pramod Slingh contractor of M/s Atlantic Construction Pvt. Ltd. Co. filed Cr.Misc.No. 34837 of 2010 which was allowed by the Court but it appears that it was not brought to the notice of the Court, that was a case related to removal of defect but in this case the brick drain was not constructed at all but the payments were made. Pramod Kumar Singh was also a contractor and the Court allowed the aforesaid petition relying on the orders 5 Patna High Court Cr.Misc. No.24843 of 2011 (7) P5 / 5 that was passed in Cr. Misc. no. 4560 of 2009 and Cr.Misc.No. 19201 of 2010. 8. Counsel for the petitioner submits that the orders of cognizance against the petitioners of the aforesaid cases was quashed and a prayer was made for giving the same relief to the present petitioner as he was/is also contractor. 9. The counsel for the petitioner has submitted, whatever the defects were pointed out by the Committee were rectified. As on to-day there is no defect at all and all have been cured. Counsel for the petitioner has submitted that the case of petitioner is identical to Pramod Kumar Singh as in that case work was not done but order of cognizance has been quashed as stated hereinabove. 10. Counsel for the opposite party no.2 conceded that the case of petitioner is identical to the case of Pramod Kumar Singh and others and cannot object the prayer of petitioner. In view of concession offered by the opposite party that the case of petitioner is identical to other contractors, the order refusing to discharge petitioner is set aside. 11. Accordingly, this petition is allowed and petitioner is discharged from the case. Jay/- (Shivaji Pandey, J)