Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.6067 of 2013 ====================================================== KEMS Services Private Limited, Through Its Managing Director Mr. Mohan Kumar Khandelwal S/O Sri Durga Prasad Khandelwal 76, B1/B, Maurya Lok Complex, Dak Bunglow Road, P.S.- Kotwali, Patna-800001 (Bihar) .... .... Petitioner/s Versus 1. The State Of Bihar Through The Principal Secretary Water Resources Department, Bihar, Patna 2. The Engineer-In-Chief (North) Water Resources Department, Bihar, Patna 3. The Engineer-In-Chief (Central/Middle) Water Resources Department, Bihar, Patna 4. The Chief Engineer, Water Resources Department, Bhagalpur 5. The Executive Engineer Flood Control Division, Naugachia, District- Bhagalpur 6. Mr. Dhirendra Kumar, The Engineer-In-Chief (North) Water Resources Department, Bihar, Patna. .... .... Respondent/s ====================================================== CORAM: HONOURABLE MR. JUSTICE KISHORE KUMAR MANDAL ORAL ORDER 6 26-07-2013 Heard Mr. K.K.Jha for the petitioner and Mr. Vinay Kumar Pandey AC to SC-5 for the respondent-State. The petitioner is a Company and registered with the Government, in the Department of Water Resources as Class-I Contractor. He was assigned a work relating to Disaster Management during the year 2011. The time was the essence of the contract. It was to be completed within a time frame. In spite of notices/warnings/instructions the petitioner delayed in execution thereof. Resultantly, the respondent – Engineer-in-Chief
Legal Reasoning
Patna High Court CWJC No.6067 of 2013 (6) dt.26-07-2013 Page 2/6 by order dated 20.12.2011(Annexure-15) passed an order under clause 11 ka (II) of Bihar Thikedari Nibandhan Niyamabali, 2007 whereby the petitioner Company was placed in black list. Aggrieved by the said order the petitioner filed a writ petition being CWJC No. 789 of 2012. This Court by a proceeding dated 7.11.12 (Annexure-17) set aside the order and remanded the case to the respondent – Engineer-in-Chief for passing a fresh order on the show cause already filed by the petitioner. The respondent- Engineer-in-Chief (North) in the light of the said order and liberty granted by this Court passed an order dated 13.3.13 (Annexure- 19) whereby the petitioner was again held responsible for delaying the execution of work and was blacklisted. Aggrieved thereby the present writ petition has been filed.
Legal Reasoning
Mr. Jha learned counsel submits that the decision to black list was taken at the highest level and as such the petitioner would not receive fair deal at the hands of the appropriate authority in appeal. He refers to the earlier order of this Court dated 7.11.12 (Annexure-17) where the aforesaid view was taken by this Court. Referring to the Statements made in paragraph no. 17 of the writ petition, it has been stated that the petitioner has already raised a dispute before the Bihar Public Works Contracts Disputes Arbitration Tribunal, Patna ( for short Patna High Court CWJC No.6067 of 2013 (6) dt.26-07-2013 Page 3/6 „Tribunal‟) by filing Reference Case No. 26 of 2013 which is still pending consideration. Relying on the ratio laid down by the Hon‟ble Apex Court in the case of J. G. Engineers Pvt. Ltd. vs. Union of India & Anr. (AIR 2011 SC 2477), it has been submitted that the party to the agreement cannot be arbiter in the matter. The decision in this regard has to be rendered by an independent forum/ authority. In the case at hand, the Tribunal constituted by the State Government for resolution of such disputes has already been approached and Reference Case No. 26 of 2013 filed by the petitioner is pending consideration. It is submitted that the respondents have already appeared and the matter is being contested before the said Tribunal. It has, thus, been submitted that the order dated 13.03.2013 passed by the Engineer –in-Chief ( North) as contained in Annexure -19 be quashed and the authority may be granted liberty to pass a fresh order upon conclusion of Reference Case No. 26 of 2013. Mr. Pandey, learned counsel for the respondent- State, on the other hand, submits that for culpable activities of the petitioner an FIR has also been lodged. Relevant Rule provides for suspension of registration of the delinquent Contractor pending final decision. Instead of quashing the impugned order passed by the respondent-Engineer- in –Chief the Patna High Court CWJC No.6067 of 2013 (6) dt.26-07-2013 Page 4/6 same be treated to be only an order suspending the registration of the petitioner with the respondent State until resolution of the dispute by the Tribunal where Reference Case No. 26 of 2013 is pending consideration. On a consideration of the rival submissions made on behalf of the parties, it appears the petitioner was assigned a job connected with disaster Management. The time was the essence of the contract. The petitioner could not finish the work in spite of repeated instructions/warnings/notices issued to the petitioner. Resultantly, the impugned action has been taken whereby the petitioner company has been blacklisted. In J.G. Engineers ( supra) the Hon‟ble Apex Court in paragraph no. 15 held as under: In fact “15. the other the question whether the other party committed breach cannot be decided by the party alleging breach. A contract cannot provide that one party will be the arbiter to decide whether he committed breach or party committed breach. That question can only be decided by only an adjudicatory forum, that is, a court or an Arbitral Tribunal. In State of Karnataka v. Shree Rameshwara Rice Mills (1987) 2 SCC 160 this Court held that adjudication upon the issue relating to a breach of condition of contract and adjudication of assessing damages arising out of the breach are two different and distinct concepts and the right to assess damages arising out of a breach would not include a right to adjudicate upon as to whether there was any breach at all. This Court held that one of the parties to an Patna High Court CWJC No.6067 of 2013 (6) dt.26-07-2013 Page 5/6 agreement cannot reserve to himself the power to adjudicate whether the other party has committed breach………..” Seen thus, there can be no dispute that the issue as to which party of the agreement was at fault for non-completion of the work assigned within time has to be decided by an independent forum. In the case at hand, the petitioner has already approached the Tribunal constituted under the Act and it has been informed at Bar that the respondents are contesting the same. Said matter is pending consideration before the said Tribunal. In that view of the matter, the order dated 13.3.13 passed by the respondent –Engineer-in –Chief (North) as contained in Annexure-19 shall be treated as an order suspending the registration of the petitioner with the respondent State. The respondent authority shall be well advised to await resolution of the dispute by the Tribunal before taking further action in the matter. Accordingly, the application is disposed of by the following order:- The order dated 13.3.13 passed by Engineer-in-Chief (North) as contained in Annexure- 19 is held to be an order suspending the registration of the petitioner with the respondent State until resolution of the dispute by the Tribunal in Reference Case No. 26 of 2013 which is pending consideration. Depending Patna High Court CWJC No.6067 of 2013 (6) dt.26-07-2013 Page 6/6 on the award to be rendered by the Tribunal, the parties would be at liberty to proceed further in the matter in accordance with law. It is expected the Tribunal shall adjudicate the Reference Case No. 26 of 2013 expeditiously and the parties render cooperation in expeditious disposal thereof. (Kishore Kumar Mandal, J) Shyam/-