The Secretary, Rural Development Department, Govt. of Jharkhand v. Project Bhawan, Dhurwa, Ranchi
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(C) No. 1535 of 2023 Durjodhan Mohanty ... Petitioner 1. The State of Jharkhand 2. The Secretary, Rural Development Department, Govt. of Jharkhand, Versus Project Bhawan, Dhurwa, Ranchi 3. The Chief Engineer, Jharkhand State Rural Roads Development Authority (JSRRDA), FPP Building, Dhurwa, Ranchi 4. The Executive Engineer, Rural Development Department (Rural Works Division), Chakradharpur, Chaibasa 5. The Secretary, Department of Forest & Environment, Govt. of Jharkhand, Nepal House, Doranda, Ranchi 6. The Divisional Forest Officer, Podahat Forest Division/ Kolhan Forest Division, Chaibasa --- …Respondents
Legal Reasoning
CORAM: HON’BLE MR. JUSTICE RONGON MUKHOPADHYAY HON’BLE MR. JUSTICE DEEPAK ROSHAN For the Petitioner For the State For the Resp. No. 3 Order No. 08 : Mr. Krishna Murari, Advocate : Mr. Yogesh Modi, AC to AAG-IA : Dr. Ashok Kr. Singh, Advocate --- Dated 27th February, 2024 1. Heard the learned counsel for the respective sides. 2. The petitioner in this writ application has made the following prayers:- (a) “For quashing the letter no. 63 dated 12.01.2022 (Annexure- 8) issued under the signature of Executive Engineer, Rural Works Department, Works Division, Chakradharpur (respondent No. 4), whereby & where under, the Contract Agreement No. PMGSY- XIV-26/ 2016-17 (executed in favour of the petitioner for construction of Bridge over local Nala at CH- 2.40 KM- Posaita to Baliya Labenta Road length 89.44 M: has been arbitrarily cancelled/terminated without any prior Show Cause Notice and that too after closure of the work, which stood frustrated on account of admitted obstacles in the nature of no Forest Clearance vide Annexure-6. (b) Consequently, for direction upon the respondents to issue formal letter of closure and accordingly to release the performance security of Rs.4.10,000/- (Rupees Four Lakhs 2. Ten Thousand) for Agreement No. PMGSY- XIV-26/ 2016- 17 (corresponding to Package No. JH-XIV-RP-BR- WSM-06) deposited by the petitioner. (c) To release the aforesaid performance Security of Rs. 4,10,000/- along with 9% interest per year as has been mandated in the case of Kailash Nath Associates Vs. DDA reported in (2015) 4 SCC 136. AND/OR During the pendency of this case, the operation of letter no. 63 dated 12.01.2022 (Annexure-8), may kindly be stayed. AND/OR For any other appropriate writ(s)/ order(s) and / or direction(s) for doing conscionable justice to the petitioners in the facts and circumstances of this case.” 3. Mr. Krishna Murari, learned counsel appearing for the petitioner at the outset has submitted that he is confining his prayer only with respect to the release of the performance security amount of Rs. 4,10,000/-. 4. Briefly stated the facts reveal that the petitioner who is a duly registered works contractor with the Works Department of the State of Jharkhand had applied against a Notice Inviting Tender (NIT) for construction of a bridge and its maintenance for five years under the PMGSY appertaining to high level bridge over local Nala at CH-2.40 KM- Posaita to Baliya Labenta Road length 89.44 Meter issued from the office of the respondent No. 4. The petitioner was ultimately selected by the Tender Committee for award of the aforesaid work and accordingly vide letter No. JSRRDA-1201/16/3028 dated 16.11.2016 issued from the office of Chief Engineer, JSRRDA, he was awarded the said work and letter of acceptance was issued. 5. The petitioner had consequently deposited the performance security amount of Rs. 4,70,000/- and executed agreement No. PMGSY- XIV-26/ 2016-17 with the Executive Engineer for the agreement value of Rs. 1,86,17,489/- to be executed within 18 months up to 25.05.2018. The petitioner had after the execution of the agreement mobilized men and machinery for starting the project at the earliest and had also made huge 3. investments for purchase of raw materials, but the moment he started work, the same was stopped by the forest officials for want of forest clearance of the stretch in which the ensuing construction of the bridges was falling. The petitioner had made communication to the respondent No. 4 to obtain forest clearance from the department concerned and consequently the respondent No. 4 had intimated about the same to the respondent No. 6. This letter of the petitioner was followed by several communications, but forest clearance was not granted and suddenly the respondent No. 4 had issued letter No. 63 dated 12.01.2022 by virtue of which the agreement was terminated. The performance security amount deposited by the petitioner by pledging an amount of Rs. 4,10,000/- to the bank was also sought to be encashed vide impugned letter No. 1967 dated 22.12.2022. 6. It has been submitted by Mr. Krishna Murari, learned counsel appearing for the petitioner that the work entrusted to the petitioner could not be fulfilled on account of the inter-departmental dispute by dint of which the forest officials did not issue forest clearance which prevented the petitioner to do the job as per the agreement. It has been submitted that the performance security sought to be encashed was in violation of the principles of natural justice as no prior show cause notice or opportunity of hearing was given to the petitioner. It has been submitted that the imbroglio existing between the departments had let to an impossible act to be done by the petitioner which is hit by Section 56 of the Contract Act. 7. Mr. Yogesh Modi, learned A.C. to AAG-IA has submitted that M/s. Koleshwari Infaconra Pvt. Ltd. was given forest clearance by the forest department for the road construction made on 23 Km. route and both the bridges were to have been constructed by the petitioner in this stretch and therefore the petitioner was directed to start the construction work as there was no requirement of obtaining a no objection for construction of the bridges. It has been stated that in spite of there being no impediments in the construction of the bridges, the petitioner did not start construction work and therefore the agreement was rightly terminated and the performance security amount was sought to be encashed. 8. What would transpire from the submissions of the learned counsel for the respective parties, is that according to the petitioner, the construction 4. of bridges as per the agreement was stalled on account of forest clearance not having been received from the forest department which as per the respondent Nos. 3 and 4, there was no necessity of a forest clearance or a no objection on account of forest clearance already obtained for the construction of the road in the 23 Km. stretch over which the bridges were to be constructed. Thus there appears to be a contradictory stand taken by the petitioner and the respondent Nos. 3 and 4 regarding the viability of the petitioner to complete the project. We have therefore perused the affidavit filed by the respondent No. 6 (Divisional Forest Officer, Kolhan Forest Division, West Singhbhum) in which it has been stated that the construction of the bridge involved forest land and it attracted the provisions of Section 2 of the Forest Conservation Act, 1980. The construction of bridges is a non- forestry work and therefore the work was stopped by the forest officials. The said affidavit also states about permission given for black topping of Posaita to Baliya Labenta Forest Road in the existing 12 ft. width road. Departmental communications were made as to whether there is any requirement of additional forest land, but the user agency did not respond to the said letter. It has further been clarified that the construction work was stopped as it encroached upon forest area. 9. The affidavits filed by the respondent Nos. 3 and 4 and the affidavit filed by the respondent No. 6 are diametrically opposite to each other. The counter affidavit of respondent Nos. 3 and 4 suggests that no forest clearance was necessary for the proposed construction but the counter affidavit of respondent No. 6 indicates that a proposal should have been given by the user agency if any additional forest area was required for the purposes of construction of bridges though at the same time it has been stated that work of construction was stopped as it involved construction over forest area. Thus admittedly, an ambiguous situation has been created as to whether forest clearance for the work order allotted to the petitioner was required to be obtained or not. As per respondent No. 6 the work was stopped by the forest officials. In such background facts, Section 56 of the Contract Act assumes significance as a contract to do an act which after the contract is made becomes impossible or by reason of some event which the promisor could not prevent unlawful becomes void when the act becomes impossible or unlawful. 5. 10. The petitioner was therefore tasked with a work by the respondent No. 4 which was impossible to perform on account of the imbroglio between the departments with respect to the requirement of forest clearance and in such circumstances, there was no occasion for the respondent No. 4 to have taken steps for encashment of the performance security amount. 11. Thus on the basis of what we have discussed above, the respondent No. 4 is directed to release the performance security amount to the tune of Rs. 4,10,000/- to the petitioner expeditiously and not later than four weeks from the date of receipt/ production of a copy of this order.
Decision
12. This writ application stands disposed of. (RONGON MUKHOPADHYAY, J.) (DEEPAK ROSHAN, J.) MK