Prasenjit Mondal v. The State of Assam and 5 Ors

ORDER Date : 04-03-2024 Heard Mr. H. Buragohain, learned counsel for the petitioner as well as Mr. D. Nath, learned standing counsel for the PWD (Roads) for the respondent nos.1 to 6.

¶2The petitioner's contract having been terminated by way of an Advocate's notice, the same has been put to challenge.

¶3The respondents in the PWD (Roads) in the Goalpara Division issued an NIT under Memo No. TECH/129/SOPD(G)/SE(W)/G/2019-20 dated

26.05.2019 for construction of STP Bridge No. 1/1 on Rakhaldubi Anchalik Bazar Page No.# 3/7 to Rakhaldubi Char including Approach under SOPD for 2018-2019, Package No. SOPD_GL_29, in which the petitioner along with other bidders submitted their bids.

¶4It is the case of the petitioner that as the rate quoted by him with regard to the said work was found to be responsive, the respondent in the PWD (Roads), vide communication No. Tech/CS104/SE(W)/G/SOPD(G)/2018-19/3 dated 30.08.2019, issued Letter of Acceptance to him and further, by communication

No.

Tech/CS-104/SE(W)/G/SOPD(G)/2018-19/5

dated

02.09.2019, issued notice to the petitioner to proceed with the said work informing him that the work should be completed within a period of 120 days.

¶5However, on the prayer of the petitioner, due to pandemic Covid-19, said work order was extended from time to time and lastly i.e., on 20.12.2020, it was extended upto 28.03.2021.

¶6As the petitioner failed to complete the said work inspite of extensions of time for completion of work, the respondents in the PWD (roads) on

06.08.2021 issued a legal notice to him.

¶7It is the further case of the petitioner that though he prayed for another 45 days time to complete the said work and was granted the same by the respondents authorities, but he failed to complete the work within the stipulated time. The respondents in the PWD (roads) issued Advocate Notice

(4th) dated 27.09.2021 to the petitioner informing him that the contract work had been terminated. Page No.# 4/7

¶8By communication No. GW&J/TRD/Tech-2/ SOPD/ Est/ 2019-20/1023 dated 08.10.2021, the Executive Engineer, PWRD, Goalpara West & Jaleswar, T.R. Division, Lakhipur, Goalpara informed the petitioner that his contract had been terminated by the Advocate's notice. The petitioner was then directed to attend the office of the issuing authority and to remain present in the concerned site, to take the up-to-date work measurement executed by him within a period of 3 (three) days from the date of issuance of the said letter.

¶9Mr. Buragohain, learned counsel for the petitioner submits that in response to the letter dated 08.10.2021, the petitioner submitted representations dated 12.10.2021 and 08.03.2021 before the Executive Engineer, PWRD, Goalpara West & Jaleswar, T.R. Division, Lakhipur, Goalpara, which is still pending disposal.

¶10The petitioner's counsel submits that the termination of the contract work had been done through an Advocate's notice and not in terms of the contract agreement executed by the parties. The communication made by the Executive Engineer, PWD (Roads) regarding the termination of the contract work was only a reiteration of the Advocate's notice. He submits that as the advocate could not have terminated the petitioner's contract work, the impugned communication dated 08.10.2021 issued by the Executive Engineer should be set aside.

¶11Mr. D. Nath, learned counsel for the State respondents, submits that the reason for terminating the petitioner's contact was due to the petitioner's Page No.# 5/7 failure to complete the contract work within the stipulated time period, despite repeated extensions given to him. He, however, does not deny the fact that the termination of the contract work could not have been done by way of an Advocate's notice, in terms of the contract agreement executed between the parties.

¶12I have heard the learned counsels for the parties.

¶13Clause 4.1 of the Contract agreement executed between the parties provides that except where otherwise specifically stated, the Engineer will decide contractual matters between the employer and the contractor in the role representing the employer.

¶14Clause 59.1 of the Contract agreement provides that the employer or the contractor may terminate the contract, if the other party causes a fundamental breach of the contract. The definition of employer as given in the contract agreement states that the employer is the party who will employ the contractor to carry out the works.

¶15The contract agreement in question has been executed between the Superintending Engineer, Public Works Department (Roads), Western Assam Circle, Goalpara and the petitioner. The above provisions of the contract agreement show that the advocate representing the PWD was not the employer of the petitioner and, as such, could not have issued any letter terminating the contract being executed by the petitioner. There being no source of power, the Page No.# 6/7 exercise of terminating the petitioner's contract work was a void exercise, keeping in view the judgment of the Supreme Court in the case of Union of India Vs. Tulsiram Patel, 1985 3 SCC 398, where it has held that the source of power must exist for its exercise.

¶16Consequently, the Advocate's notice dated 27.09.2021 cancelling the petitioner's contract work can have no force in law in relation to the contract work being executed by the petitioner. Thus, the subsequent order issued by the Executive Engineer, PWRD, Goalpara West & Jaleswar Territorial Road Division, (W.A.C.), Goalpara, Lakhipur, Goalpara, Assam i.e. the respondent no.5 vide letter dated 08.10.2021 regarding termination of the petitioner's contract work, cannot be considered to be an order terminating the petitioner's contract work, as the initial order was not a valid order. Accordingly, the respondent no.5's letter/ order dated 08.10.2021 is set aside, as the same cannot be construed to be a sanctifying/justifying letter/order of the termination of the petitioner's contract work by the advocate's letter dated 27.09.2021.

¶17The State respondents are accordingly directed to consider whether to allow the petitioner to complete the contract work by way of giving him further extension. The above direction will not come in the way of the respondents to take a fresh decision to continue/ discontinue the contract work with the petitioner pursuant to the NIT dated 26.05.2021.

¶18The writ petition is accordingly disposed of.

Page No.# 7/7 JUDGE Comparing Assistant

PageoNo.#o1/7 GAHC010035292022 ooooooo ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:oWP(C)/1389/2022o PRASENJIToMONDALo S/OoSRIoRANJIToMONDALo R/Oo353,oBIKRAMPURoROAD,oJAPORIGOG,oPOSToOFFICEoDISPUR,oDIST.o KAMRUPo(M),oASSAM,oPIN-781005,oASSAM VERSUSo THEoSTATEoOFoASSAMoANDo5oORS.o REP.oBYoTHEoCOMMISSIONERoANDoSECRETARYoTOoTHEoGOVT.oOFoASSAM,o PWDo(ROADS)oDEPARTMENT,oDISPUR,oGUWAHATI-781006. 2:THEoSECRETARY oDEPARTMENToOFoPWDo(ROADS)oDEPARTMENT oGOVERNMENToOFoASSAM oDISPUR oGUWAHATI-781006. 3:THEoCHIEFoENGINEER oPWDo(BR) oCHANDMARI oGUWAHATI-781003 4:THEoSUPERINTENDENToENGINEER oPWDo(ROADS) oGOALPARAoWESToANDoJALESWARoTERRITORIALoROADoDIVISION o(W.A.C.)oGOALPARA oLAKHIPUR oGOALPARA oASSAM Page No.# 2/7 5:THE EXECUTIVE ENGINEER PWRD GOALPARA WEST AND JALESWAR TERRITORIAL ROAD DIVISION (W.A.C.) GOALPARA LAKHIPUR GOALPARA ASSAM 6:THE ASSTT. EXECUTIVE ENGINEER PWRD GOALPARA WEST T.R. SUB-DIVISION BASHBARI ASSAM Advocate for the Petitioner : MR H BURAGOHAIN Advocate for the Respondent : SC, PWD BEFORE HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA