Sudhang Kumar Brahma v. The Bodoland Territorial Council and 2 Ors

ORDER

22.03.2023

Heard Mr. A. Baruah, learned counsel for the petitioner and Ms. R.B. Bora, learned Standing Counsel, Bodoland Territorial Council [BTC] for all the respondents.

¶2The subject-matter in this writ petition is execution of a contract work viz. 'Construction of black topping road from South to North Bhamguri village with 2 RCC box culvert' under 5th Assam State Finance Commission ['the Contract-Work', for short] and non-disbursal of an amount of Rs. 30,19,955/- in favour of the petitioner which the petitioner has claimed to be due from the authorities in the BTC.

¶3The case projected by the petitioner in this writ petition, in brief, is that Administrative Approval for the Contract-Work was accorded on 01.11.2018 [Annexure-A to the writ petition]. Thereafter, the Technical Sanction was accorded on 09.11.2018 [Annexure-B to the writ petition] for the Contract-Work. After Administrative Approval and Technical Sanction, a Tender Notice for the Contract-Work was published and the petitioner emerged as the successful bidder for the Contract-Work in the bidding process. Accordingly, the petitioner was awarded the Contract-Work to execute the same at a contract value of Rs. 98,83,387/-. According to the petitioner, he was awarded the Contract-Work by a Notice to proceed with the Contract-Work dated 22.11.2018 [Annexure-C]. The petitioner has asserted that after compliance of the requisite formalities and signing of the Contract-Agreement, he proceeded to execute the Contract-Work as per the specifications, drawings and agreement and completed the same. The authorities in the respondent BTC physically verified the Contract-Work and found that the Contract-Work had been completed as per the specifications, drawings, and agreement. In that connection, the respondent authorities had issued a Completion Certificate [Annexure-D to the writ petition] certifying that the date of commencement of the Contract-Work was 22.11.2018 and the date of completion of the Page No.# 3/5 Contract-Work was 15.02.2019. As per the Completion Certificate, the final bill value against the Contract-Work was Rs. 98,64,706/- and out of that amount, an amount of Rs. 68,44,751/- had been disbursed till then to the petitioner after a physical verification was made and finding that the Contract-Work was executed satisfactorily to the extent of 100%.

¶4Ms. Bora, learned Standing Counsel, BTC has submitted that though from the documents annexed to this writ petition, it is prima facie reflected that the petitioner had completed the Contract-Work but still there is requirement for verification of the matter. It is submitted that a decision was taken by the respondent BTC authorities to examine all the pending claims relating to contract works and to that effect the respondent no. 1 had passed an order on 15.11.2021. As per the said Order, the respondent BTC authorities had undertaken to examine all the cases relating to outstanding liabilities within a period of 6 [six] months from the date of issuance of the said order. Ms. Bora has produced copy of the said order before this Court. Ms. Bora has submitted that the case of the petitioner can be considered by undertaking an exercise in similar line like the one indicated in the Order dated

15.11.2021.

¶5The order bearing No. BTC/F[Audit]/49/2021/Pt-I/1] dated Kokrajhar, the 15th November, 2021 reads as under :-

" BODOLAND TERRITORIAL COUNCIL SECRETARIAT BODOFA NWGWR::KOKRAJHAR No. BTC/F(Audit)49/2021/Pt-I/1 Dated-Kokrajhar, the 15th November, 2021 ORDER WHEREAS it has been noticed that huge number of outstanding liabilities have been created by the erstwhile BTAD authority since 2011 to February, 2020 through contractual work orders to the Contractors/Suppliers, etc. under various entrusted departments of BTC without corresponding budget provisions WHEREAS the outstanding liabilities created by the erstwhile BTAD authority are required to undergo detail examination and verification in the context of proposals of such works made, Page No.# 4/5 NIT, selection of successful bidders, quality of works, completion of works, fund position, part payment, etc. WHEREAS it is further noticed that a good number of court cases have been filed before the Hon'ble Gauhati High Court as well as in the District Courts of respective District Jurisdictions under BTAD by the Contractors/Suppliers, etc. praying for release of payments to the Contractors/Suppliers, etc. against their respective work orders WHEREAS, reportedly, out of the aforesaid contractual works, some part payments also made against portion of works completed by the Contractors/Suppliers, etc. by the erstwhile BTAD authority in certain cases. However, such fund flow does not follow any rationale and is found to be arbitrant AND THEREFORE, in view of the above facts and circumstances, the BTC has decided to verify all such works by conducting comprehensive audit, financial verification and physical verification wherever applicable, against all such contractual works in the Govt. level and further to complete the whole exercise in this regard within 6 (six) months from the date of issue of this order. After verifying the same, if it is found that the claims are admissible after following all established financial norms, the same shall be processed in accordance with law and as per decision contained in Tamsher Ali and others vs. State of Assam and others reported in 2008 (4) GLT 1 accordingly. Furthermore, if instances of wrongdoing or misappropriation are found during such comprehensive audit, financial verification and physical verification wherever applicable, appropriate legal action would be taken against the persons/agencies/firms concerned in accordance with the applicable laws. This order shall come into force with immediate effect."

¶6Ms. Bora, learned Standing Counsel, BTC has also placed on record a copy of an Order bearing no. BTC/T&D-185/2021/109 dated 16.07.2022 which goes to show that the Executive Council of the BTC decided to re-allocate/re-appropriate a sum of Rs. 8600.62 Lakhs to the concerned departments for payment of previous liabilities of construction works as cleared by the consulting agency, M/s NITCON Limited and in the line of Tamsher Ali and Ors. vs. State of Assam and Ors. reported in 2008 [4] GLT 1 [FB].

Page No.# 5/5

¶7Having considered the contents of the Order dated 15.11.2021 and the order dated

16.07.2022 and the decision of the Full Bench judgment of this Court, rendered on

29.09.2008, in Writ Appeal No. 484/2005 [Tamsher Ali and Ors. vs. State of Assam and Ors.], and similar other 194 writ petitions reported in 2008 [4] GLT 1 [FB], it is considered appropriate that the respondent authorities in the respondent BTC shall undertake and complete similar kind of exercise, like the one mentioned in the Order dated 15.11.2021 and the Order dated 16.07.2022, in respect of the claim of the petitioner also within a period of 3 [three] months. If after such exercise, the petitioner is found entitled to the amount of Rs. 30,19,955/- or any other amount, the same shall be released in favour of the petitioner in terms of the decision in Tamsher Ali [supra]. The petitioner shall submit a certified copy of this order to the respondent no. 1 i.e. the Principal Secretary, Bodoland Territorial Council [BTC], Kokrajhar within 7 [seven] days from today for his doing the needful.

¶8The writ petition stands disposed of in terms of the above observation and direction. JUDGE Comparing Assistant

PageoNo.#o1/5 GAHC010101992022 ooooooo ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:oWP(C)/3569/2022o SUDHANGoKUMARoBRAHMAo S/O-oLATEoRATIoRAMoBRAHMAo R/O-oWARDoNO-5,o MIJINGoNWGWRo P.OoANDoP.S-oKOKRAJHARo PIN-783370o DIST-oKOKRAJHAR,oBODOLANDoTERRITORIALoCOUNCIL,oASSAM VERSUSo THEoBODOLANDoTERRITORIALoCOUNCILoANDo2oORSo REPoBYoITSoPRINCIPALoSECRETARY,oKOKRAJHAR,oPIN-o783370.o ASSAM 2:THEoCHIEFoENGINEER oPUBLICoWORKSoDEPARTMENT oBODOLANDoTERRITORIALoCOUNCIL oKOKRAJHAR oASSAM 3:THEoEXECUTIVEoENGINEER oPUBLICoWORKSoDEPARTMENT KOKRAJHARoRURALoROADSoDIVISIONo oBODOLANDoTERRITORIALoCOUNCIL oKOKRAJHAR oASSAo AdvocateoforotheoPetitionerooooo:oMRoKoPoPATHAKo AdvocateoforotheoRespondento:oSC,oBTCoo oooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooo Page No.# 2/5 BEFORE HONOURABLE MR. JUSTICE MANISH CHOUDHURY