Moinul Haque Choudhury v. The State of Assam and 5 Ors

ORDER Date : 10.06.2024

Heard Mr.A.H. Alamgir, learned counsel for the petitioner. Also heard Mr.R.M. Das, learned Standing Counsel, Water Resource Department.

¶2This writ petition is filed by the writ petitioner seeking a direction of the Court for release of his bills or works executed in respect of "Construction of F/E along L/B of River Digaru from national highway to Kurkuria hill under the Water Resources Department". The learned counsel for the petitioner submits that the petitioner was allotted the work order dated 02.03.2012 for the "Construction of F/E and of L/B of River Digaru from national highway to Kurkuria hill under the Page No.# 3/5 Water Resources Department". In pursuance to the works allotted the petitioner deposited the earnest money, as required. The petitioner claims to have completed the work but the bills raised after completion of the work amounting to Rs.2,43,412/- (Rupees two lakhs forty three thousand four hundred twelve) only with interest has not been paid against the works executed. Being aggrieved, the petitioner has filed the present writ petition.

¶3The respondents have filed an affidavit making a categorical averment that there are no records available in the Office of the Executive Engineer, Guwahati East Water Resources Department in the district of Kamrup (Metro) in respect of the works undertaken or completed by the petitioner. The respondents however, stated in their affidavit that against the work allotted the petitioner had deposited 2% of the tender amount as earnest money, in favour of the Executive Engineer, Guwahati East, Water Resources Division and which the petitioner is at liberty to withdraw at anytime from the said Office.

¶4In view of the disputed questions of fact raised, this Court by earlier dated

24.11.2022 directed the respondents to produce the measurement book. The learned Standing Counsel, Water Resource Department has produced the Measurement Book before this Court.

¶5Having heard the learned counsels for the parties and upon careful perusal of the pleadings on record, it is seen that the respondents have not admitted to the execution of the works undertaken by the petitioner. The respondents admit that the petitioner has been allotted the work, and he had accordingly deposited the earnest money as required but the works allotted were not executed by him and therefore the payments claimed cannot be released to him.

¶6The measurement book, produced before the Court and as pointed out by Page No.# 4/5 the learned counsel for the respondent, does not show the work executed by the petitioner have been recorded in the measurement book. Although the affidavit filed by the respondents reflect that the petitioner although allotted the contract work, did not execute the same, however, the affidavit does not bring on record, as to whether the said work was subsequently required to be executed by issuance of a fresh tender, or by allotting the work to some other contractor or even that the work was never executed. It is also seen that the respondents have admitted that the work was allotted to the petitioner, but he failed to execute the same and at the same time they state that the petitioner is at liberty to withdraw the earnest money from the Office of the Executive Engineer.

¶7Having heard the learned counsels for the parties and upon careful perusal of the pleadings on record it is seen that the work stated to have been executed by the petitioner is not admitted to by the department. The measurement book produced before the Court also did not reflect any measurement of works stated to have been executed by the petitioner. What is, however noticed is that there are no particulars in the affidavit before this Court as to whether the work allotted to the petitioner was executed through some other contractor, or was it abandoned. If the work is allotted to any other contractor, ordinarily as per Contract agreements executed, on the failure of the contractor to execute the contract in the event the contractor abandoned the work after being allotted, the earnest money is forfeited. However, the affidavit clearly reflects that the petitioner is given liberty to withdraw the earnest money from the office of the deponent.

¶8Under such circumstances, this Court deems it proper to direct the Chief Engineer, Water Resources Department to cause a proper enquiry into the Page No.# 5/5 claims of the writ petitioner and if the writ petitioner had executed the works allotted to him or had partially executed the words, then any amount payable to the petitioner in terms of the contract shall be released after due and proper verification of the same.

¶9The entire exercise be completed by the Officer of the Chief Engineer, Water Resources Department within a period of 90(ninety) days from the date of receipt of a certified copy of this order.

¶10Writ petition, is accordingly, disposed of in terms of the above. No order as to cost.

JUDGE Comparing Assistant

PageoNo.#o1/5 GAHC010154012022 ooooooo ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:oWP(C)/5081/2022o MOINULoHAQUEoCHOUDHURYo S/OoLT.oAFTARoHUSSAINoCHOUDHURY,o VILL.-oKACHUTOLI,oP.O.-oDIGARU,oP.S.-oSONAPUR,oDIST.-oKAMRUP(M),o ASSAM,oPIN-o782401. VERSUSo THEoSTATEoOFoASSAMoANDo5oORS.o REP.oBYoCOMMISSIONERoANDoSECRETARYoTOoTHEoGOVT.oOFoASSAM,o 'WATERoRESOURCEo(W.R)oDEPARTMENT',oDISPUR,oP.O.oANDoP.S.-oDISPUR,o DIST.-oKAMRUP(M),oASSAM,oPIN-o781006. 2:THEoCHIEFoENGINEER o'WATERoRESOURCE(W.R)oDEPTT.' oASSAM o5QMCoANDoJRR oKRISHNAoNAGAR oP.O.oANDoP.S.-oCHANDMARI oDIST.-oKAMRUP(M) oASSAM oGUWAHATI-o781003. 3:THEoASST.oCHIEFoENGINEER o'WATERoRESOURCE(W.R)oDEPTT.' oASSAM o5QMCoANDoJRR oKRISHNAoNAGAR oP.O.oANDoP.S.-oCHANDMARI oDIST.-oKAMRUP(M) oASSAM oGUWAHATI-o781003. Page No.# 2/5 4:THE SUPERINTENDING ENGINEER SOUTHERN ASSAM 'WATER RESOURCE(W.R) CIRCLE P.O AND P.S.- CHANDMARI DIST.- KAMRUP(M) ASSAM GUWAHATI- 781003. 5:EXECUTIVE ENGINEER GUWAHATI EAST 'WATER RESOURCE(W.R) DIVISION DR. BK KAKATI ROAD ULUBARI ASSAM GUWAHATI- 781003. 6:ASSISTANT EXECUTIVE ENGINEER (A.E.E) GUWAHATI EAST 'WATER RESOURCE(W.R) DIVISION DR. BK KAKATI ROAD ULUBARI ASSAM GUWAHATI- 781003 Advocate for the Petitioner : MR. A H ALAMGIR Advocate for the Respondent : SC, WATER RESOURCE BEFORE HONOURABLE MR. JUSTICE SOUMITRA SAIKIA