Gauhati High Court
Md. Jan Mohammad Talukdar vs Bodoland Territorial Council And 3 Ors on 12 September, 2022
Author: Achintya Malla Bujor Barua
Bench: Achintya Malla Bujor Barua
Page No.# 1/4
GAHC010145472020
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/4337/2020
MD. JAN MOHAMMAD TALUKDAR
S/O MD. SHAHJAHAN ALI TALUKDAR, R/O HOUSE NO. 1, SARUDHAR
GOGOI PATH, OPPOSITE TO LITTLE FLOWER SCHOOL, HATIGAON, P.O.-
HATIGAON, GUWAHATI-38, DIST-KAMRUP(M), ASSAM
VERSUS
BODOLAND TERRITORIAL COUNCIL AND 3 ORS
REP. BY ITS PRINCIPAL SECRETARY, KOKRAJHAR, P.O. KOKRAJHAR, DIST.
KOKRAJHAR, ASSAM, PIN-783370.
2:THE SECRETARY
BODOLAND TERRITORIAL COUNCIL
KOKRAJHAR
P.O. KOKRAJHAR
DIST. KOKRAJHAR
ASSAM
PIN-783370.
3:THE DIRECTOR
PANCHAYAT AND RURAL DEVELOPMENT (P AND RD) BTC
KOKRAJHAR
DIST. KOKRAJHAR
ASSAM
PIN-783370.
4:THE BLOCK DEVELOPMENT OFFICER
JALAH DEVELOPMENT BLOCK
JALAHGHAT
BAKSA
PIN-781327
Advocate for the Petitioner : MR. K N CHOUDHURY
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Advocate for the Respondent : SC, BTC
BEFORE
HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA
O R D E R
12.09.2022 Heard Mr. KN Choudhury, learned senior counsel for the petitioner and Mr. P Nayak, learned counsel for the respondents in the BTC.
2. The petitioner participated in an Invitation for Bids bearing IFB vide No. DPRD/BTC/(SOPD)/Bak-38/2017-18/13 dated 19.03.2018 for the work of 'Erosion Protection work with Boulder pitching on the South bank of river Rupahi starting from Rupahi RCC bridge to Narayani Basumatary's land under SPOD 2017-18.' The estimated cost of the work was provided as Rs. 47,12,849/- and the period of completion was six months and the bid process was in the form of technical and financial bids.
3. Having participated in the tender process, the respondent No. 4 namely the Block Development Officer, Jalah Development Block in the Baksa district issued the work order No. JDB/P&RD/AOP/5/Work Order/2017-18/3200 dated 08.05.2018 in favour of the petitioner at his quoted bid of Rs. 4,71,0868.62 paisa. The petitioner accordingly completed the work within the stipulated six months and to that extent a work completion certificate was issued jointly by the Block Development Officer, Jalah Development Block as well as the Junior Engineer, Jalah Development Block, which is available at Annexure-IV page 50 of the writ petition. But, later on, by invoking the clause 35 of the conditions of contract, the complete bill amount of the petitioner was not honoured and there Page No.# 3/4 remains a balance amount of Rs. 27,12,850/- which the petitioner claims by way of this writ petition.
4. The respondents in the BTC has filed an affidavit in opposition wherein in paragraph 5 a stand has been taken that the Junior Engineer concerned had verbally informed the petitioner about certain defects that were noticed within two months after the normal flood. As the petitioner did not remove the defects, therefore, admittedly the authorities thought it appropriate that the amount claimed for in this writ petition is not liable to be paid to the petitioner.
5. On the other hand, the writ petitioner filed an affidavit in reply denying the stand of the respondent authorities that the Junior Engineer had informed the petitioner regarding the defect.
6. The respondents also refer to clause 33.1 of the conditions of the contract, which provides that the Engineer shall check the contractor's work and notify the contractor of any defect that may be found. Further, reference is also made to clause 35.1 which provides that the Engineer shall give notice to the contractor of any defect before the end of the defect liability period.
7. The petitioner refers to the contractor data between the parties which provides that the defect liability period is one year from the date of completion and that within the period of one year from the date of completion, the petitioner had not been informed by any Engineer as regards any defect.
8. One of the core issues to be gone into is as to whether the Junior Engineer as claimed by the respondents in the BTC had informed the petitioner as regards the defect in the work within the defect liability period. Although a stand is taken that a verbal information was provided, but the verbal information would not carry much of a meaning inasmuch as, the respondents Page No.# 4/4 would have no further material in this writ petition to prove as to whether on facts the contractor was notified as regards the defects within the defect liability period.
9. Considering the matter in its entirety, we are of the view that the interest of justice would be met on an enquiry being made by the Director of P&RD, BTC on the question as to whether the petitioner had successfully completed the work in question as to whether any defect remained in the work and whether the defect was duly notified to the petitioner within the defect liability period. Accordingly, the Director, P&RD, BTC to conduct the enquiry by giving both the petitioner as well as the Engineer involved in this project and the Block Development Officer to provide their respective stand on the dispute and also produce any relevant materials that they may rely upon. Upon such enquiry, the Director shall pass a reasoned order.
10. If the reasoned order to be passed is in favour of the petitioner, necessary consequential order for releasing the billed amount be made. On the contrary, if the conclusion arrived is against the petitioner, the writ petitioner be duly informed about such conclusion. The requirement be done within a period of two months from the date of receipt of a certified copy of this order. The rights claimed by the petitioner be determined accordingly.
The writ petition is disposed of as indicated above.
JUDGE Comparing Assistant