Patna High Court
Ramjee Singh & Company & Ors vs The State Of Bihar & Ors on 30 November, 2017
Author: Shivaji Pandey
Bench: Shivaji Pandey
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.6183 of 2017
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1. Ramjee Singh & Company through its Managing Partner Ashok Kumar Singh,
Address-Village-Rampur, P.O.+P.S.-Barhara, District-Bhojpur
2. Dhan Laxmi Construction Pvt. Ltd. through its Managing Director, Bhujendra
Kumar Singh, Address-Bihari Mill, East of Railways Gumti, Ara, P.S. Nawada,
District-Bhojpur.
3. Abhishek Singh, Son of Sri Sanjay Kumar Singh, Resident of Mohalla-Club
Road, P.S.-Nawada, Ara, District-Bhojpur.
.... .... Petitioners
Versus
1. The State of Bihar.
2. The Principal Secretary, Rural Works Department, Government of Bihar, Patna.
3. The Officer on Special Duty, Rural Works Department, Government of Bihar,
Patna.
4. The Engineer-in-Chief, Rural Works Department, Government of Bihar, Patna.
5. The Chief Engineer-I, Rural Works Department, Government of Bihar, Patna.
6. The Superintendent Engineer, Rural Works Circle, Ara, Bhojpur.
7. The Executive Engineer, Rural Works Division, Ara, Bhojpur
8. Saroj Yadav, son of Rama Shankar Yadav, Member of Legislative Assembly
from Barhara Constituency, resident of Village-Keshopur, P.O. +P.S.-Barhara,
District-Bhojpur
.... .... Respondents
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Appearance :
For the Petitioner/s : Mr. Vinod Kanth, Senior Advocate
Mr. Makardhwaj Upadhyay, Advocate
For the Respondent/s : Mr. AJAY -GA-5
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CORAM: HONOURABLE MR. JUSTICE SHIVAJI PANDEY
ORAL JUDGMENT
Date: 30-11-2017
Heard learned counsel for the petitioners, learned
counsel for the State and learned counsel for respondent no.8.
Patna High Court CWJC No.6183 of 2017 dt.30-11-2017
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2. Three petitioners are before this Court, harping the
action of the Hon'ble Member of Legislative Assembly, who has
business conflict and business interest with the petitioners, the
manner he has interfered with the work of the administration,
compelled the authority to take harsher action against all the
petitioners, is under consideration for decision.
3. The basic tenet of the representative of the Member of
Parliament and the representative of the Member of Legislative
Assembly that they should serve the people not serve the personal
interest, raise public issue not settle the personal score, fight for
public cause but not settle the personal cause under the smoke-
screen of serving the cause of the people. The Member of
Legislative Assembly, in their respective areas, has a duty, in case of
wrong action, to bring to the notice of the authority concerned for its
rectification, but they do not have a jurisdiction to dictate and
enforce their personal will for their personal gain. If the Member of
Parliament or Member of Legislative Assembly works for own
business interest taking the shield of doing the public work, cannot
be approved and allowed, the malady done by the People's
Representative has to be cured.
4. In the facts and circumstances of the present case,
Patna High Court CWJC No.6183 of 2017 dt.30-11-2017
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which are emerging from the record reflects that the authorities have
remained standing on the respective toes to ensure the will of the
Member of the Representative should prevail over the rule of law.
Fairness in action is a hall-mark of good administration but if it is
lacking then it tainted with arbitrary exercise of power. In our
republic, the Constitution has divided three wings, namely,
Legislative, Judiciary and the Executive and they have to discharge
their own function in their own fields and it is supposed that each
wing will not interfere with the work of the others. The Member of
Parliament and the Member of Legislative Assembly are primarily
engaged for the legislative function, they are law makers within the
Parliament and Legislative Assembly respectively and after assent of
the Hon'ble President of India or the Hon'ble Governor of the State,
it takes shape of the statute and the Executive has to implement it,
but the Member of Parliament or Member of Legislative Assembly
in the event of identifying any irregularities will point out and
inform the authority for rectification of those irregularities
committed. But, while making such complaint, giving information,
the action must be above-board and it should not be actuated for his
personal gain.
5. In the present case, the petitioner no.1- M/s Ramjee
Patna High Court CWJC No.6183 of 2017 dt.30-11-2017
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Singh and Company is a partnership firm, registered as Class-I
contractor with the Rural Works Department and the registration
period has been extended from time to time, presently, extended
upto 18.03.2019 bearing Registration No.1150233. The petitioner
no.1 has been doing the work of contractor since 1991 carried out
assigned works successfully without any complain. Petitioner no.2-
Dhan Laxmi Construction Private Limited is incorporated under the
Companies Act, 1956 and enrolled as registered Class-I contractor
with the Rural Works Department since 2008, claiming to have
executed certain works successfully. Petitioner no.3-Abhishek Singh
is a registered contractor in Class-II category registered on
11.03.2017with the Rural Works Department, bearing registration no.2170003 is valid upto 10.02.2022.
6. Sri Saroj Yadav, respondent no.8, is the Hon'ble Member of the Legislative Assembly from Barhara assembly constituency, was a registered contractor with the Rural Works Department in the name of M/s Ujjawal Enterprises and was/is competitor contractor of petitioners in many tenders. After his successful election, became the Hon'ble Member of the Legislative Assembly, created a new establishment in the name and style of Aditya Construction headed by Manoj Yadav, own brother of Patna High Court CWJC No.6183 of 2017 dt.30-11-2017 5/14 respondent no.8, Sri Saroj Yadav.
7. Sri Saroj Yadav, respondent no.8 is a member of the ruling party, proximity with the power, made a complaint on 06.03.2017, wherein he has mentioned his earlier letter dated 28.12.2016 and 20.01.2017, wherein he has made allegation that Abhishek Singh, Ramjee Singh and Company and Dhan Laxmi Construction have obtained the work order on the strength of forged certificate, but till date, the document which were attached by them having not been inquired into nor any action has been taken, requested to make inquiry on the use of forged document, stipulated to action otherwise he would be constrained to raise the issue in the Budget Session and will also approach the High Court. On 08.03.2017, he placed the following question on the Floor of the Legislative Assembly, which are as follows:-
"Jh ljkst ;kno] l0fo-0 ls izkIr rkjkafdr iz"uA la[;k & xzkE; & 253] D;k ea=h] xzkeh.k dk;Z foHkkx] ;g crykus dh d`ik djsaxas fd D;k ;g ckr lgh gS fd Hkkstiqj ftykIrxZr dk;Z vapy vkjk esa jketh flag ,.M /kuy{; dUVªaD"ku ,oa vfHk'ksd flag laosnd vkfn dks QthZ vuqHko izek.k i= ds vk/kkj ij fufonk nh tkrh gS ysfdu lekt ds detksj ,oa vYila[;d oxZ dks fufonk dk dk;Z ugh fn;k tkrk gS] ;fn gka rks ljdkj mDr dk;Z vapy ds fufonkvksa dh tkap djkus dk fopkj j[krh gS ] ugh rks D;ksa \"
Patna High Court CWJC No.6183 of 2017 dt.30-11-2017 6/14
8. On the same date, the Chief Engineer, Rural Works Department, Patna, vide letter no.839 dated 08.03.2017 constituted a Joint Committee to hold the inquiry and where-after on the same date the report of the Joint Committee was submitted, wherein it has been recorded that all the three petitioners have used the forged certificate and obtained the work, at the end, conclusion has been recorded that the certificate produced by the petitioners were found to be forged and held that they have already been declared ineligible for allotment of the work.
9. It also appears from the letter no.699 dated 07.04.2017 issued by the Officer on Special Duty, Rural Works Department, addressed to the Executive Engineer, Rural Works Department, that on inquiry it was found that the petitioners have used the forged certificate and directed to lodge a criminal case and take action to bring them in black-list without any delay. It also appears that the Executive Engineer, Rural Works Department, vide letter no.210 dated 20.02.2017 (Annexure-10) has submitted the report dealing with allegation made by Sri Saroj Yadav, Hon'ble Member of Legislative Assembly stipulating therein that the petitioners completed the work successful and never found to be any wrong in the work with respect to allegation made with respect to tender-ID- Patna High Court CWJC No.6183 of 2017 dt.30-11-2017 7/14 37764, in which M/s Ramjee Singh and Company has dropped the tender was selected and carried out the work, with respect to tender no.I.D.-38008 and I.D.-37962, Ramjee Singh and Company was declared unfit and no work was allotted to the Company. On perusal of aforesaid, it is clear that allegations made against petitioners were not found correct.
10. Interlocutory Application No.3644 of 2017 has been filed by the petitioners to substantiate the allegation against Sri Saroj Yadav, Hon'ble Member of Legislative Assembly, that on account of intervention of Sri Saroj Yadav the work which were allotted to the petitioners with respect to contract of N.H.30 from Sakadih to Jamalpur Road (Annexure-13), contract of N.H-84 from Bibiganj to Sarsiwan RCD Road via Chitkud Belgha, Dhobha, Basantpur, Rampur Path Tak (Annexure-14) have been interjected, which is evidently clear from the letter of the Chief Engineer, Rural Works Department, bearing no.1580 dated 06.05.2017 (Annexure-17), wherein it has specifically been mentioned that Hon'ble Member of Legislative Assembly Sri Saroj Yadav, on 05.05.2017 in the evening has entered into the Chamber, having said that the F.I.R. is going to be lodged against Ramjee Singh and Company and others, how the work was allotted to them, on his intervention the Chief Engineer Patna High Court CWJC No.6183 of 2017 dt.30-11-2017 8/14 has injuncted to proceed further in the work and directed the Superintending Engineer to inform the petitioners. In pursuance thereof, the Executive Engineer, Rural works Department, vide letter no.811 dated 07.05.2017 has interfered with the work and stayed the construction of the work. It further appears, on account of the intervention by the Hon'ble Member of the Legislative Assembly, Sri Saroj Yadav, criminal case has been lodged, which has been registered as Nawada P.S. Case No.172 of 2017 for the offence under Sections 420, 468, 471 and 511 of the Indian Penal Code.
11. Learned counsel for the petitioners submits that the actions which have been taken by the authority concerned, are at the behest of the Hon'ble Member of the Legislative Assembly, Sri Saroj Yadav, on his direction each and every action has been taken against them with whom they have business rivalry and to settle the score he has forcibly directed the authority concerned to take action against the petitioners and on his dictate criminal case has been lodged against them.
12. Learned counsel for the petitioners further submits that the Joint Committee in hurry without giving any notice or hearing whatsoever has record the finding that the petitioners have earlier obtained the work order by placing forged document, on the basis of Patna High Court CWJC No.6183 of 2017 dt.30-11-2017 9/14 report, the Officer on Special Duty, Rural Works Department, directed to take legal action in the shape of blacklisting the petitioners and lodging the criminal case. Ultimately, the criminal case has been lodged against all these persons, attaching the direction of the Officer on Special Duty, Rural Works Department, letters dated 07.04.2017, the letters of the Chief Engineer dated 08.03.2016 attaching the Joint Committee report and letter of the Executive Engineer dated 06.05.2017. At the same time, at the behest of the Hon'ble Member of the Legislative Assembly, Sri Saroj Yadav the work order allotted with respect to construction of National Highway has been intervened, staying the construction of the National Highway by the petitioners.
13. Whereas, learned counsel for Saroj Yadav, respondent no.8, has submitted that the action was not taken in hurry, but earlier complaints dated 28.12.2016 and 20.01.2017 were filed, which itself reflects that Saroj Yadav, Hon'ble Member of Legislative Assembly had lodged a complaint against the petitioners, when no action was taken then he was constrained to make such statement in complaint dated 06.03.2017 (Annexure-5) that he will raise the issue in the Floor of the Legislative Assembly and also will approach the High Court. It has been stated that the Joint Committee report was not Patna High Court CWJC No.6183 of 2017 dt.30-11-2017 10/ 14 only against the petitioners rather the inquiry was conducted with respect to Aditya Construction, proprietor, namely, Manoj Yadav, brother of Saroj Yadav, and it was found that Aditya Construction had also attached forged document. However, the inquiry report does not reflect that any report was given against Aditya Construction.
14. It has been submitted that the letter no.168 dated 23.02.2017 (Annexure-11) of the Superintending Engineer, reflects, certificates were found tampered, no notice was given as it was an internal inquiry and under the executive power of the Member of the Legislative Assembly he has a right to make complaint before the competent authority, placing reliance on the decision of the Hon'ble Supreme Court in the case of Jagdish Mandal vs State Of Orissa & Ors. reported in 2007(14) S.C.C. 517.
15. It has further been stated that before granting the work the authority should have done appropriate inquiry about the genuineness of the document, but they failed to discharge the duty. It has been stated by learned counsel for the State as well as Saroj Yadav that present case is premature one as no positive act of blacklisting has been taken, but it was an internal inquiry, does not require any notice to the petitioners.
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16. In reply, learned counsel for the petitioners submits, in view of positive finding in the report of the Joint Committee, nothing was left to be done further as the Joint Committee has recorded that the petitioners had obtained the work by placing the forged document and action is required to be taken. If such finding is there, then what is left to be inquired into. If there was no such finding, then the question of holding further inquiry does arise inasmuch as legal action has been taken by lodging an F.I.R. bearing Nawada P.S. Case No.172 of 2017.
17. Having considered the rival contentions of the parties as this Court has already stated at the outset the function of the Member of the Legislative Assembly is primarily a law making and they have to transact the business in the Floor of the Parliament or the Legislative Assembly. Incidentally, they can only inform to the authority about the illegalities found to have been committed and the authority will take action in accordance with law. It is not so that the Member of Legislative Assembly, who has a business rivalry, will take cudgel on his own shoulder, and in order to settle the personal score will approach and direct the authorities to remain standing on their toes carry out his work as per his direction. It is apparently clear from the letter dated 06.05.2017 that Sri Saroj Yadav, Hon'ble Patna High Court CWJC No.6183 of 2017 dt.30-11-2017 12/ 14 Member of the Legislative Assembly entered into the Chamber of the Chief Engineer on 05.05.2017 in the evening and he had shown his annoyance in making the allotment of work of National Highway to the petitioners, informing him that F.I.R. was going to be lodged. So this letter itself shows that the Hon'ble Member of Legislative Assembly was knowing that the criminal case was going to be lodged against the petitioners, itself attribute the allegation against Sri Saroj Yadav, Hon'ble Member of Legislative Assembly that it is he, who was behind all sorts of action against the petitioners and on his direction the allotment of the work of the construction of the National Highway was stayed.
18. The judgment of Jagdish Mandal (supra) which has been placed reliance by learned counsel for respondent no.8 has been given in a different context. In that case, the Hon'ble Supreme Court has only decided the issue in what circumstance the High Court or Hon'ble Supreme Court under judicial review interfere would interfere with the contract matter. So, it has no relevance or context with the issue raised in this writ application and will not be applicable in the present case.
19. It is also very startling fact that on 08.07.2017 Joint Committee was constituted to hold the inquiry and on the same date Patna High Court CWJC No.6183 of 2017 dt.30-11-2017 13/ 14 report was submitted by the Joint Committee. It is so hectic, itself depicts the nature of inquiry conducted and finding was recorded only to satisfy the whim of the Hon'ble Member of Legislative Assembly, itself reflects malicious finding, decision and recommendation.
20. In view of the aforesaid discussions, it is manifestly clear that all actions have been taken on the dictate of Sri Saroj Yadav, Hon'ble Member of Legislative Assembly and it was not an independent assessment and decision of the authority to take action against the petitioners. If any action is taken not on independent consideration, then it suffers form illegality and can be easily classified as abuse and colourable exercise of the power with the sole motive to punish the petitioners and the finding recorded by the Joint Committee of submission of forged document without any notice to the petitioners cannot be upheld inasmuch the letter of the Chief Engineer dated 06.05.2017 is also suffers from colourable and arbitrary exercise of power, lodging of criminal case also cannot be said to be fair, but it is brazen vindictive exercise of power and comes within the parameter, scope and ambit of the judgment of the Supreme Court in the case of State Of Haryana and Ors vs. Bhajan Lal and Ors. reported in A.I.R. 1993 S.C. 1348.
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21. This case has been heard after proper notice to the Hon'ble Member of Legislative Assembly, whose counsel has participated in the proceeding and this Court is of the view that entire discussion, entire action suffer from malady as having been taken in impropriety to settle personal business score. For the ends of justice, all the action required to be set at naught.
22. In such view of the matter, the report of the Joint Committee dated 08.03.2017, direction of the Officer on Special Duty dated 07.04.2017, order of the Chief Engineer, Rural Works Department dated 06.05.2017 and the lodging of the F.I.R. against the petitioners vide Nawada P.S. Case No.172 of 2017 are quashed. But, if the respondent authorities intend to take any action against the petitioners, they are at liberty to constitute a fresh committee, give proper hearing to the petitioners and only after due consideration take action against them.
23. Accordingly, this writ application is allowed.
(Shivaji Pandey, J) pawan/-
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