IN THE HIGH COURT OF JHARKHAND AT RANCHI. ----- W.P.C. No. 78 of 2014 ---- M/s Om Prakash Singh Buildcon Pvt. Ltd. Ranchi Petitioner Versus 1 The State of Jharkhand 2. The Principal Secretary, Rural Development Department, Govt. of Jharkhand, Ranchi 3. The Chief Engineer, Rural Works Department, Govt. of Jharkhand, Ranchi 4. The Executive Engineer, Rural Works Department, Dumka Division, Dumka. Respondents. ----- CORAM : HON'BLE MR. JUSTICE PRASHANT KUMAR ----- For the Petitioners : M/s R.Krishna, Manish Kr. & S.Garapati For the Respondents : M/s. Anshuman Kumar, JC to A.G. ----- Reserved on 16.09. 2015 Delivered on 16/10/2015 ----- Prashant Kumar,J.
This writ application has been filed for quashing the order as contained in letter no. 990 dated 04.06.2013, whereby respondents forfeited the earnest money deposited by the petitioner in the form of bank guarantee in relation to Tender No. RWD/DUMKA/02/2012-13 for construction of road from Durgapur to Kolha.
2. It appears that during pendency of this writ application, respondents black-listed the petitioner vide letter no. 79 dated 26.06.2014, thus, an application filed by the petitioner, being I.A.No. 3339 of 2014, challenging the aforesaid order and also for amendment of the writ application.
3. As noticed above, since the petitioner was black-listed during the pendency of this writ application, therefore, I.A.No. 3339 of 2014 allowed and the writ application is amended accordingly. It is ordered that the aforesaid I.A. petition become the part of this writ application.
4. It is stated that respondent-Rural Works Department, State of Jharkhand issued e-Tender vide Reference no. 53/2012-13/RWD/Dumka dated 13.10.2012 for construction of road from Durgapur to Kolha. In -2- pursuance of the said tender notice, petitioner submitted its bid. The aforesaid bid was accepted. It is stated that respondent no.4 (Executive Engineer, Rural Works Department, Dumka Division, Dumka) vide letter no. 673 dated 05.04.2013 requested the petitioner to execute agreement within Seven days. After receipt of the aforesaid letter, petitioner came to know that some of the villages, falling in between Durgapur to Kolha, come within the forest area. Accordingly, petitioner wrote a letter on 09.05.2013 to the respondent no.4 stating therein that prior to submission of tender, on query he was informed by the office of the respondent no.4 that there is no forest and/or raiyati land in between Durgapur and kolha as it appears from letter no. 1484/Dumka dated 14.09.2011. It is further stated that keeping the aforesaid fact in view, the petitioner participated in the bid. But later on, he surprised to know that part of the lands in between Durgapur to Kolha falls in protected forest area, Thus, petitioner requested the respondent no.4 for obtaining clearance from the Forest Department immediately, otherwise it is not possible for the petitioner to execute the work. It is stated that instead of obtaining clearance from the forest department the respondent no.4 vide letter no. 896 dated 18.05.2013, informed the petitioner that there is no forest land in between Durgapur to Kolha, thus, petitioner executed the agreement. It is also mentioned in the said letter that if the agreement will not be executed than the work will be allotted to second tenderer and the petitioner will be black-listed. It is stated that thereafter, vide letter no. 990 dated 04.06.2013, respondent no.4 forfeited the earnest money of the petitioner and recommended for black-listing the petitioner 5. It is submitted that aforesaid action of the respondents is wholly illegal and arbitrary, because from perusal of letter no. 2454 dated 30.09.2013, written by Divisional Forest Officer, Dumka to respondent no.4, it is clear that in between Durgapur to Kolha altogether Six villages fall in the notified forest area. In the said letter, the Divisional Forest Officer requested the Executive Engineer for taking approval of the Govt. of India before starting the construction of the road. In view of above facts and circumstances, the petitioner made a representation for refund of earnest money, because the petitioner can not execute illegal work. It further appears that during pendency of the present writ application, the Engineer-in-Chief-cum-Additional Commissioner-cum- Special Secretary of the Rural Works Department black-listed the petitioner.
6. In the instant case, two counter-affidavits filed, one by respondent -3- nos. 2 to 4 and another by the respondent nos. 5 to 7. In the first counter- affidavit, respondent nos. 2 to 4 stated that Durgapur to Kolha road exist from before and as the same has damaged, therefore, it require reconstruction. It is further stated that there is no obstruction in the alignment of the whole road. The road was earlier constructed by B.P.D.P. having average width of 7.5 M and there is very little scope of filling of soil. It is further stated that the forest department in its letter had disclosed that there are altogether thirteen villages in stretches of the said road out of which lands pertaining to Plot no.245 of village Aormo, Plot no. 128 of village chirudih, Plot no.274 of village Kundapahari, Plot no.5 of village Mahuldabur, Plot no. 134 and 142 of village chumo and Plot no. 15 of village Kechuakundar come under the forest area. It is further stated that the map of the road annexed with the Forest Department's letter no. 2454 dated 30.09.2013 does not indicate the lands falling in the stretches of the road are forest land, thus, there is no impediment in the construction of the road. Accordingly, it is submitted that the conduct of the petitioner in not executing the agreement is against the NIT, therefore, the respondent no.4 had rightly forfeited the earnest money of the petitioner and back-listed it.
7. In the second counter affidavit, filed by the Forest Department, it is stated that altogether six villages falling in the stretches of Durgapur to Kolha are notified reserved forest. It is further stated that after receiving application of the petitioner under R.T.I. Act, the Divisional Forest Officer wrote a letter to the Executive Engineer, Rural Works Department and requested that while widening the road in question the forest law may not be violated.
8. Petitioner filed rejoinder to the counter affidavit filed by respondent nos. 2 to 4. At paragraph no.4 of the said rejoinder, petitioner specifically stated that the width of the existing road is 3 (three) meter and as per the DPR width of the road proposed is 7.5 meter. It is also stated that the contract work also includes earth filling of 1,32,524.130 cubic meter. Thus, the petitioner states that statement of respondent at paragraph no.9 of the counter affidavit that the width of the old road was 7.5 meter is incorrect and false.
9. Sri Rajendra Krishna, learned counsel appearing for the petitioner submitted that petitioner participated in the tender under the impression that the lands falling in the stretches of the proposed road do not come in -4- the forest area. It is submitted that before participating in the tender, petitioner made query from the office of respondent no.4 regarding clearance of Forest Department and he was informed by the office that the Executive Engineer (respondent no.4 ) vide letter no. 1484 dated 14.09.2011 informed the Chief Engineer that in between Durgapur to Kolha, there is no forest and/or raiyati lands. It is further submitted that on the basis of aforesaid information, petitioner participated in the tender, but later on it came to know that six villages, falling within the stretches of aforesaid Durgapur to Kolha road, are forest lands. Therefore, the petitioner sought an information from the Forest Department under R.T.I Act and then he came to know that some of the lands on which work is going to be executed falls within the forest area.
10. Mr. Krishna further submitted that since petitioner participated in the tender due to mis-representation of fact, thus, the contract is voidable at the instance of petitioner, therefore, the petitioner is not bound to perform the contract. It is then submitted that from perusal of Annexure-14 to the writ application, it is clear that respondent no.2 to 4 had not taken prior permission of the Government of India for widening of the said road, therefore, work in question is violative of the provisions of Forest Conservation Act, 1980 and the same is punishable offence under the aforesaid Act. Accordingly, Sri Krishna submitted that as per Section 56 of the Contract Act, the contract in question is void, therefore, action of the State Government in forfeiting the earnest money of the petitioner and black-listing it is wholly illegal and arbitrary. It is further submitted that respondent no.3 had not given any opportunity of hearing to the petitioner before passing the order as contained in Officer Order no. 79 dated 26.06.2014 whereby petitioner has been black-listed.
11. On the other hand, junior counsel to learned Advocate General submitted that the road in question exists from before and the present tender had been issued to reconstruct the same. Under the said circumstance, apprehension of the petitioner that part of the road falls in the forest area is without any basis. Accordingly, it is submitted that action of the petitioner in not executing the agreement, even after receiving the notice is violative of the terms and conditions of the NIT. Therefore, respondent no.4 had rightly forfeited the earnest money of the petitioner and recommended for black-listing it. It is further submitted that respondent no.4 by letter no. 896 dated 18.05.2013 gave notice to the petitioner for executing the agreement within one week, otherwise his -5- earnest money will be forfeited and he will be black-listed. Accordingly, learned counsel submitted that respondents had given ample opportunity of hearing to the petitioner before forfeiting the earnest money and black- listing it.
12. Having heard the submission, I have gone through the records of the case.
13. Admittedly, respondent no.3 had issued NIT for construction of road from Durgapur to Kolha. It is also an admitted position that petitioner participated in the tender and his offer was accepted and vide letter dated 05.04.2013 the petitioner was requested to execute the agreement. Thereafter, petitioner came to know that part of the lands involved in the project fall in the forest area. Accordingly, he made a representation on 09.05.2013, stating therein that as per the NIT and DPR the petitioner is require to cut earth from around 30 meters of the proposed road and fill the same on the proposed road. But the lands falling by the side of the road are forest lands. Under the said circumstance, it is not possible to cut soil from both side of the road and fill it on the proposed road. It is also stated in the said representation that before participating in the tender, on query, petitioner was informed by the office that respondent no.4 informed the Chief Engineer vide its letter no. 1484 dated 14.09.2011 that there is no forest and/or raiyati lands involved in the project. It is stated that believing the aforesaid version of the department, petitioner participated in the tender, but later on he came to know that some of the lands of the aforesaid project falls in forest area. It then appears that respondents had not denied the contents of the petitioner's above representation.
14. Now the question arose for determination, whether the petitioner participated in the tender due to mis-representation of fact made by respondents that no forest or raiyati lands involved in the project. It appears that while taking administrative approval, the respondent no.4 vide letter no.1484 dated 14.09.2011 (Annexure-11) informed the Chief Engineer that no forest and/or raiyati lands involved in the project. On query made by the petitioner, the office of respondent no.4 informed the petitioner that no forest and/or raiyati lands involved in the project and a copy of aforesaid letter no.1484 dated 14.09.2011 given to the petitioner. It is further submitted that being satisfied with the aforesaid information, petitioner participated in the tender. Under the said circumstanced, it is clear that when petitioner participated in the tender, he was under -6- impression that no forest land involved in the project. However, later on the petitioner came to know that some of the lands involved in the project are forest land, accordingly, petitioner sought an information from the Forest Department under R.T.I. Act. Thereafter, the petitioner was informed by the Forest Department that lands of six villages which involved in the project are forest land. It further appears that the Divisional Forest Officer, Dumka wrote a letter to the respondent no.4 stating therein that for re-construction and widening of the road no prior permission of Government of India taken, which is mandatory according to the provisions of the Forest Conservation Act, 1980 and the Indian Forest (Bihar Amendment ) Act, 1927. It is also stated that if the work will be executed without prior permission of the Government of India then the same is an offence under the aforesaid Act. In the counter affidavit, respondent no.2 to 4 had given evasive reply stating that said road exists |from before and since the same has damaged,therefore,the same is was require to be reconstructed. It is further stated that width of aforesaid road is 7.5 meter throughout and there is very little scope of filling of soil. Thus, apprehension of the petitioner that the forest lands involved in the project is without any basis. However, in the said counter affidavit, respondents admitted that they have received letter no. 2454 dated 30.09.2013 issued by Divisional Forest Officer, Dumka wherein it is stated that lands of six villages involved in the said project are forest land. There is nothing in the counter affidavit to show that after receiving the aforesaid letter respondent no.2 to 4 had taken any steps for obtaining permission from the Forest Department.
15. Thus, from the aforesaid fact, it is clear that the petitioner participated in the tender after going through letter no. 1484 dated 14.09.2011, wherein it is specifically mentioned that no forest land involved in the project. But later on he came to know that lands of six villages involved in the project are forest lands.
16. Section 19 of the Indian Contract Act provides that if consent of a party to an agreement taken by mis-representation of fact, then the contract is voidable at the option of the party, whose consent was so taken. Thus, the party whose consent was taken by mis representation of fact has a right to declare the contract void.
17. As noticed above, in the instant case, petitioner participated in the tender on the impression that no forest lands involved in the project. But later on, he came to know that lands of six villages involved in the project -7- are forest land, therefore, as per section 19 of the Indian Contract Act the petitioner is not bound by the aforesaid contract. Accordingly,the petitioner informed the respondents that the petitioner is not interested in the execution of the agreement, because the respondents had not obtained permission of the Forest Department before finalization of the project. Under the said circumstance, in my view, respondent nos.2 to 4 cannot compel the petitioner to execute the agreement, which is against the provisions of Forest Conservation Act and Indian Forest Act.
18. Section 56 of the Indian Contract Act provides that if the performance of contract become unlawful, due to some subsequent act then the same is void. As noticed above, in the instant case, the Divisional Forest Officer specifically stated in the letter no. 2454 dated 30.09.2013 that execution of the project is unlawful, because no prior permission obtained from the Central Government. Thus, in view of the aforesaid letter, it is clear that after issuance of the aforesaid letter, the performance of present contract become unlawful, being violative of Forest Conservation Act, 1980 and Indian Forest (Bihar Amendment )Act,1927.Thus, the present contract between the petitioner and respondent nos. 2 to 4 has become void. Therefore, respondent nos. 2 to 4 could not compel the petitioner to execute the agreement. Consequently, action of the respondents in forfeiting the earnest money of the petitioner and black-listing it is illegal.
19. At last but not the least, from perusal of the record, I find that respondent no.3 before passing the impugned order as contained in Order no. 79 dated 26.06.2014 has not given any opportunity of hearing to the petitioner. Thus, in my view, aforesaid order is also violative of the principle of natural justice.
20. In view of the discussions made above, I allow this writ application and quash the letter no. 990 dated 04.06.2013 and order contained in letter no. 79 dated 26.06.2014 as contained in Annexure-9 and 12 respectively. I further direct to respondent nos. 2 to 4 to refund the earnest money of the petitioner within two months from the date of production of this order by the petitioner. ( Prashant Kumar, J.
) Jharkhand High Court,Ranchi The 16th October, 2015 Raman/