Heard learned counsel for the petitioners in both the cases and learned counsels for the State.

2. Both the writ applications raise common issues and have accordingly been heard together and are being disposed of by this common order.

3. In CWJC No. 19809 of 2011 direction has been sought to quash the order dated 18.10.2011 issued by the respondent Engineer-in-Chief (Central), Water Resources Department, Government of Bihar in which after holding the petitioner as having not made proportionate progress in completion of the work as per the contract in terms of Clauses 3.3 and 4.8 of the SBD (Standard Bidding Document) the petitioner M/s. NCC Ltd. has been declared a defaulter and debarred from participating in all future tenders.

4. In CWJC No.97 of 2012 also by an order dated 30.9.2011 the Engineer-in-Chief (Central) has for the same reasons held the petitioner M/s. IVRCL Ltd. as defaulter and debarred from participating in future tenders.

5. Both the orders have been challenged by the petitioners in the present writ petitions.

6. In the first writ petition M/s. NCC Ltd. had been awarded a contract for execution of certain works for restoration of Eastern Gandak Canal System including Gandak Barrage and its appurtenants after tender was floated for the said purpose. The contract value was Rs.448.84 crores and the final agreement dated 6.8.2009 was entered into and on the same date notice was issued to the petitioner to proceed with the work. The work was to be completed by 5.9.2011. It is the case of the petitioner that the contract consisted of reciprocal promises by which the promiser and the promisee had to fulfil their part of obligation as per the contract, i.e., authorities had to provide with encumbrance free sites so as to enable the petitioner to complete the contract, accord necessary approvals and necessary permissions, issue approved drawings, undertake joint measurements for 1722 structures to be repaired. A show cause notice dated 18.10.2011, which the petitioner claims to have received on 25.10.2011, was issued to the petitioner by the Engineer-in-Chief (Central), Water Resources Department seeking clarification on as many as eight grounds including not achieving proportionate progress in the work as per the contract and neglect, failure and delay on the part of the petitioner for which the reply to be filed within 15 days as to why blacklisting proceeding should not be started against it and on failure to reply ex parte steps would be taken for blacklisting proceedings against the petitioner company. On the same date as the show cause notice the impugned order dated 18.10.2011 was issued stating that the petitioner had not made proportionate progress in terms of the contract towards the completion of the work and therefore in terms of Clauses 3.3 and 4.8 of the SBD it was declared as a defaulter and debarred from participating in any future tender. The order is under challenge in the present proceedings.

7. The petitioner replied to the show cause letter dated 18.10.2011 by his letter dated 31.10.2011 in which various issues were raised including the failure on the part of the department on various counts which led to the delay in completion of the project. It also expressed its shock on the debarring order stating that it practically amounted to blacklisting without providing any opportunity of being heard. It was further stated in the show cause that the department cannot arrive at a unilateral finding of the contractor being a defaulter and proceed to initiate proceedings of blacklisting which has to be adjudicated by a competent judicial authority, in the present case by Arbitration. It was further stated that the department cannot use its sovereign power for the purposes of settling contractual disputes and in case the department has any grievance in respect of the contract it should invoke the arbitration clause which is the competent authority for settling these disputes and a request was made in the