Point of Law: Non performing of other part of contract work for routine maintenance would be a violation of terms of contract by petitioner contractor and for such violation, petitioner can be subjected to procedure under any relevant provisions of law that may be available including any such penal provisions that also may be available for not performing a particular requirement of a contract work.

JUDGMENT :

1. Heard Mr. D. Das, learned senior counsel for the petitioner and Mr. R Dhar, learned standing counsel for the respondents in the PWD, Government of Assam.

2. The petitioner, who is a Class-I(A) contractor registered with the PWD (Roads) [in short PWRD) of the Government of Assam, participated in a tender process for construction of road from (i) Kathalbari to Dangapara and Kasimpur to Towmura, including cross drainage works and routine maintenance of the works for five years under PMGSY (RRS-II, ADB-Batch-II), (Ph-VI) of 2006-07, packages bearing number AS-20-39 (ADB) in the Nalbari district. The work comprised of construction of the road for a value of Rs. 3,04,68,909/- and for maintenance of the road for the next five years upon completion for a value of Rs. 14,26,091/-, where the completion period of the construction work was nine months.

3. In the aforesaid circumstance, the petitioner was issued the letter of acceptance dated 07.07.2007. As per the terms of the contract, 5% from the amount of every running bill is to be deducted as security deposit and in the process, an amount of Rs. 7,01,798/- was deducted. The petitioner completed the part of the contract for construction of the road for which he was paid a total amount of Rs. 2,44,34,001/- as per the statement of payments produced before the Court and the payments were made in respect of eight different bills submitted by the petitioner.

4. A dispute has been raised by the respondents in the PWRD that although the petitioner may have completed the part of the contract of construction of the road, but the other part of the contract of maintaining the road for the next five years had not been undertaken or performed by the petitioner.

5. In the circumstance, by the office order No. 146-A of 2014-15 dated 12.12.2014 of the Executive Engineer, PWRD, Nalbari division, the security deposit money retained from the petitioner from the bills which amounted to Rs. 7,01,798/- stood forfeited as the petitioner had not undertaken the work of maintenance of the road by further providing that the said amount would be required for not undertaking the defect correction maintenance work.

6. The petitioner makes a representation dated 09.04.2014 stating that he had completed the work of construction of the road to the complete satisfaction of the department, but due to hardship of money, he could not carry out the routine maintenance work. The petitioner states that in the meantime, he had received the order dated 12.12.2014, by which the security money stood forfeited. In his representation dated 09.04.2014, the petitioner takes a stand as extracted:-

“In this matter, I would like to inform you that SD money is not related with routine maintenance. Therefore, it is unjustified as per Tender clause 43.2.”

7. The respondents in the PWRD by their communication dated 01.06.2015 had informed the petitioner that clause 43.2 of the tender agreement also provides that the Engineer has to certify that all defects notified by the Engineer to be corrected by the contractor prior to release of the security deposit and further that if the routine maintenance work is not carried out by the contractor as per the contract agreement, the employer will be at liberty to carry out the routine maintenance work and the amount required for the purpose will be recovered from the amount of performance security.

8. In other words, by the communication dated 01.06.2015, the respondents had rejected the claim of the petitioner for release of the security deposit which stood forfeited as per the office order dated 12.12.2014. Being aggrieved, this writ petition is instituted.

9. Mr. R Dhar, learned standing counsel for the PWRD takes the stand that as the part of the contract for routine maintenance is also a part and parcel for the same contract work and as the petitioner having not performed the other part of routine maintenance, therefore, the security deposit is liable to be forfeited, which accor