ORAL JUDGMENT

Date : 15-05-2024 The writ petition is filed for the following reliefs:

“(a). For quashing the notice bearing No. 492 (Anu) dated 07.05.2016 along with the reports dated 07.05.2016, whereby the petitioner was informed to invocation of risk and cost clause against the petitioner for the work of maintenance of KM 129 to 135 NH 80 in absence of any such work forming part of the contract.

(b). To issue direction restraining the respondents from seeking any work of maintenance under the contract in question during the defect liability period as the respondents have already issued work completion certificate, paid the entire bills of the petitioner against work executed by him and major part of the securities refunded without any complaint/notice regarding defects in terms of clauses 33.1 and 35.1 of the Standard Biding Document (in short “SBD”) which is a pre-condition for invocation clause 36.1 i.e., the risk and cost against the petitioner.

(c). To issue direction restraining the respondents from proceeding further with any such publication of notice inviting tender on the basis of invocation of clause 36.1 of the SBD regarding risk and cost of the petitioner which is not available in terms of the SBD as well as the certificates issued by the respondents to the petitioner and the report bearing Memo No. 597 dated 30.08.2014 issued by the respondent No. 5 himself.

(d). Further for declaration that the respondent No. 5 himself having admitted in the report bearing Memo No. 597 dated 30.08.2014 regarding the Pavement Quality Concrete (in short “PQC”) work required and a need of revised estimate to be prepared and approved in the light of the undisputed fact of saving of 20% of original quantity of work and consequent inaction on the part of the respondents and attempt to penalize the petitioner by way of impugned notice invoking risk and cost against the petitioner is unreasonable, arbitrary and violative of Article 14 of the Constitution of India.”

2. This Court, at the time of admission have passed the following order on 21.03.2017:

“Basic question has been raised that in the agreement between the parties there is no provision for repair and maintenance after completion of work but only liability has been attached to the contractor to remove the defect pointed out by the Engineer during the defect liability period. But what will be the period is not reflected from the terms of contract, inasmuch as it has been argued that removing the defect within the defect liability period is quite different aspect of the matter then repair and maintenance for that extra amount of fund was allotted. He has further submitted that agreements of other organization attached to this writ petition itself suggest that in such cases it requires separate allotment of fund for repair and maintenance.

However, learned counsel for the State and Union of India submit that this issue can be decided before the arbitrator.

The Union of India is directed to file a detained affidavit to explain, as to whether the agreement for construction of road includes repair and maintenance or not.

Let this case be listed after two weeks under the same heading.”

3. The brief facts culled out of the petition is that the petitioner is a Limited Company, who participated in the tender of the respondents for the work of widening, strengthening and construction of cement concrete pavement in Km. 129 to 135 at NH 80, Bhagalpur and was found to be the successful bidder. The period of contract was for 15 months and the petitioner had completed the entire work to the satisfaction of the respondents by 20.05.2014 itself. The work completion certificate was also issued by the 5th respondent vide letter dated 28.06.2014, basing on which payments were made to the petitioner and security deposits were also refunded. Subsequent to the completion of the work, due to passage of heavy load vehicles on the said road, the road got damaged for which the 5th respondent had addressed a letter