Anusuya Parida vs State of W.B.

Joymalya Bagchi, J.—Affidavit of service is taken on record. It is submitted on behalf of the petitioner that he completed the work of strengthening Egra- Ramnagar Road from 0.000-10.00Kmp under Tamluk Highway Division in the district of Purba Medinipur pursuant to a work order issued in September 2013. It is further contention of the petitioner that as and when request was made by the respondent authority he had repaired the portion of the highway which was damaged. It has contended that such damage was not due to imperfect execution of the work but due to inherent deficiency in the sub-soil structure. Referring to Clause 17 of the contractual terms, Mr. Sen learned counsel for the petitioner argued that the respondent authorities have not returned the security deposit in a phased manner as envisaged therein although the final bill had been cleared. It is however, admitted that the completion certificate in respect of the said work has not been issued as yet. This according to Mr. Sen is contrary to the terms of the contract.

Under such circumstances on 01.07.2016, the petitioner was again called upon to effect repairs of a portion of the highway in terms of the contract. It was also indicated that if such repairs were not effect by 12.07.2016 his security money would be forfeited. Similar notice was issued upon him on 08.07.2016. Petitioner contended that the work could not be executed due to circumstances beyond his control e.g. heavy rainfall in the locality. However, it is argued that the respondent authorities unilaterally forfeited the entire security deposit in violation of the terms of the contract. It is also submitted that the subsequent tender floated purportedly for repairing the damaged stretch relates to a different work. Hence, the present writ petition.

Mr. Sengupta, learned counsel appearing for the respondent authorities denies and disputes the allegations leveled by the petitioner. He submitted that the petitioner was duty bound to repair the stretch in terms of the contract and having failed to do so the security deposit was forfeited. He further submitted that the work order tallied with the repairs which the petitioner was called upon to under take. He has also submitted that the dispute between the parties relate to breach of terms of the contract and, therefore, is not amenable the jurisdiction of this Court.

I have considered the rival submissions of the parties. It is true that the dispute is one of the breach of contractual terms vis-a-vis forfeiture of security deposit. Furthermore, disputed questions of fact arise in the instant case with regard to the issue as to whether the petitioner was unable to make repairs due to heavy rainfall or otherwise. However, it cannot be disputed that the right was reserved in the terms of the contract to forfeit the security deposit in the event repairs were not effected by the contractor and had to be undertaken by the respondent authorities.

Forfeiture of security deposit, therefore, cannot be said to be beyond the terms of the contract. Moreover, justification of such action of the respondent authorities in the backdrop of the disputed factual matrix cannot be decided in exercise of writ jurisdiction.

In this factual backdrop, I find that the representation has been made by the petitioner disputing the issue of forfeiture of the security deposit and non issuance of completion certificate to him before the respondent authorities. Bearing in mind the fact that, State is duty bound to act fairly ever I am of the opinion that it is apposite that such representation be considered by the respondent authorities after giving an opportunity of hearing to the petitioner.

Accordingly, I direct the respondent no. 2 to consider the representation of the petitioner annexed at pages 128 and 133 of the writ petition after giving an opportunity of hearing and take a reasoned decision thereon within four weeks from the date of communication of this order. Decision so taken shall be communicated to the petitioner within one week thereof.

I make it clear that I am not expressed any opinion as to the merits of the plea of the petitioner which is to be decided by the respondent no. 2 independently and in terms of the contract by and between themselves and in accordance with law.

Since no affidavit is called for. Allegations levelled in the writ petition shall not be deemed to have admitted.