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Judgment
D.N. Patel, A.C.J
This Letters Patent Appeal has been preferred by the original petitioner, whose writ petition being W.P.(C) No.2701 of 2018 with I.A. No.4769 of
2018 was disposed of by the learned Single Judge without quashing the impugned order dated 28.02.2018 (Annexure â€" 5 to the memo of this Letters
Patent Appeal)., vide judgment and order dated 07.06.2018, and hence, the original petitioner has preferred this Letters Patent Appeal.
Having heard counsels for both the sides, and looking to the facts and circumstances of the case, it appears that notice inviting tender was published
by the respondents â€" Government on 07.02.2013. Bid of this appellant was accepted by the respondents â€" Government and work of construction
of road Kharsawan- Hurangda â€" Rajama â€" Kanderkuti â€" (Rangamati) Rargaon Road was allotted to this appellant.
Length of the aforesaid road was 29.407 k.ms. The work order was given on 06.05.2013 and the work was to be completed within a period of 18
months. The Condition nos.11 and 21 stipulated in the work order, as per the Standard Bidding Document, read as under :-
“11. Employer's Risks
11.1 The Employer is responsible for the excepted risks which are (a) in so far as they directly affect the execution of the Works in India, the risks of
war, hostilities, invasion, act of foreign enemies, rebellion, revolution, insurrection or military or usurped power, civil war, riot commotion or disorder
(unless restricted to the Contractor's employees), and contamination from any nuclear fuel or nuclear waste or radioactive toxic explosive; or (b) a
cause due solely to the design of the Works, other than the Contractor's design.
 21. Possession of the Site
 21.1. The Employer shall give possession of all parts of the site to the Contractor.†    (Emphasis supplied)
It has been stated in paragraph nos.15 & 17 of writ petition being W.P.(C) No.2701 of 2018, which read as under :-
“15. That, at this stage, it is stated that there was continuous interference by the extremists group in allowing the petitioner to continue with the
work in question and even the extremists on several occasion had burnt the machineries and have threatened the workers of the petitioner working at
site. It is stated that as late on 3.5.2018 extremist group had even killed one of the labourer of the petitioner working at the site by beheading his body.
The petitioner craves leave to produce copy of newspaper cutting as well as photographs of said incident at the time of hearing of the writ application.
That, at this stage, it is most humbly stated and submitted that even the Executive Engineer i.e. Respondent No.3 vide letter dated 16.12.2018 had
submitted a detailed report to the Deputy Commissioner, Saraikella Kharsawan enumerating therein the detail reasons for delay in execution of the
work in question. From bare perusal of the said letter, it would transpire that in the said letter the Executive Engineer has categorically stated that the
work in question could not be completed in schedule time due to the fact that the area in question is badly affected due to naxal problem and even the
land acquisition process have not yet been completed, due to which the villagers are objecting to the construction of the Road in question.
Photocopy of letter dated 16.02.2018 of the Respondent no.3 is annexed hereto and marked as Annexure â€" 4, forming part of main writ
application.†        (Emphasis supplied)
Thus, it appears that their were two major circumstances not to complete the work within a period of 18 months namely, viz. (a) that the aforesaid
rode is falling within the highly naxalite affected areas. Necessary police protection should have been given which was not given by the State
Government. There were lot of obstructions by the naxal activity and one person was also beheaded, as stated in paragraph no.15 of the writ petition.,
and (b) as per the Condition No.21 of the Standard Bidding Documents, respondents â€" State was to give possession of all parts of the site to the
appellant â€" contractor, whereas looking to the paragraph no.17 of the writ petition, the land acquisition process was not completed within a period of
18 months by the State Government.
Thus, the State Government has not fulfilled the aforesaid two conditions. The work of the aforesaid road construction was not completed within a
period of 18 months. Land acquisition is sovereign power vested in the State. Land acquisition power cannot be assigned to the contractor, and hence,
unless the full site is available, full road cannot be constructed by the contractor. This aspect of the matter was neither properly appreciated by the
respondents â€" State while issuing the impugned order dated 26.02.2018 (Annexure â€" 5), nor it was properly appreciated by the learned Single
Judge while disposing of the writ petition being W.P.(C) No.2701 of 2018. We, therefore, quash and set aside the order passed by the learned Single
Judge in W.P.(C) No.2701 of 2018, dated 07.06.2018 as well as the impugned order dated 28.02.2018, which is at Annexure â€" 5 to the memo of this
Letters Patent Appeal.
No reply is filed of paragraph nos.15 & 17 of the writ petition, by the State Government. Much has been argued out by the counsel for the
respondents â€" State that no error has been committed by the Government while issuing the impugned order. It ought to be kept in mind that
whenever any road is to be constructed, the land site must be given to the contractor free form all encumbrances. If the land acquisition is to be done,
it ought to have been clear prior to the notice inviting tender.
It has become a fashion in the State of Jharkhand to publish a notice inviting tender for a particular work and within the time bound, schedule work
is to be completed, without, obtaining clearance of the forest department or without acquiring land or without providing proper and adequate police
protection in naxalite affected areas. Thus, one or other type of work is yet to be completed by the Government, a notice inviting tender is published.
This case is no exception of such type of general behaviour of the Government.
In the facts of the present case land acquisition process is yet to be completed for few patches of land. In such eventualities notice inviting tender
should not have been published at all. No work can be completed within 18 months without the land acquisition. If such type of work is completed
within 18 months of road construction, the land acquisition should have been completed within 8 months by the State Government. Those who are
living in a glasshouse beware of throwing stones at others. Thus, if the State Government has failed to acquire the land in question, then it should not
have issued the impugned order dated 28.02.2018 (annexure â€" 5), hence, we also quash and set aside the impugned order.
This Letters Patent Appeal is allowed with cost of Rs.2,000/- (Rupees two thousand), which will be deposited by the respondents â€" State in
Advocates' Association Welfare & Development Fund, Jharkhand High Court, Ranchi, within a period of twelve weeks from today.
In view of the final order passed in this Letters Patent Appeal, I.A. No.5156 of 2018, is disposed of.
Copy of this order will be sent by the Registrar General of this Court to the President as well as Secretary of the Advocates' Association,
Jharkhand High Court, Ranchi.