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Judgment
Manoj Kumar Tiwari, J
Petitioner is a Civil Contractor, who was awarded a contract for construction and maintenance of a road under Pradhan Mantri Gram Sadak Yojana (P.M.G.S.Y.) in the year 2011. Since complete payment was not made to petitioner under the said contract, therefore, he filed Writ Petition (M/S) No. 141 of 2019, seeking a direction to the Competent Authority to take final decision on the representations made by petitioner and also to ensure timely payment of outstanding dues towards bills submitted by him. The said writ petition was disposed of by this Court vide order dated 23.11.2020 with a direction to Executive Engineer to take decision on petitioner's representation. Pursuant to the said order, Executive Engineer, P.M.G.S.Y., Irrigation Division, Dehradun (respondent no. 2) has passed an order on 18.01.2021, whereby petitioner's representation for payment of outstanding dues has been rejected. In this writ petition, petitioner has challenged the rejection order dated 18.01.2021.
Heard learned counsel for the parties and perused the record.
Perusal of the impugned order indicates that petitioner had claimed payment under five different heads/works, and there is no dispute that payment due for the first four heads/works enumerated in first page of impugned order has been released to the petitioner. Thus, the dispute is only in respect of 5th head i.e. payment for "Pot hole filling patch Repair in painted surface WBM and BT (Once in IIIrd & Vth year)".
Respondent no. 2, in the impugned order, has held that petitioner has not done work of repair and maintenance of road, which is covered by 5th head and has further observed that the Assistant Engineer in his bill had also not recommended for any payment to be made to petitioner under head no. 5.
Learned counsel for the petitioner submits that the aforesaid finding in the impugned order that petitioner has not done work under head no. 5 is perverse. He submits that three officers of the same department, namely, Junior Engineer, Assistant Engineer & Executive Engineer, after inspecting the road in question, had submitted a joint report dated
08.2017 for releasing Performance Security deposited by the petitioner. The joint report was sent by respondent no.2 to Superintending Engineer vide letter dated 18.08.2017, which is Annexure No. 10 to the writ petition. In the remark column of the joint report, it is stated that work of construction of road completed on 22.07.2012 and the contractor has also completed repair and maintenance work, on 22.07.2017. Based on the said finding, it has been opined that Performance Security deposited by petitioner may be released in his favour.
Learned counsel for the petitioner submits that when three senior officers of the department have found that petitioner has completed the work of repair and maintenance of the road, in such case, finding in the impugned order that petitioner has not done any work of repair/maintenance of the road, is unsustainable. He further submits that, as per terms & conditions of the contract, contractor was required to maintain the road for a period of five years from the date of construction. He further submits that the joint report dated 03.08.2017 was overlooked by respondent no. 2 while taking decision on petitioner's representation.
Since the joint inspection report submitted by the concerned officers of P.M.G.S.Y. was not considered by respondent no. 2 while passing the impugned order, therefore, the impugned order is liable to be quashed on this short point alone.
Accordingly, the writ petition is allowed and the impugned order dated 18.01.2021 is quashed. The matter is remitted back to respondent no. 2 to re-consider petitioner's representation afresh and pass appropriate order, in accordance with law, as early as possible; but not later than eight weeks from the date of production of certified copy of this order.