Page No.# 1/5 GAHC010105962016 2025:GAU-AS:7111 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/395/2016 MUSLIM ALI S/OLT. MAKBUL ALI R/O SUNDARIBORI, P.S. JALUKBARI GUWAHATI-14, DIST. KAMRUP METRO, ASSAM. VERSUS THE STATE OF ASSAM AND 4 ORS REP. BY THE COMMISSIONER AND SPECIAL SECRETARY TO THE GOVT. OF ASSAM, PUBLIC WORKS DEPARTMENT ROADS DISPUR, GUWAHATI-6. 2:COMMISSIONER and SPECIAL SECRETARY TO THE GOVT. OF ASSAM PUBLIC WORKS DEPARTMENT ROADS DISPUR GUWAHATI-6. 3:THE CHIEF ENGINEER PUBLIC WORKS DEPARTMENT ROADS ASSAM CHANDMARI GUWAHATI-3 DIST. KAMRUP METRO ASSAM. 4:SUPERINTENDING ENGINEER PUBLIC WORKS DEPARTMENT ROADS WEST ASSAM CIRCLE WAC GOALPARA ASSAM. 5:THE EXECUTIVE ENGINEER Page No.# 2/5 GOALPARA RURAL ROADS DIVISION GOALPARA ASSAM Advocate for the Petitioner : MR.D DAS, MR.P SARMAH Advocate for the Respondent : MR.H BURAGOHAIN, SC, PWD (ROADS) BEFORE THE HON’BLE MR JUSTICE ARUN DEV CHOUDHURY O R D E R 02.06.2025 1. Heard Mr. D Das, learned Senior counsel assisted by Ms. S Sarma, learned counsel for the petitioner. Also heard Mr. P Nayak, learned standing counsel for the PWD (Roads) Department. 2. The petitioner, who is Class-IA Contractor has preferred this writ petition assailing an order dated 17.12.2015 issued by respondent No. 5, whereby the contract for execution of work i.e. “construction & maintenance of Rural Roads and CD Works PMGSY (RCIP-I) package No. As-07-83” was terminated. 3. Pursuant to an ITB issued by the respondent No. 3, the petitioner was awarded with the aforesaid work. The schedule time of the completion of the work was fixed on 06.10.2014, however, alleging that the progress of the work was very slow and after giving notice to the Contractor, the respondents decided to cancel the contract through the impugned order dated 17.12.2015. 4. It is the case of the petitioner that the petitioner faced difficulty in the execution of the contract, which were duly reflected in the communication dated 22.09.2014 and a letter dated 15.11.2015 issued by the Contractor, however, according to the petitioner, without taking note of the difficulty raised, the Page No.# 3/5 impugned order was issued. 5. The further contention raised in this writ petition is that in term of the contract, the Chief Engineer, PWD is the employer of the contractor and therefore it is Chief Engineer, who can terminate such contract, the impugned order dated 17.12.2015, terminating the contract was issued by the Executive Engineer and therefore, according to the petitioner, such termination without any authority under the contract is a void termination and therefore, same is liable to the set aside. 6. Mr. Das, learned Senior counsel has confined his argument to the point of authority and jurisdiction of the Executive Engineer. In support of such contention, Mr. Das places reliance on the decision of the Division Bench in State of Assam vs. Muslim Ali reported in (2013) 2 GLR 505 and Mr. Das contends that in absence of any condition of contract empowering the Chief Engineer to delegate the power to Executive Engineer to terminate the contract, the Executive Engineer cannot assume such jurisdiction and therefore, such termination is itself liable to the set aside on this count alone. 7. Per contra, Mr. Nayak, learned counsel contends that the Chief Engineer by a communication dated 25.02.2010, by a general order delegated the power of the Chief Engineer (PWD Roads) to the Executive Engineer, with specific references to the work under PMGSY and on the strength of delegation, the impugned order of termination dated 17.12.2015 was issued. 8. It is the contention of Mr. Nayak, learned counsel that the point of jurisdiction and authority of the Executive Engineer based on the aforesaid communication dated 25.02.2010 was also raised in Monsur Ahmed Vs. The State of Assam and 6 Ors., which involves a similar contract of construction Page No.# 4/5 under PMGSY. 9. Mr. Das in his usual fairness submits that the petitioner’s contract was also terminated on the basis of the aforesaid communication dated 25.02.2010. According to him, the aforesaid decision in Mansur Ahmed (supra) is pending for adjudication before the Division Bench in WA 397/2020 and notice has already been issued. Therefore, the entire subject is pending consideration by the Division Bench. 10. I have given anxious consideration to the submission made by the learned counsel for the parties. 11. The Co-ordinate Bench in its determination made in Monsur Ahmed Vs. The State of Assam and 6 Ors., while dealing with the authority of Executive Engineer, to issue such termination order not invested upon such Executive Engineer, rather upon the Chief Engineer, held that the communication dated 25.02.2010, though is not a part of the contract, however, said communication has been acted upon uniformly and therefore, it was held that a practice of uniformity followed can be accepted, as same is inconsonance with law as laid down by the Hon’ble Apex Court in N. Suresh Nathan and Anr. Vs. Union of India and Anr. reported in (1992) Suppl. (1) SCC 584 and Shailendra Dania and Others vs S.P. Dubey and Others reported in (2007) 5 SCC 535. 12. This court is in total agreement with the determination made by the Co- ordinate Bench in WP(C) 2243/2021 and therefore, in the considered opinion of this court, the aforesaid judgment passed in WP(C) 2243/2021 (Monsur Ahmed vs the State of Assam and 6 Ors.) shall also cover the case of the petitioner. Page No.# 5/5 13. Now coming to the determination made in Muslim Ali (supra), in Muslim Ali (supra), the subject was relatable to the power of PWD in deducting forest royalty from the pending bills of the contractors in absence of any specific clause empowering such deduction in the contract on the insistence of Forest Department. The Division Bench answered that such power cannot be exercised until and unless such power is given in the contract itself. 14. In the considered opinion of this court, such proposition cannot be made applicable in the given facts of the case, more particularly, the issue before this court is whether the communication dated 25.02.2010 can be treated as a delegation of power or not and the Co-ordinate Bench has held that by virtue of long practice, the same can be treated as part of the contract for the purpose of delegation of power, however, in Muslim Ali (supra), there was no such subsequent order of delegation. 15. Accordingly, this writ petition stands dismissed. JUDGE Comparing Assistant