WP(C)/807/2024 of MOSTAQ MD MOKSEDUR HASSAN Vs THE UNION OF INDIA AND 10 ORS on 6 September 2026

ORDER

Date : 07.09.2026

1. Heard Mr. Mostak Md Moksedur Hassan, the petitioner, in person. Also heard Ms. A Bora, learned standing counsel, NHM, and Ms. R. Devi, learned CGC, representing the Union of India.

2. The petitioner has approached this court assailing the communication dated 02-09-2023, issued by the Joint Director of Health Services, whereby the petitioner was directed to immediately stop the construction of a hospital at Goalpara until a joint inspection was carried out.

3. The said communication appears to have been issued on the allegation that the work was not being executed in accordance with the approved design and drawing and that the execution was beyond the scope of the contract.

4. It is not in dispute that, during the pendency of the writ petition, the respondent authority, by a communication dated 13-3- 2024, withdrew the project from the petitioner under clauses 11 and

26 of the tender agreement, at the risk, cost, and responsibility of the petitioner. The said communication further stated that no claim whatsoever would be entertained in the future.

5. The petitioner, in person, has sought to contend during the course of the hearing that the aforesaid communication dated 13-03-2024 was beyond the scope of the contract and authority; that the same was not served upon him; and that it was a backdated communication. However, admittedly, the said communication has not been specifically challenged in the present proceedings. There is neither any specific pleading to that effect in the writ petition nor has the petitioner filed any additional affidavit or sought any substantive relief against the said communication.

6. In the absence of a specific challenge to the communication dated 13-03-2024, this Court cannot examine the legality or otherwise of that communication merely on the basis of an oral submission advanced during the course of the hearing. The Court cannot adjudicate upon the validity of an order which is not under challenge, particularly when such an order has materially altered the position which existed on the date when the writ petition was filed challenging the impugned order.

7. The petitioner has, during the course of arguments, further claimed and submitted that he had completed about 70% of the work and that, notwithstanding such completion, a fresh tender notice was issued on 07-09-2024 and another contractor was engaged for the work in question, who has already taken the work to an advanced stage. Such facts are also not part of the pleadings but are oral submissions, though they are facts.

8. In the totality of the matter, in the opinion of this Court, these subsequent developments have a direct bearing upon the relief sought in the present petition. The original communication dated 02- 09-2023 was issued when the petitioner was still executing the work. Subsequently, the project was withdrawn from the petitioner by the communication dated 13-03-2024. Thereafter, a fresh tender process was undertaken, and another contractor was engaged. Thus, the circumstances in which the original communication was issued can no longer be adjudicated in the present writ petition, nor do it survive in the same form.

9. Therefore, under the given facts of the present case, this Court, in exercise of its jurisdiction under Article 226 of the Constitution of India, cannot direct the restoration of the petitioner to the contract, interfering with the original communication impugned, particularly when the subsequent decision withdrawing the project from the petitioner has not been subject to challenge.

10. Any such direction would necessarily require this Court to examine the contractual rights and obligations of the parties, the alleged extent of execution of the work, the alleged deviation from the approved design and drawing, the applicability of clauses 11 and 26 of the tender agreement, and the consequences of subsequent tender and engagement of another contractor. These are matters that cannot appropriately be adjudicated upon in the present proceeding in the absence of a proper challenge to the subsequent decision.

11. The petitioner's contention that he had completed 75% of the work may give rise to a claim if otherwise permissible in law. But such a claim cannot by itself confer a right upon the petitioner to continue with the contract after its withdrawal in terms of contractual conditions. Equally, the assertion that the subsequent communication was backdated or was not served upon him cannot be examined in the present written petition when the said communication itself is not under challenge.

12. It is also significant that the work has since been put out to a new tender and that another contractor has already been engaged. The Court cannot, at this stage, ignore the subsequent developments and examine the original communication in isolation as if the contractual relationship between the parties continued in its original form.

13. In view of the aforesaid facts and circumstances, this Court finds no ground to interfere with the communication dated 02- 09-2023 in the present proceeding.

14. The written petition is accordingly dismissed.

15. However, the dismissal of this written petition shall not preclude the petitioner from availing such lawful remedies as may be available to him in respect of subsequent communication dated 13- 03-2024 or for enforcement of any contractual claim, including any claim for payment, damages or compensation and even against the proposed imposition of risk, cost and liability upon the petitioner by the respondent, if otherwise permissible under law.

16. It is further made clear that this Court has not expressed any opinion on the merits of such claim nor in respect of the merits of the communication dated 02-09-2023, for the reason that in view of subsequent developments, such challenge cannot be adjudicated in the present writ petition. JUDGE Comparing Assistant