The contractor's entitlement to refund for inability to extract sand is governed by the specific clauses of the Government Resolution, and the contractor's responsibility to factor in natural calamities while bidding is relevant in claiming refund.

JUDGMENT :

SANDEEP V. MARNE, J.

1. Rule.

2. Rule made returnable forthwith. With consent of the learned Advocates for the respective parties, heard finally at the state of admission.

3. The short issue involved in the present petition is about entitlement of proportionate refund of amount paid for the extraction of sand if the contractor is unable to extract the permissible quantity of sand within the stipulated period. Also involved is the issue whether flooding of river due to release of water from reservoir can be considered as a ‘natural calamity’ for the purposes of grant of such refund.

4. The facts of the case, as captured from pleadings filed before us, stated are as under :

Petitioner claims to be a Civil Contractor who had participated in e-tender process initiated by respondent No.3 and was awarded the work order dated 18.01.2014 for extraction of sand from the bed of river Tapi at Spot Nos. 3 and 4 of Gut No. 28, village Jallod, Taluka Amalner. By work order, the Petitioner was permitted to extract 12862 brass sand by 30.09.2014. It is the case of the petitioner that by 30.09.2014, when the tenure of the work order ended, he was able to extract only 4291 brass sand. The Petitioner appears to have deposited an amount of Rs. 1,08,99,999/- for extraction of 12862 brass sand. On account of inability to extract remaining quantity, petitioner is claiming proportionate refund of the amount paid by him to the Government.

5. The claim for refund is premised on two reasons cited by petitioner for his inability to extract the permissible quantity of sand. Firstly, on account of complaints made by the villagers, the Additional Collector, Jalgaon had passed an order dated 24.06.2014 staying the contract of the petitioner. The stay was lifted only on 11.07.2014. The second reason, according to the petitioner, is the flooding of river Tapi from 22.07.2014, on account of which, he was prevented from extraction of sand till 18.09.2014. He claims to have sent an intimation to the Tahsildar, Ahmednagar on 18.09.2014 stating that he had stopped extraction activities on account of damage to the suction pumps, approach roads etc. due to floods. He seeks to blame these two reasons/factors for his inability to extract permissible quantity of sand.

6. The petitioner claims that he made several representations, seeking extension of the contract period or alternatively proportionate refund of the bid amount. Thereafter an appeal came to be filed before the Minister, Revenue Department, on 21.11.2015, praying for the extension of contract period or for proportionate refund of the bid amount. A reminder appeal was filed on 07.05.2016. Crying non-decision of appeals, he filed Writ Petition No. 9145 of 2016, which was disposed of with a direction to decide the appeal/representation. It appears that the petitioner was required to file Contempt Petition No. 13 of 2017 on account of non decision of the appeal/representation. He claims that after getting a wind of filing of Contempt Petition, Respondent No. 1 hurriedly passed order on 30.01.2017 rejecting the appeal/representation.

7. The petitioner thereafter, once again approached this Court by filing Writ Petition No. 2947/2017, challenging the order dated 30.01.2017 which was disposed of by order dated 01.03.2018 setting aside the order dated 30.01.2017 and directing re-consideration of application filed by the petitioner for refund of proportionate amount by considering the report given by the Tahsildar, after giving hearing to the petitioner. Respondent No. 1 thereafter passed order dated 05.12.2018 partly accepting the claim of the petitioner for refund, in respect of the period from 24.06.2014 to 11.07.2014 when there was stay granted to the Collector. He is held to be entitled to proportionate refund. However, his claim for refund on account of flood in the river has been rejected by relying upon paragraph No. ‘C’-(22) of the Government Resolution darted 12.03.2013. It is this order dated 05.12.2018