JUDGMENT

Pradeep Nandrajog, J.

1. A groyne is a rigid hydraulic structure built from an ocean/sea shore or from a river bank that interrupts water flow and limits the movement of sediment. It is usually made out of stone.

2. The National Highways Authority of India was to develop adequate road connectivity to major ports in India requiring Sea Protection Works. To ensure construction of groynes the appellant was the Special Purpose Company in the State of Tamil Nadu. The appellant used a stale data and this has resulted in avoidable litigation. Even a layman has knowledge of the fact that, just as sand dunes shift due to wind currents, so does the sea bed and especially at the shore. A survey conducted in the year 1999 and on the basis of the data collected a design prepared in the year 2000 by IIT Madras was used by the appellant to prepare the cross section of the groynes and based thereon a notice inviting tender was issued calling upon the prospective bidders to submit the rate to construct the groynes. Description of the items of work to be executed as also quantity was made known in the schedule to the tender documents. The bids had to be made as per the tender documents. The broad scope of the work was : (i) identification of quarries for supply of stones of required specification; (ii) arranging transportation of the stones from the quarries to the work site; and (iii) construction of groynes according to the specification, designs and standards. The drawing indicated in the notice inviting tender informed the prospective bidders that the groynes to be construed would have three layers : (i) filter, (ii) core, and (iii) armour; with the filter layer at the bottom, core in between and at the top the armour. This was obviously based upon the survey conducted in the year 1999 and the design prepared in the year 2000 by IIT Madras. The bid by the respondent being accepted a contract bond was executed on May 20, 2003. Work had to be completed in 24 months. Date of completion was May 19, 2005.

3. Environment clearance had to be obtained by the appellant. Regretfully, none was obtained after the project was conceived of and before bids were invited. None was obtained even when the contract bond was signed. What has pained us is that not even a letter was sent to the Ministry of Environment, Government of India for environmental clearance. The work obviously could not commence. The first application sent to the Ministry of Environment by the appellant was after the contract bond was signed. Environmental clearance was obtained on June 08, 2004 i.e. after one year and nineteen days of the date of commencement of the work.

4. It not being indicated to the respondent that environmental clearance had not been obtained, and the respondent acting upon the assumption that the appellant being a Government Undertaking would be armed with the necessary clearances mobilized itself at the site and was confronted with a situation of stalemate. At the fore most was a complete change in the topology of the sea bed at the shore where the groynes had to be constructed. There was a substantial difference in the sea bed profile compared to the one provided in the tender documents. Though not a part of the work to be performed by the respondent, it engaged a consultant to conduct a Bathymetry survey and based thereon prepared a fresh design of the cross sections of the groynes. This was refined by IIT Madras and another layer called the secondary layer, between the core and the armour had to be laid. Thus, as against three layers : (i) filter, (ii) core, and (iii) armour, a fourth : secondary layer required to be laid. Rates had obviously to be revised. Parties discussed the revised rates. On March 02, 2004 the appellant wrote a letter to the respondent enclosing therewith the revised rates, indicating the quantity of work to be executed. The letter reads as under:

"Thiru Deepak Shah

Executive Director

RDS Projects Limited,

1-B, TCR Apart