IMPORTANT POINT
The court emphasized the limitations and parameters of exercising jurisdiction under Article 226, particularly in cases involving private contracts, and highlighted the need for detailed evidence and examination in determining disputed facts.

ORDER :

1. Heard Mr. A Biswas learned counsel for the petitioner and Mr. N. Upadhyay learned standing counsel, Irrigation Department.

2. The present writ petition is filed assailing a speaking order dated 28.11.2019 whereby the claim for “escalation of price” made by the petitioner in execution of a contract was rejected.

3. Pursuant to a NIT dated 10.12.2004 for execution of work, namely “Bordikorai Irrigation Scheme-Extension of Spillway Road Slab, Railing etc, the petitioner was awarded the said contract on 07.03.2007. During the continuation execution of the work, the petitioner sought for escalation of price for various reasons including delay attributable to the respondents.

4. When such claim of escalation was not considered, the petitioner preferred a writ petition being WP(C) No.6162/2015. This court under its order dated 10.12.2018 disposed of the writ petition directing the Chief Engineer, Irrigation Department to treat the writ petition as a part of the representation and to dispose of the representation dated 10.05.2015 submitted by the petitioner by a speaking order. Subsequently the impugned speaking order was passed.

5. By way of the speaking order the Chief Engineer, Irrigation Department has rejected the claim of the petitioner for the reasons quoted herein below:

1. The Executive Engineer, Itakhola Div(I) vide letter No.IID/I-I/2016-17/Pt-III/498 dt 30/10/19 has informed that schedule of rates in Itakhola Div(I) was published in 2004-2005 and 2010-2011 during the period 2002-2012. The estimate of the concerned work allotted to the contractor Sri Mrigen Bhagawati was prepared as per SR 2004-2005.

It is also to be mentioned that schedule of rate in division office usually remains workable till the publication of the next SR. Hence, there appears to be no question of claim of escalation of price materials against the work in question.

2. The work allotted to the contractor Sri Mrigen Bhagawati was to be executed and completed under one tile Addl. Central Assistance for the year 2004-05(No.M-13048/3/(AS)/2003-SP-NE, dt 10/02/2005) which was approved by planning Commission of India and this functioning does not have any specific information/guidelines as to the provision of escalation of rates.

6. The respondent Chief Engineer has filed an affidavit and has taken a stand that though formal work order was issued on 19.05.2006, however in terms of the contract the petitioner could have completed the work on 05.03.2007. It is the further stand that the work might be halted temporarily for an enquiry by different agencies for the alleged financial irregularities committed by some officials, however, in absence of any escalation clause the petitioner cannot be allowed price variation.

7. Mr. Biswas submits that such decision is arbitrary and it is well settled that even when there is no clause for escalation of price, the petitioner is entitled for payment against such escalation of price when it is admitted that delay was due to the action of the employer of the contract. Mr. Biswas further argues that though the power of judicial review is limited in case of a private contract, however, in the backdrop of the admitted position that there was delay in execution of work for the fault of the employer, the petitioner is entitled for payment against escalation of price during such delay. In the aforesaid backdrop, this court can exercise its power of judicial review. Mr. Biswas in support of his contention relies on the judgment of the hon’ble Apex Court in the case of ABL International ltd vs. Export Credit Guarantee Corporation of India Ltd reported in (2004) 3 SCC 553.

8. Per contra, Mr. N Upadhayay learned standing counsel submits that the dispute is in the realm of private dispute and therefore this court should not entertain this writ petition.

9. In ABL International Ltd (supra), the Hon’ble Apex Court laid down the following proposition of law:

(a) In an appropriate case, a writ petition as against a State or an instrumentali