IMPORTANT POINT
The main legal point established in the judgment is that the denial of the Price Variation Clause (PVC) based on a Railway Board decision, not incorporated in the contract, was arbitrary and violated the petitioner's rights under Article 14 of the Constitution of India.

JUDGMENT :

ARUN DEV CHOUDHURY, J.

1. Heard Mr. N.N.B. Choudhury learned counsel for the petitioner. Also heard Mr. K. Gogoi learned CGC representing the Railways.

2. The present application under Article 226 of the Constitution of India is preferred by the petitioner assailing a letter dated 01.03.2023 issued by the Deputy Chief Engineer (Construction) North East Frontier Railway, whereby the petitioner was intimated that the petitioner shall not be entitled for benefit under Price Variation Clause (PVC) as the contract value of tender is less than 5 crore, to be more precise Rs. 4,53,21,255.25.

3. The basic grievance of the petitioner is that as per the tender notice for execution of the work of construction of 12 numbers of double storied type II quarters at Bongaigaon and Barpeta Road etc, the tender value was fixed at Rs. 5,61,10,418.74. In terms of clause 6 of the tender condition price variation clause (PVC) is not applicable for tenders having value less than 5 crores and therefore in view of such clear provision, and the tender value being over 5 crore, the petitioner is entitled for price variation clause (PVC) inasmuch as the petitioner offered his rate on the basis of such condition.

4. Mr. Choudhury learned counsel for the petitioner further contends that pursuant to the acceptance of the bid of the petitioner, a contract was executed between the petitioner and the respondent Railways on 28.08.2020 inasmuch as the petitioner offered a value for execution of the contract for Rs. Rs. 4,53,21,255.25. Clause 46 A of the contract prescribes that price variation clause (PVC) shall be applicable only in those contracts where tender conditions specifically permits.

5. Referring to such clause Mr. Choudhury contends that such clause clearly stipulates that applicability/availability of price variation is to be decided on the basis of the tender condition and value. In the case of the present tender, clause 6 of the tender condition clearly stipulates that PVC shall be applicable when tender value is more than 5 crores. Accordingly Mr. Choudhury contends that when it is clear that tender value is more than 5 crores, the price variation clause shall be applicable in the case of the petitioner, irrespective of offer of lesser value than the tender value. According to him, there is a mark distinction between the tender value and contract value, however both the condition stipulated in the tender as well as in the special condition of contract, it is prescribed that it is the tender value which shall determine the applicability of the price variation clause and therefore, the petitioner in the given facts of the case is entitled for benefit of price variation clause.

6. Mr. Choudhury further contends that even clause 46A of the General Condition of Contract of 2019 (GCC 2019) substantiate such claim. Therefore, the rejection of such claim of the petitioner for price variation on the ground of a decision made by the Railway Board in the year 2014 and subsequent order issued on 2018 cannot be a ground of such rejection in derogation of the tender condition, conditions under special condition of contract and the conditions under GCC inasmuch the GCC 2019 was incorporated on 06.09.2019 and such condition nowhere stipulates the purported determination of the Railway Board and the subsequent communication issued in the year 2018 prescribing that it is the contract value and not the tender value which is the basis of a grant of price variation clause.

7. Per contra Mr. K. Gogoi learned counsel submits that though a question has been raised as regards interpretation of the condition of contract as well as tender value in terms of the GCC, SCC and tender condition, the petitioner is having an alternative remedy of arbitration and therefore this writ court may not like to exercise its extra ordinary jurisdiction to decide an issue relating to private law remedy and not to public law remedy.

8. On merit of the claim, Mr. Gogoi contends that the val