Point of Law: Section 56 of Indian Contract Act, 1872 makes it clear that an agreement to do an act impossible in itself is void.

JUDGMENT :

The petitioner is a contractor. The grievance raised in the writ petition is in respect of the dismissal of the claim raised by him for differential price of bitumen on the basis of the contract in question due to price fluctuation during the tenure of the contract. The claims are raised on the basis of Exhibits P1 to P4 Government Order/Revised Government Orders issued by the State Government on various dates.

2. The basic material facts for the disposal of the writ petition are as follows:

The petitioner had been awarded the work of improvement to Nellikatta Karamathodi Road Km 7/000 to 10/9000 in Kasaragod District having an estimated cost of more than Rs.4 crores. The last date of tender submission was 28.10.2020 and the bid opening was on 02.11.2020; and finally the agreement was executed on 21.12.2020. It is the further case of the petitioner that he finished the said work and the final bill was submitted to the Executive Engineer, Public Works Department, Pulikkunnu, Kasaragod, respondent No.6. The contention put forth by the petitioner is that in respect of road works, the respondents are already under obligation to allow the cost escalation due to price difference of bitumen as per G.O. No. 9386/2018 dated 13.11.2018, which was revised by further Government Order Nos. 2816/2020 and 3815 of 2021 dated 17.04.2020 and 30.04.2021 respectively. Therefore, the sum and substance of the contention advanced by the petitioner is that since he commenced the work after 21.12.2020 i.e., the date of agreement, he is entitled to secure the benefits of price escalation of bitumen from the respondents by virtue of Exhibit P4 revised order dated 30.04.2021.

3. I have heard the learned counsel for the petitioner Sri. U.P. Balakrishnan and the learned Senior Government Pleader Sri. K.V. Manoj Kumar, and perused the pleadings and materials on record.

4. On a perusal of the pleadings, it is categoric and clear that the contract was entered into by and between the petitioner and the State Government with definite conditions and clauses with respect to the execution of the contract that the price of the bitumen is also not liable to be reimbursed in the event of escalation. However, the contention of the petitioner is that by virtue of Exhibit P1 Government Order dated 13.11.2018, which was successively revised; and consequent to Exhibit P4 revised order dated 30.04.2021, the petitioner is entitled to get the price difference of bitumen from the respondents. Therefore, the question raised by the petitioner revolves around the said Government Orders.

5. Exhibit P1 Government Order dated 13.11.2018 was issued by the Principal Secretary (Finance) having found that the increase in the price of bitumen has an impact on the cost of road construction both in Public Works Department and the Local Self Government Department; and that since the price of bitumen as on April, 2018 had increased by 33% in the ongoing works with effect from 01.11.2018, the price difference of bitumen as on the date of closing of tender and the date of invoice (Invoice date on or after 01.11.2018) will be paid to the contractor on the production of original invoice for the actual quantity consumed for the works within the original term of completion.

6. It was also decided that the price difference will also be allowed to all works with extended term of completion (without fine extension). Accordingly, the Public Works Department was directed to publish the changes in the bitumen rate of Petroleum Corporations for the previous years for identifying the rate on closing date of tender. Therefore, on an analysis of the said Government Order, it is evident that the said Government Order was issued in order to tackle the situation that has arisen during the year 2018 and for providing price difference to ongoing works with effect from 01.11.2018, since the price of bitumen has increased by 33%.

7. The said order was revised by the Government as per Exhibit P2 Government Orde