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AIR 2010 Ori 149
IN THE HIGH COURT OF ORISSA
I.M. Quddusi, A.C.J. and B.P. Ray, J.
Sri Padma Charan Patra – Appellant
Vs.
State of Orissa and Ors. – Respondent
Decided On: 23.03.2010
Tender - Construction of H.L. Bridge over river Luna - Agreement No. 305 F2 of 2004-05 - [Land Acquisition Act, 1894, Section 4(1); Works Department; Water Resources Department] - The court discussed the difficulties faced by the petitioner, the delays caused by the government's lapses, and the recommendations for extension of time without penalty. The judgment highlighted the government's failure to fulfill its obligations under the agreement and concluded that the petitioner was entitled to payment of all dues along with price escalation.
Fact of the Case:
The petitioner, a contractor, filed a writ application aggrieved by the state government's decision to issue a notice inviting Tender for completing the balance work awarded to the petitioner for construction of a bridge. The petitioner sought a direction to close the contract without levy of penalty and payment of all its dues.
Finding of the Court:
The court found that the petitioner faced difficulties due to the government's lapses, and the government's actions seeking to rescind the contract with penalty were illegal and could not be sustained. The petitioner was entitled to payment of all dues along with price escalation.
Issues: The issues involved delays in the construction project, the petitioner's request for extension of time, and the government's decision to rescind the contract with penalty.
Ratio Decidendi: The government's failure to fulfill its obligations under the agreement and the petitioner's impossibility to execute the contract within the stipulated time due to government's latches led to the court's decision in favor of the petitioner.
Final Decision: The writ petition was allowed, and the petitioner was entitled to payment of all dues along with price escalation.
JUDGMENT
B.P. Ray, J.
1. The Petitioner has filed the present writ application being aggrieved by the decision of the State Government in issuing a notice inviting Tender for completing the balance work awarded to the Petitioner on 19.11.2004, vide Agreement No. 305 F2 of 2004-05 dated 19.11.2004 for construction of H.L. Bridge over river Luna with 30 mtrs. approach on either side of Chandol-Danpur Road. The Petitioner also seeks for a direction to close the contract without levy of penalty & direct the State Government to pay all its dues with reference to Agreement No. 305 F2 dated 19.11.2004 including escalation, which is entitled to under the agreement.
2. Briefly stated, the Petitioner is a super class contractor engaged in the business of civil construction like construction of roads, bridges etc. The Government of Orissa in the Works Department invited application for construction of H.L. Bridge over river 'Luna' at Danpur of Chandol Danpur Road with 30 mtrs. approach. The Petitioner submitted its tender & since his tender was found to be the lowest, a work order was issued in his favour on 19.11.2004. On the same date, an agreement was entered into between the Petitioner & the Executive Engineer, Kendrapara (R & B) Division for executing the said work. The work was to commence on 19.11.2004 & was to be completed on 18.05.2006.
3. In course of execution of the work, the Petitioner faced the following difficulties:
(i) The land for pier well No. P7 had not been acquired by the State Government, because of which the local people are obstructing the progress of the work.
(ii) The design & drawings of the wells were not handed over to the Petitioner.
(iii) Well cap bottom levels were not fixed.
(iv) Since well cap bottom level of abutment well AR & two canal abutment wells ARI & All were not finalized, the progress of these wells were being hampered.
(v) The well curb shuttering & steel were getting submerged because the water level of the river was rising by two to three feet due to opening of the sluice gate of the Anicut by the Water Resources Department.
4. The Petitioner ventilated his aforesaid grievances/difficulties to the Opp. Parties, vide its various communications dated 08.02.2005, 22.03.2005, 25.04.2005, 29.11.2005, 10.12.2005, 11.02.2006,13.03.2006 & 17.04.2006 vide Annexures-4 to 13 respectively. No steps were however taken by the Opp. Parties to mitigate the hardship which the Petitioner was facing. Consequently, the Petitioner could not progress with the work as per schedule.
5. On 17.04.2006, the Petitioner made his first application for extension of time to complete the work. While his application was pending, on 22.06.2006 a show cause notice was issued to the Petitioner by the Executive Engineer, Opp. Party No. 1 as to why stops shall not be taken against the Petitioner for disproportionate progress m completion of work by the stipulated date. The Petitioner replied to the said notice on 03.07.2006 indicating therein that the delay in completion of the work was on account of delay in supply of drawing & design, non-acquisition of land on either side of the bridge & the design of Pier Wells were approved & communicated on 16.12.2005 i.e. 13 months after the date of issuance of the work order & execution of the agreement, delay in taking decision for fixation of well cap bottom level & unusual rising of water level during working season due to opening of sluice gates of Anicut by Water Resources Department. On receipt of the reply of the Petitioner, the proceedings pursuant to notice dated 22.06.2006 was dropped by the Executive Engineer, Opp. Party No. 2.
6. The Executive Engineer, Opp. Party No. 2 recommended the application of the Petitioner for extension of time on 22.08.2006, i.e. two months after the request for extension was made by the Petitioner. On 02.05.2007, vide A.nnexure-19, the Superintending Engineer, Opp. Party No. 3 recommended to the Chief Engineer (DPI & Roads) Opp. Party No. 4 for extension of ti
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