The main legal point established in the judgment is the entitlement of the petitioner to escalation cost under the contractual provision of Clause-32(a)(b)(c) despite the submission of a 'no claim certificate'. The judgment emphasizes that the 'no claim certificate' did not preclude the petitioner from claiming escalation cost as per the agreement.

JUDGMENT

Dr. B.R. Sarangi, J. - The petitioner, who is a registered contractor in 'A' class category of the State P.W.D. Department, has filed this writ petition seeking to quash the letter dated 03.12.2013 under Annexure-17 issued by the Joint Secretary to Government of Odisha, Fisheries & ARD Department in compliance of the order dated 19.02.2008 passed by this Court in W.P.(C) No.15922 of 2007, stating that no further escalation is considerable at Government level for payment against the work 'Construction of Landing Quay and allied structures at Talasari Fish Landing Centre in Balasore District', because of existing situation and the conditions in the work supported with the undertaking dated 15.10.2002 after payment of legitimate claims for Rs.11,85,207/- through Bank Draft No.792415 dated 26.11.2010 by the Executive Engineer, Fishery Engineering Division, Bhubaneswar as per Fisheries and ARD Department Sanction Order No.11834/FARD dated 04.11.2010, and further to direct the opposite parties to disburse the differential escalation amount of Rs.4,20,940/- with interest @ Rs.18% peormula to calculate the increase or decrease in the annum from the date the escalation bill was submitted, i.e., 27.08.2002.

2. The factual matrix of the case, in brief, is that the petitioner, being the lowest tenderer in respect of the work 'Construction of Landing Quay and allied structures at Talasari Fish Landing Centre in Balasore District', was selected in the tender process floated by opposite party no.4. The work was entrusted to him by execution of an agreement i.e. Divisional Agreement No.22F2 of 1999-2000. As per stipulation made in the agreement, the date of commencement and the date of completion of the work were 01.12.1999 and 30.05.2001 respectively. Although bids were opened on 06.04.1998, but there was delay on the part of the opposite parties in finalization of the tender and according approval due to pendency of some litigation. Due to delay in acceptance of the tender, the rate quoted by the petitioner became unworkable. The agreement is nothing but verbatim copy of the tender conditions and thus the original date of commencement and completion reflected in the tender papers have also been copied even though the agreement actually was executed on 25.03.2000 and the work actually commenced on 01.12.1999 and the work was completed on 31.03.2003 during extended period delay being not attributable to the petitioner.

2.1. As per contractual provision, i.e. Clause- 32(a)(b)(c) is strictly for payment of price escalation during execution of the work in case of increase/decrease in average wholesale price index (all commodities) for material inputs and Consumer Price Index for industrial workers towards labour inputs of the work and price of POL (diesel oil being the representative item for price adjustment) pursuant to the prescribed formulae provided that the work is carried out within the stipulated time or extension thereof for the reasons that are not attributable to the petitioner.

2.2. In view of the above provisions of contract and in pursuance of the other conditions of the contract, the petitioner is entitled to escalation cost. In spite of difficult site condition and unavoidable situations, the petitioner executed the work and completed the same during the period extended validly by the opposite party-Department. The cause of delay in completion of the work is solely attributable to the opposite parties and after considering the hindrances caused to the work, the opposite parties have not only granted extension of time, but also paid running account bills during extended period. Opposite party no.3 effected payment through running account bill, but neglected miserably in his contractual obligation to pay the differential cost of escalation charges as per Clause-32 of the agreement in spite of escalation bill of Rs.16,06,14