CAV JUDGMENT

(Per: HONOURABLE MR. JUSTICE ARUN KUMAR JHA)

Date : 17-03-2023

Heard learned counsel for the appellants and learned counsel for the respondent.

2. The present L.P.A. is directed against the order dated 18.05.2012 passed in CWJC No. 783 of 2011 by the learned Single Judge of this Court whereby and whereunder the civil writ petition filed by the petitioner/respondent herein has been allowed with certain observations and directions.

3. The writ petitioner/respondent herein filed the writ petition claiming following reliefs :

“(i) For quashing of the part of the decision of the Standing Empowered Committee dated25.11.2010 so far as the Standing Empowered Committee concluded (a) termination of the contract by the respondents due to fundamental breach by the petitioner as per the provisions of the contract for package no.BR-3613, (b) contractor‟s claim on account of material at site, loss of profit, hire charges for machine and equipments, advance to supplier, site expenses, litigation expenses, prospective loss of profit and interest are not admissible.

(ii) For appropriate declarations that (a) the rescinding of the agreement on the basis of admitted fact is on account of employer’s convenience and not on account of fundamental breach of the contractor, (b) in the absence of finalization of rate, final determination of payable amount including variation in quantity, extra item, the action of rescinding and consequential decision of forfeiture of security and bank guarantee is wholly without jurisdiction.

(iii) For a direction to the respondents to release the security deposit, bank guarantee forthwith and further direction to the respondents to work out and finalize the rate of extra item, prime coat and variation in quantity and make payment.

(iv) For a direction to the respondents to refrain from acting upon the decision of the Standing Empowered Committee so far as realization of liquidated damage in terms of contract data is concerned.

(v) For any other relief of consequential reliefs to which the petitioner may be found entitled to in the facts and circumstances of this case”.

4. The facts of the case, as it appears from the record, may be summarized as follows :-

The writ petitioner/respondent herein being a registered Class-1A contractor was invited by the respondents- appellants herein for execution of Package No.BR-3613- Construction of road Mahnar (Nayatola) to Bhagwanpur (T-04) & (L-30) in Block-Mahnar, Jandaha, Mahua. The acceptance of the tender of the petitioner intimated vide letter no.4038-40 dated 18.07.2005. In terms of acceptance, the writ petitioner furnished bank guarantee to the tune of Rs.64,15,000/- on 08.09.2005 and further another bank guarantee dated 21.03.2006 for an amount of Rs.18,46,000/-. Meanwhile, on 03.11.2005, an agreement was executed between the writ petitioner and the respondent Chief Engineer in relation to Package No.BR-3613. Further case of the writ petitioner is that during execution of Package No.BR-3613, the contractor faced a number of problems on account of obstruction created by a land owner, who claimed that his personal land was being used without acquisition for construction of the road. The writ petitioner drew the attention of the respondent to this fact vide letter dated 15.12.2006. During execution of the agreement, the writ petitioner was forced by the Engineer at site to work as per his dictate and against the provisions of the agreement. The writ petitioner made correspondences in this regard since time was unnecessarily being wasted as Engineer at site had asked the writ petitioner to carry out premix carpet work with lesser thickness than as was provided in the agreement. The writ petitioner also faced problem of non-availability of emulsion and other materials which adversely affected the work of construction. Further, the grievance of the writ petitioner was that the respondents were obliged to make payment for the bill raised in the nature of advance against running o