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IN THE HIGH COURT OF ORISSA AT CUTTACK

W.P.(C) No.1907 of 2013

Malaya Kumar Mund

….

Petitioner

Mr. D.K. Rath, Advocate

-versus-

State of Odisha and others

….

Opposite Parties

Mr. A.K. Mishra, AGA

CORAM:

DR. JUSTICE B.R. SARANGI

MR. JUSTICE S.K. PANIGRAHI

Order No.

ORDER

04.01.2022

4.

1. This matter is taken up through hybrid mode.

2. Mr. D.K. Rath, learned counsel appearing for the petitioner

contended that the brief has been transferred from his office, for

which he has no instructions.

3. Mr. A.K. Mishra, learned Addl. Government Advocate

contended that the relief sought in the writ petition cannot be

granted as it is purely money claim and the same is disputed one.

To substantiate his contention, he has relied upon paragraph-5 of

the counter affidavit, which reads as follows:-

“5. That in reply to the averments made in

paragraph-2 of the writ petition, it is respectfully

submitted that the work “Slop protection/lining

work at vulnerable reaches of R.M.C. including

construction of service road on left bank of RMC

from RD-00 to 11 Km. (Reach-1) RD-00 to 6 Km.

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entrusted to the petitioner vide Divisional

Agreement No.8 F2 of 1995-96. The said work

was completed by 31.3.2000. After completion of

the work, the SDO, Right Canal Sub-Division

No.I, Mukhiguda who was in-charge of the work,

recorded the final measurement, prepared the final

bill observing all formalities in presence of the

petitioner and submitted before the Opp.party

No.4 on dtd.27.03.2001. Soon after the final

measurement was recorded the petitioner was

required to accept the final measurement with

settlement of all his claims as required under the

rules but the final bill with connected documents

were received in the office of the Opp.party No.4

without acceptance of final measurement by the

petitioner. Unless the final measurement was

accepted, it was not possible to initiate all

required steps to get the final deviation approved

for release of payment. Since 27.3.2001, the

petitioner remained silent without any valid

reason and actually accepted the measurement on

19.10.2009 i.e. after lapse of eight years and six

months, though it was the primary duty of the

petitioner to do so during the preparation of final

bill. The xerox copy of the page- 34 and 35 of MB

No.697/RCD-I witnessing the acceptance of

measurement by the petitioner is annexed

herewith vide Annexure-A/4

Due to the above inaction and non-co-

operation on the part of the petitioner, the

Opp.party No.4 could not forward the final

deviation statement of the work to his higher

authorities which is essentially required to be

approved before release of final payment as per

the condition of contract. After acceptance of final

measurement by the petitioner i.e. on 19.10.2009

the final deviation statement of the work has been

sent to the Opp.party No.3 and the matter is now

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under active consideration for approval by

competent authority observing all codal rules.

Similarly, regarding payment of price

escalation, it is to submit that during process of

the work, the price of materials incorporated in

the work increases or decreases, as a result of

increase or decrease in the average wholesale

price index (all commodities) and the petitioner

thereupon necessarily and properly pays in respect

of that material, such increased and decreased

price, then he shall be entitled to reimbursement

or liable to refund quarterly as per clause 32 of F2

contract. Therefore, the petitioner is required to

submit

his

reimbursement

claim

of

price

escalation quarterly during progress of work. In

the instant case, the petitioner remained silent for

a long period without any valid reason and

submitted his reimbursement claim towards price-

escalation on dtd.14.7.2009 i.e. after a lap