Page 1 of 5

IN THE HIGH COURT OF ORISSA AT CUTTACK

W.P (C) No.19356 of 2022

M/s Hemanta Kumar Agrawal and

Co., Dharamgarh,

…..

Petitioner

Mr. P.C. Nayak, Adv.

Vs.

State of Odisha and others

…..

Opposite Parties

Mr. P.P. Mohanty, AGA

CORAM:

DR. JUSTICE B.R. SARANGI

MR. JUSTICE S.K. MISHRA

ORDER

05.08.2022

Order No.

01.

This matter is taken up by hybrid mode.

2.

Heard Mr. P.C. Nayak, learned Counsel for the Petitioner;

and Mr. P.P. Mohanty, learned Addl. Government Advocate for

State-Opposite Parties.

3.

The Petitioner has filed this Writ Petition seeking to quash

the Order dated 28.03.2022 under Annexure-1 issued by the

Opposite Party No.4 in refusing to release balance escalation

amount under Annexure-4, as calculated by the Opposite Party

No.6 in terms of office memorandum dated 19.11.2019 and to

issue direction to the Opposite Parties to release balance escalation

amount, as per their own calculation, in terms of agreement

including for extended period, as per the office memorandum

dated 19.11.2019 under Annexure-5 for the work “Improvement to

Jharial Malkasadha Themra Road in the district of Bolangir under

State Plan for the year 2020-2021”, vide Agreement No.54 P1

2020-21, within a stipulated time.

4.

Mr. P.C. Nayak, learned Counsel appearing for the

Petitioner contended that rejection of the claim of the Petitioner by

the Authority vide Order dated 28.03.2022 under Annexure-1

cannot sustain in the eye of law, in view of the fact that no

opportunity of hearing was given to the Petitioner. Had

Page 2 of 5

opportunity been given, the Petitioner would have brought to the

notice of the Authority with regard to the judgment rendered by

this Court in Raghunath Sahu v. State of Odisha and others, AIR

2022 ORISSA 37. Thereby, gross illegality and irregularity has

been committed by the Authority in passing the Order impugned,

which is liable to be set aside.

5.

Mr. P.P. Mohanty, learned Addl. Government Advocate

appearing for the State-Opposite Parties contended that since this

question has already been decided by this Court in Raghunath

Sahu (supra), while considering the case of the Petitioner, the

Authority could have considered the same and passed appropriate

order in accordance with law. As the said benefit has not been

given to the Petitioner, the Order so passed by the Authority

cannot have any justification.

6.

Having heard learned Counsel for the Parties and after

going through the records, this Court finds that under Annexure-1

dated 28.03.2022 Opposite Party No.4 passed order extending the

time up to 31.03.2022 and approved the same without levying

penalty and without extending the benefit of price escalation for

the extended period, by virtue of no claim certificate furnished by

the contractor and, as such, it has been stated that the Department

will not be liable to pay in completion of the work.

7.

Similar matter had come up for consideration before this

Court in Raghunath Sahu (supra) and this Court in Paragraphs-

20, 21, 22 and 25 held as follows:

“20.

Therefore, taking into consideration the meaning

attached to the word ‘escalation’, as per terms and

conditions of the agreement, the petitioner is entitled to get

escalation cost but not the compensation, for which the

blockage of the escalation benefit has been made. Needless

to say, an ‘undertaking’ is nothing but a standard form,

which every contractor has to sign and submit to the effect

that he shall not claim for compensation for delay in work

Page 3 of 5

and extend the period of work. This is submitted whenever

extension of time is granted for completion of work or else

extension will not be granted. This document is signed,

without adjudicating the merits of the claim of the

petitioner, and is done under duress or else the contract

would be liable to be terminated with penalty, even though

the petitioner may not be responsi