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2003 DIGILAW 1290 (PAT)

Ramakant Singh v. Union Of India

2003-12-12

R.M.PRASAD

body2003
Judgment R.M.Prasad, J. 1. In this writ petition, petitioner is aggrieved by the order, contained in letter No. 387 dated 7.7.2003 (Annexure-17), whereby engineer-in-charge, Airports Authority of India (respondent No. 6) has rescinded the contract dated 2.12.2002 pertaining to construction of shoulders, widening of Turning pad and construction of perimeter road at Jai Prakash Narayan International Airport, Patna, and letter No. 385 dated 7.7.2003 (Annexure 17/1) requesting the Senior Manager, Canara Bank, Govind Mitra Road, Patna for encashment of Bank guarantee. 2. In short, the relevant facts are that on 17.9.2002 Airport Authority of India published tender notice in Hindustan Times for the above work at the estimated cost of Rs. 332.69 lacs. According to the petitioner, the time allowed was 15 months, which was subsequently reduced to 6 months. The petitioner submitted his tender paper on 30.10.2002 quoting Rs. 2,55,70,601.00 i.e. 18% less than estimated cost. On 15/18.11.2002 he was intimated by the Airport Authority about acceptance of his tender, whereupon an agreement was signed, on 2.12.2002. According to the case of the petitioner on 4.12.2002 he sought permission to visit the site at Patna Airport and on 11.12.2002 requested for grant of temporary pass for taking initial level of site. On 14.12.2002 he requested respondent No. 8 to handover site for execution of work, provide space for dumping material as well as for implanting hot Mix Plant and for temporary hutments for labourers. Permission of heavy vehicles from 10 p.m. to 6 a.m. was allowed on 17.1.2003. It is alleged that time schedule for completion of work was reduced from 15 months to 6 months and at the same time restriction was put for carrying on construction only during dead-night i.e. after 10 p.m. to 6 a.m. It is further alleged that some time due to delayed flight entry pass were issued only after 11 p.m. or thereafter and, thus, even the said working hour was reduced to only 4 to 6 hours. It is further alleged that the State of Bihar was under severe cold wave from the end of December, 2002 to whole of January, 2003 and normal life was paralysed causing impossible to carry out the construction work during night. It is further alleged that the State of Bihar was under severe cold wave from the end of December, 2002 to whole of January, 2003 and normal life was paralysed causing impossible to carry out the construction work during night. It is further alleged that during the visit of Hon ble President of India and Hon ble Vice-president of India and other VIPs petitioner was not allowed to continue with the construction work even on days apart from Sunday and other holidays due to security reason. According to the petitioner, permanent entry pass of labourers is yet to be issued in the name of verification and every day 2 hours time is consumed by the respondents in issuing temporary pass. Despite all these odds the petitioner claims to have completed cleanliness of work site and foundation work and is in a position to complete entire work within one month as materials are dumped at site, Hot Mix Plant is almost implanted and 160 labourers are in readiness to complete the construction work. It is alleged that most of the time of 6 months were consumed by the respondents in completing one or the other formalities viz verification of labourers, test of materials, soil and lime testing, commercial slack lime testing and approval of formation level of perimeter road. It is further alleged that in the absence of approval of formation level or test report of materials, soil and lime and commercial lime, which were the job of the respondents and which they completed in May, 2003, the petitioner could not consume these 5/6 months. On 23.2.2003/17.3.2003/4/4/2003 respondents issued 7 days show cause notice alleging slow progress of work and petitioner explained that the slow progress is due to reason beyond his control as the formalities on the part of respondents have not been completed. He also submitted the progress chart detailing the execution of work, yet. Respondent No. 6 issued the impugned orders. It has, thus, been contended that the delay in commission of work is attributed to respondents. The petitioner claims to have invested one crore over dumping materials, implantation of hot mix plant and over labourers and, thus, has given undertaking that if one month clear time is provided he is in readiness to complete the entire work within the said time. 3. The petitioner claims to have invested one crore over dumping materials, implantation of hot mix plant and over labourers and, thus, has given undertaking that if one month clear time is provided he is in readiness to complete the entire work within the said time. 3. In the supplementary affidavit, petitioner has stated that during the pendency of the writ petition, respondent-Airport Authority of India has issued fresh tender notice for the said work for an estimated cost of Rs. 249.90 lacs within five months and fixed 10.10.2003 as the last date for filing of tender documents. A copy of the said notice published in daily Hindustan Times has been annexed as Annexure-18. It is, thus, stated that the respondents have not allowed one month time to the petitioner for completion of work and vide fresh tender they are going to grant five months further time for completion of work from the date of acceptance of tender. It is further stated that there is absolutely no complaint about the quality of work and, hence, the action of the respondents in the facts and circumstances manifests arbitrariness and mala fide as delay is directly attributed to the respondents in completing formalities on their part. 4. A counter affidavit has been filed on behalf of Airport Authority and its officials (respondent Nos. 2 to 8) in which apart from raising preliminary objection regarding maintainability of writ petition, the said respondents have alleged that the petitioner has not only failed to carry out various obligations as per Clause 8,26, and other part of the agreement enumerated in paragraph 4, actual execution of work was also very slow inasmuch as the actual progress made on the date of rescinding the contract i.e. 7.7.2003 was only to the extent of Rs. 54 lacs approximately against the contract value in seven months. It is alleged that Engineer-in-charge and other officials of the Authority kept on reminding the petitioner orally to expedite construction work so as to complete within the stipulated period and sent repeated reminders in writing also. According to the said respondents, despite repeated reminders, petitioner did not respond positively and failed to expedite the execution work. Respondent No. 6 issued show cause notice on which also there was no change in the attitude, upon which second and final show cause notice was issued, yet the petitioner did not adhere to the stipulated time schedule. According to the said respondents, despite repeated reminders, petitioner did not respond positively and failed to expedite the execution work. Respondent No. 6 issued show cause notice on which also there was no change in the attitude, upon which second and final show cause notice was issued, yet the petitioner did not adhere to the stipulated time schedule. According to the respondents, the work in question is very sensitive and involves great risk as it is related to flying of plane, and, thus, the time is an essence of contract to which the petitioner has hardly shown any concrete step taken by him to accelerate the progress of work. Accordingly, on 7.7.2003 contract has been rescinded and keeping in view the urgency of work a fresh tender notice has been issued inviting tender for completion of balance portion of work and in response thereto tenders have been received and is in the process of being finalised. As regards reducing of time from 15 months to 6 months, it is stated that certain civil building items of work were deleted from the original scope of work and the original estimated cost was also reduced. According to the said respondents, there has been no delay on their part. It is stated that the petitioner has been detailed about the requirement of security passes/vehicular passes which was required for operational area as the Airport is the high security and protected area. It is, however, admitted that in terms of agreement the contractor should have known before hand that materials could be transported only during night hours due to local traffic regulations. Moreover, the contractor should have also known that the site of work is in the restricted operational area where entry is regulated through security entry passes and that too during non-flight hours only. It is, thus, alleged that there was total lack of planning on the part of contractor in procurement of materials required for the work which is the main cause in the abnormal delay in execution. It is stated that as per the agreement the materials to be used in the work are to be tested for the quality requirement and the testing of materials is the responsibility of the petitioner. The completion period of six months includes the time required for testing of materials. It is stated that as per the agreement the materials to be used in the work are to be tested for the quality requirement and the testing of materials is the responsibility of the petitioner. The completion period of six months includes the time required for testing of materials. According to the said respondents, as per the technical specification No. 2.02(c), 5.01 the testing of materials is the responsibility of the petitioner, however, it is admitted that since the petitioner in the first place did not set up field laboratory, respondents taken action for testing the materials to ensure the quality of materials before being used in the work. It is further alleged that though the work should have been started on 25.11.2002, the petitioner has not started the work in time. The petitioner started the collection of aggregates for work only during 1st week of March and the respondents could send the materials for testing only after this period. Thus, it is alleged that the delay in testing of materials is purely due to delay in arranging the samples by the petitioner. 5. Petitioner has filed reply to the said counter affidavit to which copy of the office notes dated 3.4.2003 of the Assistant Manager of the Authority has been brought on record as Annexure 18 to show that after request by the petitioner regarding the problem of entrance through the gate to the work site the respondents authorities made provision for separate entrance through separate gate, which was erected from aviation site only in the month of June, 2003, hardly a month before rescinding the agreement. 6. Earlier this court considering the undertaking given by the petitioner to complete the work within one month and also the cost of construction work, which would increase on account of acceptance of subsequent tender and time schedule will also be much more than the period for which undertaking was given by the petitioner, on the request of Mr. Shahi, learned Senior Standing Counsel adjourned the matter to enable him to take instruction on the above question and whether there can be any legal impediment in allowing the petitioner to complete the work. Mr. Shahi on instruction submitted that viewing the performance of the petitioner in past the Authority is not satisfied and not ready to accede to allow the petitioner to complete the work. Mr. Shahi on instruction submitted that viewing the performance of the petitioner in past the Authority is not satisfied and not ready to accede to allow the petitioner to complete the work. According to him, the work was of very sensitive nature and, thus, cannot allow it to be delayed in the hands of the petitioner. He submitted that the petitioner has been able to complete only 27% of the total work up-till-now, and, as such, it is not possible for the Authority to allow him to grant any time to complete the work. 7. Learned counsel for the petitioner has submitted that Annexure-18 itself shows that gates and segregated area was inspected in the presence of Inspector, CISF only on 3.4.2003 and only thereafter the Authority decided that the gate in the boundary wall will be opened on 7.4.2003 and the said letter was, thus, issued as per the instruction of the Airport Director. He submitted that it is not disputed that the gate was opened in June, 2003 and only a month thereafter the contract was rescinded, and, thus, he contended that the Authority should have considered all these aspects before denying extension of time which was permissible as per the general conditions of contract. Mr. Shahi has not disputed that the extension of time was permissible under general conditions of contract, but, he submitted that in the facts and circumstances of the present case, Airport Authority being not satisfied with the progress of work made by the petitioner did not grant extension of time. 8. I am unable to appreciate the said stand of the respondent-Airport Authority. There cannot be any doubt that the work is of very sensitive nature and the party should adhere to the time schedule, but, at the same time, this court finds it difficult to ignore the various factors coming in the way of execution of work due to security reasons, abnormally bad weather etc. However, I do not wish to go into the said controversy. However, I do not wish to go into the said controversy. But, in public interest considering the peculiar facts and circumstances of the present case and keeping in view the undertaking given by the petitioner to complete the work positively within one month and also the fact that the time for completion of work by the fresh tenderer would be five times more and, further, that it would also cost more for which the petitioner can complete the work, this court does not find any justification in denying extension of time as per the general conditions of contract, moreso, when there is no allegation with respect to quality of work executed by the petitioner so far. 9. In the result, writ application is allowed. The impugned orders, contained in Annexures-17 and 17/1 are hereby quashed. The respondents are directed to allow extension of one months time to the petitioner to complete the work by issuing formal order, whereupon the petitioner shall abide by the undertaking given before this Court for completion of work positively within a month, failing which the Airport Authority will be at liberty to proceed in the matter in accordance with law.