JUDGMENT 1. - Brief facts of the case are that the Public Health & Engineering Department issued a tender on 14.12.2001 inviting bids for "Execution of transmission part of Chambal-Dholpur-Bharatpur Water Supply Project on Single Responsibility Basis i.e. Design (Selected Part) Build, Operation and Maintenance". The petitioner company submitted its bids that was found to be successful bidder and vide letter dated 15.11.2002 the respondent No.1 accepted bid of the petitioner company and awarded the work to the petitioner company. 2. As per acceptance letter and work order, the time of completion of the project was to reckon from 10th day of the issuance thereof i.e. 24.11.2002 and the execution period was 30 months i.e. upto 25.5.2005 and operation and maintenance period was 60 months. 3. The petitioner No. 1 commenced the work with effect from 24.11.2002 and started mobilization, survey, engineering etc. Then the work order dated 5.12.2002 was issued by the respondent No.3 in favour of the petitioner and agreement was also executed on 17.1.2003 between the petitioner and respondent No. 3. 4. The petitioner submitted that the work was a single responsibility turnkey job and the contractor/supplier is responsible for entire survey, soil survey, site reconnaissance, design, drawing, implementation, testing and commencing operation and maintenance of the work which envisaged the intake well and approach bridge, intake pumping station, raw water pipeline, raw water reservoir at intermediate pumping station, draw water (Raw) of take point, raw water reservoir and raw water pumping station at Mallah treatment plant, all components of power sub station of protection equipment, devices, alarms, meters, material plans, equipment or components thereof and all structures from intake well to Mallah terminal points rates etc. and include any addition, modification, alternations, replacement, repair as may be made thereto from time to time during operation and maintenance period. 5. It is also given out by the learned counsel for the petitioner that the total pipeline supplied is 35 km and over 25 km of pipeline has been laid, and over 18 km of pipeline had sectionally been tested and balance 10 km of pipeline is lying at site and could not be laid due to want of land. 6. Work of cutoff wall between intake to Sagarpada is approximately 60% complete and details of other works is also mentioned as under:-SAGARPADA HEAD WORKS RWR Sagarpada:- Approximately 40% work has been completed. 6. Work of cutoff wall between intake to Sagarpada is approximately 60% complete and details of other works is also mentioned as under:-SAGARPADA HEAD WORKS RWR Sagarpada:- Approximately 40% work has been completed. Inlet structure of RWR Sagarpada:- Approx. 50% work has been completed. Outlet structure of RWR Sagarpada:- Approx. 20% work has been completed. Type IIIrd Quarter:- Out of 2 No. Quarters, both have been competed up to roof level (roof laid). Approx. 60% work is completed. Type IVth Quarter:-Out of 4 No. Quarter, only two quarters has been completed up to roof level/roof laid (Approx 60% work is competed for 2 qtr. Only). Type V Quarter:- Out of 8 No. Quarters, all Quarters have been completed up to roof level/roof laid (Approx. 6% work is competed). Inspection Bungalow:-Roof has been laid. Approx. 60% work is compete. Boundary Wall: Approx 90% work is competed; main gates etc. are still to be fixed. MALLAH HEAD WORKS RWR is around 60% competed. Inlet chamber of RWR is 85% competed. Outlet chamber is completed about 5% For 2 Nos of Clariflocculator of 36 mtrdia outer wall has been completed. Mechanical components for 3 nos of clariflocculator has been procured. 15 nos. of Butterly Valves is procured. Boundary wall : Approx. 90% work is completed; main gates etc. are still to be fixed on 28 April, 2005 the respondents directed the petitioner No.1 to stop execution of further work and Essar had protested the same. 7. The learned counsel for the petitioner also submitted reasons as to why the petitioner company could not complete the work well within time schedule as the following obstructions are caused to perform the work: i. In or about, January, 2003, the petitioner no.1 had submitted its designs and drawings for approval to the respondents and the respondents approved the same without any modification after lapse of 5 months in spite of several requests and reminders by the petitioner no.1 for immediate approval thereof. ii. In or about May 2003, the villagers of the village Vijendra Bandli did not permit the petitioner no.1 to commence the work stating that they have not received compensation for their lands acquired by the respondents and on that ground obtained stay against execution of the works during Dec. 2003 by the petitioner. ii. In or about May 2003, the villagers of the village Vijendra Bandli did not permit the petitioner no.1 to commence the work stating that they have not received compensation for their lands acquired by the respondents and on that ground obtained stay against execution of the works during Dec. 2003 by the petitioner. The words at various places enroute of the raw water main could not be completed by the petitioner due to issue of right of way over the sites through which the raw water main was to be passed; iii. In or about July, 2003, the respondents unilaterally and high handedly started recovering exempted amounts of Excise Duty from the running bills of the petitioner No.1 although as per the contract, the petitioner alone was entitled to the benefit of the exemption in as much as the contract clearly provided that all taxes, duties, and levies shall be borne by the petitioner. The respondents have so far recovered Rs. 1,29,90,777/- and failed to refund to the petitioner. In the premises the petitioner has challenged the action of the respondents in SBWP (C) No. 5228 of 2003 in this Hon'ble Court which is pending; iv. Between August, 2003 to October, 2004, the respondents wrongfully, illegally recovered Rs. 117.32 lacs in aggregate towards the liquidated damages for alleged delay on the part of petitioner in execution of certain works, although there was no delay attributable to the petitioner and delay, if any, was only on the part of the respondents; v. In or about September, 2003, PWD officials of the respondent State did not permit the petitioner from commencing the execution of the work at the site in the village Jerila; vi. In or about September, 2003, the petitioner was not permitted to lay the water pipeline by the officials of GAIL on the ground that respondents have not taken permission from GAIL to lay such pipeline near gas pipeline of GAIL; vii. In or about December, 2003, the Forest Department of Government of Uttar Pradesh prohibited the petitioner from carrying out further work on the ground that the respondents have not obtained its permissions; and viii. In or abut January, 2004, the petitioner had partly laid the pipeline above the ground as authorised by the respondents near village Dholpur and Punjabi Nagla. In or about December, 2003, the Forest Department of Government of Uttar Pradesh prohibited the petitioner from carrying out further work on the ground that the respondents have not obtained its permissions; and viii. In or abut January, 2004, the petitioner had partly laid the pipeline above the ground as authorised by the respondents near village Dholpur and Punjabi Nagla. The respondents subsequently changed the alignment of said pipeline and directed the petitioner to lay afresh the said pipeline below the ground. 8. It is also given out that various difficulties faced by the petitioner was also informed to the respondents in the meeting which was held on 6.12.2003. In response thereto, the respondent No. 3 assured to take prompt action, but he failed to do so. Consequently, the petitioner made a number of representations to the Chief Minister and Minister for P.H.E.D. of the respondent State, pursuant to which several meetings took place between the representatives of the petitioner and the Chief Minister and the Minister in which the respondent Nos. 2 to 4 were also present. 9. After showing the difficulty, the petitioner also submitted that the petitioner would not be able to complete the balance work within the remaining available time i.e. by 25.5.2005 and having the desire to complete the entire work of the project, applied for extension of the time vide letter dated 2.12.2004 and time was extended upto 24.12.2006 stating clearly therein that extension is due to delay in providing land for intake Headworks for want of environmental clearance on the part of the Government. The respondents further addressed a letter dated 16.4.2005 informing the petitioner that Hon'ble the Supreme Court has granted permission on 15.4.2005 for construction of intake Headworks and accordingly the land is handed over to the petitioner for construction of intake structure in Chambal river (Dholpur), other allied work at Chambal Headworks and providing and laying of pipeline from Intake to Sagarpada, which is pending for want of the environmental clearance. 10. Since the progress of work was not found satisfactory by the respondents, the respondents vide letter dated 30.5.2005 issued notice to the petitioner to take action under clause (2) and (3) of the Contract and stated that the remaining work would be completed by adopting the course as mentioned in Clause 3C of the Conditions of the Contract. 11. 10. Since the progress of work was not found satisfactory by the respondents, the respondents vide letter dated 30.5.2005 issued notice to the petitioner to take action under clause (2) and (3) of the Contract and stated that the remaining work would be completed by adopting the course as mentioned in Clause 3C of the Conditions of the Contract. 11. The petitioner submitted that instead the respondents correcting themselves have issued a fresh tender as published in Times of India, Delhi Edition dated 25.6.2003 seeking to get the balance work of the said project done by a third party at the cost and risk of petitioner. 12. The petitioner submitted a detailed representation on 9.7.2005 requesting that the respondents be directed to withdraw all its aforesaid letters including the letters dated 30.5.2005 and 31.5.2005 and NIT and further respondent PHED be restrained from taking any actions in pursuance thereof by receiving and entertaining any bids and/or awarding the work under NIT to any third party as the last date for submission of bids is 30.7.2005 and bids will be opened on 1.8.2005. 13. Being aggrieved by the action of the respondents, the petitioner challenged the letters/orders impugned dated 30.5.2005 and 31.5.2005 and fresh NIT issued by the respondents by way of filing this present writ petition on the ground that the action and orders of the respondents are ex facie arbitrary, unfair, unjust, unreasonable and exhibition of colourable exercise of power and abuse of process of law and thus violative of Articles 14, 19(1)(g), 21, 299, 300 and 300-A of the Constitution of India. 14. Issuance of fresh tender was also challenged on the ground that the petitioner is prevented from participating in the new tender, which is illegal and such action of the respondents amounts to blacklisting the petitioner without any order to that effect and without even any show cause notice. 15. It is further challenged on the ground that the respondents had no authority or jurisdiction to issue fresh tenders such much less, on the risk and cost of the petitioner because the petitioner was always ready and willing to complete the job on a reasonable compensation. 16. Admittedly, the initial period of contract was to expire on 25.5.2005 and the period required for construction of the intake well at the site and around, required a period of 24 months. 16. Admittedly, the initial period of contract was to expire on 25.5.2005 and the period required for construction of the intake well at the site and around, required a period of 24 months. The contract was for a period of 30 months. Thus, as per own showing of the respondents the petitioner could not have completed the contract in any manner within the original stipulated period upto 25.5.2005. 17. Learned counsel for the petitioner further submitted that the nature of contract was lump sum contract for Execution of Transmission Part of Chambal Dholpur Bharatpur Water Supply Project on a single responsibility basis turnkey job i.e. design, build operate and maintenance as per clause 1.2. of Instructions to Bidders land duration of work to be completed in 30 months as per clause 3 of Instruction to Bidders and as per clause 2 of General Conditions of Contract, the time is the essence of contract for the contractor. 18. The maintenance period after completion of the work is five years as per clause 3 of Instructions to Bidders and termination of contraction if contractor commits breach of terms & conditions of the contract can only be possible as per clause 3(iii) of the General Conditions of Contract. And regarding providing site it was made clear in clause 1.7 of Instructions to Bidders that the site was to be made available by the Govt. to the contractor as soon as the work is awarded. For delay in completion of work, the contractor is liable to pay compensation to Government for delay in any lap, however slow progress if finally covered up within stipulated period then such compensation to be refunded by Government to contractor as per clause 2 of General Conditions of Contract. No claim is admissible on behalf of contractor if delay in giving site by Government as stipulated in clause 1.7 of Instructions to Bidders and clause 6 of Special condition of Contract. 19. The petitioner further submitted that the contract was awarded on 15.11.2002 but part of land was not made available by 2nd December, 2004. In view of this fact, time was extended till 24.12.2006 though the extension of time was protested by the petitioner as the time was extended without revising the terms. 20. 19. The petitioner further submitted that the contract was awarded on 15.11.2002 but part of land was not made available by 2nd December, 2004. In view of this fact, time was extended till 24.12.2006 though the extension of time was protested by the petitioner as the time was extended without revising the terms. 20. And it is not disputed that the land was offered to the petitioner other than intake well offer on 16.4.2005 on 21.4.2005 the petitioner informed the department that the terms have to be revised. 21. Since the petitioner is not able to complete the work within the stipulated period and even the extended period therefore vide order dated 30.5.2005 the contract awarded in favour of the petitioner was terminated and penalty of Rs. 13.6 crore 10% of the contract value is also imposed therefore, the NIT was invited for completion of balance work on 25.6.2005. 22. Learned counsel for the petitioner challenged the impugned order dated 30.5.2005 by which the contract awarded in favour of the petitioner stood terminated on the ground that the action of the respondents is arbitrary and violative of Article 14 of the Constitution and in support of his submissions he placed reliance on the judgment rendered by Hon'ble the Supreme Court in the case (1) State of Karnataka v. Shree Rameshwara Rice Mills, reported in AIR 1987 S.C. 1359 wherein it was held as under: "Here it has been held that even where the Government has a right to impose damages under the contract it can do so only after an independent forum determines who has committed breach of contract. Government could not by itself decide in its own favour that the petitioner has committed breach of contract and therefore it could not have invoked clause 3 of General Conditions of Contract". 23. The above judgment has been followed by Hon'ble the Supreme Court in the case of (2) P.V. Paily v. State of Kerala & Others reported in AIR 2000 S.C. 268 wherein the provisions of the contract concerned was almost similar to the contract in the instance case. 24. Per contra, on behalf of the respondents maintainability of the writ petition is challenged as the petitioner has alternative efficacious remedy provided under clause 23 of the Agreement. 24. Per contra, on behalf of the respondents maintainability of the writ petition is challenged as the petitioner has alternative efficacious remedy provided under clause 23 of the Agreement. It is further important to mention Clause 51 of the Agreement which clearly stipulates that unless the remedy provided under Clause 23 is not fully exhausted, parties to the Agreement will not be entitled to approach the competent civil court. 25. Learned counsel for the State further submitted that though the petitioner company approached the standing committee but did not deposit the required fees for the purpose nor the plaint was on the prescribed format. Thus the committee had no option but the reject the application seeking settlement of disputes and petitioner company was informed about this fact. 26. It is contended that the petitioner has left the work incomplete. The Department has taken action against the petitioner firm as per provisions of Tender documents. Fresh tenders for the balance work have been called and the due date of opening tender was fixed on 25.8.2005. 27. Learned counsel for the State referred Clause 23 and 51 and submitted that for applying before the Standing Committee for Settlement of Disputes, the petitioner have to follow the required procedure in the following manners:- The application should have been submitted to the Additional Chief Engineer PHED Region Bharatpur who is the Engineer in charge. The firm did not deposit the required fee. The application has not been submitted under the signature of the authorised signatory. The firm should have given a period of one month to the Additional Chief Engineer PHED Region Bharatpur for referring the matter to the committee. The firm has moved to the Hon'ble High Court of Rajasthan Jaipur without completion of proceedings under Clause 23 of this Contract. This is breach of contract. 28. The respondents submitted that the delay was caused by the petitioner himself and not on account of non-availability of site in question as the order passed by the respondents promptly from time to time. Further details as given by the respondents are being narrated in the foregoing paras : S.No. Particulars Date 1 Administrative & Financial Sanction of part I phase I of the water supply project by Finance Committee of PHED in its 356th meeting for Rs. 166.50 crores. Further details as given by the respondents are being narrated in the foregoing paras : S.No. Particulars Date 1 Administrative & Financial Sanction of part I phase I of the water supply project by Finance Committee of PHED in its 356th meeting for Rs. 166.50 crores. 21.6.1999 2 Administrative & Financial Sanction of part I phase I of the water supply project by policy planning committee in its 130th meeting. 06/07/99 3 Approval of packages for case of Technical sanction at competent level by Technical Committee of PHED , its 230th meeting. 17.8.1999 4 Technical sanction for Rs. 114.63 crores by Technical Committee of PHED in its 293rd meeting for the components of the work which are included in the work of "Execution of Transmission part of Chambal Dholpur Bharatpur Water Supply Project on Single Responsibility Basis i.e. Design (Selected part) , Build. Operate and Maintenance" for which work was awarded to M/s. EPL. 13.12.2001 5 Due date of tenders for the said work. 6 Approval of tenders by Financial Committee of PHED 13.9.2002. 7 Receipt of Negotiated offer from M/s. EPL 03/09/02 8 Issue of letter of acceptance to M/s. EPL vide letter No. CE (HQ) 13684-91 dated 15.11.2002 by Chief Engineer PHED Rajasthan Jaipur. dated 15.11.2002 29. Brief particulars of the water supply project are :TABLEEstimate cost, Rs. 166.50 crores S. No. Particulars Bharatpur District Dholpur District Total 1 Design year 2016 2016 - 2 No. of Villages 930 69 999 3 Pop of villages (Design) 1558044 166828 1724872 4 Water demand of villages (Design) 623.21 66.73 689.94 5 No. of towns 5 NIL 5 6 Pop of towns (Design) 568512 NIL 568512 7 Water demand of Town (lac Lrs per day) 545.3 NIL 545.3 Details of Villages/Towns proposed to be covered30. The approvals issued so far are for phase I part I of the project. Under this the transmission main & other components, for which work was awarded to M/s. EPL, have been designed for all the 999 villages & 5 towns. But at present only 212 villages (69 of Dholpur Distt. & 143 of Bharatpur Distt.) & Bharatpur Town is proposed to be benefited.31. The phasing of the project has been done because a huge amount of Government money is involved after completion of this part II to cover balance villages & town will be taken up. The project is partly funded by the Central Government.32. & 143 of Bharatpur Distt.) & Bharatpur Town is proposed to be benefited.31. The phasing of the project has been done because a huge amount of Government money is involved after completion of this part II to cover balance villages & town will be taken up. The project is partly funded by the Central Government.32. Major components of Transmission main for which work was awarded to M/s. EPL are as under: (a) Construction of Intake well, Pump house, Approach Bridge etc. at Chambal river, Dholpur. (b) Construction of Electric GSS, Quarters etc & development of Head Works at the bank of Chambal river. (c) Providing laying & jointing of pipe line & construction of ancillary works from Intake to Sagarpada Head works (Dholpur) in a length of about 2 km. (d) Construction of Raw Water Reservoir Pump House, Electric GSS, Residential quarters etc. at Sagarpada Head Works (Dholpur). (e) Providing laying & jointing of pipeline from Sagarpada to Mallah (Bharatpur) in a length of about 83 km. including ancillary works. (f) Construction of Raw water reservoir, Pump house, Clarifloculator, Water Treatment plant water reservoir, Electric GSS etc. at Mallah Head works. 33. M/s. EPL was to do all construction activity commission the complete system & maintain it for 5 years thereafter.34. The water of the villages & Towns, proposed to be covered under the Water Supply Project will be supplied through separate water supply scheme, which are not part of the work awarded to M/s. EPL. Work order for one of the Water Supply Scheme to cover 44 villages of original project and additional 18 new revenue villages of Dholpur District, to be covered from Sagarpada Head works, has been issued to another contractor. The stipulated date of completion against this order is January, 2007 which is one month before the extended date of completion (28.2.2007) for the work awarded to M/s. EPL. The water for these villages will be made available from the transmission system for which work was awarded to M/s. EPL. Above 62 villages may not get potable water in time because M/s. EPL has not completed the said work.35. The work of "Execution of Transmission part of Chambal Dholpur Bharatpur Water Supply Project on Single Responsibility Basis i.e. Design (Selected part), Build, Operate and Maintenance" was awarded to M/s. Essar Project Ltd. Vide letter No. ACE/JP/CDBP/2002-03/23586 dated 5.12.2002 of Additional Chief Engineer PHED Region Jaipur. The work of "Execution of Transmission part of Chambal Dholpur Bharatpur Water Supply Project on Single Responsibility Basis i.e. Design (Selected part), Build, Operate and Maintenance" was awarded to M/s. Essar Project Ltd. Vide letter No. ACE/JP/CDBP/2002-03/23586 dated 5.12.2002 of Additional Chief Engineer PHED Region Jaipur. Earlier to it letter of acceptance was issued vide letter No. CE (HQ) 13684-91 dated 15.11.2002 by Chief Engineer (HQ) PHED Raj. Jaipur. The stipulated date of start and completion as per the terms and conditions of the contract for the execution part were 24.11.2002 & 23.5.2005 respectively. After this the contractor was to do the operation and maintenance of the executed work for a period of 5 years. The completion date was extended upto 28.2.2007 vide letter No. vide letter No. 2349-2358 dated 25.5.2005 issued by ACE PHED Region Bharatpur, as requested by M/s. EPL vide their letter No. 702 dated 6.11.2004 in compliance to clause 5 of General Conditions of contract. Thereafter the period of O&M for 5 years is to start. The work was awarded for the total cost Rs. 137 crores ( Rs. 128.35 crores for execution part and Rs. 8.65 crores for operation and maintenance for 5 years after execution).36. M/s. EPL submitted the construction schedule vide their letter No. 40 dated 22.3.2003 as per tender requirements. Same was approved by ACE (PHED) Region Jaipur vide letter No. 212-214 dated 2.4.2003. The firm had to achieve the progress as per time schedule.37. The progress of the work had been very slow throughout the execution period. Till 31.3.2005 payment of only Rs. 28.48 crores could be made. The firm was directed time and again to improve the progress of the work, but no appreciable improvement was made.38. The firm had submitted revised construction schedule but could not achieve progress even as per this schedule.39. The firm all of a sudden started saying that they are unable to lay pipeline because of non-availability of ROW for laying of pipe line. Initially the firm had laid about 25 km of pipeline but later on the firm insisted that ROW should be handed over to them in writing. They also mentioned in their letters that no further clear ROW is available and thus they cannot lay pipeline. Initially the firm had laid about 25 km of pipeline but later on the firm insisted that ROW should be handed over to them in writing. They also mentioned in their letters that no further clear ROW is available and thus they cannot lay pipeline. Whereas the fact is that clear ROW was available from the very beginning as about 72 km out of total length of about 85 km ROW is alone the road where the land is already in possession of State Government. Necessary permissions from concerned department have also been obtained. As per approved schedule the firm had to start laying of 1200 mm PSCC pipe from June 2003 but the firm started supply of this pipe from July, 2004, thirteen months after scheduled date of start. Perhaps by that time the firm might have already decided withdraw from the project and started putting unreasonable blames on the department. To remove the misunderstanding of the firm, a joint inspection of the site was done in which the Project Manager of M/s. EPL was also present. It was accepted by the firm that more than about 32 km of land for laying of pipe line in addition to already laid pipe was available. Out of total clear ROW of about 57 km the firm could lay only about 25 km of pipe line. The major length to be laid in balance ROW is of PSCC pipe out of this about 31 km is of 1300 mm PSCC for which the firm never supplied the pipe. Apart from it, the firm had to lay about 18 km of 1200 mm PSCC pipe. The firm could not start timely supply of this pipe also. Instead of laying pipe in available ROW the firm started blaming the department. The firm unnecessarily delayed the work of laying of pipe line and is not demanding price escalation which otherwise would not have even come into picture had the firm shown possible progress in laying of pipe line and all other fronts.40. The pipeline was to be laid in a length of about 85 km. On award of contract the right of access to the site was provided by the department immediately and the firm started the survey, field investigations and collected necessary informations about the site. The pipeline was to be laid in a length of about 85 km. On award of contract the right of access to the site was provided by the department immediately and the firm started the survey, field investigations and collected necessary informations about the site. After doing detailed survey and field investigation the firm submitted the required Longitudinal Section for laying of pipeline. The required approval for L-Section was issued by the department. The preparation and submission of L.S. by firm shows that the site along the road was clear in the entire stretch. Of course the Government had to acquire land at following stretches. S.No. Chainage Length Location From To 1 90m 1504m 1414m Village Shekhpur, Mehmadpur Tehsil Dholpur 2 2116m 3604m 1488m Village Jhor Tehsil Dholpur 3 7144m 7194m 50m Village Pachgaon Tehsil Dholpur 4 7626m 8054m 428m Village Pachgaon Tehsil Dholpur 5 18680m 20336m 1656m Village Tasimo Tehsil Saipau 6 49328m 51006m 1678m Village Bhidyani 7 56129m 58300m 2171m Village Khanwa Tehsil Roo PWas 8 61057m 61380m 323m Village Cahnoli Tehsil Roo PWas 9 72128m 75072m 2944m Brijendra Bhandli (Village Nagla Tiketa , Chak Kazi , Chak Dhobi, Aghapur,Chakshyosingh) Tehsil Bharatpur 10 81906m 82792m 886m Village Mallah Tehsil Bharatpur 41. It was already made clear in the tender document that the site will be made available with the progress of the work. Thus, the remark of the firm that the respondent did not have all relevant site ready for delivery for execution of work and failed to disclose the same in the tender document, is not correct.42. The total work had to complete in 30 months. Thus instead of blaming the department for not providing above all stretches the firm should have concentrated on the available site so that the major portion of pipe could have been laid, but due to non-availability of PSCC pipes the firm could not show the progress.43. As per clause 2 of General Conditions of contract, the firm was supposed to give required financial progress, else compensation for slow progress is to be recovered. In compliance to this, the detailed calculations for compensation for slow progress of work at the end of I & II span was prepared by the firm and submitted vide letter No. 292 dated 10.12.2003 (at the time of 1st span and No. 473 dated 15.4.2004). In compliance to this, the detailed calculations for compensation for slow progress of work at the end of I & II span was prepared by the firm and submitted vide letter No. 292 dated 10.12.2003 (at the time of 1st span and No. 473 dated 15.4.2004). At the time of 2nd span placed at to the department, same were got examined in and based on it and on the break up of delays and calculations for compensation for slow progress submitted by the firm, compensation for slow progress was recovered from various running account bills.44. As per tender conditions the firm submitted the designs and drawings of various structures. Necessary approvals were issued for designs and drawings, which were as per requirements of tender specifications and for other the firm was requested to resubmit after doing required modifications. The firm started the work of execution of some of the structures after approval but the progress was very slow. For some of the structures the firm did not start the work at all. It was only due to this reason that the firm could not achieve the required progress.45. In spite of repeated instructions, during monthly meeting and through letters to improve the progress,the same was not improved. On the contrary, M/s. EPL further slowed the progress down as intimated by their letter No. 702 dated 6.11.2004 with following remarks : "As the constructed section are to be maintained by us without any remuneration even if any work is delayed on account of the department as per the terms and conditions of the contract and also in consideration of the fact that the uncommissioned section of work cause for more damages and repair. We had to slow down many activities so that the cost of maintaining the constructed section of work in future can be minimized. As the provision of clause 14 of Special Conditions of contract calls for making simultaneous prorata progress for all components of works. We in consideration to the uncalled expenses for maintaining an uncommissioned system have all rights to reduce the prorata progress without affecting the over all completion of project. As such our sincere efforts to execute the works as per the requirement should not be treated as a cause of levying compensation. We in consideration to the uncalled expenses for maintaining an uncommissioned system have all rights to reduce the prorata progress without affecting the over all completion of project. As such our sincere efforts to execute the works as per the requirement should not be treated as a cause of levying compensation. It will be not out of context to mention that grant of such extension with reasons for delay will not cause for any additional payment to works price escalation if compared with the situation where site would have been provided in time. 46. Although the firm was doing work in a very slow speed still to the surprise of the department the firm made representations at various levels and put up some demands stating that the department should accept their demands else will withdraw from the project.47. The part contents of letter No. nil dated 2.12.2004 written by M/s. EPL to the Hon'ble Minister PHED Rajasthan is reproduced hereunder: "Issues to be resolved:-Since the non-availability of land is the main reason for delay in the project, we request you to resolve the following issues immediately: (a) Extension of time till July, 2006 for the total project including payment of compensation for this extended stay. (b) Waiver of LD since the work could not be done due to non-availability of clearance from Govt. (c) Acceptance of BG in lieu of cash retention towards SD and return of the cash already deducted. (d) Refund of Excise amount of Rs. 113.76 lacs and no further deductions. (e) Escalation compensation for the increase in Cement and Steel cost. (f) Payment against the extra claims lodged already for Rs. 200 lacs. We are committed to complete this project and earnestly request to settle the above issues immediately and we assure you that the project will be completed by us to the highest quality standards and as per the schedule given above. You will appreciate that if there is any further delay in making availability of the ROW, the clearance for the intake well and non-settlement of above issues, we will not be able to sustain further losses and we will be constrained to withdraw from the project against our own wishes. You are once more requested to take necessary steps to avoid such happening since in the history of our company we have not abandoned any project." 48. You are once more requested to take necessary steps to avoid such happening since in the history of our company we have not abandoned any project." 48. The departmental comments on the above issues are as below:-Issue No. a The extension in time for completion was granted to the firm. Other demands could not be accepted being out of contract conditions. Issue No. b Refund by PHED of Rs. 1.12 Crores wrongfully deducted and retained towards the alleged delay in execution of certain works. As per clause 2 of General condition of contract M/s. EPL were supposed to give required financial progress, else compensation for slow progress has to be recovered from running a/c bills. In view of this provision, the detailed calculations for compensation for slow progress of work at the end of I & II span were prepared by M/s. EPL and submitted to department vide their letter No. 292 dated 10.12.2003 and No. 473 dated 15.4.2004 and are placed at (Annexure-10 & 11 respectively). As such, compensation for slow progress has been recovered from various running account bills based on calculations submitted by M/s. EPC only as per the provisions of the agreement interpreting its relevant clauses in the interest of the Government. As per the agreement, M/s. EPL could have got the refund of the compensation by improving progress in the subsequent time span(s). Issue No. c This is beyond the scope of tender conditions. Issue No. d Refund by PHED of Rs. 1.34 crores wrongfully deducted consequent upon grant of exemption of excise duty by the Central Government in respect of water supply scheme. As per the circular issued by the Central Excise Department, exemption in excise duty has been given for some components of water supply project. As per the decision in the meeting dated 4.7.2003 taken by Secretary PHED, in which representative of excise department was also present, it was decided that in all ongoing projects any such exemption should be passed on to PHED. Accordingly, the exemption availed so far by M/s. EPL is being recovered. In this matter, M/s. EPL has also filed a case in High Court at Jaipur. As the case is sub judice, no different action can be taken till the disposal by the court. Till date a recovery of Rs. 129.91 lacs has been done. Accordingly, the exemption availed so far by M/s. EPL is being recovered. In this matter, M/s. EPL has also filed a case in High Court at Jaipur. As the case is sub judice, no different action can be taken till the disposal by the court. Till date a recovery of Rs. 129.91 lacs has been done. The case has also been referred to Advocate General for his opinion in the matter in view of the earlier letter of the firm, but nothing has come up from his end so far. Issue No. e Price restructure for completion of remaining portion of works to cover the delay on more than 24 months, which is not attributable to Essar. As per clause 45 of the agreement with the firm, the price escalation is payable based on the indices published by RBI for original contract period as well as for the extended period. The agreement also says that price rise on the portion of work for which the delay beyond original schedule is on part of contractor, shall be paid considering its completion as per original schedule. Till date, department has paid Rs. 73.50 Icas towards the price escalation to the contractor as per the provisions of the agreement. For those works, for which land could not be made available by department or for other delays for which department is responsible, price escalation is proposed to be paid as per the provisions of the agreement. Till date, the firm has completed work worth Rs. 28.48 crores only against possible target of Rs. 72.00 crores after giving due consideration for delays on part of the department like non-handing over of land for intake etc. The firm has not given any specific calculation or amount of escalation so far but in the last meeting with Hon'ble Minister PHED, its representative mentioned about the matter as below : "Unless the Govt. agrees to pay the actual price rise on different materials like cement and steel, it would not at all be possible to start the work and assured that letter to this effect will be given to department within an hour after the meeting is over. agrees to pay the actual price rise on different materials like cement and steel, it would not at all be possible to start the work and assured that letter to this effect will be given to department within an hour after the meeting is over. The losses to firm by not doing the work would be much less as compared to that in the case they complete the work by accepting price escalation as per the agreement." Under the present agreement with the firm, it is not possible to pay actual price rise on cement and steel or price restructuring being demanded by the firm. As already submitted in the forgoing para, department has been making payments towards price escalation as per the agreement. In risk and cost as per the provisions of clause 3 of the agreement extra cost incurred on completion of work through other agency shall be recoverable from the firm. In case the firm does not resume the work even after issuance of notices as per rules, it is proposed to get the remaining work completed on its.Issue No. f Payment by PHED of Rs. 2 crores for additional works done as per its instructions. M/s. EPL had submitted claims for extra work worth Rs. 1.98 crores. However, the claims have not been considered tenable on account of various reasons as conveyed to M/s. EPL vide letter No. 10162 dated 8.12. Due to above reasons, the claims of the firm could not be accepted. Since December, 2004 the firm almost stopped the activity of laying of pipe line. The firm slowed down the work of execution of other activities also and finally stopped all construction activities in the month of April, 2005. In spite of repeated reminders and discussion with representatives of M/s. EPL, during the meetings with Hon'ble Minister PHED, Secretary to Govt. PHED, CE (SP) PHED Jaipur, Add. CE Bharatpur, M/s. EPL did not restart the work. Provisional time extension for completion of execution part was issued to the firm by Additional Chief Engineer PHED Region, Bharatpur vide letter No. 13684 dated 22.3.2005 (Annexure-15). In reply to it, Sr. Vice President of M/s. EPL replied vide their letter No. 3103 dated 31.3.2005 as under:- "Our proposals for extension of time for the performance of the contract is subject to the conditions specified in our letters dated 6.11.2004 and 2.12.2004 addressed to you. In reply to it, Sr. Vice President of M/s. EPL replied vide their letter No. 3103 dated 31.3.2005 as under:- "Our proposals for extension of time for the performance of the contract is subject to the conditions specified in our letters dated 6.11.2004 and 2.12.2004 addressed to you. In your letter under reply you have provisionally extended time up to 24.12.2006 due to delay in providing land for intake works at Chambal river for want of environmental clearance on the part of the Government, subject to the provisions contained in the contract. Your letter is not clear as to whether you have accepted or not our conditions for extension of time. Kindly note that we are not in a position to accept this provisional time extension without your acceptance of our other conditions mentioned in our letters dated 6.11.2004 and 2.12.2004. Time for completion of execution part was further extended by Additional Chief Engineer, PHED Region, Bharatpur vide letter No. 2349-2358 dated 25.5.2005. The payment for the work done by M/s. EPL have been made regularly on receipt of bill from M/s. EPL. But as reported by sub venders of M/s. EPL, they have still not released payments to them even for the work for which they have received payment from the department. Some of the venders are 1. M/s. Bhooratnam & Company. 2. M/s. Hindustan Dorr Oliver Ltd. 3. M/s. Kentee Construction Pvt. Ltd. 4. M/s. P. D. Kanojia. 1st notice to restart the work was issued to the firm by Additional Chief Engineer PHED Region, Bharatpur vide letter No. 1337-1346 dated 30.4.2005. The firm did not restart the work and in turn replied as under vide their letter No. 205 dated 2.5.2005. "In the above notice, you have called upon us to restart the work within 10 days of the date of notice and to ensure its completion within the extended time i.e. by 24th December, 2006. We say that we were doing the work at the site until 28.4.2005 on which date, your officials at the site forced us to vacate the site, which has resulted in stoppage of works. We further say and reiterate that unless all conditions, subject to which, we accepted receipt of your letter of extension of time, are accepted by your, we will not be able to complete the remaining work with respect to the project. We further say and reiterate that unless all conditions, subject to which, we accepted receipt of your letter of extension of time, are accepted by your, we will not be able to complete the remaining work with respect to the project. This does not mean that we are not ready and willing to complete the remaining work. As a matter of fact, we have been always, and even today, we are ready and willing to complete the remaining work provided you agree to our conditions arisen due to abnormal delays, which are just necessary and proper in the facts and circumstances of the case. Price for the contract holds good only during its term. Evidently, abnormal delay in the execution of the work is solely due to your failure in not making available to us all sites, right of ways and permissions necessary for the work within a reason ship time after the contract was awarded by you in discharge of your obligation under the contract considering the same, we request you once again to adopt a pragmatic and reasonable approach in the matter. In spite of what is stated by us hereinabove, if you initiate any action against us, we will have no option but to defend ourselves at your risk and responsibility as to costs and consequences thereof." 2nd notice to restart the work was issued to the firm by Additional Chief Engineer PHED Region Bharatpur vide letter No. 1722-1731 dated 10.5.2005. The firm still did not restart the work and in turn replied as under vide their letter No. 1605/02 dated 16.5.2005. "As is evident from earlier correspondence in the matter, delay in execution of the work is solely due to the failure on the part of the PHED to make us available sites and requisite permissions in time for enabling us to carry out the work. We further say that extension of time granted to us by you for completing the project work is not binding on us, particularly when you have not accepted the conditions stipulated by us while accepting your letter of extension of time. In view of all this, we express our inability to complete the remaining work unless all our said conditions are accepted by you, which are just and necessary and proper. In view of all this, we express our inability to complete the remaining work unless all our said conditions are accepted by you, which are just and necessary and proper. Despite what is stated herein above, if you take any action as specified in the letter, we will have no option but to defend ourselves entirely at your risk and responsibility as to costs and consequences thereof, which you please note." The matter was brought in the notice of Finance Committee. The matter was discussed in the 520th dated 26.5.2005 meeting of Finance Committee and following decisions were taken. "To serve 3rd notice under clause 3 of General Conditions of contract and to take further action as per this clause. To finalise and decide amount of compensations to be imposed under clause 3 of General Conditions of contract. To call tenders for balance work on the risk and cost of the contractor." 3rd notice to restart the work was issued to the firm by Additional Chief Engineer,PHED Region, Bharatpur vide letter No. 2554-2566 dated 30.5.2005.In the 3rd notice EE PHED CDBP Division Bharatpur was directed to record final measurements. M/s. EPL was requested by EE PHED CDBP Division Bharatpur vide letter No. 698-709 dated 31.5.2005 to attend the site on 6.6.2005 to witness recording final measurement. The representatives of the firm attended the site and the process of recording final measurements was started. The representatives of the firm witnessed the record measurements for view days but later on stopped coming to the site.The clause 3C (GCC) of TD volume I is reproduced hereunder:- CLAUSE 3 : RISK & COST CLAUSE (GCC) OF TD VOLUME I. The Engineer-in-charge or the competent authority defined under rules may, without prejudice to his rights against the Contractor, in respect of any delay of inferior workmanship or otherwise, or any claims for damages in respect of any breaches of the contract and without prejudice to any rights or remedies under any of the provisions of this Contract or otherwise, and whether the date for completion has or has not elapsed, by notice in writing, absolutely determine the Contract in any of the following cases. If the Contractor having been given by the Engineer-in-charge, a notice in writing to rectify, reconstruct or replace any defective work or that the work is being performed in any inefficient or otherwise improper or un-workman like manner shall omit to comply with the requirements of such notice for a period of seven days, thereafter, or if the Contractor shall delay or suspend the execution of the work so that either in the judgment of the Engineer-in-charge (which shall be final and binding) he will be unable to secure completion of the work by the date for completion or he has already failed to complete the work by that date. If the Contractor, being a company, shall pass a resolution or the court shall make an order that the company shall be wound up or if a receiver or a manager, on behalf of a creditor, shall be appointed or if circumstances shall arise, which entitle the court or creditor to appoint a receiver or a manager or which entitle the court to make a winding up order. If the contractor commits breach of any of the terms and conditions of this contract. If the contractor commits any acts mentioned in clause 19 thereof. When the Contractor has made himself liable for action under any of the cases aforesaid, the Engineer-in-charge on behalf of the Governor of Rajasthan shall have powers: (a) To determine or rescind the contract, as aforesaid (of which determination or rescission notice in writing to Contractor under the hand of the Engineer-in-charge shall be conclusive evidence), upon such determination or rescission, the earnest money, full security deposit of the contract shall be liable to be forfeited and shall be absolutely at the disposal of Government. (b) To employ labour paid by the department and to supply materials to carry out the work or any part of the work, debiting the Contractor with the cost of the labour and the price of the materials (of the amount of which cost and price certified by the Engineer-in-charge shall be final and conclusive against the contractor) and crediting him with the value of the work done in all respects in the same manner and at the same rates, as if it had been carried out by the Contractor under the terms of this contract. The certificate of the Divisional Officer, as to the value of the work done, shall be final and conclusive evidence against the contractor provided always that action under the sub-clause shall only be taken after giving notice in writing to the Contractor. Provided also that; if the expenses incurred by the department are less than the amount payable to the Contractor at his agreement rates, the difference shall not be paid to the contractor. (c) After giving notice to the contractor to measure up the work of the contractor and to take such part thereof, as shall be unexecuted out of his hands, and to give it to another contractor to complete, in which case nay expenses which may be incurred in excess of the sum which would have been paid to the original contractor, if the whole work had been executed by him (of the amount of which excess, the certificate in writing of the Engineer-in-charge shall be final and conclusive) shall be borne and paid by the original contractor and may be deducted from any money due to him by Government under this contract or on any other account whatsoever, or from his Earnest Money, Security Deposit, Enlistment Security or the proceeds of sales thereof, or a sufficient part thereof, as the case may be. In the event of any one or more of the above courses being adopted by the Engineer-in-charge, the Contractor shall have no claim to compensation for any loss sustained by him by reason of his having purchased or procured any materials or entered into any engagements or made any advances on account or with a view of the execution of the work or the performance of contract. And, in case action is taken under any of provisions aforesaid, the Contractor shall not be entitled to recover or be paid, any sum for any work thereof or actually performed under this contract unless and until the Engineer-in-charge has certified, in writing, the performance of such work and the value payable in respect thereof, and he shall only be entitled to be paid the value so certified. The clause 4C (GCC) of TD volume I is reproduced hereunder : Clause 4 CONTRACTOR REMAINS LIABLE TO PAY COMPENSATION IF ACTION NOT TAKEN UNDER CLAUSE 3 (i) In any case in which any of the power conferred by clause 3 hereof, shall have become exercisable and the same shall have not been exercised, the non-exercise, thereof, shall not constitute waiver of any of the conditions, hereof and such power shall, notwithstanding, be exercisable in the event of any future case of default by the Contract for which, by any clause or clauses hereof, he is declared liable to pay compensation amounting to the whole of his Security Deposit/Earnest Money/Enlistment security and the liability of the contractor for past and future compensation shall remain unaffected. (ii) Powers to take possession of, or require removal, sale of contractor's plant. (iii) In the event of the Engineer-in-charge putting in force, powers vested in him under the preceding Clause 3 he may, if he so desires, take possession of all or any tools, plants, materials and stores, in or upon the works or the site, thereof, or belonging to the contractor or procured by him and intended to be used for the execution of the work or any part thereof, paying or allowing for the same in account, at the contract rates or, in case of these not being applicable, at current market rates, to be certified by the Chief Engineer or duly authorised Engineer (whole certificate thereof, shall be final and conclusive), otherwise the Engineer-in-charge may by notice in writing to the contractor or his clerk of the works, foreman or other authorised agent, require him to remove such tools, plants, materials or stores from the premises (within a time to be specified in such notice), and in the event of the contractor failing to comply with any requisition, the Chief Engineer or other duly authorised Engineer may remove them at the contractor's expenses, sell them by auction or private sale on account of the contractor and at his risk in all respects, and the certificate of the Chief Engineer or other duly authorised Engineer, as to the expense of any such removal, and the amount of the proceeds and expense of any such sale shall be final and conclusive against the contractor. This water supply project is of great importance, as it will supply potable drinking water to 999 villages and 5 towns. A huge amount of Government money has already been spent and cannot be utilised till the project is complete. People are very eagerly waiting for its completion so that they may get potable drinking water. Since the firm failed to complete the work the department is left which no option but to get it completed through some other agency. As per clause 3 : risk & cost clause (GCC) of TD volume I the work is to be got completed on risk and cost of M/s. EPL. The clause related to contractor representative is reproduced hereunder:-CLAUSE 7.2 CONTRACTOR'S REPRESENTATIVE (TD VOL 1 SCC PART A) The contractor shall appoint the Contractor's Representative and shall give them all authority necessary to act on the contractor's behalf under the contract. Unless the Contractor's Representative is named in the Contract, the Contractor shall prior to the commencement date, submit to the department for consent the name and particulars of the person the Contractor proposes to appoint as Contractor's Representative. If consent is withheld or subsequently revoked, or if the appointed person fails to act as the Contractor's Representative, the Contractor shall similarly submit the name and particulars of another suitable person for such appointment. The Contractor shall not, without the prior consent of the department, revoke the appointment of the Contractor's Representative or appoint a replacement. The Contractor's Representative shall, on behalf of the Contractor, receive instructions. The Contractor's Representative may delegate any powers, functions and authority to any person, and may at any time revoke the delegation. Any delegation or revocation shall not to take effect until the department has received prior notice signed by the Contractor's Representative, naming the person and specifying the powers, functions and authority being delegated or revoked. Clause 6.2. BIDDER TO INFORM HIMSELF FULL (Instruction to bidder-TD Volume I)The bidder shall be deemed to have satisfied himself as to all the conditions and circumstances affecting the Contract price, as to the general circumstances at the site of the work, as to the general labour position at the site, as to the availability of construction material, water, electricity, as to the transport conditions, as to the climatic and meteorological conditions and to have fixed his prices according to his own view of these. Bidders are invited to visit the site with prior appointment with the Deptt. Clause 6.3 (instruction to bidder-TD Volume I) Bidders shall carefully examine the scope of work and specifications and fully inform themselves as to the conditions and matters, which may in any way affect the work or the cost thereof. Should a Bidder find discrepancies or omissions in the documents or should he be in doubt as to their meaning he should notify the Deptt. in writing not later than one week or present his request in written form during the pre-bid conference. The Deptt. will respond to any request which is made prior or during the pre-bid conference. Any resulting interpretation or modification of the bid documents shall be issued to all bidders as an addendum, which will become a part of the bid documents. The bidders shall acknowledge in writing the receipt of each addendum. No claims except as otherwise expressly provided will afterwards be accepted due to non-understanding or mis-interpretation of the bid documents. The firm failed in almost every field of execution due to poor management of their project staff. The firm could not complete in time even those works for which they had started the construction. The progress of the work had been very slow throughout the execution period. Till 31.3.2005 payment of only Rs. 28.48 crores could be made. The firm was directed time and again to improve the progress of the work, but no appreciable improvement was made. In spite of repeated instructions during monthly meeting and through letters, to improve the progress, the same was not improved. On the contrary, M/s. EPL further slowed the progress down. Some of the clause of conditions of the contract is reproduced hereunder:Clause 6 : RIGHT OF ACCESS TO THE SITE DURING EXECUTION (Special conditions of contract-part-A) The Department shall give the contractor right of access to all parts of the site. The site for execution of the work will be made available as soon as the work is awarded. In case, it is not possible for the Department to make the entire site available on the award of the work, the Bidder shall arrange his working program accordingly. No claim whatsoever, for not giving the site in full on award of the work or for giving the site gradually in parts will be tenable. In case, it is not possible for the Department to make the entire site available on the award of the work, the Bidder shall arrange his working program accordingly. No claim whatsoever, for not giving the site in full on award of the work or for giving the site gradually in parts will be tenable. However, if and to the extent that the Department's failure was caused "' by any error or delay by the contractor, including an error in, or delay in the submission of, any of the contractor's documents, the contractor shall not be entitled to such extension of time. Clause 7.8 Rights of way and facilities (Special conditions of contract-Part-A) The Contractor shall bear all costs and charges for special and/or temporary rights of way, which he may require, including those for access to the site. The contractor shall also obtain, at risk and costs, any additional facilities outside the site which he may require further purposes of the works of special condition of contract. Clause 1.7 Instruction to bidder-T.D. Volume Part-I The site for execution of the work will be made available as soon as the work is awarded. In case, it is not possible for the department to make the entire site available on the award of the work, the Bidder shall arrange his working program accordingly. No claim, whatsoever, for not giving the site in full on award of the work or for giving the site gradually in parts will be tenable. The Bidder may satisfy himself regarding site, acquisition of land approach roads etc. All above clauses were made part of tender documents. It was made clear that the site for various activities will be made available with the progress of the work. The firm could not lay pipes even in the stretches where ROW was available. In addition to laying of pipeline the firm had to do following activities. The firm could not complete these activities even in the places where they have laid pipeline. Testing of pipeline Providing and fixing of butterfly valves. Providing and fixing of air valves. Providing and fixing of scour valve arrangement. Providing and fixing of expansion joints. Providing and fixing of manholes. Construction of fixity blocks. Construction of required blocks to prevent flotation of pipe. Construction of valve chambers. Providing and fixing of electro magnetic water meter. Testing of pipeline Providing and fixing of butterfly valves. Providing and fixing of air valves. Providing and fixing of scour valve arrangement. Providing and fixing of expansion joints. Providing and fixing of manholes. Construction of fixity blocks. Construction of required blocks to prevent flotation of pipe. Construction of valve chambers. Providing and fixing of electro magnetic water meter. The firm has laid pipe line in a length of about 25 km length. The position of availability of additional clear Right of Way (ROW) for laying of pipe line as under : S. No. PARTICULARS LENGTH OF PIPE LINE REMARKS 1 Total length of pipe to be laid 85142m - 2 Pipeline already laid 25299m - 3 Clear ROW available where pipe can be laid 40966m M/s. EPL can lay pipe 4 Cutting Roadside plantation by forest department 5162m - 5 Hindrance due to electric poles 2910m M/s. EPL has to submit detailed proposals 6 Land to be acquired by PHED 9845m - 7 Hindrance due to railway crossing 100m - 8 Other hindrance 860m Will be got cleared as per intimation of M/s. EPL Out of this 32352m ROW was available from the very beginning. This has been agreed by Project Manager M/s. EPL during joint site inspection held on 1.3.2005 and 11.3.2005 and has been signed by him on papers in token of its acceptance and was conveyed to M/s. EPL vide this office letter No. 12058-2071 dated 19.3.2005. The signed copy of the statement was also enclosed in this letter.The Project Manager M/s. EPL was insisting on handing over of ROW in writing. There is no clause in the tender document that ROW is to be handed over to the contractor in writing. Earlier also the firm had laid 25 km of pipe line for which no demand for handing over of ROW was made by the firm. Thus the demand of Project Manager to handing over the ROW in writing is beyond contract agreement as per clause 6. Type & die of pipe Apps. Earlier also the firm had laid 25 km of pipe line for which no demand for handing over of ROW was made by the firm. Thus the demand of Project Manager to handing over the ROW in writing is beyond contract agreement as per clause 6. Type & die of pipe Apps. Length to be laid Pipe supplied Balance pipe to be supplied Pipe laid Balance pipe line issued to contractor but yet to be laid Remarks 1300mm MS 18028 10480 7548 7263 3217 - 1300mm PSCC 31068 - 31068 - - Pipe supply not started 1200mm MS 18403 16729 1674 14954 1775 727 m pipe laid for by- pass of RWR Mallah & Sagarpada 1200mm PSCC 18116 7780 10336 3675 4105 Started late On request of the firm M/s. Sheth & Sura Engineers Pvt. Ltd. was approved as additional vendor for 1300 mm PSCC pipe on 8.3.2004, still the firm did not start the supply and laying of this pipe. Clear ROW of about 25 km for this pipe is available from the very beginning. As per approved schedule the date of start and finish of PSCC pipe is 5.6.2003 and 19.1.2005 respectively. The firm could have easily completed this work in time for improving the progress. The factory of Sheth & Sura Engineers Pvt. Ltd. is located at a distance of about 12 kms from Bharatpur. About 500 mtrs of 1300 mm pipe have been manufactured by the firm but M/s. EPL did not offer even a single pipe for inspection.As per approved schedule the date of start of work of PSCC pipe was 5.6.2003. The supply of pipe was started in and around July, 2004. Against total required length of 18116m the firm supplied 7780m pipe and laid only 3675m till date. The firm could have laid this balance pipe but the work of supply and laying was stopped by the firm. The pipes have been kept by the firm along the road on the berms and are lying there for the last few months. This sometimes create hindrance to traffic and may cause accident. The firm has been requested time and again to keep these pipes away from the road but the firm has taken no action. The pipes have been kept by the firm along the road on the berms and are lying there for the last few months. This sometimes create hindrance to traffic and may cause accident. The firm has been requested time and again to keep these pipes away from the road but the firm has taken no action. The PWD officials have also requested the office for the same.For laying of MS pipe line from Intake to Sagarpada, clear ROW was available for 1200m length from the very beginning. In spite of the fact that the work was started in August, 2003 about 24 months have passed since the firm started laying of pipe in this stretch, the work still remains incomplete in this stretch.The necessary approval for calculation of scoure depth, for Parvati river, was issued vide letter No. 88 dated 27.4.2004 for about 880m length. Although about 16 months have passed still the firm has not laid this pipe.The firm was instructed time and again to submit proposals for electric poles, which are required to be shifted for their convenience to lay the pipe line. The required proposals have not been submitted so far. As per tender conditions the firm has to pursue the matter in the concerned department PHED has already applied for it under intimation to the firm.The excavation for laying pipe line was started about 17 months back for a length of about 4 km. the complete pipe line has still not been laid. The trench has not been refilled completely where ever pipe has been laid. The refilling of trench has not been done with sand of required quality. The required rectification has not been done in spite of repeated instructions.The clause related to providing by pass arrangement for traffic before taking up work of road cutting etc. is reproduced as under :3.16 Reinstatement of Road/Footpath "WHEREVER ' THE ROAD IS REQUIRED TO BE CUT, THE DEPTT. SHALL OBTAIN PRIOR PERMISSION FROM THE CONCERNED AUTHORITIES. THE CONTRACTOR HAS TO PREPARE A NEGOTIABLE DIVERSION. AT THIS COST, BEFORE TAKING UP ROAD CUTTING. AFTER THE LINE HAS BEEN LAID AND THE TRENCH REFILLED TO THE ORIGINAL LEVEL. THE TRAFFIC MAY BE ALLOWED TO PASS THROUGH. SHALL OBTAIN PRIOR PERMISSION FROM THE CONCERNED AUTHORITIES. THE CONTRACTOR HAS TO PREPARE A NEGOTIABLE DIVERSION. AT THIS COST, BEFORE TAKING UP ROAD CUTTING. AFTER THE LINE HAS BEEN LAID AND THE TRENCH REFILLED TO THE ORIGINAL LEVEL. THE TRAFFIC MAY BE ALLOWED TO PASS THROUGH. AFTER THE PIPE IS LAID THE ROAD MUST BE PROPERLY RE-GRANDED AND THE DAMAGED PORTION OF ROAD AS WELL AS THE RE-GRADED PORTIONS MUST BE CONSTRUCTED UPTO THE SUB-GRADE LEVEL AS PER THE SPECIFICATIONS IN THE CHAPTER 13-SPECIFICATIONS FOR ROAD WORK OF THIS VOLUME-II OF BID DOCUMENT." The clause 7.4(E) of TD volume I (SCC) is reproduced hereunder:- 7.4-The safety procedures-TD volume I (SCC) The contractor shall : (E) PROVIDE ANY TEMPORARY WORKS (INCLUDING ROAD WAYS, FOOT WAYS, GUARDS AND FENCES) WHICH MAY BE NECESSARY, BECAUSE OF THE EXECUTION OF WORKS, FOR THE USE AND PROTECTION OF THE PUBLIC AND OF OWNERS AND OCCUPY A SERVER ADJACENT LAND. As per above clause the required proposals to by pass the traffic during laying of pipe line has still not been submitted. The pipe cannot be laid till temporary by pass road is provided by the firm. For this the firm has to occupy a adjacent land at their own cost. In spite of repeated reminders the proposals for crossing of GAIL pipeline have not been submitted. For this permission is to be obtained after submission of proposals and may take long time, being Central Govt. agency. As per tender conditions, the firm has to pursue the matter for getting the necessary permission issued. The department has already applied in NHAI but the firm did not pursue the matter. As per clause 7.8 of special conditions part 'A' of TD vol I, the firm had to arrange temporary ROW for any activity, as per his requirement, at his own cost. The firm did not take suitable action in this matter resulting in delay in laying of pipe line. Till date the firm submitted proposals for crossing of only one canal and same was forwarded to the concerned department, under intimation to the firm. The proposals for other canals have not been submitted so far. As per tender conditions, the firm has to pursue the matter in the concerned department for getting necessary permission issued. Till date the firm submitted proposals for crossing of only one canal and same was forwarded to the concerned department, under intimation to the firm. The proposals for other canals have not been submitted so far. As per tender conditions, the firm has to pursue the matter in the concerned department for getting necessary permission issued. It has been observed that at many places, where the firm did refilling of trench, the site has not been restored to the original position. The firm has been intimated to do the required refilling else it will be responsible for any type of accident at such places. As per clause 3.8.7 of TD vol II permanent benchmarks are to be constructed at an internal of 250m, along the alignment of pipeline. The required benchmarks have not been constructed. As per clause 9.3 (d) special condition part-A (of TD vol I) M/s. EPL have to get the design and drawing of Intake well and allied works, approved from CWC. The drawing and design have provisionally been approved by CWC with some observations. M/s. EPL have not submitted the modified drawings and designs in CWC till date. The land for construction of Intake structure in Chambal River (Dholpur), other allied works at Chambal head works and pipe line from intake to Sagardpada, which was pending for want of environmental clearance has been handed over to you on 16.4.2005. The work can start after the approved design and drawings are submitted by you to the department. This is the most critical activity and would require about 21 months completion period from the date of start. Based upon actual date of handing over of site the required time extension will be granted separately for which M/s. EPL have to apply to department. The delay in late approval will be on M/s. EPL account. Due to this late approval the entire project is likely to be delayed, this being critical activity. The entire delay in completion of work will be on their account. The over all progress of following major activities is very slow although timely approvals were issued by department. There had been delay in approval of design due to wrong submission of designs by M/s. EPL. This delay has not been considered to work out completion date. The entire delay in completion of work will be on their account. The over all progress of following major activities is very slow although timely approvals were issued by department. There had been delay in approval of design due to wrong submission of designs by M/s. EPL. This delay has not been considered to work out completion date. S.No. Name of Activity Stipulated date as per approved Schedule Date of approval of design Date of completion as per appd. design Remarks State Completion 1 RWR Mallah 08/04/03 31.3.04 06/06/03 16.12.04 About 60% work is complete 2 Clarifloculator Mallah 13.4.04 13.4.05 13.4.04. 05/06/05 About 25% work is complete 3 RWR Sagarpada 19.5.03 01/05/04 24.1.04 15.11.04, About 40% work is complete , Lying close for 3 months 4 Inspection Banglow 23.5.03 22.6.04 25.5.04 21.12.04 About 60% work is complete. Lying close for 3 months. 5 Type III Qtr 23.5.03 22.6.04 30.4.04 26.11.04 About 60% work is complete, Lysing close for 3 months. 6 Type IV Qtr 30.4.04 26.11.04 About 60% work is complete, Lying close for 3 months 7 Type V Qtr 30.4.04 26.11.04 About 60% work is complete , Lying close for 3 months 8 Out let RWR Mallah 08/04/03 31.12.03 26.8.04 16.12.04 About 60% work is complete, Lying close for 3 months The drawing and designs of following major components had already been issued, but the firm did not start the work. S.No. Activity Date of approval of design & drawing and drawing Date of completion as per appd. Design 1 CWR Mallah 20.10.2004 16.8.2005 2 Pump house Sagarpada 08/12/04 06/10/05 3 Adm. Building at Mallah 26.8.2004 24.2.2005 The design and drawing of Clarifloculator was approved on 13.4.2004. The work for construction was delayed due to late procurement of CI pipes, still, the complete quantity of CI pipes has not been procured by the firm. This has caused delay on its account. The first submission of design and drawing was done on 24.1.2003 and was finally approved on 24.1.2004, after 7 revisions. Initially the design was not submitted as sedimentation tank. This resulted in such long delay and is attributed to the firm. The design and drawings of various structures were required to be submitted by M/s. EPL and department was supposed to approve the same within 15 days. Initially the design was not submitted as sedimentation tank. This resulted in such long delay and is attributed to the firm. The design and drawings of various structures were required to be submitted by M/s. EPL and department was supposed to approve the same within 15 days. M/s. EPL had to revise the design and drawing number of times due to non-compliance of tender specifications and coral provisions resulting in delay in final approval of design and drawings. As per Clause 1.7 of Instruction to bidder's TD Volume part-I, the site for execution of the work will be made available as soon as the work is awarded. In case, it is not possible for the department to make the entire site available on the award of the work, the Bidder shall arrange his working program accordingly. No claim, whatsoever, for not giving the site in full on award of the work for or for giving the site gradually in parts will be tenable. The Bidder may satisfy himself regarding site, acquisition of land approach roads etc. The major reason that resulted in slow progress are:- Slow progress of execution of the works. Delay in submission of design and drawings. Wrong submission of design and drawings. Non starting of works of structures for which approvals were given by the department. Poor management by the project staff of M/s. EPL. The Department, after doing detailed Engineering and survey, called the tenders for the said work. The department's conceptual design and drawing were also prepared and were made part of the tender documents. This was done to estimate the cost of the project. The tenders were for execution on single responsibility basis i.e. design build operate and maintenance. It was made clear to the contractor that the design and drawings enclosed with the tender document are department's concept only. It was mentioned in clause 7.6 of special conditions of contract part 'A' that:- "Design made by the department and geo-technical investigation carried out by the department has been annexed in Volume III of Bid document. The contractor shall be responsible for verifying and interpreting all site data. The Department shall have no responsibility for the accuracy, sufficiently or completeness of such data." The contractor was to obtain all the necessary information as per clause 7.7. of special conditions of contract. The contractor shall be responsible for verifying and interpreting all site data. The Department shall have no responsibility for the accuracy, sufficiently or completeness of such data." The contractor was to obtain all the necessary information as per clause 7.7. of special conditions of contract. The clause is reproduced hereunder:- The contractor shall be deemed to have obtained all necessary information as to risk, contingencies and other circumstances, which may influence or affect the works. By signing the contract, the contractor accepts the total responsibility for having sustained all difficulties and costs of successfully completing the works; and The contract price shall not be adjusted to take account of any unforeseen difficulties or costs. The clause 7.8 related to right of way is reproduced hereunder: "The Contractor shall bear all costs and charges for special and/or temporary rights of way, which he may require, including those for access to the site. The contractor shall also obtain, at risk and costs, any additional facilities outside the site which he may require further purposes of the works" of special condition of contract. All above clauses were made part of the tender documents and it was made clear to the firm that the site for execution will be made available with the progress of work. The bidder was also advised to satisfy itself regarding site, acquisition of land, approach of Roads etc. The land for Sagarpada Head Works & Mallah Head works were handed over to the firm during initial stage of execution. 50. After referring the aforesaid clauses of the contract and detailed reasons, learned counsel for the respondents submitted that since this petition involves serious disputed facts and questions and pertaining to contract obligation, the same is liable to be dismissed and in support of his submissions, learned counsel for the respondents placed reliance on the following judgments:- (3) 1994 (6) SCC 651 (4) 1991(1) SCC 492 (5) 2000(2) SCC 617 (6) 2000(8) SCC 806 (7) 1979(3) SCC 489 (8) 1981(1) SCC 586 (9) SBCWP No. 3657/05 Nagarjun Construction Company v. State decided on 11.7.2005 . 51. 51. In reply to the preliminary objections raised on behalf of the respondents regarding maintainability of the writ petition, learned counsel for the petitioner submitted that the writ petition is maintainable under Article 226 of the Constitution against arbitrary and unconstitutional actions of the Government even in contractual matters and in support of his submissions placed reliance on the judgment in the case of (10) ABL International Limited v. E.C.G.C. of India reported in 2004 (3) SCC 553 wherein Hon'ble the Supreme Court has observed as under:- "19. Therefore, it is clear from the above enunciation of law that merely because one of the parties to the litigation raises a dispute in regard to the fact of the case the court entertaining such petition under Article 226 of the Constitution is not always bound to relegate the parties to a suit. In the above case of Gunwant Kaur this Court even went to the extent of holding that in a writ petition if the facts require, even oral evidence can be taken. This clearly shows that in an appropriate case, the writ court has the jurisdiction to entertain a writ petition involving disputed questions of fact and there is no absolute bar for entertaining a writ petition even if the same arises out of a contractual obligation and/or involves some disputed questions of fact. 52. Learned counsel for the petitioner further placed reliance on the judgment in the case (11) Uberoi Mohinder Singh & Associates v. State of Haryana reported in 1991 (2) SCC 362 and (12) Lamba Industries v. Union of India 1991 (2) SCC 407 . 53. The respondents tried to distinguish the judgments referred by the petitioner and submitted that in the considered view of this court and Hon'ble Supreme Court as referred herein above this writ petition is not maintainable.54. The writ petition was preferred by the petitioner on 28th July, 2005 and this court passed interim order dated 30.7.2005 restraining the respondents from taking any coercive steps/prejudicial order against the petitioner. On 23.8.2005 this court passed further interim order directing the respondents to issue tender document to the petitioner which was supplied on 24.8.2005. The writ petition was preferred by the petitioner on 28th July, 2005 and this court passed interim order dated 30.7.2005 restraining the respondents from taking any coercive steps/prejudicial order against the petitioner. On 23.8.2005 this court passed further interim order directing the respondents to issue tender document to the petitioner which was supplied on 24.8.2005. And since 25.8.2005 was last date, the petitioner was not able to participate as it was alleged by the petitioner that it was impossible to fill and submit the same therefore, vide further interim order dated 6.9.2005, the respondents were restrained from opening the financial bid.55. Looking to the urgency of the matter, the matter was finally heard on 18.10.2005 and kept reserved for order and the parties agreed to exchange the written submissions. On behalf of the State, an application was filed for seeking extension of time for filing the written submission on 25.10.2005 and time was allowed. But, on behalf of the State, the written submission was only filed on 19.1.2006 and during this period, twice the matter was fixed in the category of "to be mentioned".56. Having considered the rival submission of the respective parties and upon careful perusal of the documents available on the record and the provisions and clauses of contract and the judgments referred before me by the respective parties, since it is not disputed that the petitioner is not able to complete the work within the stipulated period and for delay in executing the work the reason given by the petitioner is that the land in question is still not acquired and made available to the petitioner and for certain portion of land there is interim order granted by the court of law and since the respondents have failed to make available site for completing project the work awarded to petitioner could not be completed, therefore, it is not the fault of the petitioner but the fault of the respondent.57. The respondents also considered this aspect and extended the period of contract uptil 24.12.2006 and after extension of time also the petitioner's progress was not found satisfactory and considering this aspect that the project being important project to provide drinking water and will not likely to be completed within the extended period therefore, the order dated 30.5.2005 is passed by the respondents by which the contract of the petitioner was terminated and penalty to the tune of Rs. 13.6 crore has been levied and thereafter fresh NIT was issued by the Department for remaining work.58. The petitioner during the pendency of the writ petition prayed that he may be allowed to participate and be ordered to supply the tender document and in view of the submission made on behalf of the petitioner, this court on 23.8.2005 directed the respondent to issue tender document to the petitioner and allow the petitioner to participate pursuant to the tender notice and respondents are further restrained not to open the tender. It is not disputed that the tender document was issued to the petitioner but the petitioner did not opt to participate and unable to submit the tender document as petitioner was not able to fulfill the requisite requirement as stipulated in the tender document in short time.59. The petitioner now shown his willingness to complete the work but it is for the respondent to consider the proposal of the petitioner and this court do not want to issue any writ order or direction to this effect. I am not convinced with the submission made on behalf of the petitioner and even the alternative efficacious remedy is available to the petitioner and as the writ involves several disputed facts and questions, this court refrain to entertain such writ petition arising out of the contractual obligations in view of the ratio decided by Hon'ble the Supreme Court in cases; (a) 1994 (6) SCC 651 ; (b) 1991 (1) SCC 492; (c) 2000 (2) SCC 617 ; (d) 2000 (8) SCC 806; (e) 1979 (3) SCC 489 ; (f) 1981 (1) SCC 586; (g) SBCWP No. 3657/05 Nagarjun Construction Company v. State decided on 11.7.2005 .60. As discussed and observed herein above, the order dated 30.5.2005 and 31.5.2005 (fresh NIT) requires no interference whatsoever is required by this court. Consequently, the writ petition fails and is hereby dismissed being devoid of merit and the respondent are at liberty to proceed with the fresh NIT. However, it is for the respondents to negotiate with the petitioner if the proposals of the petitioner to complete the remaining work is found to the satisfaction of the respondents.61. Consequence thereof, the interim orders dated 30.7.2005, 23.8.2005, 6.9.2005 stand vacated.Petition Dismissed. *******