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2007 DIGILAW 842 (PAT)

Rama Kant Singh v. State Of Bihar

2007-04-27

MRIDULA MISHRA

body2007
Judgment 1. Heard counsel for the petitioner and the State. 2. Counter affidavit has been filed on behalf of the State. 3. Through this writ application petitioner has challenged the validity of the demand made by the Executive Engineer, Road Division, Biharsharif, Nalanda in letter no. 460 dated 10.4.2006 (Annexure-5) whereby the petitioner has been directed to deposit a bank draft of Rs. 48,92,355/-as penal rate of bitumen supplied to the petitioner in excess of requirement of circle analysis. Petitioner is Class IA registered contractor of the Road Construction Department, Government of Bihar. He was allotted work for repair of Biharsharif Ekangarsarai, Telhara road under Naxal Area Scheme on an estimated cost of Rs. 4,28,78,955/-. The estimate of the material required for construction of the work was done through circle analysis. As per analysis the estimated requirement of bitumen was 1344.99 M.T. but the supply was made of 1595.396 M.T. of bitumen. When the work under agreement was due for completion the construction work was due for completion the construction work was handed over to National Highway Authority of India. The Petitioner was asked to returns unused bitumen and pay its cost. Petitioner deposited the cost but in terms of special agreement he was been asked to pay penal rate for unused bitumen supplied in excess of the estimation of circle analysis. Receiving such demand letter petitioner represented before the respondents but he has been asked to make payment in terms of Clause 12 under Special Agreement. Petitioners case is that panel rate can not be charged for unused/ unconsumed bitumen, but under chargeable for the excess quantity of bitumen supplied against estimation of circle analysis. Petitioners case is that Clause 12 of the special agreement is being interpreted in a wrong way, no where in Clause 12 it has been stated that for unused/unconsumed bitumen penal rate will be chargeable, rather it provides for payment of cost at panel rate for such materials which have been supplied in excess of the estimated requirement of circle analysis. 4. Clause-12 of the said agreement reads as follows:- Materials recoverable or non recoverable (Directly issued to work) shall be issued to the contractor on proper hand receipt. 4. Clause-12 of the said agreement reads as follows:- Materials recoverable or non recoverable (Directly issued to work) shall be issued to the contractor on proper hand receipt. Recovery of cost of materials will be made for the gross quantity issued and not for the quantity consumed in purport on to work billed for, materials issued in excess of requirement, beyond circle analysis, the recovery of cost of excess materials will be at double the issue rate as stipulated in the agreement. 5 In paragraph 8 of the counter affidavit filed on behalf of the State, there is an admission of this fact that the petitioner was issued 1595.396 M.T. of bitumen against the estimated requirement of circle analysis of 1344.99 M.T., but the interpretation of Clause 12 of Special Agreement as made by the Respondents is that penal rate will be chargeable for unused bitumen. Petitioner consumed 713.019 M.T. of bitumen as such be will have to make payment at penal rate for unconsumed 882.377 M.T. of bitumen. 6. On perusal of Clause 12 of the special agreement I do not find that the respondents are correctly interpreting it. No where it has been mentioned in Clause 12 that penal rate will be chargeable for unconsumed supplied articles. In specific words, it is said, that penal rate will be chargeable for excess supplied materials beyond the estimation of circle analysis. Petitioner is ready to make payment, at penal rate for bitumen supplied in excess of the estimated requirement of circle analysis. Demand made by the respondents for payment of cost at penal rate, for unconsumed bitumen is based on wrong interpretation of Clause 12 of the Special agreement and as such not sustainable. 7. Accordingly letter no. 460 dated 10.4.2006 issued by Respondent No.4 is quashed. The respondents are directed to issue fresh demand letter in terms of Clause 12 of the Special Agreement. Petitioner, on receipt of such demand letter, will make payment, for supplied bitumen in excess of estimation of circle analysis, within four weeks of the receipt of demand letter. 8. This application is accordingly allowed.