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2007 DIGILAW 932 (ORI)

CLASSIC SUPER CONSTRUCTION v. STATE OF ORISSA

2007-12-14

B.P.DAS, M.M.DAS

body2007
JUDGMENT : M.M. Das, J. - The Petitioner is a Super Class Contractor. This writ petition has been filed, inter alia, challenging the action of the opp. parties in taking a decision to deduct 2% of the value of the work executed by it beyond the stipulated date of completion, which has been calculated to be Rs. 2,71,886/-. 2. In order to appreciate the case, it is necessary to state the facts in brief. Bhubaneswar repeatedly wrote to the CESCO authorities for shifting of the poles, to complete the road work. As a matter of fact, in the letter dated 21.1.2004, the Executive Engineer mentioned categorically that the work for the road has been completely held up due to non-shifting of electric poles till date. In the letter dated 3.3.2004, the Executive Engineer, Rural Works Division, Bhubaneswar wrote to the Superintending Engineer that an estimate of Rs. 96,905/- was submitted to the Superintending Engineer for making payment to the CESCO authorities towards shifting of L.T. lines on the road side and the work was held up due to the existence of the said electric poles. The approval for payment to the CESCO authorities was only made on 19.3.2004 by the Superintending Engineer. With regard to deviation of the work, The Petitioner intimated the Superintending Engineer on 20.11.2004 in the letter under Annexure-4. Under Annexure-6 to the writ petition, the Superintending Engineer called upon the Executive Engineer to furnish the revised estimate and deviation of the work package entrusted to The Petitioner and also to call for an explanation from the S.D.O., Rural Works Sub-division No. II, as to why the deviation statement has not yet been submitted by him till date. The deviation in the work was finally approved by the Superintending Engineer on 19.4.2005 under Annexure-7 to the writ petition. The Petitioner was intimated on 21.11.2005 under Annexure-8 to the writ petition to complete the balance work by 30.11.2005 as the project has already been delayed. However, by letter dated 27.4.2006 under Annexure-9 to the writ petition, the Executive Engineer intimated The Petitioner that Bhubaneswar repeatedly wrote to the CESCO authorities for shifting of the poles, to complete the road work. As a matter of fact, in the letter dated 21.1.2004, the Executive Engineer mentioned categorically that the work for the road has been completely held up due to non-shifting of electric poles till date. As a matter of fact, in the letter dated 21.1.2004, the Executive Engineer mentioned categorically that the work for the road has been completely held up due to non-shifting of electric poles till date. In the letter dated 3.3.2004, the Executive Engineer, Rural Works Division, Bhubaneswar wrote to the Superintending Engineer that an estimate of Rs. 96,905/- was submitted to the Superintending Engineer for making payment to the CESCO authorities towards shifting of L.T. lines on the road side and the work was held up due to the existence of the said electric poles. The approval for payment to the CESCO authorities was only made on 19.3.2004 by the Superintending Engineer. With regard to deviation of the work, The Petitioner intimated the Superintending Engineer on 20.11.2004 in the letter under Annexure-4. Under Annexure-6 to the writ petition, the Superintending Engineer called upon the Executive Engineer to furnish the revised estimate and deviation of the work package entrusted to The Petitioner and also to call for an explanation from the S.D.O., Rural Works Sub-division No. II, as to why the deviation statement has not yet been submitted by him till date. The deviation in the work was finally approved by the Superintending Engineer on 19.4.2005 under Annexure-7 to the writ petition. The Petitioner was intimated on 21.11.2005 under Annexure-8 to the writ petition to complete the balance work by 30.11.2005 as the project has already been delayed. However, by letter dated 27.4.2006 under Annexure-9 to the writ petition, the Executive Engineer intimated The Petitioner that the value of work done beyond the stipulated date of completion being Rs. 135.943 lakhs, the compensation at the rate of 2% of the said amount, which comes to Rs. 2,71,886/-, will be levied as compensation for delay in completion of the work and shall be deducted from the bill of The Petitioner. 3. Being aggrieved by the order under Annexure-9, The Petitioner has approached this Court in the present writ petition for appropriate relief. 4. The Petitioner has stated that there being many obstacles and hindrances, which were required to be sorted out by the opp. parties and the completion of the work being dependant upon the removal of the obstacles by the opp. parties, inasmuch as there being deviations of the work and delayed approval of such deviations, the completion of the work was delayed. parties and the completion of the work being dependant upon the removal of the obstacles by the opp. parties, inasmuch as there being deviations of the work and delayed approval of such deviations, the completion of the work was delayed. According to The Petitioner, the completion of the work depended upon the following factors: (a) Improving the canal Road for bridge approach towards Bankula which was to be done with the cooperation of the Irrigation authorities. (b) Demarcation of Cable line by the Telephone Department making the same secure during the execution of the work. (c) Shifting of Electric line and Electric poles by the CESCO authorities. (d) Taking appropriate action against general public for obstructing the work by physically assaulting staff of The Petitioner. 5. A counter affidavit has been filed by the opp. party 'No. 2 being the Chief Engineer, Rural Works-II, Orissa, inter alia, denying the allegations made by The Petitioner in the writ petition and pleading that the hindrances in the work were not pointed out by The Petitioner to the authority, in time, for which delay in execution of the work occurred. Certain letters have been annexed to the counter affidavit in support of the plea taken by the opp. party No. 2 whereunder The Petitioner was repeatedly requested to expedite the progress of the work. As a matter of fact, in the letter dated 28.4.2004 annexed to the counter affidavit as Annexure-B/3, it appears that the Executive Engineer wrote to the Superintending Engineer intimating him that though the stipulated period for completion of the work has expired from 16.4.2003, the over all progress of the Package was only 77.37% till date and the contractor has submitted revised work programme in two occasions, the latest being 5.11.2003 suggesting to complete the entire Package by February, 2004. From the letter dated 3.6.2005 of the Executive Engineer annexed to the counter affidavit, it appears that a second supplementary agreement for extra items was executed on 23.4.2005 between the parties. 6. From the above correspondences between the parties and the authorities inter se, it is clearly manifest that the delay in completion of the work is not "attributable squarely to The Petitioner. 7. Mr. Panda, learned Counsel for The Petitioner vehemently argued that had the opp. parties removed the obstacles in time, The Petitioner could have completed the entire contract work within the stipulated period. 7. Mr. Panda, learned Counsel for The Petitioner vehemently argued that had the opp. parties removed the obstacles in time, The Petitioner could have completed the entire contract work within the stipulated period. He further submitted that as it is evident from the annexures that the work suffered due to non-removal of electric poles, deviation of the plan etc., the action of the opp. parties in quantifying the compensation to be deducted from the final bill of The Petitioner is arbitrary and illegal. 8. Learned Counsel for the State, on the contrary, submitted that The Petitioner was absolutely negligent in executing the work within the time stipulated as well as in bringing to the notice of the authorities the hindrances and obstacles, which The Petitioner states to be the cause of delay in completion of the work. He further submitted that the action of the opp. parties being related to a contract, the same cannot be subjected to judicial review under Article 226 of the Constitution. 9. Upon considering the facts and circumstances of the case, the submissions made by the learned Counsel for the parties and the materials produced before us, we are of the view that the delay in completion of the contract work by The Petitioner cannot be solely attributed to The Petitioner. 10. Coming to the question of power of judicial review of the Writ Court, it would be profitable to quote the observations of the Supreme Court in the case of Onkar Lal Bajaj Vs. Union of India (UOI) and Another etc. etc. which is as follows: the role model for governance and decision taken thereon should manifest equity, fair play and justice. The cardinal principle of governance in a civilized society based on rule of law not only has to base on transparency but must create an impression that the decision making was motivated on the consideration of probity. The Government has to rise above the nexus of vested interests and nepotism and eschew window dressing. The act of governance has to withstand the test of judiciousness and impartiality and avoid arbitrary or capricious actions. The Government has to rise above the nexus of vested interests and nepotism and eschew window dressing. The act of governance has to withstand the test of judiciousness and impartiality and avoid arbitrary or capricious actions. Therefore, the principle of governance has to be tested on the touchstone of justice, equity and fair play and if the decision is not based on justice, equity and fair play and has taken into consideration other matters, though on the face of it, the decision may look legitimate but as a matter of fact, the reasons are not based on values but to achieve popular accolade, that decision cannot be allowed to operate. The Supreme Court with regard to the power of judicial review has also again laid down that judicial review is the basic structure, independent judiciary is the cardinal feature and an assurance of faith enshrined in the Constitution. The need for independent and impartial judiciary is the command of the Constitution and call of the people. (See Kartar Singh Vs. State of Punjab, . 11. Considering the above aspects of the case, we have no doubt in our mind that this Court while exercising the plenary jurisdiction under Article 226 of the Constitution can examine the propriety and legality of a decision taken by the State while dealing with a citizen. While examining thus, if this Court finds that the decision does not stand the test of judiciousness and impartiality and amounts to an arbitrary and capricious actions, such decision can be held to have infringed the right of the citizen under Article 14 of the Constitution. 12. As has been held by us above, the delay in completion of the work by The Petitioner being not solely attributable to The Petitioner, the action of the opp. parties in imposing a compensation and directing deduction of the said amount from the bill of The Petitioner cannot be sustained and, accordingly, the said decision under Annexure-9 to the writ petition stands quashed. Consequently, we direct the opp. parties to settle the final accounts of The Petitioner with regard to the contract work in question without levying any compensation within a period of three months from the date of communication of this order. 13. The writ petition is accordingly allowed. There shall be no order as to costs. B.P. Das, J. 14. I agree. Final Result : Allowed