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2010 DIGILAW 645 (GAU)

H. B. Enterprise v. State of Assam

2010-08-24

HRISHIKESH ROY

body2010
(ORAL):- Heard Mr. B D Das, learned counsel appearing for the petitioner. Also heard Mr. I Choudhury, learned standing counsel for the Public Works Department (PWD). 2. The issue raised in the writ petition pertains to a road improvement contract work valued of Rs.2,18,77,351/- allotted initially to the petitioner on 7.4.2001. The period of completion of the work was 6 months. After the petitioner completed a portion of the entrusted work, on 15.5.2009 a tender notice was issued for the same work i.e. Improvement of Public School approach Road at Panjabari (widening and providing Met. & Bt. including construction of drain from Ch.500.00 to 1400.00 meter. 3. The petitioner challenged the tender notice dated 15.5.2009 by filing W P (C) No.1934/09 by contending that the impugned tender notice has been issued for vested consideration as the works specified in the tender notice of 15.5.2009 was the same work entrusted to the petitioner by the earlier work order dated 7.4.2001. Prayer was made accordingly to prevent dislodging of the petitioner from the work in question and to permit him to execute the remaining portion of the work by quashing the tender notice dated 15.5.2009. 4. During the consideration of the W P (C) No.1934/09, a submission was made by the learned counsel appearing for the petitioner that the entire work from Ch.0.00 meter to Ch.1400.00 meter was entrusted to the petitioner for execution by the work order dated 7.4.2001 for a contract value of Rs.2,18,77,351/- and since the contractor had executed a portion of the work from Ch.0.00 meter to Ch.500.00 meter at a cost of Rs.99.91 lakhs and had done some additional works. Accordingly the petitioner submitted that he is prepared and wiling to execute the "entire work" at a total cost of Rs.2,18,77,351/- and therefore contention was made by the petitioner that there is no justification for the Department to issue the impugned tender notice dated 15.5.2009 for the remaining portion of the same work by pointing out that if the petitioner is allowed to execute the entire work at the contract value of Rs.2,18,77,351/-, an extra expenditure to the tune of Rs.1.88 crores of public money can be saved by the Department. 5. 5. Based on the submissions made by the petitioner of saving of public money of Rs.1.58 crores if the entire work is permitted to be completed by the petitioner and when the petitioner positively responded to the specific query of the Court and gave consent through his counsel that they are prepared to execute the total work as per the work order dated 7.4.2001 without any delay and complete the project without asking for any escalation of price, the Court directed the contractor to furnish an additional performance guarantee to ensure adherence to the stipulated time schedule, the quality of work and no demand for escalation and permitted the petitioner to commence and complete the work within the time limit of 31.1.2011 as consented by the petitioner. 6. After the Court recorded its order on 9.6.2009 disposing of the W P (C) No.1934/09 on the basis of concession given by the petitioner, the petitioner filed an application i.e. Misc. Case No.1675/09, seeking review of the Court's judgment dated 9.6.2009. However considering the fact that the order dated 9.6.2009 was passed on the basis of the petitioner's consent, the Review Application i.e. the Misc. Case No.1675/09 was dismissed by the Court on 1.7.2009. 7. Thereafter the petitioner filed Writ Appeal No.308/09 to challenge the judgment dated 9.6.2009. But the learned Division Bench having found that the impugned order of 9.6.2009 was a consent order, declined to entertain the grievances of the appellant that he would not be able to execute the work at the original cost. The Appellate Court recorded that the contractor ought to have kept this fact in mind before giving a concession at the time of hearing of the writ petition and accordingly, the Appellate Court did not find any justification to entertain the Writ Appeal and the same was dismissed on 13.11.2009 at the stage of admission. 8. In the present proceeding, the writ petitioner challenges inter alia, the formal work order dated 8.7.2009 issued by the Chief Engineer in pursuant to the decision of this Court in W P (C) No.1934/09 soon after the petitioner had furnished the additional performance guarantee to complete the entrusted work. 9. The main contention urged by Mr. 8. In the present proceeding, the writ petitioner challenges inter alia, the formal work order dated 8.7.2009 issued by the Chief Engineer in pursuant to the decision of this Court in W P (C) No.1934/09 soon after the petitioner had furnished the additional performance guarantee to complete the entrusted work. 9. The main contention urged by Mr. Das, learned counsel for the petitioner to challenge the formal work order dated 8.7.2009 is that the petitioner is unable to complete the contract since several additional items of work, which will involve additional expenditures are expected to be carried out by the contractor. The next ground urged by Mr. Das is that the petitioner's consent was given to execute the work in terms of the work order issued to him on 7.4.2001 and the additional work(s) that the petitioner is called upon to execute by the formal work order dated 8.7.2009 should naturally require additional payment. Referring to the order passed by this Court on 9.6.2009, the petitioner contends that no blanket concession was given by the petitioner to execute all the items of work specified in the detailed tender notice dated 15.5.2009 and the concession of the petitioner was limited to completing the work as per the work order dated 7.4.2001. 10. Par contra it is argued by Mr. I Choudhury, learned standing counsel for the PWD that all the items of work required to be executed by an intending contractor were specified in the tender dated 15.5.2009 which was impugned by the petitioner in W P (C) No.1934/09 and therefore, the petitioner cannot be said to be unaware of the specific items of work expected to be executed by him, when he made the submission in the writ proceeding that he is prepared and wiling to complete the entire work "at a total cost of Rs.2,18,77,351/-" and there is no justification for the Department for issuing a notice inviting tender (dated 15.5.2009) for the remaining portion of the same work from Ch.500.00 meter to Ch.1400.00 meter, for an additional value of Rs.277.49 lakhs. The Departmental counsel points out that it was the contractor's specific submission that by not allowing him to execute the entire work at Rs.2,18,77,350/-, an extra expenditure to the tune of approximately of Rs.1.58 crores of public money will have to be incurred by the Department. The Departmental counsel points out that it was the contractor's specific submission that by not allowing him to execute the entire work at Rs.2,18,77,350/-, an extra expenditure to the tune of approximately of Rs.1.58 crores of public money will have to be incurred by the Department. By referring to the specific submission made by the petitioner in the earlier round, the respondent's contend that the petitioner cannot now back-track from their commitment and ask for extra payment by claiming that additional works are involved in the work entrusted to him. 11. It is further submitted by the Departmental counsel that the order passed by this Court on 9.6.2009 in W P (C) No.1934/09 has attained finality after the Writ Appeal filed against the said order was dismissed by the Division Bench and under such circumstances, this Court cannot re-open the issue to determine as to whether the contractor is required to execute any additional work for completion of the entire project. 12.1. In order to resolve the issues raised in the instant proceeding it would be necessary to compare the work entrusted to the petitioner on 7.4.2001 and the work envisaged in the tender notice dated 15.5.2009 impugned by the petitioner in W P (C) No.1934/09. 12.2. The description of the work in the work order of 7.4.2001 reflects the name of work as "S/R to public school approach road for 1999-2000 (widening providing metaling and black topping including drainage from ch.0.00 m to ch.1400.00 cm). 12.3. In the tender notice of 15.5.2009 improvement of the same road specifying providing of matelling and black topping from Ch.500.00 to Ch.1400.00 was specified. As already recorded, at the time of filing of the earlier writ petition, the petitioner had claimed to have completed the works from Ch.0.00 meter to Ch.500.00 meter. The later tender notice of 15.5.2009 clearly stipulated that the contractor is required to quote item wise, as per the annexure attached with the detail NIT. 12.4. It is not in dispute that the so called additional works i.e. (i) excavation of marshy soil, (ii) dismantling of existing structure, (iii) prime cote, (iv) dark cote, (v) surface pressing, (vi) S.D.B.C., (vii) Dry rubble flowing were all specified works mentioned in the NIT of 15.5.2009, which was challenged by the petitioner in W P (C) No.1934/09. 13. 12.4. It is not in dispute that the so called additional works i.e. (i) excavation of marshy soil, (ii) dismantling of existing structure, (iii) prime cote, (iv) dark cote, (v) surface pressing, (vi) S.D.B.C., (vii) Dry rubble flowing were all specified works mentioned in the NIT of 15.5.2009, which was challenged by the petitioner in W P (C) No.1934/09. 13. The specific case pleaded by the petitioner W P (C) No.1934/09 was that the work involved in the impugned tender notice of 15.5.2009 is the same work earlier entrusted to the petitioner and the petitioner specifically pleaded to allow him to complete the balance portion of the work from Ch.500.00 meter to Ch.1400.00 meter. 14. Although it is argued by the learned counsel appearing for the petitioner that some extra items of works beyond the work order dated 7.4.2001 is involved in the NIT dated 15.5.2009, it is fairly admitted by Mr. Das, the learned counsel that these extra items of work were very much specified in the NIT of 15.5.2009. Therefore although the petitioner claims that he overlooked this when he made his submissions on 9.6.2009, in the Court's perception the petitioner was reasonably expected to be aware of the so called extra items of works, involved in the tender notice dated 15.5.2009. 15. Notwithstanding the fact that all items of work were clearly specified in the tender papers of the NIT dated 15.5.2009, the petitioner chose to give his unqualified consent to execute the balance portion of work from Ch.500.00 meter to Ch.1400.00 meter and on the basis of his express consent, the Court passed orders on 9.6.2009 to enable the petitioner to execute the work by furnishing an additional performance guarantee. 16. It may be recorded that at the time of hearing of the earlier petition, apprehension was expressed by the learned Additional Advocate General as to whether the petitioner would be able to complete the execution of the entire work up till Ch.1400.00 meters as per his assurance given to the Court. To allay the apprehension of the Department, the petitioner agreed to furnish an additional performance guarantee to indicate his commitment to ensure completion of the work within the stipulated time frame and also to maintain the quality of the work without demanding any escalation. To allay the apprehension of the Department, the petitioner agreed to furnish an additional performance guarantee to indicate his commitment to ensure completion of the work within the stipulated time frame and also to maintain the quality of the work without demanding any escalation. Consultation time was made available to the petitioner's counsel to consult his client and in the post launch session, on the basis of instructions given by the petitioner that he is even prepared to give a performance guarantee if he is permitted to execute the total work, the Court permitted the contractor to execute the work and by implication prevented the Department from proceeding with the NIT dated 15.5.2009. 17. Furthermore, when the Court recorded that there will be saving of public money to the tune of Rs.1.58 crores, the said figures were arrived at by the Court on the basis of specific submission made by the petitioner by comparison of both the 2001 and 2009 contract terms and under the circumstances, it would be wholly inappropriate to permit the petitioner to take a stand that completion of the entire work should be on the basis of additional expenditure to be incurred by the Department. But for the concession and the assurance given that the petitioner is prepared to complete the entire work without any additional claim, the Court would not have passed orders on 9.6.2009 to enable the petitioner to complete the entire work and consequently preventing the Department from proceeding with the NIT dated 15.5.2009. 18. It may also be noted that the value of the work entrusted to the petitioner on 7.4.2001 was Rs.2,18,77,351/- and at the time of filing of the earlier writ petition, the petitioner had executed work upto Ch.500.00 meter valued at Rs.99,91,000/-. Thus a balance of Rs.1,18,86,351/- remained due on the contractor's account. Since the estimated value of the NIT dated 15.5.2009 was Rs.2,77,49,000/-, having considered the balance be paid to the petitioner was Rs.1,18,86,351/-, the resultant saving of public money to the tune of Rs.1,58,62,649/- was accordingly recorded by the Court in its order dated 9.6.2009. Considering that this figure emanated from the submission of the petitioner and the Court proceeded on their submission, it is difficult for the Court to accept that the petitioner was ignorant about all the items of work involved in the NIT dated 15.5.2009. 19. Considering that this figure emanated from the submission of the petitioner and the Court proceeded on their submission, it is difficult for the Court to accept that the petitioner was ignorant about all the items of work involved in the NIT dated 15.5.2009. 19. The W P (C) No.1934/09 was disposed of on contest in the Court and considering further that the petitioner had challenged the NIT dated 15.5.2009 by describing the work of that NIT to be same works that was entrusted to him on 7.4.2001, I find it extremely difficult to accept the submission made by the petitioner that the so called additional items of works in the NIT dated 15.5.2009 were not taken into account by the petitioner, when he made the submission before the Court on 9.6.2009. 20. When the judgment of this Court was rendered on the basis of the concession and submission of the writ petitioner and since on the basis of such submission, the Department was prevented from proceeding with the NIT of 15.5.2009 and the petitioner was permitted to execute the works pertaining to the said NIT, it would be wholly unjust to permit the petitioner to challenge the formal work order dated 8.7.2009 as the same does not mention any work beyond what was clearly specified in the NIT of 15.5.2009. 21. I find herein that despite giving categorical assurance to the Court and also furnishing of performance guarantee to not to demand any escalation, the petitioner has failed to adhere to his commitment and have approached this Court seeking inter alia, release of payment for the part works which according to him have been executed as per the work order dated 7.4.2001. Such claim for payment for unfinished work cannot be considered to be justified as the petitioner was committed to complete the "entire work" including those specified in the NIT of 15.5.2009. We must also be mindful of the submission of the PWD's counsel that the work in question has remained incomplete and the public are seriously inconvenienced because of the failure of the petitioner to keep the commitment made before the Court and the performance guarantee. 22. For the forgoing reason, the writ petition is found to be devoid of merit and the same is hereby dismissed. Consequently the Department is at liberty to take appropriate steps to have the works completed.