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2018 DIGILAW 1312 (JHR)

K. K. Builders Private Limited v. Union of India

2018-06-25

ANUBHA RAWAT CHOUDHARY

body2018
ORDER : 1. Heard Mr. Mrinal Kanti Roy, counsel appearing on behalf of the petitioner. 2. Heard Mr. Vishal Kumar Rai, A.C. to S.C. IV appearing on behalf of the respondent-State. 3. This writ petition has been filed for the following reliefs:- “That the petitioner by way of the instant writ application prays for the issuance of an appropriate writ upon the respondents directing them to revise the estimate of the work relating to Improvement of Road, Quality Programme of National Highway No.33 between Km 235 to 237 and pay the revised rate of bitumen as promised to them by the respondent no.3 and further in view of the fact that there had been an unprecedented hike in the price of bitumen subsequent to the date of applying for the tender and execution of the work.” 4. Counsel for the petitioner submits that the respondents had issued tender notice for construction of five roads, out of which four roads were of National Highway No. 33 and one road of National Highway No. 6 and out of these five works, petitioner was allotted the work with regard to Kilometer 235 to 237 of National Highway No.33. This work was assigned vide job no.033/JHR/2007-142 and the work order was issued on 02.01.2008. He submits that at the time of preparation of estimate of work, the price of bitumen to be used for the work was around Rs.24,000/- per metric tonne but by the time the work order was issued, the price had gone up to Rs.33,500/- per metric tonne. By referring to letter no.1271 dated 11.08.2008 issued by the Executive Engineer and addressed to the Superintending Engineer of the respondent, the counsel submits that at the time of execution of the agreement, the petitioner was reluctant in executing the agreement at the earlier rate of bitumen and he was assured by the respondent authority of the State that the price of bitumen will be paid to the petitioner, if the enhanced rate is approved by the higher authorities. He submits that thereafter, the petitioner entered into the agreement as contained in Annexure-B to the counter-affidavit, and in view of the aforesaid assurance, the enhanced rate of bitumen was not included in the agreement itself. He submits that thereafter, the petitioner entered into the agreement as contained in Annexure-B to the counter-affidavit, and in view of the aforesaid assurance, the enhanced rate of bitumen was not included in the agreement itself. Under such circumstances, the petitioner executed the work and in spite of repeated request the petitioner was not granted the amount relating to the supply of bitumen at the enhanced rate. Under compelling circumstances, the petitioner has filed this writ petition. 5. Counsel appearing on behalf of the respondent-State on the other hand by referring to para-7 of the counter-affidavit submits that the revised estimate for incorporating price rise of bitumen was sent to the Ministry of Shipping, Road, Transport & Highway, Government of India, New Delhi for approval but the same was returned un-approved stating that the difference of cost of bitumen due to price rise is not payable to the contractor and it cannot be allowed. 6. A counter-affidavit has also been filed by Union of India wherein it has been stated at para – 5, that the revised estimate incorporating price rise of bitumen was submitted by the State which was returned unapproved as there was no such provisions in the contract clause. It has also been submitted that the work was awarded on competitive bidding and the petitioner was free to quote any rate on approved bill of quantity. In connection with the promise made by respondent no. 3 to pay the revised rate of bitumen, it was stated that, the decision is concerned with the State Government, and as such the same can be answered by the State Government. 7. Counsel for the petitioner at this stage again submits that as the petitioner had entered into the agreement upon the assurance that enhanced rate of bitumen will be given to the petitioner therefore, writ of mandamus should be issued to the respondents for payment at the enhanced rate of bitumen irrespective of the fact that this clause was not entered into in the agreement. 8. 8. Considering the facts and circumstances of this case and considering the materials on record this Court is not inclined to grant any relief to the writ petitioner on account of following facts and reasons:- (a) From the perusal of letter No. 1271 dated 11.08.2008 as contained in Annexure-8 to the writ petition, it appears that this is communication by Executive Engineer, Road Construction Department, Jamshedpur addressed to the Superintendent Engineer, Road Construction Department, Ranchi and a copy of this document has not been marked to the petitioner. The corresponding statement in connection with this document has been made in para – 23 and 24 of the writ petition which also does not disclose as to how the petitioner has come across this document and accordingly this Court is of the considered view that the internal communication between the Executive Engineer and the Superintendent Engineer which has been relied upon by the petitioner cannot be permitted to be used in the writ petition for seeking mandamus upon the respondents and no mandamus can be issued on the basis of so-called assurance mentioned in this particular document. Further, no such letter of assurance was communicated to the petitioner, and the petitioner also did not raise any such plea at the time of execution of the agreement as contained in Annexure-B to the counter-affidavit. Thus, no right ever crystalized in favour of the petitioner to enable the petitioner to seek a mandamus upon the respondents for making payment of bitumen at enhanced rate. (b) This Court further finds that even assuming that this letter dated 11.08.08 can be relied upon by the petitioner, upon perusal of this document, this Court finds that there was no clear undertaking by the State authorities, that the price of the bitumen at the enhanced rate will be paid to the petitioner, rather it clearly mentions that the enhanced rate of bitumen will be given only after receiving approval from the Ministry of Shipping, Road, Transport & Highway, Government of India, New Delhi. Thus, there is no conclusive promise to pay for bitumen at the enhanced rate. Moreover, admittedly, the petitioner entered into agreement having no such clause, as the aforesaid letter dated 11.08.08 itself says that the enhanced rate would be given subject to approval by the Ministry. Thus the so called promise by state was itself a conditional one. Thus, there is no conclusive promise to pay for bitumen at the enhanced rate. Moreover, admittedly, the petitioner entered into agreement having no such clause, as the aforesaid letter dated 11.08.08 itself says that the enhanced rate would be given subject to approval by the Ministry. Thus the so called promise by state was itself a conditional one. Since, the Ministry has admittedly rejected such claim by the petitioner as is apparent from the counter-affidavit filed by the Union of India as well as counter-affidavit filed by the State, no relief can be granted to the petitioner. This Court does not find any merit in the claim made by the petitioner, and accordingly this writ petition is dismissed.