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2022 DIGILAW 463 (JHR)

Gawar - S. C. C. (JV) v. State of Jharkhand

2022-04-19

RAJESH SHANKAR

body2022
ORDER : 1. At the request of learned counsel for the petitioner, remaining defects, as pointed out by the office, is ignored for the present. 2. The present writ petition has been filed for issuance of direction upon the respondent authorities to consider and dispose of the petitioner’s representation dated 23rd November, 2021 and consequently release the admitted due payable to it. Further prayer has been made for issuance of direction upon the respondents, declaring that the action of the respondent authorities in not releasing the admitted due payable to it is wholly illegal, arbitrary and violative of Articles 14 and 19(1)(g) of the Constitution of India. 3. Mr. Sumeet Gadodia, learned counsel for the petitioner, submits that a notice inviting tender along with request for proposal was issued by the respondent-State Highways Authority of Jharkhand (in short ‘SHAJ’) on 9th September, 2015 for the work “Widening and Strengthening of Khunti-Torpa-Kolebira Road from (0.00 km to 82.055 km) to two lane with paved shoulder on Engineering, Procurement and Construction (EPC) mode.” The petitioner participated in the aforesaid tender process and on being declared successful bidder, letter of acceptance was issued in its favour by the respondent no. 3 on 27th October, 2015, awarding the work in question. Thereafter, an agreement was executed between the petitioner and the respondent-SHAJ on 29th November, 2015. In terms of Clause 10.3.1 of the said agreement, the schedule date of completion of the work was 24th April, 2018. Accordingly, the petitioner was awarded the said contract for an amount of Rs. 176.70 crores. It is further submitted that the work was commenced, however, as per the conditions of the contract, the respondent-SHAJ failed to hand over at least 80% hindrance free right to way and only 71.65% (approx.) of land free from encumbrances was handed over to the petitioner after a lapse of more than ten months from the appointed date. Under the said circumstance, the petitioner requested the respondent authorities for extension of time. Pursuant to the said application, the respondent no. 5 recommended to the respondent no. 3 for extension of time followed by reminder dated 13th October, 2017. Despite the fact that the site in question was not handed over to the petitioner encumbrance free, it completed the entire work on 31st July, 2018. The respondent no. Pursuant to the said application, the respondent no. 5 recommended to the respondent no. 3 for extension of time followed by reminder dated 13th October, 2017. Despite the fact that the site in question was not handed over to the petitioner encumbrance free, it completed the entire work on 31st July, 2018. The respondent no. 5 issued provisional completion certificate vide letter dated 3rd September, 2018 in favour of the petitioner, showing the date of completion of work as 31st July, 2018. Thereafter, the respondent-SHAJ issued a letter to the petitioner in the month of September, 2018, describing therein the change of scope of work by granting extension of time to complete the project. Accordingly, completion certificate was revised and final completion certificate was issued by the respondent no. 5 vide letter dated 19th January, 2019, showing the date of completion of the project as 2nd October, 2018. However, despite the fact that admittedly the petitioner completed the work and had even undertaken the maintenance work as provided under the agreement, the respondent-SHAJ did not release part payment of the IPC Bill no. 7 as also payment towards IPC Bill no. 8-cum-final bill, including maintenance bills up to 31st October, 2021. It is also submitted that the aforesaid bills were duly sanctioned by the respondent no. 5, however, the payment of bills was not made to the petitioner only for want of revised administrative approval. The said bills approved by the respondent no. 5 were forwarded to the respondent no. 3 for necessary action and/or payment, but only part payment of IPC Bill no. 7 was made to the petitioner and an amount of Rs. 5,10,95,418/- is due to be paid. It is further submitted that the respondent no. 5 vide letter dated 23rd July, 2020 recommended for payment of an amount of Rs. 2,99,01,274/- towards IPC Bill no. 8-cum-final bill, out of which certified amount of Rs. 1,66,97,031/- is due to be paid to the petitioner. It is also submitted that initially the petitioner submitted eight running account bills towards maintenance work and the same were duly sanctioned by the respondent no. 5. The respondent no. 5 recommended/certified the said running account bills of the petitioner and forwarded the same to the respondent no. 3 for necessary action and payment, however, payment of the said eight running account bills was not made by the respondent-SHAJ. 5. The respondent no. 5 recommended/certified the said running account bills of the petitioner and forwarded the same to the respondent no. 3 for necessary action and payment, however, payment of the said eight running account bills was not made by the respondent-SHAJ. Moreover, maintenance running account bill nos.9 to 12 were also approved and certified by the respondent no. 5, who vide its letter dated 27th August, 2021 recommended for payment of the same. The respondent no. 4 also sanctioned and recommended for payment of running account bill no. 13 submitted by the petitioner. 4. Learned counsel for the petitioner further submits that the respondent no. 3 has withheld the amount of the aforesaid bills despite the fact that the petitioner’s bills have been duly approved and certified by the authority engineer (respondent no. 5) of the Respondent- SHAJ. The petitioner filed several representations before the respondent-SHAJ, requesting therein to make payment of the outstanding amount, but no action has been taken by the respondents, which has compelled the petitioner to file the present writ petition. 5. Mr. A.K. Thakur, learned AC to AAG-III, appearing on behalf of the respondent-State submits that the aforesaid claim of the petitioner is required to be factually examined by the competent authority and, therefore, if the petitioner files a fresh representation on the present issue before the Chief Executive Officer, SHAJ-respondent no. 2, an appropriate decision in this regard will be taken within a timeframe. 6. Having heard learned counsel for the parties and keeping in view the nature of the prayer made in the writ petition, without entering into merit of the case, the petitioner is given liberty to file a fresh representation on its claim relating to the work in question before the respondent no. 2. On receipt of the said representation, the respondent no. 2 after providing an opportunity of hearing to the petitioner’s representative and on verifying the relevant records shall take an appropriate informed decision within two months from the date of filing of the representation. 7. The writ petition is, accordingly, disposed of with the aforesaid liberty and direction.