Bhimji Velji Sorathia Construction Pvt. Ltd. v. State of Arunachal Pradesh
2025-12-18
NELSON SAILO
body2025
DigiLaw.ai
JUDGMENT AND ORDER : NELSON SAILO, J. This order will dispose of both the writ petitions. [2.] Heard Mr. S. Dutta, learned Senior Counsel assisted by Mr. T. T. Tara, learned counsel for the petitioners and Mr. N. Ratan, learned Additional Advocate General, Arunachal Pradesh, for all the respondents. [3.] In WP(C) No. 219 of 2025, the petitioner has challenged the Communication dated 29.03.2025 (Annexure-13 Series), more particularly, Sub- clause (b) of Clause-3 of the said Letter and also the Communication dated 24.04.2025 (Annexure-13 Series). [4.] In WP(C) No. 346 of 2025, the petitioner has challenged the Communication dated 21.01.2025 (Annexure – 2) and Communication dated 21.02.2025 (Annexure – 3). [5.] Brief facts of the case is that the petitioner’s firm on 10.11.2021 entered into an agreement with the Executive Engineer, Public Works Department, Doimukh Division, Government of Arunachal Pradesh, for execution of work known as “Widening and Strengthening of Itanagar – Jote Road – 20 KM” at the cost of Rs.69,55,30,570.69/- (Rupees Sixty-Nine Crore Fifty-Five Lakh Thirty Thousand Five Hundred Seventy and Sixty-Nine Paise) only. During the execution of the said project, it was observed that six (6) existing steel bridges along the road were in bad condition and required urgent re-construction. The local MLA, therefore, vide his Letter dated 24.07.2024, requested the Advisor, PWD (WZ), to explore the feasibility of engaging the petitioner to undertake the bridge construction as an additional work. [6.] Pursuant to the aforesaid request, the Superintending Engineer, PWD, Capital Circle vide Letter dated 31.07.2024 directed the Executive Engineer, PWD, Doimukh Division to explore the feasibility of engaging the petitioner firm for undertaking construction of bridges under the “Widening and Strengthening of Itanagar – Jote Road 20 KM” was being carried out. The Executive Engineer, in compliance with the directions of Superintending Engineer recommended assigning of the construction of all six (6) bridges to the petitioner under the existing contract as per Clause – 12 of the agreement subject to technical sanction and approval of the BOQ. The recommendation was noted and processed by the Chief Engineer (WZ) without contest as per the file noting.
The recommendation was noted and processed by the Chief Engineer (WZ) without contest as per the file noting. Subsequently, approval of the Competent Authority was obtained vide UO No. 530 dated 17.09.2024 and the Superintending Surveyor of Works for the Chief Engineer (WZ) issued a Letter dated 19.09.2024 to the Superintending Engineer, Capital Circle directing necessary steps to be carried out for construction of the project of permanent bridges (six in numbers) within the “Widening and Strengthening of Itanagar – Jote Road” at the earliest possible time. The Superintending Engineer, in turn, directed the Executive Engineer, Doimukh Division to take further necessary action. In furtherance of the said approvals and directions, the Executive Engineer, Doimukh Division issued Letter dated 23.09.2024 to the petitioner firm requesting immediate subsoil investigation of all the six (6) bridges, clearly specifying the terms of procurement as an additional item under the existing agreement subject to approval of BOQ and technical sanction. [7.] Accordingly, the petitioner firm commenced the work on all the six (6) bridges except the “Bhath Nallah” bridge initially, which was later started after land compensation was paid. According to the petitioner, significant resources including manpower and machinery have been mobilized on all the six (6) bridges. The Chief Engineer (WZ) vide Letter dated 20.12.2024 asked for the status report from the Executive Engineer, Doimukh Division and in response the Executive Engineer submitted the status report vide his Letter dated 30.12.2024. [8.] Thereafter, the Executive Engineer, Doimukh Division vide Letter dated 23.02.2025 wrote to the Assistant Engineer, Balijan Sub-Division to stop the unauthorized works of five (5) number of bridges on Itanagar – Jote Road, except for the one at Dokoso Nallah. It was further informed that the Chief Engineer (WZ) had asked to initiate a file to allow the execution of remaining of five (5) number of bridges in line with the one being executed at Dokoso Nallah. [9.] That the detailed project report was prepared in communication with the construction of six (6) numbers of double lane bridges and ancillary works on Itanagar – Jote Road in terms of the approval of the Government vide UO No. 530 dated 17.09.2024. The Governor of Arunachal Pradesh vide Order dated 11.03.2025, accorded administrative approval and expenditure sanction of Rs.8050 Lakh as the estimated cost for construction of six (6) numbers of double lane bridges and ancillary works of Itanagar – Jote Road.
The Governor of Arunachal Pradesh vide Order dated 11.03.2025, accorded administrative approval and expenditure sanction of Rs.8050 Lakh as the estimated cost for construction of six (6) numbers of double lane bridges and ancillary works of Itanagar – Jote Road. As per Clause – 12 of the Order, the execution of works/schemes/projects and procurement of all items/materials, furniture, etc., is to be done strictly as per the provisions of GFR, DFPR, CPWD manual, etc. All the financial rules and regulations, the guidelines and directives issued by the Government of India, Ministry of Finance, Government of India, Administrative Ministry of Government of India, CVC and Government of Arunachal Pradesh, in this regard are to be applied. The approval and concurrence of the Finance Department was also indicated in the said Order. [10.] Thereafter, vide Office Memorandum dated 25.03.2025, signed on 24.03.2025, technical sanction was accorded to the work for an amount of Rs.7972.65/- Lakhs. The administrative approval and expenditure sanctioned for a total project cost of Rs.8050/- Lakh earlier accorded on 11.03.2025 was also mentioned. While such was the position, the Executive Engineer, Doimukh Division, vide impugned Letter dated 29.03.2025, informed the petitioner firm that pursuant to a meeting held on 21.03.2025 and chaired by the Chief Engineer (WZ), the implementation of the project work is to be segregated into two (2) parts namely, (a) Bridge over Dokoso and Gera Nallah as an extended portion of agreement dated 10.11.2021 for regularization being already executed and near completion; and (b) Remaining four (4) bridges by floating fresh e-tender. The petitioner firm was therefore asked to submit additional Performance Guarantee of Rs.86,12,806/- (Rupees Eighty-Six Lakh Twelve Thousand Eight Hundred and Six) only covering validity till DLP, as per original contract and to attend the office in the first week of April, 2025, for completion of formalities. Thereafter, vide impugned Communication dated 24.04.2025, the petitioner firm was asked to stop the bridge works on Itanagar – Jote Road, except two (2) numbers of bridges at Dokoso and Gera chainage at 0.966 KM and 14.708 KM. The petitioner was asked to stop the work at chainage No. 18.375 KM over Poma river. The petitioner aggrieved filed WP(C) No. 219 of 2025 challenging two (2) impugned communications. Later, the petitioner filed WP(C) No. 346 of 2025 to challenge the two (2) impugned communications left out in the earlier writ petition i.e., Letters dated 21.01.2025 and 21.02.2025.
The petitioner was asked to stop the work at chainage No. 18.375 KM over Poma river. The petitioner aggrieved filed WP(C) No. 219 of 2025 challenging two (2) impugned communications. Later, the petitioner filed WP(C) No. 346 of 2025 to challenge the two (2) impugned communications left out in the earlier writ petition i.e., Letters dated 21.01.2025 and 21.02.2025. [11.] This Court on 26.05.2025, while issuing notice of motion in WP(C) No. 219 of 2025 directed all the parties concerned to maintain status-quo as on the date of the Order till the next returnable date. The said interim order continues till date. [12.] In response to WP(C) No. 219 of 2025, the respondent Nos. 1 to 5 have filed their counter-affidavit on 06.09.2025 admitting that the contract work for “Widening and Strengthening of Itanagar – Jote Road – 20 KM” with an estimate cost of Rs.69,55,30,570.69/- (Rupees Sixty-Nine Crore Fifty-Five Lakh Thirty Thousand Five Hundred Seventy and Sixty-Nine Paise) only was awarded to the petitioner and an agreement signed on 10.11.2021 for execution of the said work. The scope of the project as per the agreement had been completed on 31.03.2024 except the maintenance part, as per the Clauses under the Defect Liability Period (DLP). The DLP is exclusively the maintenance part of the project and has nothing to do with any supplementary estimates. There is no provision in the agreement dated 10.11.2021 to award future works to the same contractor/firm. Therefore, the current work sanctioned under CMCSRDP-II in question i.e., construction of six (6) bridges, is completely a different project and not the extension of the project of “Widening and Strengthening of Itanagar – Jote Road – 20 KM”. According to the respondents, there is no provision for extended tender/agreement either in the CPWD Works Manual, procurement manuals or extant guidelines in matters relating to works of goods and services. [13.] According to the respondents, Clause – 12 of the General Condition of Contract, specifically deal with deviation, in terms of extra items/deviated items/substituted items of the contract agreement in place. Thus, deviation of items shall be based only on written directions of the Engineer In-charge (Executive Engineer) when work is in progress and the deviated amount shall not exceed 1.25 times the tender amount or else Government approval is required.
Thus, deviation of items shall be based only on written directions of the Engineer In-charge (Executive Engineer) when work is in progress and the deviated amount shall not exceed 1.25 times the tender amount or else Government approval is required. As such, there were no instructions or directions from the Engineer In- charge in record, when the work was in progress to attract Clause – 12 of the agreement. Further, the deviated amount, if approved, as per the Clause – 12, the same shall be sanctioned as deviation of the work with same nomenclature and not as a separate work. However, in the instant case, the nomenclature and the scope of work is completely independent and different. It is also stated that the Chief Engineer (WZ), in the file noting, approved only subsoil investigation and DPR preparation and did not recommend for execution of work by the same contractor through extended tender. That the technical sanction approved by the Government on 11.03.2025 has been corrected by issuing corrigendum dated 21.03.2025. The corrected sanctioned Order was issued vide PWD- 12011(11)/80/2025-Work-PWD/1965 dated 21.03.2025. That the two (2) bridges at Dokoso and Gera Nallah being on the verge of completion when the illegality of the construction activities was discovered, the Chief Engineer (WZ) being the technical head of the department directed the Executive Engineer, Doimukh Division, to stop the unauthorized work forthwith and to issue a fresh tender for the remaining four (4) bridges. The two (2) bridges constructed illegally are required to be regularized by initiating a proposal to the Government for ex post facto approval of the same and until such approval is given, the two (2) bridges are deemed to be constructed illegally and without authorization. [14.] Mr. S. Dutta, learned Senior Counsel for the petitioner has strenuously argued that the work has been allotted to the petitioner with the approval of the competent authority vide UO No. 530 dated 17.09.2024, that is the Office of the Chief Minister of the State and therefore the respondent authority concerned could not have restricted the work to only two (2) bridges and called for floating of tender in respect of the remaining four (4) bridges through impugned Communication date 29.03.2025. Similarly, subsequent impugned Letters dated 24.04.2025, asking the petitioner to stop work at chainage No. 18.375KM over Poma river also could not be sustained.
Similarly, subsequent impugned Letters dated 24.04.2025, asking the petitioner to stop work at chainage No. 18.375KM over Poma river also could not be sustained. He submits that the petitioner was already engaged in the “Widening and Strengthening of Itanagar – Jote Road – 20 KM” and the replacement of the dilapidated single lane steel bridge to double lane bridges (six numbers of bridges) has been awarded to the petitioner as extended work with due approval of the competent authority. Therefore, unless, the competent authority follows due procedure to rescind or cancel the work allotted to the petitioner firm, the same cannot be stopped in the manner it has been done through the impugned communications. He also submits that there is already a promissory estoppel working against the respondents and therefore the petitioner firm should be allowed to complete the work without any hinderance. [15.] The learned Senior Counsel also submits that the records produced by the learned Additional Advocate General apparently is a photocopy of the file notings and therefore the same cannot be accepted as primary evidence and be used against the petitioner. The learned Senior Counsel, thus, submits that under the facts and circumstances, the impugned communications are not sustainable in law and should be set aside and should be allowed to complete the work allotted to the petitioner. In support of his submissions, the learned Senior Counsel relies upon the following authorities:- (i) Nazir Ahmad Vs. The King Emperor, 1936 Supreme (SC) 38, (ii) MRF Limited Vs. Manohar Parrikar & Ors., (2010) 11 SCC 374 , (iii) Akhil Bhartvarshiya Marwari Agarwal Jatiya Kosh & Ors. Vs. Brijlal Tibrewal & Ors., (2019) 2 SCC 684 , (iv) M/s. Motilal Padampat Sugar Mills Company Limited Vs. State of Uttar Pradesh & Ors., (1979) 2 SCC 409 , and (v) Arjun Panditrao Khotkar Vs. Kailash Kushanrao Gorantyal & Ors., (2020) 7 SCC 1 . [16.] Mr. N. Ratan, learned Additional Advocate General, on the other hand, referring to the counter-affidavit of the respondents submits that the petitioner was awarded the contract work for “Widening and Strengthening of Itanagar – Jote Road – 20 KM” with an estimated cost of Rs.69,55,30,570.69/- (Rupees Sixty-Nine Crore Fifty-Five Lakh Thirty Thousand Five Hundred Seventy and Sixty-Nine Paise) only and an agreement was signed on 10.11.2021. He submits that there was no provision for awarding future contract works to the petitioner firm.
He submits that there was no provision for awarding future contract works to the petitioner firm. The administrative approval and expenditure sanctioned for construction of the six (6) double lane bridges and ancillary works was approved by the tender authority vide Order dated 11.03.2025 subject to the condition stipulated in the said Order. Since, there was some discrepancies against Clause – 12 of the said Order, a corrigendum was issued on 21.03.2025, cancelling the administrative approval and expenditure sanctioned dated 18.03.2025 and a new administrative approval and expenditure sanction Order was again issued on 21.03.2025, which was signed on 19.03.2025 with Clause – 12 of the Order providing that the process of tendering and competitive billing should mandatorily be followed and complied with as envisaged in the GFR, DFPR, Financial Rules and Regulations and the conditions, guidelines, circulars and directives issued/prescribed by Government of India, CVC and Government of Arunachal Pradesh, in this regard. Despite the same, since the petitioner firm continued with the construction work, the impugned communications had to be issued to stop all works except two (2) bridges, which were already nearing completion. [17.] The learned Additional Advocate General, submits that certain procedure had to be followed for obtaining approval of the competent authority for allotment of the works. He submits that as per the Arunachal Pradesh Rules of Executive Business, 1987, subject to the Orders of the Chief Minister under Rule 14, all cases referred to in the schedule of the rules are to be brought before the Cabinet in accordance with the rules contain in Part II. Obtaining the approval of the Chief Minister alone is not sufficient when there is involvement of finance. Therefore, such a proposal is to be routed through the Finance Minister, the Advisor concerned and the Cabinet sub-committee. The same having not being done, the allotment of the work by the Officials of the PWD is without any authority and is liable to be recalled. [18.] The learned Additional Advocate General has also produced a scanned copy of the e-file pertaining to the work under the reference. The record produced by the learned Additional Advocate General also contains the original note-sheet, on which approval was given by the Hon’ble Chief Minister with the reference as UO No. 530 dated 17.09.2024.
[18.] The learned Additional Advocate General has also produced a scanned copy of the e-file pertaining to the work under the reference. The record produced by the learned Additional Advocate General also contains the original note-sheet, on which approval was given by the Hon’ble Chief Minister with the reference as UO No. 530 dated 17.09.2024. It also includes the original agreement dated 11.04.2025 signed between the petitioner and the Executive Engineer, Doimukh Division PWD for construction of two (2) numbers of double lane bridges and ancillary works on Itanagar – Jote Road under CMCSRDP – II i.e., for Dokoso Nallah and Gera River for a sum of Rs.17,22,56,127.00/-. [19.] I have heard the submissions made by the learned counsel for the rival parties and I have perused the materials available on record, from what it has been projected by the petitioner is that apart from the work allotted to the firm for “Widening and Strengthening of Itanagar – Jote Road – 20 KM”, an additional work had been allotted for carrying out additional work of constructing six (6) numbers of double lane bridges and ancillary works on Itanagar – Jote Road with the approval of the competent authority. [20.] The State respondents, on the other hand, maintain that construction of the six (6) numbers of double lane bridges and ancillary works cannot be construed as additional works given to the petitioner firm since the administrative approval and expenditure sanctioned for the said work granted by the competent authority on 11.03.2025 requires the process of tendering and competent bidding to be mandatorily followed as envisaged in the GFR, DFPR, Financial Rules and Regulations and the conditions/guidelines and circulars issued by the Government of India, CVC, and Government of Arunachal Pradesh. That the administrative approval and expenditure sanction given on 18.03.2025 was with some unintentional error at Serial No. 12 of the Order and therefore a corrigendum was issued on 21.03.2025, issuing a fresh Order by rectifying the contents of Paragraph – 12 of the Order. [21.] The petitioner, in its writ petition, have annexed the note-sheet, where proposal was made for urgent repair and reconstruction of dilapidated steel bridges on Itanagar – Jote Road (Additional Work) pertaining to file No. DD/W- 73/2024-25/1307 dated 01.08.2024, since the petitioner firm was already engaged in “Widening and Strengthening of Itanagar – Jote Road”.
[21.] The petitioner, in its writ petition, have annexed the note-sheet, where proposal was made for urgent repair and reconstruction of dilapidated steel bridges on Itanagar – Jote Road (Additional Work) pertaining to file No. DD/W- 73/2024-25/1307 dated 01.08.2024, since the petitioner firm was already engaged in “Widening and Strengthening of Itanagar – Jote Road”. It was recommended that the said work also be allotted as an additional work by extending agreement as already applied earlier in similar cases i.e., Seppa – Chayang Tajo Road – NEC project approval vide No. SPWD / W-265/2006-07/662 dated 31.03.2017. The file was also routed through the Advisor (West) and finalization approved by the Hon’ble Chief Minister. An original copy of the said note-sheet also been produced by the learned Additional Advocate General, thereafter, the Superintending Surveyor of Works for Chief Engineer (WZ), PWD vide Communication dated 19.09.2024 wrote to the Superintending Engineer, Capital Circle, PWD conveying the approval given by the Chief Minister’s Office vide UO No. 530 dated 17.09.2024 for replacement of the dilapidated single lane steel bridge to double lane bridges (six numbers) confirming to highway specification and to take necessary steps to carry out the project at the earliest. A copy of the said communication was also marked to the Executive Engineer, Doimukh Division, PWD. The Superintending Engineer, Capital Circle, PWD in turn wrote to the Executive Engineer, Doimukh Division, informing the latter to take further necessary action with intimation to all concerned while returning the original file vide No. DD/W-73/(Part)/2024-25. A copy of the said letter was also marked to the Chief Engineer (Western Zone), PWD. [22.] The Executive Engineer, Doimukh Division, PWD then wrote to the petitioner firm on 23.09.2024 to immediately carrying out Subsoil Investigation (SSI) for six (6) bridges situated at the location indicated in the said letter for conversion from single lane to double lane bridges confirming NH specifications. It was also informed that the work shall be taken up as an additional work under the existing agreement subject to approval of BOQ and technical sanction. Also the modalities along with Additional Performance Guarantee shall be decided during the finalization of the supplementary/extended agreement and subject to completion of SSI within stipulated period of one (1) month prescribed above.
It was also informed that the work shall be taken up as an additional work under the existing agreement subject to approval of BOQ and technical sanction. Also the modalities along with Additional Performance Guarantee shall be decided during the finalization of the supplementary/extended agreement and subject to completion of SSI within stipulated period of one (1) month prescribed above. A copy of the said letter was also marked to Chief Engineer, Western Zone, Itanagar with reference to the earlier Letter dated 19.09.2024 and also to the Chief Engineer (SIDNP), PWD and Superintending Engineer, Capital Circle, PWD, amongst others. The petitioner was then informed to dismantle the four (4) bridges carefully and by starting from those bridges which were free from the encumbrances by providing proper convenience to the traffic by the Assistant Engineer, Balijan Sub-Division, PWD on 20.11.2024. [23.] The Chief Engineer, Western Zone then on 20.12.2024 wrote to the Executive Engineer, Doimukh Division to submit a status report of the works and the Executive Engineer, accordingly, submitted his status report on 30.12.2024. Consequently, the Governor of Arunachal Pradesh accorded administrative approval and expenditure sanction of Rs.8050/- Lakhs as estimated cost for the construction of the six (6) double lane bridges and ancillary works. The Order also indicated that the Finance Department had also given its concurrence. Thereafter, the technical sanction was accorded vide Office Memorandum dated 25.03.2025. [24.] Subsequently, the Executive Engineer, Doimukh Division vide impugned Letter dated 29.03.2025 wrote to the petitioner firm conveying that during the Meeting chaired by Chief Engineer, Western Zone, on 21.03.2025, it was decided to implement the project by segregating works into two (2) parts. The bridge over Dokoso and Gera Nallah will be one part and the remaining four (4) bridges will be the other part and for which a fresh e-tender should be floated. The said Letter was followed by impugned Letter dated 24.04.2025 restricting the petitioner to the work in respect of two (2) bridges at Dokoso and Gera Nallah while asking the petitioner to stop the work over Poma river. [25.] The petitioner in WP(C) No. 346 of 2025 has impugned two (2) communications dated 21.01.2025 and 21.02.2025 of the Chief Engineer, Western Zone, PWD. It may, however, be seen that this two (2) communications have been superseded by the two (2) impugned communications in WP(C) No. 219 of 2025 i.e., 29.03.2025 and 24.04.2025.
[25.] The petitioner in WP(C) No. 346 of 2025 has impugned two (2) communications dated 21.01.2025 and 21.02.2025 of the Chief Engineer, Western Zone, PWD. It may, however, be seen that this two (2) communications have been superseded by the two (2) impugned communications in WP(C) No. 219 of 2025 i.e., 29.03.2025 and 24.04.2025. Therefore, there appears to be no issue as regards to the works undertaken for double lane bridges over Dokoso and Gera Nallah. The petitioner, otherwise, as per the status report submitted by the Assistant Engineer, Balijan Sub-Division, PWD to the Executive Engineer, Doimukh Division on 09.04.2025 would go to show that the work to some extent has been carried out in the remaining bridges except for the bridge over Dader Nallah . While the approval of the Chief Minister has been obtained for carrying out the work, the impugned letters/communications have been issued at the level of Chief Engineer, Western Zone, PWD. If the respondent authorities for some reason want to discontinue with the engagement of the petitioner firm, the same will have to be done by taking a concise decision by the competent authority and also by taking into account the agreement that may have been signed between the parties concerned. [26.] Although, the learned Additional Advocate General has sought to impress upon the Court that Cabinet approval was required to be taken for allotment of the said work but the fact remains that the approval of the Hon’ble Chief Minister has been taken after the file was routed through the department, the administrative head of the Department and the Advisor (West). Further, the Order dated 11.03.2025 by which administrative approval and administrative sanction was given by the Governor before the corrigendum or even after the corrigendum is with the concurrence with the Finance Department. Such being the position, the allotment of the works to the petitioner firm cannot be termed to be irregular or illegal for that matter. On the contrary, in view of Rule 21(1) of the Arunachal Pradesh Rules of Executive Business, 1987 read with Clause No. 17 of the schedule to the said rules proposal to vary or reverse the decision taken earlier will have to be placed before the Cabinet. I, therefore, find force in the argument made by the learned Senior Counsel for the petitioner.
I, therefore, find force in the argument made by the learned Senior Counsel for the petitioner. Therefore, upon due consideration of the case in its entirety, the impugned communications are found to be not sustainable and are accordingly set aside. The interim order passed earlier stands merged with this Order. [27.] Having came to the above conclusion, the authorities relied upon by the parties and the other issues raised need not be gone into. Registry to return back the record produced by Mr. N. Ratan, the learned Additional Advocate General, to him.