C.Y. CHALUVEGOWDA, S/O VYKUNTEGOWDA Vs. CAUVERY NIRAVARI NIGAMA NIYAMITHA, (A STATE GOVERNMENT UNDERTAKING) REPRESENTED BY ITS MANAGING DIRECTOR, THE CHIEF ENGINEER, THE EXECUTIVE ENGINEER, HEMAVATHI LEFT BANK CANAL DIVISION AND THE ASST. EXECUT

JUDGEMENT

(1.) THE Petitioner has sought for quashing the Minutes of the Proceedings dated 3 -1 -2009 (vide Annexure -A) refusing to make payments relating to the execution of the work/additional work done by the Petitioner. Further, the Petitioner also sought for quashing the communications at Annexures -B and C and also for a direction, directing the Respondents to make payment to the Petitioner in respect of other works done by him.

(2.) THE facts of the case are as under: The first Respondent - Cauvery Niravari Nigama issued tender notification dated 29 -10 -2004 for carrying out the work of Cement Concrete Lining of Tumkur Division canal from Ch.38000 meters to 39000 meters in 39th Km. and also from Ch.39000 meters to 40000 meters in 40th Km. The Petitioner being a Class -I contractor submitted his tender. Since the Petitioner was a lowest tenderer he was entrusted with the work of providing Cement Concrete Lining of canals. Accordingly, the Petitioner entered into two separate agreements with the first Respondent on 29 -10 -2004 in respect of lining work from Ch.38000 meters to 39000 meters in 39th. Km and Ch.39000 meters to 40000 meters in 40th Km in Tumkur division. The tender amount is Rs. 84,12,354/ - in respect of the first agreement and in respect of the second agreement the tender amount is for Rs. 78,60,060/ -. The work has to be completed within a period of six months including rainy season. The work order was issued and work site was handed over to the Petitioner on 20th January 2005 after taking measurement of the work in presence of both the parties. The Petitioner signed the measurement also. As per the agreements, the Petitioner has to complete the work by 19th July 2005. Though the Petitioner commenced the work in respect of the first agreement, he has completed only the earthwork and removal of the silt for 100 meters and no further progress has been made. In respect of the second agreement he has executed the work of concrete lining to the extent of 750 meters, in other words he had completed the work for an amount of Rs. 49,22,726/ - and thereafter he stopped the work on the ground that the work includes additional work of excavation of the Canal bed, which consists of boulders and it is extremely difficult to do the work, by increasing the depth of the canal. Unless boulders are removed, he cannot continue the work and he made a representation to the Respondents. The Respondents visited the spot and gave technical instructions to do the lining work and further directed the Petitioner not to do the excavation of the canal in 40th Km., otherwise, the depth of the canal will be increased and closed the bed with the boulders by cement lining. In spite of the repeated instructions, the Petitioner has not commenced the work. The Assistant Executive Engineer in his letters dated 7 -3 -2005 & 26 -3 -2005 issued directions to the Petitioner as to how to complete the work without digging the canal, if the digging is deeper than the stipulated measurement, the Contractor will be held responsible. Thereafter, on 30 -4 -2005, the Respondents directed the Petitioner to complete the lining work in respect of first agreement i.e. from Ch.38000 to 39000 wherein he has completed only earthwork. The technical assistance was also given to the Petitioner to maintain standard in the work. Thereafter, on 13 -6 -2005, a letter was issued to the Petitioner informing him that the progress of the work is very slow and the same will be brought to the notice of the higher authorities. Thereafter, on 28 -6 -2005, the Assistant Executive Engineer issued a notice calling upon the Petitioner to complete the work within the specified time. In spite of the same, the Petitioner has not commenced the work. In view of that another notice came to be issued to the Petitioner on 4 -10 -2007 to be present in the Work spot for the measurement of the work on 27 10 -2007. In spite of the said notice, the Petitioner failed to be present in the work spot on 27 -10 -2007. In his absence, the measurement of the work was also taken and thereafter, the Respondents rescinded both the contracts entered into between the parties.

(3.) SRI . M.R. Naik, learned Senior Advocate appearing for the Petitioner contended that the cancellation of the tender awarded to the Petitioner is contrary to law and the Petitioner has executed substantial work. While executing the work, he has done some additional work also. Further, the earthwork and removal of the silt from the canal is not a part of the agreement, however, he has done that work also. For the lining work, he has to excavate the canal bed and to remove the boulders, for which he has to incur substantial expenditure. In spite of repeated requests, the Respondents have not taken note of the extra work done by the Petitioner. Further, while executing the work between Ch.33000 to 39000 in 39th Km, the Petitioner noticed that the canal bed is 0.8 meters to 1.12 meters above the design level. Since the canal bed was above the design level, it is difficult to carry out the concrete work, unless the canal bed level is increased. In spite of repeated requests, the Respondents have not given any technical' assistance or instructions, hence he could not complete the work between Ch. 38000 to 39000 and he has done entire work as per the second agreement. The cancellation of the tender work is contrary to law. He further contended that withholding the amount in respect of other contract works done by the Petitioner is also contrary to law. Unless the damages are ascertained by the Competent Authorities in accordance with law, the Respondents cannot assess the damages on their own and withhold the amount of the Petitioner in respect of other works done by him and sought for quashing the impugned order by allowing the writ petition.