ANDE SATYANARAYANA Vs. GOVERNMENT OF ANDHRA PRADESH

JUDGEMENT

(1.) The petitioner is a Class-I Contractor. He was awarded three agreements dated 24-12-1991; 7-1-1992 and 30-1-1992 for improvements to Gosthanadi drain in West Godavari District and to restore the drain to its standards. As per the said agreements, the petitioner had to carry out excavation of earth in the' drain as per specifications including clearance of all trees, bushes rubbish and other objectionable matter. While sanctioning the estimates for the said three works, the hydraulic date pertaining to the said drain was furnished in the contracts and the number of trees standing in the area was also taken into consideration during execution of the works. There was a review of hydraulic particulars and after taking into consideration the berm flows etc., the area of. operation was considerably enlarged as it has become necessary to extend the drain over and above the width of the bed originally indicated. There were large number of coconut and palmyrah trees standing in the berms which were required to be cut and removed. It was not contemplated originally that the contractor is bound to execute the extra items of work as directed by the Engineer-in-Charge. The extra work was of enormous magnitude. As against the 1813 trees involved in the original works, the total number of trees standing trees in the extended area came to 30361. The petitioner removed all the trees and completed the work including the extra items of work on the assurance given by Respondent Nos.2 & 3 that his claim for extra work due to review of hydraulic particulars can be duly considered. The petitioner claims an amount of Rs.108/- per small tree and Rs.180/- per big tree so cut and removed on the basis of which the total additional claim comes to Rs.45-50 lakhs. The Superintending Engineer has called for reports from the Executive Engineer, who submitted a detailed report regarding the trees which were cut in the additional area due to change in hydraulic particulars. He has recommended payment as claimed by the petitioner. The Superintending Engineer has endorsed the said recommendations and forwarded the same to the Government for action. In spite of several representations by the petitioner, the Government did not pass any orders. The petitioner filed Writ Petition No.6665 of 1994 for a direction to the respondents for payment of the amounts. This Courtdisposed of the writ petition at the admission stage on 12-4-1994 directing the Government to consider the representation of the petitioner da ted 15-11-93. Subsequently, the Government passed the impugned order on 18-5-94 rejecting the claim of the petitioner. Hence, this writ petition.

(2.) In the counter-affidavit filed by the Superintending Engineer while admitting award of three contracts and the deviation from the original hydraulic particulars resulted in the increase of earth work which are within variable limit of 30 per cent admissible under Clause 32.1, Section 2, Volume I of agreements, he states that the petitioner has carried out the work within the boundary lines which are originally demarcated in the tender and he did not exceed the boundary lines even by an inch due to revision of hydraulic particulars. The allegation of the petitioner that he had to cut and removed all coconut and palmyrah trees standing in the terms was not contemplated originally at the time of finalisation of tenders is not correct; inasmuch as Selection 2.2. Division (2), Volume II of the bid document as well as agreements clearly stipulate that the portions of right-of-way required for constructing the work shall be cleared of all trees, bushes etc., In fact, no separate item of work was included in the agreements for cutting and removing the trees, bushesetc., and therefore, the petitioner cannot claim any extra payment. As per clause (1) under Section 2.2, Division (2), Volume 11 of the agreement, the portion of right- of-way where required for executing the work shall be cleared of all trees, bushes, rubbish and other objectionable matter. However, under Clause 11.3, Section (2), Volume I of the agreement, the contractor is supposed to have inspected and examined the site of work and its surroundings before submitting his render. The claim of the petitioner that the respondents 2 & 3 have given assurance for payment for removing the trees is den ied. It is true the petitioner had submitted representations da ted 1-4-1992,11-7-1992 requesting extra payment for removal of trees. The reports and recommendations submitted by Respondent Nos. 3 & 2 respectively were evidently without considering the terms of agreements. Their reports or recommendations do not, therefore, confer any right on the petitioner to claim extra payment. The change of hydraulic particulars had only resulted in change of bed width and the quantum of earth work for which payment was already made, remain fairly in line with the conditions of the agreements. For the increased quantum of earth work, payment was already made at the agreed rates to the petitioner. When there is no change in the scope of work and when there is no separate item in the agreements contemplating payment for cutting the trees, the question of payment for the existing trees does not arise. The writ petition is misconceived as the petitioner has to seek settlement of all claims over and above the value of Rs.50,000/- before the Civil Court of competent jurisdiction in view of Clause 55 of Section 2 of Volume I. The relationship between the parties in the concluded contracts are governed by the terms thereof but not by the Constitutional provisions under Article 226 and consequently, the writ petition is not maintainable and it has to be dismissed.

(3.) Sri T. Veerabhadrayya, the learned Counsel for the petitioner submits that inasmuch as the figures relating to the quantity of earth work are admitted and as the Executive Engineer who is in-charge of the said contract work has recommended the claim of the petitioner, there should not be any bar to grant the admitted relief viz., Rs.25-00 lakhs as recommended by the Department. The learned Advocate General on the other hand contended that the claim of the petitioner is based on a contract and as such the same is governed by the terms and conditions of the contract. Merely because the Officer of the State or the Government entered into a contract for execution of certain works, it cannotbe said that the Government is acting in the public law field, but it is still in the real of a private field, and, therefore, Civil Court alone is the proper forum for adjudication of such disputes. It is also his further contention that in any event in view of Clause-55 of the agreement, the claim which is over and above Rs.50,000/- shall be adjudicated upon by the competent Civil Court having jurisdiction over the area.