D S RAJU Vs. GOVT OF ANDHRA PRADESH

JUDGEMENT

(1.) Brief facts as can be gathered from the affidavit filed in support of the Writ Petition are as under :

(2.) The petitioner is a Contractor and being the lowest tenderer, was awarded the Contract inrespect of Vengalaraya Sagaram Project near Salur in Vizianagaram Distrct for the construction of Spil-way Regular across Gomukhi River phase-II. The contract was evidenced by an agreement entered into between the petitioner and the State of Andhra Pradeshon23-9-1988. The agreement value of the work is Rs.22,05,283/-. The site is said to have been handed over on 9-4-1988 to the petitioner. The work could not progress as per the original time schedule due to the failure on the part of the respondents to supply the materials in particular the cement and steel from time to time and also due to the failure to allocate the necessary funds. The respondents have been extending the time for completion of work. The petitioner apart from paying heavy earnest money deposit, has completed 25.12% of the total work andis entitled to Rs.5,66,000/- whereas a sum of Rs.4,55,600/-has been paid and the petitioner is entitled to the balance of Rs. 1,10,400/- apart from the Earnest Money Deposits, and further security deposits collected by the respondents from time to time on the running bills. Though as per the agreement, the work has to be completed within one year from 9-4-1988, the date on which the site was handed over and which period expired on 8-4-1989, the same was extended from time to time. The petitioner has made representation, to respondents about the difficulties faced by him due to the lapse on the part of the respondents and expressed his anxiety to complete the work and when there was no favourable reaction from the respondents, the petitioner by his detailed representation dated 26-3-1992 expressed that unless the department decides that the escalated rates prevailing at the time of execution of balance work, the petitioner will not be in a position to take up the job. By that time the agreement period has been extended upto June, 1992 and as enhanced rates were not sanctioned, the petitioner did not proceed with the work and requested that the agreement may be closed by June, 1992 and requested for payment of the amounts due, refunding the deposits and compensation for the damages sustained by the petitioner. The petitioner received a Registered letter from 3rd respondent dated 18-10-1995 blaming the petitioner tha the did not resume the work and did not complete the same and suo motu time has been extended upto 15-11-1995 with a fort feirure of Rs.500/- to complete the work without claim for compensation or escalation of rates claimed by the petitioner. The said letter also specifically stated that if the petitioner fails to resume the work, the contract would be determined as per the agreement. In response to the said letter the petitioner clearly expressed that the work was stopped long ago and several written representations were given and there was no reply specifically for the points raised by the petitioner and that the petitioner clearly expressed that he cannot resume the work and requested respondents to close the agreement by releasing the balance of amounts for the work done and the other deposits such as Earnest Money Deposit and further security deposits as early as possible. The petitioner through another letter stated tha the cannot resume the work at old agreement rates and requested the respondents to finalise and close the agreement by releasing the balance long pending payment for the work done and not paid to the petitioner since long time along with the deposits etc., (This letter is at page 23 of the Material papers filed by the petitioner). Thereafter by a Lawyer's Notice dated 27-4-1996 whichhas been referred to as one issued under Section 80 CPC called upon the respondents to settle the matter amicably and pay the balance amount for the work till date of final payment. The Executive Engineer-Respondent No.3 by his letter dated 7-5-1996 notified the petitioner that the contract is extended suo motu upto 20-5 -1996 and permitted to continue the work with penalty of Rs. 1000/- and that if the petitioner fails to start the work in the meantime, the respondents would be constrained to enter upon the work on 20-5-1996 to assess the balance work and evaluate balance payment to be forfeited to the Department. The same was replied to, by the Lawyer on behalf of the petitioner through his letter dated 14-5-1996 and it is in this letter that the earlier notice has been referred to as one issued under Section 80 CPC. It is stated in this letter that the fort feiture of the amounts is not valid and the petitioner is entitled to balance amount for the work done with interest and damages for breach of contract. The said letter has been replied to by the respondents through their letter dated 18-5-1996 and finally by letter dated 20-5-1996, the respondents intimated the petitioner that as per Clause 61 of the Contract, the Earnest Money Deposit of Rs.30,000/- and FSD of Rs.35.000/- and the withheld amount of Rs. 34,946/- have been forfeited. The balance value of work done, but not paid will be estimated separately. By this letter, the petitioner was also informed that as and from 20-5-1996, work stands determined and the department is entering upon the site as per Clause 61 of the Contractto complete the Work. The extra cost, if any over and above the agreement rates would have to be borne by the petitioner. This letter has been assailed by the petitioner in the Writ petition and the petitioner has sought a Writ particularly in the nature of Mandamus for declaring the said letter dated 20-5-1996 of the 3rd respondent as arbitrary, illegal and without jurisdiction.

(3.) For the purpose of this Writ Petition and at this stage of the proceedings, the facts as stated above are taken into consideration without considering whether the same are true and correct or otherwise. I propose not to go into the merits of the matter or the contentions raised by the learned counsel for the petitioner in that behalf as I am of the opinion that the writ jurisdiction has not been rightly invoked and the petitioner has an efficacious remedy before the Civil Court of competent jurisdiction.