GAYATRI PROJECT LIMITED & B C BIYANI PROJECT PRIVA Vs. NARMADA VALLEY DEVELOPMENT DEPARTMENT & OTHERS

JUDGEMENT

(1.) By this writ petition under Article 226 of the Constitution of India, the petitioners are praying for quashment of order dated 17.12.2015 (Annexure P/1) passed by respondent No.4, whereby a show cause notice under Clause 108.2 and 108.3 of "Condition of Contract" and Clause 1.38 of "Special Condition of Contract" of the Agreement No.07/2007-08 dated 27.03.2008 has been issued to the petitioners, directing to deposit overpayment / wrong payment amounting to Rs.27,17,17,362/- (Rupees Twenty Seven Crore Seventeen Lakh Seventeen Thousand Three Hundred Sixty Two), otherwise, it shall be recovered from the outstanding dues, securities or through Revenue Recovery Certificate (RRC), on the ground that during the execution of the work, certain changes were made in the drawing and design, in accordance with the terms of the contract, on account of which, cost of one of the component of the Project, which was of Rs.48,32,00,000/- (Rupees Forty Eight Crore Thirty Two Lakh) was curtailed by Rs.21,15,00,000/- (Rupees Twenty One Crore Fifteen Lakh). It is this action, by which the petitioners are aggrieved and prayed for quashment of the impugned order dated 17.12.2015 (Annexure P/1) on the ground that it is illegal, without jurisdiction and violative of the law laid down in the cases of State of Madhya Pradesh & others v. M/s. Sadhwani & Company, 2005 4 MPLJ 325, Mukesh Dandeer & others v. State of Madhya Pradesh & others Writ Petition No.10875/2013, order dated 22.01.2015 (Indore Bench) and B.B. Verma & another v. State of Madhya Pradesh, 2007 4 MPLJ 610.

(2.) Brief facts of the case are that the petitioners are a joint venture in the name and style of "Gayatri Project Limited - B.C.B.P.P.C.L. (J.V.). The petitioners were awarded a work of execution of Canal System of Indira Sagar Project, Main Canal from R.D. 130.935 to 155.00 KM including distribution net-work on "Turnkey Basis" up to 40 hectare chak for irrigation culture-able command area of about 6,103 hectare, comprising the work of survey, planning, design, estimation, preparation of land acquisition cases, forest cases and its clearance, shifting of High Tension and Low Tension Electric Lines, construction of canal by excavation / earth work, cement concrete lining with paver machine, all in-line concrete structures like V.R.B. / D.R.B. / N.H.B. / S.H.B. / C.D. works, aquaducts, Super Passages, Falls Heads / Cross Regulators, Escapes, Outlets etc., amount to Rs.242.55 crore. The work has to be completed within a period of thirty six months.

(3.) During execution of work, certain changes were made in the drawing and design, in accordance with the terms of contract, on account of which, cost of one of the component of the Project, which was of Rs.48.32 crore, was curtailed by Rs.21.15 crores. Originally, in one of the component, the petitioners were required to make an Aqua Duct of 950 mts. and an open turf of 990 mts. The aforesaid open turf was proposed to pass through village Gopalapura, which further required the acquisition of land and rehabilitation of the oustees. Thus, to overcome the said problem, the alignment of the main canal was changed, resulting in increase of length of the Aqua Duct to 1200 mts. from 950 mts and the open turf of 990 mts was not required to be made. Thus, the cost of the said component of work was reduced. In order to alter the alignment, the petitioners made requisite proposal in May, 2008 (Annexure P/3), which was duly approved, but as the Project was Turnkey Project, after completion of the aforesaid component, the respondents made payment of Rs.48.32 crore. But on account of reduction of work, an excess payment of Rs.27.17 crore (Rs.48.32 crore minus Rs.21.15 crore = Rs.27.17 crore) was made to the petitioners and the same was detected in the audit and accordingly the Office of the Auditor General took an objection to the excess payment being made and accordingly, the Controller of Auditor General of India (CAG) in its report dated 24.11.2015 pointed out that an undue amount has been paid to the petitioners.