UTKAL HIGH WAYS ENGINEERS AND CONTRACTORS Vs. GENERAL MANAGER, LINGARAJ AREA, MAHANADI COALFIELDS LIMITED

JUDGEMENT

(1.) SINCE the above noted three writ petitions involve similar questions of fact and law, they were taken up together for analogous hearing and are being disposed of by this common judgment.

(2.) THE prayer in all these writ petitions is to quash the e - Tender Notice dated 14.10.2011 (in W.P.(c) Nos.27848 and 28958 of 2011) and Notice dated 30.09.2011 (in W.P.(C) No.28827 of 2011) for transfer of coal from respective railway sidings floated by the opp.parties for an estimated cost of work mentioned in the tender notices urging various legal contentions.

(3.) THE undisputed fact is that the petitioner in W.P.(C) No.27848 of 2011 is a loader for mechanical transfer of coal into NTPC Wagons at Lingaraj Spur Siding No.1 and 2 at Lingaraj OC Project, Lingaraj Area for a total quantity of 450 lakh tons and therefore it has challenged the new tender notice issued under Annexure -1 on the ground that the same amounts to virtually termination of the petitioners existing contract and they have further prayed for issuance of a direction to the opposite parties for extension of time of the contract on the ground that the delay in execution of the agreed contract work is attributable to the departmental failure. Therefore, the case of the petitioners falls under Clause 5.8(a) of the general terms and conditions which provides for submitting petition for extension of time and in the present cases the same have been rejected in all the cases, which have not been challenged. Reliance is placed upon Clause 5.8(a) read with Clause 6.4 of the general terms and conditions which deals with extension of time for completion of contracted quantity. It is also further submitted that hindrance registers maintained by both the M.C.L. Company and the Contractor/petitioners at the site reveal that the delay in execution of work as per contract is not attributable to the petitioners. In respect of all these contentions, the petitioners produced the documents which are the hindrance registers. It is submitted that before non -fulfilment of the quantity as agreed to in the contract tender notice, inviting and floating new tender amounts to virtually termination of contract, which is unreasonable and not permissible in law in view of the Clause 5.8(a) read with Clause 6.4 of the general terms and conditions of the contract. It is contended by Mr. Ashok, Parija, Mr. S.K. Padhi, learned Senior Advocates and Mr. Kanungo, learned counsel appearing on behalf of the petitioners that departmental failure of not furnishing the rakes for executing the agreed contractual work is not attributable to the petitioners as it is a departmental failure. Therefore, it is contended that the petitioners have made out a case for considering their representations for extension of the contract period of fulfil the quantity agreed upon in the contract work to be executed which has not been done on account of the department failure. It is further submitted by Mr. Kanungo in Writ Petition No.27848 of 2011 that in the present impugned tender notice, the tender was submitted quoting lesser price than the existing contract and as such the same has been terminated being lesser and therefore he states that the same should not be put against the petitioner as it was a distress bidding. The petitioner -company in the said case had mobilised its machinery and work force keeping the contracts quantity in mind as it had to go for such distress bidding at lower rates to protect the interest of the petitioner -Company and its workmen, who have already been deployed, keeping the original contracted quantity in mind. The question required to be examined by this Court is as to whether the petitioners are entitled to get extension of time for execution of the agreed contract from the opposite party at the existing rate as provided for under clause 5.8(a) of the general terms and conditions of the contract or should they be allowed extension of time of the contracted quantity at the existing rate or the rate finalised in the next tender whichever is lower as provided for in 5.8 (b) of the aforesaid terms and conditions.