RAGHUNATH SAHU Vs. STATE OF ODISHA

JUDGEMENT

(1.) The petitioner, who is a registered contractor in 'A' class category of the State P.W.D. Department, has filed this writ petition seeking to quash the letter dtd. 3/12/2013 under Annexure-17 issued by the Joint Secretary to Government of Odisha, Fisheries and ARD Department in compliance of the order dtd. 19/2/2008 passed by this Court in W.P.(C) No.15922 of 2007, stating that no further escalation is considerable at Government level for payment against the work "Construction of Landing Quay and allied structures at Talasari Fish Landing Centre in Balasore District", because of existing situation and the conditions in the work supported with the undertaking dtd. 15/10/2002 after payment of legitimate claims for Rs.11,85,207.00 through Bank Draft No.792415 dtd. 26/11/2010 by the Executive Engineer, Fishery Engineering Division, Bhubaneswar as per Fisheries and ARD Department Sanction Order No.11834/FARD dtd. 4/11/2010, and further to direct the opposite parties to disburse the differential escalation amount of Rs.4,20,940.00 with interest @ Rs.18.00% per annum from the date the escalation bill was submitted, i.e., 27/8/2002.

(2.) The factual matrix of the case, in brief, is that the petitioner, being the lowest tenderer in respect of the work "Construction of Landing Quay and allied structures at Talasari Fish Landing Centre in Balasore District", was selected in the tender process floated by opposite party no.4. The work was entrusted to him by execution of an agreement i.e. Divisional Agreement No.22F2 of 1999-2000. As per stipulation made in the agreement, the date of commencement and the date of completion of the work were 1/12/1999 and 30/5/2001 respectively. Although bids were opened on 6/4/1998, but there was delay on the part of the opposite parties in finalization of the tender and according approval due to pendency of some litigation. Due to delay in acceptance of the tender, the rate quoted by the petitioner became unworkable. The agreement is nothing but verbatim copy of the tender conditions and thus the original date of commencement and completion reflected in the tender papers have also been copied even though the agreement actually was executed on 25/3/2000 and the work actually commenced on 1/12/1999 and the work was completed on 31/3/2003 during extended period delay being not attributable to the petitioner.

(3.) Mrs. Pami Rath, learned counsel for the petitioner emphatically urged before this Court that the opposite parties are liable to pay the admitted escalation dues as per Clause-32 (a)(b)(c) of the agreement and the letter dtd. 5/8/2008 issued by opposite party no.3, it has been clearly held that price escalation to the petitioner is payable as per the formula fixed by the Works Department. Non-payment of a part thereof amounting to Rs.4,20,940.00, the opposite parties have violated the agreemental provision of Clause-32 (a)(b)(c). It is further contended that in order to receive the balance price escalation amount, the petitioner again made representation and finally he served a notice under Sec. 80 CPC for taking steps towards clearance of his blockage balance payment of Rs.4,20,940.00 under original agreement period. It is further contended that though opposite parties no.2 and 3 found that the dues of the petitioner are genuine, pursuant to letter dtd. 22/8/2012 issued by opposite party no.4-Director of Fisheries, Cuttack under Annexure-18, and the letter 23/5/2012, issued by opposite party no.3-Executive Engineer, Fishery Engineering Division, Bhubaneswar and as evident from the fact, opposite party no.3 paid a part of the escalation amount, but opposite party no.1 in a most whimsical and unjustified manner illegally refused to pay the entire escalation charges by virtue of the undertaking of the petitioner dtd. 15/10/2002. It is further contended that vide letter dtd. 3/12/2013, opposite party no.1 rejected the claim of the petitioner for disbursement of the rest of the amount claimed in the bill dtd. 27/8/2002 assigning the reason for non- release of the left over amount that the petitioner had submitted a no claim certificate when extension of time was granted, while the departmental instruction dtd. 28/6/1996 states that such certificate cannot be made a ground to reject the claim for escalation cost. Thereby, the action taken by the authority is arbitrary, unreasonable and contrary to the provisions of law and as a consequence thereof, the petitioner is entitled to get Rs.4,20,940.00, which was deducted from the escalation cost along with interest @ 18% per annum. To substantiate her contentions, she has relied upon the judgment of the apex Court in ABL International Ltd. V. Export Credit Guarantee Corporation of India Ltd., (2004) 3 SCC 553.