CLASSIC SUPER CONSTRUCTION Vs. STATE OF ORISSA

JUDGEMENT

(1.) This writ petition has been filed by M/s. Classic Super Construction. The petitioner responded to a tender floated by the opposite parties relating to Package No.OR -07 -27 dated 18.3.2004 and the offer of the petitioner was accepted by the Tender Committee and the petitioner was called for negotiation. The petitioners case is that pursuant to the said negotiation the petitioner reduced its rates and the Tender Committee recommended the acceptance of tender of the petitioner. The petitioners case is that despite the same, the Financial Adviser -cum -Additional Secretary to the Government rejected the tender of the petitioner without any reason. Thereafter the Superintendent Engineer again recommended for acceptance of the offer of the petitioner. Despite the said recommendation the Financial Adviser -cum -Additional Secretary to the Government vide his letter dated 20.10.2004 directed fresh tender to be invited. At this stage, the petitioner moved this Honble Court in W.P.(C) No.12298 of 2004 challenging the order of the Financial Adviser -cum -Additional Secretary to the Government. The said matter was heard at length and a Division Bench of this Honble Court passed an order on 14.2.2005 whereby the writ petition was allowed and the objection of the Financial Adviser -cum -Additional Secretary to the Government was quashed and the Chief Engineer was directed to issue the work order in question in favour of the petitioner.

(2.) SINCE the Government authorities were not acting in terms of the Courts order as aforesaid, a Contempt Petition was filed which was registered as CONTC No.602 of 2005. The said contempt petition was kept pending. During the pendency of the contempt petition the opposite parties filed a Review Petition being RVWPET No.77 of 2005 for review of the order dated 14.2.2005. However, thereafter the Government by its order dated 26.6.2006 intimated the petitioner that its bid dated 19.4.2004 for execution of the work has been accepted for the contract price of Rs.2,30,99,378/ - and the petitioner was asked to comply with the several requirements under the said order and sign the contract within ten days failing which it was stated in the communication that action in terms of the tender document will be taken. The petitioner challenges the said subsequent order dated 26.6.2006 in this writ petition on several grounds. The petitioners stand is that it intimated the opposite parties on 20.6.2006 that it is not possible for the petitioner to execute the said work at the rate quoted in March, 2004. It was pointed out by it that had the Department acted in terms of the High Courts order dated 14.2.2005, it would have been possible for the petitioner to complete the work as per the rates quoted in 2004. It was also pointed out by the petitioner that the Department itself has increased the rates. Hence, it is not possible for the petitioner to carry on the work at that rate. The opposite parties have issued a general order dated 30.6.2006 intimating all the Executive Engineers including opposite party No.3 that the current schedule of rates published in 2006 should be adopted. The petitioner wanted protection from this Court for allowing it to execute the work at the said schedule of revised rates published by the Government in 2006.

(3.) THE aforesaid stand of the opposite parties in paragraph 4 of the counter affidavit could not be contradicted in the rejoinder filed by the petitioner. In fact the specific stand of the opposite parties in paragraph 4 of the counter affidavit has not at all been dealt with. A further additional affidavit has been filed by the State which was affirmed by the Ranjit Kumar Sahu on 4.12.2006 and in the said counter affidavit in paragraph 6 it has been stated that if the claim of the petitioner to introduce the rates as per schedule in the year 2006 stipulated by the State Government is applied to the execution of work in question under PMGSY Scheme, that will require fresh preparation of estimate followed by subsequent sanction by NRRDA and inclusion of the working in Phase VII of PMGSY Programme. The aforesaid process will require a fresh tender. But, in the instant case keeping the petitioners bid alive, such revision of rates is not possible. This additional affidavit was filed on behalf of opposite party No.3 pursuant to the Courts order. In paragraph 3 of the additional affidavit, it has been pointed out that initially the petitioners tender was rejected due to the record of poor performance and details of the same have been given in paragraph 3. But since the Honble High Court directed to award the work in favour of the petitioner, the matter was again consulted with the Law Department and as per their advice the work was again awarded to the petitioner in terms of the order of the Honble High Court. It appears that in the meantime, the petitioner has filed a Contempt Petition for enforcing the order of the Honble High Court referred to above and the opposite parties have filed a Review Petition for reviewing the High Courts order. It was also pointed out in the said affidavit that allowing the petitioner to perform the contracted work on higher rates is not permissible unless the whole matter is re -tendered as per the guidelines governing the said work. It was also pointed out that PMGSY Scheme is a Central Government Scheme and under such Scheme money is sanctioned by the Central Government to all the states of India and for each of the work a fixed amount is sanctioned for each phase of work. The work in question relates to Phase III (2003 -04) of PMGSY Scheme and the same was approved by NRRDA. Since the funds received against a particular work is fixed one, the State Government cannot enhance the cost of the work in that particular phase.