ZERINA MARINES PVT. LTD. Vs. STATE OF ORISSA

JUDGEMENT

(1.) In this writ application, the Petitioner -company has challenged the inaction of the Opposite Parties with regard to payment of its legitimate dues.

(2.) THE facts as unfolded in the petition are as follows: The Petitioner is a company incorporated under the Companies Act, 1956 situated at Bhubaneswar. In pursuance of a tender call notice, the Petitioner submitted its tender for excavation of R.B.C. including structure of Rengali Irrigation Project RD. 74.00 K.M to 79.00 K.M (Reach III). The work was allotted in favour of the Petitioner & a letter of intent was issued followed by the work order. The Petitioner entered into an agreement with the Executive Engineer, Sapua Badajoda Irrigation Division, Satmile, Dhenkanal for a value of Rs. 6,00,66,495.23. In the said agreement, the date of commencement of the work was 29.1.1999 & the date for completion of the work was 28.1.2000. The scope of the work was excavation of canal. For the said purpose, the Government was required to acquire the land following the procedure under the Land Acquisition Act & hand over the same to the Petitioner for execution cf the work. During execution of the work, certain hindrances were faced by the Petitioner for which the progress of the work hampered. The Petitioner could not proceed with the work due to non -finalization of the drawings for the structures, non -acquisition of land & non -clearance of jungle. Those hindrances were of such nature that without Government action to clear those hindrances, the work could not be proceeded. The Petitioner was also not able to complete the work within the stipulated time mentioned in the agreement i.e. within 28th January, 2000, due to non -removal of those impediments by the Opposite Parties. The Petitioner's application for extension of time was allowed upto 27.1.2001 vide letter dated 4.8.2000. Again, further extension of time was granted upto 20th January, 2002 & thereafter, till 30th June, 2002. During the above periods, the Petitioner was ready with its work force & machinery at the site but due to lethargic action of the Opposite Parties, the work could not be proceeded. During excavation of the canal, rock was met with. Excavation of rock being time consuming factor, separate rate was provided in the contract. Petitioner in its letter dated 8.10.2001 informed Opposite Parties as well as the concerned authorities to test the rock & identify the same, as separate rate was provided for classification of the rock & determination of the rate. Opposite Parties vide letter dated 8.2.2002finally issued an order under Section 7 of the Land Acquisition Act directing the Collector, Dhenkanal for acquisition of the land required for execution of the Petitioner's contract work. From the said letter, it appears that the Government had not taken any step to acquire the land for the purpose of excavation of canal until 8.2.2002. Without considering the above facts & the genuine & bona fide request of the Petitioner, Opposite Party No. 2 closed the contract vide letter dated 4.7.2002.

(3.) OPPOSITE Parties have filed an affidavit admitting that the land acquisition proceeding in the entire area covered under the agreement had been completed and the physical possession had been delivered to the Petitioner on 8.2.2005 for execution of the work in the village Gundichapada. The Petitioner is continuing with the work and about 55,000.00 Cum. execution of earth work (cutting) is still left to be executed by the Petitioner. The Petitioner applied for 5th phase extension of time from 1.7.2007 to 31.3.2008 and his application was under consideration. Though the Opposite Parties extended the time upto 28.8.2006 to complete the work, the Petitioner was not able to complete the work within that period. The proposals have been pending with the State Government for taking final decision in the matter as to whether extension of time will be allowed with or without escalation clause. Till the decision is taken by the State Government, no payment can be made to the Petitioner on the escalation bill submitted by him. In that view of the matter, the writ Petition is premature and not entertainable. They have further stated that the Petitioner has already completed 85% of the work and 15% of the work is left for execution.