GUNAJIT NATH Vs. STATE OF ASSAM

JUDGEMENT

(1.) The instant review petition under Chapter X of the Gauhati High Court Rules read with Article 226 and Article 215 of the Constitution of India is preferred seeking review of an Order dtd. 20/9/2023 passed in a writ petition, W.P.[C] no. 5183/2023.

(2.) I have heard Mr. K.N. Choudhury, learned senior counsel assisted by Mr. R.M. Deka, learned counsel for the review petitioner; and Mr. P. Nayak, learned Standing Counsel, Public Works Department [PWD] for all the respondents.

(3.) Mr. Choudhury, learned senior counsel appearing for the review petitioner has submitted that the subject-matter of the connected writ petition was a Termination Notice dtd. 21/8/2023, whereby, a contract-work, 'Up gradation of road from MRL-03-Mandia Palhaji Road to Salimpur via Bamundongra Road including Cross Drainage Works and Routine Maintenance of the works for 5 [five] years under PMGSY-III, Package no. AS-01-522 for the year : 2022-2023, Batch-III' ['the Contract-Work', for short], awarded in favour of the writ petitioner earlier by the respondent Public Works Department [PWD], had been terminated. It has been contended that after issuance of a Letter of Acceptance [LoA] dtd. 1/4/2023 and a Notice to Proceed with the Work dtd. 4/5/2023, the writ petitioner as the Contractor proceeded to execute the Contract-Work in right earnest. In the process, the Contractor faced a number of hurdles despite mobilization of manpower, machinery, etc. as the worksite of the Contract-Work was severely damaged due to monsoon season and flood. As the site of the Contract-Work was a low-lying area, the actual execution of the Contract- Work was possible to be started only after the monsoon season and recession of flood waters. The writ petitioner as the Contractor had therefore, asked the authorities in the PWD for a revised work programme. But instead of redressing the grievances of the Contractor and providing a revised work programme, the respondent authorities in the PWD sought to put the blame on the Contractor for the delay in execution of the Contract-Work without any basis. Finally, the Chief Engineer, PWD [Border Roads], Assam had issued the Termination Notice on 21/8/2023 purportedly in exercise of the powers under Clause no. 52.2[a][i] [j]&[n] of the General Conditions of Contract [GCC] to terminate the Contract-Work alleging fundamental breach of contract. On receipt of the Termination Notice, the Contractor had submitted a Representation on 23/8/2023 before the Chief Engineer, PWD [Border Roads], Assam stating that the concerned Contract-Agreement had provided for 12-months time for completion of the Contract-Work and the time-limit was up-to May, 2024. The Contractor in his said Representation had undertaken that he was committed to honour the time-line and had sought for re-consideration of the Termination Notice. The writ petitioner had to prefer the writ petition, W.P.[C] no. 5183/2023 when the respondent authorities in the PWD without giving any consideration to the Representation dtd. 23/8/2023, proceeded to issue a Short Notice Inviting Tender [SNIT] on 29/8/2023 for the same Contract-Work.