ATUL BORA Vs. UNION OF INDIA

JUDGEMENT

(1.) THIS writ petition is directed against the orders dated 4. 3. 98, 17. 3. 98, 21. 5. 98 and 12. 11. 99 issued by the authorities of North Eastern Frontier Railway (in short N. F. Railway), giving notice for recession of contract, rescinding the contract, issuance of tender at the risk and cost of petitioner and recovery of the differences of the amount due to risk and cost sale.

(2.) THE facts in brief is that a notice inviting tender was issued by the authority of N. F. Railway in the name of President of India for the Earthwork filling to form embankment, construction of minor bridges and other ancillary works in Section XIII from field chainage 52000m to 61850m in Amjonga-Rangjuli-Dhupdhara of G-J Project. The petitioner submitted his bid and in pursuant to which the said work was allotted to the petitioner. A contract agreement dated 28. 10. 1990 was executed between the President of India acting through the Railway administration and the petitioner for due execution of the said work with the stipulation that the contract is to be executed on or before the 11th July 1992 and for maintenance of the said work for a period of 12 (twelve) calendar months from the certified date of their completion. As the petitioner could not complete the work within the stipulated period for completion, several extensions were given for completion of the work on the basis of the applications filed by the petitioner contractor. The N. F. Railway authority because of the failure of the petitioner contractor to carry out the work in time issued the notice dated 20. 2. 98 with reference to their earlier letters dated 25. 11. 97, 1. 12. 97 and 9. 2. 98, extending the period for completion up to 31. 3. 98 and also asking him to make good the default in execution of the contract within a period of seven days, failure of which would attract taking further action in terms of the General Conditions of Contract 1979 edition, (in short GCC, 1979) as well as intimating the contractor that in spite of various opportunities given, he has not been able to complete the work and his progress is very poor. The said notice was also issued in terms of the Clause 61 (1) (vi) and 61 (1) (viii) renumbered as 62 (1) (vi) and 62 (1) (viii) of GCC, 1979. The Dy. Chief Engineer thereafter vide order dated 4. 3. 98, because of the failure of the petitioner contractor to make the good the default within seven days notice period, issued a further notice giving 48 hours time, under the said clauses, to improve the progress of the work intimating him that in case of his failure, the Railway administration reserves the right to rescind the contract and to get the balance work completed through another agency at his own risk and cost. By order dated 17. 3. 98 the Railway administration rescinded the contract with effect from the 17. 3. 98 in terms of the provision of Clause 61 of GCC 1979 and informed the petitioner that the left over work will be executed at his risk and cost. Accordingly the notice inviting tender was issued on 21. 5. 98 for completion of remaining work at the risk and cost of the petitioner. The Dy. Chief Engineer vide order dated 12. 11. 99 requested the petitioner to deposit a sum of Rs. 96,81,169/- as the risk amount against the termination of contract and directed the authority under the Railway administration to realize the said amount from the petitioner. Hence, the present writ petition.

(3.) I have heard Mr. R. Hussain, learned counsel for the petitioner and Mr. J. Singh, learned standing counsel, N. F. Railway appearing on behalf of the respondents.