YOUSUF AMANULLA CHOUDHURY Vs. STATE OF ASSAM

JUDGEMENT

(1.) Heard Mr. B.J. Ghosh, learned counsel for the petitioner. Also heard D. Upamanyu, learned standing counsel, Health & Family Welfare Department, appearing for the respondent Nos.1 & 6, Ms. A. Borah, learned standing counsel, National Health Mission (NHM), appearing for the respondent Nos.2, 3 & 4 and Mr. T.C. Chutia, learned State counsel, appearing for the respondent Nos.5.

(2.) The Mission Director, NHM (respondent No.2) had issued an Invitation For Bids (IFB) on 15.10.2014 for the works under NHM as indicated in the said IFB including construction of new Public Health Centre (PHC) with residential accommodation for staff under NHM at Lalcherra-I in Hailakandi District on turn-key basis on the basis of two-bid system. The petitioner s bid of Rs 1,08,30,553/- was accepted by the respondent No.2 and a Letter of Acceptance (LOA) was issued on 001.2015. The petitioner was asked to confirm as to whether he was agreeable to execute the works at the above offered price and if so, to furnish performance security of Rs 5,41,528/- within 10(ten) days from 001.2015 valid up to 28(twentyeight) days from the date of expiry of the defect liability period. The petitioner furnished requisite performance security of Rs 5,41,528/- and thereafter, an agreement was entered into between the petitioner and the respondent No.2 on 04.02015 for the aforesaid work, wherein terms and conditions, rights and liabilities of the parties were laid out.

(3.) It is the case of the petitioner that though after execution of the agreement, the petitioner had mobilized resources for execution of the work in question, yet the proposed site for construction was not delivered to the petitioner and, therefore, no work could be started at all. Subsequently, the respondent No.5, the Deputy Commissioner, Hailakandi, informed the respondent No.4, the Special Consultant, NHM that in the District Health Society meeting held on 18.04.2017, decision was taken to construct the PHC at Ramchandi Dinanathpur in place of Lalcherra-I. The petitioner, by his letter dated 007.2017, requested escalation of price or minimizing part of the work in view of change of location. By communication dated 25.09.2017, issued by the respondent No.4, the prayer for price escalation or modification of the scope of work was rejected and the petitioner was asked to resume work at the new site as per the earlier quoted rate and tender agreement within 7(seven) days of receipt of the letter, failing which, it was indicated that the work would be withdrawn from him. Ultimately, the petitioner having not started the work at the changed site, the respondent No.2, by letter dated 04.12.2017 (Anexure13 of the writ petition) withdrew the work from the petitioner by terminating the contract as per Clause 59.1 of the General Conditions of Contract due to his failure to intimate his willingness to execute the work at the new location as per the contract agreement and forfeiting the performance security.