AVINASH KUMAR Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner firm is engaged as Contractors, Engineers and Land Escapers. It is duly registered with the Railway Department-respondents. It responded to tender notice invited from eligible contractors by the Deputy Chief Engineer, Survey and Construction-III, Northern Railway Udhampur for execution of earth work in cutting/filling in Zone E-12 from KM 29/280 to KM 30/000 including protection works and other ancillary work. The petitioner succeeded in securing the contract as is evident from letter dated 13.09.2006 sent by the tendering authority vide communication No. 74-W/Acceptance/UDM-KAT/WA (Annexure A). It is appropriate to mention that the petitioner had already furnished a sum of Rs. 4,60,370/- in the shape of CDR which was retained by the department towards the initial security for due and faithful fulfilment of the contract. After the acceptance of the contract the petitioner firm also furnished a Performance Bank Guarantee amounting to Rs. 13,01,947.20 being 5% of the contract value as per the requirement of the allotment letter. After completion of the aforesaid formalities the stage was set for execution of the agreement between the petitioner-firm and the department. Accordingly an agreement was executed and a copy of the agreement No. S&C/3/W/E-12/P.W/Katra/Pt-II dated 28.07.2007 (Annexure-B) has been placed on the record. The work was required to be executed within a period of 15 months from the date of issuance of letter of acceptance.

(2.) There are allegations made in the petition for delayed receipt of drawings of a portion of land which necessitated an application for extension of time made on 04.12.2007 by the petitioner-firm (Annexure-E). A similar request was also made on 27.12.2008 (Annexure-F). The petitioner firm also claims that it was asked to stop the execution of the work on account of change of project alignment being contemplated at higher level. As a result the petitioner-firm was forced to keep its labour and machinery idle which caused huge over head expenditure without any productivity. All the aforesaid aspects have been highlighted in letter addressed by the petitioner- firm on 19.11.2008 (Annexure-G). In paras 11, 12, 13 and 14 similar disputes have been raised which refer to the issue of non availability of the earth which was neither made available by the respondents nor the department allowed the petitioner to arrange the same on its own from private sources. Likewise, changes in the slope and consequent changes in the design of work resulted in additional and extra work which was not provided for in the Original contract agreement. It is claimed that the petitioner has been able to complete more than 85% of the work. Eventually a request was made for extension of time in execution and completion of the contract work and the time for execution was extended by respondents till 30.09.2010. The balance work could not be executed because of the omissions and commissions on the part of the department as respondents failed to handover the hindrance free full site to the petitioner and also failed to release the payment on account of additional/executed by the petitioner firm.

(3.) The petitioner has claimed that despite execution of more 85% of the work, it has been paid a sum of Rs. 1.78 crore. A huge amount is still outstanding and payable by the respondents to the petitioner firm on account of balance work and additional/extra work. However, respondent No. 4-Deputy Chief Engineer (Construction) Northern Railway, Jammu Tawi issued an order dated 29.09.2010 whereby the contract awarded to the petitioner firm has been rescinded with immediate effect (Annexure-J).