TRIVENI ENTERPRISES Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) Heard Mr. Sumeet Gadodia, learned counsel for the petitioner and Mr. Gaurav Raj, learned counsel for the respondent-State.

(2.) This petition has been filed for under Article 226 of the Constitution of India for quashing the order dtd. 10/12/2007 passed by the Secretary, Water Resources Department, Government of Jharkhand, Ranchi (Respondent No.2), by which he has decided the representation of the petitioner for payment of balance amount which was pending approval of the Department being an amount of Rs.25,35,487.00 being the remaining amount of the variation beyond 25% of the agreemental value in compliance of the direction passed by this Court vide order dtd. 12/9/2007 in W.P.(C) No. 4976 of 2007 and by the said order the claim of the petitioner has been rejected. Further prayer has been made for direction upon the respondents to reconsider the matter for granting approval and sanction for payment of Rs.25,35,487.00.

(3.) Mr. Sumeet Gagoddia, learned counsel for the petitioner submits that a tender was floated for the subject works for construction of CD (Cross Drainage) Works at Kms. 95.31, 99.27, 101.97, 103.48 and earth works from Kms. 94.20 to 106.46 of Chandil Left Bank Main Canal under the Subernrekha Project which was issued vide NIT No. 2003 04 issued by the Executive Engineer, Minor Distribution No. 7, Galudih. He further submits that the petitioner became successful tenderer and the said subject work was awarded to the petitioner for a total value of Rs.13,87,53,538.10 vide letter dtd. 17/11/2003. He submits that petitioner had also deposited the earnest money of Rs.33.00 Lacs in the shape of Bank Guarantee and NSC and the petitioner further deposited the balance security of 3% amounting to Rs.36,37,677.00 within two days for executing the agreement. He further submtis that agreement for the aforesaid work was executed on 20/11/2003 and the work was thus to be completed by 19/5/2005. He submits that the petitioner also submitted a detailed work programme and to execute work by immediately mobilizing the plants and machinery. He then submits that up to the period 22/1/2004, on which date the petitioner, vide its letter, informed the Executive Engineer that it has executed the work of more than Rs.60,00,000.00 but the payment was behind schedule and amount of only Rs.40,00,000.00 was released to the petitioner. He also submits that the Executive Engineer was not paying to the petitioner for the works executed on realistic basis so far as the rate to excavate the earth with disposal was concerned and therefore, the petitioner requested the Department vide its various letters for approving the actual lead of disposal in the field and make payment accordingly. There was no rate in the contract nor there was any work prescribed or mentioned for disposal of excavated earth beyond 500 meters. He further submits that during the execution of the contract, it also came to light that the agreement did not cover the excavation of earth work and other works between KM 94.64 to 96.97 and therefore, the Executive Engineer requested vide letter dtd. 27/1/2005, asking the consent of the petitioner for execution of the aforesaid work also on the agreement rate. The petitioner gave the consent and also requested the Executive Engineer to execute the supplementary agreement for the additional works for which additional security amounting to Rs.11,27,000.00 was deposited on 27/5/2005. He also submits that a supplementary agreement for the work was executed on 6/8/2005 for the works between K.M. 94.64 to 96.97 for a total work value of Rs.2,19,52,180.71 and thus the original work was enhanced and the time for completion was also extended up to 10/5/2006 due to enhanced value of work. He further submits that the works at different stages could not be completed due to hindrance raised by local villages and the petitioner applied for extension vide letter dtd. 21/5/2006. He further submits that the Chief Engineer vide letter dtd. 22/7/2006 extended the time upto 31/12/2006. He also submits that the petitioner has again applied for extension of time upto 30/6/2007 for completion of work however, no response was made. He submits that the Executive Engineer vide letter dtd. 8/12/2006 has given remarks that the works have almost been completed and the said certificate discloses that amount of Rs.17, 34,41,922.00 only has been paid to the petitioner on 26/3/2007 and thus, restricting the further payment of balance amount for want of variation beyond 25%. He further submits that by letter dtd. 27/10/2005 the rate for any extra work was executed beyond the agreement and the report to that effect was also given by the concerned authority contained in Annexure-13 to the writ petition. He submits that the petitioner has filed representation to release the amount however, no action was taken and thereafter the petitioner was compelled to move before this Court in W.P.C. No. 4976 of 2007 which was disposed of on 12/9/2007 directing the concerned department to take a decision on the representation of the petitioner and thereafter the impugned order has been passed by which the entire claim of the petitioner has been rejected which is beyond the terms and conditions of the agreement. He further submits that the amount sanction was already made and payment was also made and now by the impugned order the Secretary is saying that the said sanction itself is not in accordance with law which is further beyond his jurisdiction. He further submits that the petitioner is entitled for admitted dues for the extra excavation work and further refund of Rs.1,73,75,908.00 as security deposit. He further submits that the Secretary has passed order and in view of that an appropriate order may kindly be passed for payment of amount. He also submits that if admitted dues is there High Court is competent to pass order for payment and there are several judgments to that effect and in view of that this writ petition may kindly be allowed.