M/S Pitambara Construction And ... vs State Of Chhattisgarh
2022 Latest Caselaw 7594 Chatt

                                      1

                                                                        AFR
          HIGH COURT OF CHHATTISGARH, BILASPUR
                            WP(C) No. 887 of 2017


M/s. Pitambara Construction and Company, Plot No. 318, Transport
Nagar Korba, District - Korba (C.G.) through its Partnet Rakesh Kumar
Mishra, S/o late Shri R.L. Mishra, aged about 44 years, R/o Rampur,
Korba, District - Korba (C.G.)
                                                             ---- Petitioners
                                  Versus
1.    The State of Chhattisgarh, through Secretary, Department of
      Public Health and Engineering, Mahanadi Bhawan, Naya Raipur,
      District Raipur, Chhattisgarh
2.    Superintending Engineer, Department of Public Health and
      Engineering, PHE Circle, Bilaspur, District - Bilaspur (C.G.)
3.    Executive     Engineer,     Department   of   Public     Health   and
      Engineering, PHE Division, Korba, District - Korba
                                                  ---- Respondents

(Cause Title taken from Case Information System) ________________________________________________________ For Petitioner : Mr. A. K. Prasad, Advocate

For Respondents : Ms. Astha Shukla, Government Advocate

Date of Hearing : 24.11.2022 Date of Judgment : 15.12.2022 ________________________________________________________ Hon'ble Mr. Arup Kumar Goswami, Chief Justice

Hon'ble Mr. Sanjay Agrawal, Judge

C A V Judgment

Per Arup Kumar Goswami, Chief Justice

Heard Mr. A.K. Prasad, learned counsel for the petitioner. Also

heard Ms. Astha Shukla, learned Government Advocate, appearing for

the respondents.

2. The petitioner is a partnership firm and is engaged in construction

work as well as general work order supply.

3. The petitioner had participated in response to a Notice Inviting

Tender (NIT) dated 28.05.2016 floated by the respondent No. 3, i.e.,

Executive Engineer, bearing No. 15/SAC for construction of RCC

elevated service reservoir 100 K.L. capacity 12 meter staging

(including providing and fixing of all pipes, specials and fitting etc.) at

Livelihood College and ITI Rampur, Korba for an estimated cost of Rs.

11.97 lacs. The period of completion of the work was stipulated to be

six months including rainy season.

4. The petitioner having emerged as the successful tenderer, a work

order dated 20.10.2016 was issued to the petitioner for an amount of

Rs. 14.468 lacs. It is pleaded that while 90% of the work of water tank

had been completed, on 01.04.2017, the petitioner came to learn that

an NIT dated 25.03.2017 for the very same work, for which the work

order was issued to the petitioner, was floated and on enquiry, the

petitioner further came to learn that the respondent No.3, i.e. Executive

Engineer, Department of Public Health and Engineering, is going to

forfeit the term deposit amount deposited by it. It is also pleaded that

the authorities had earlier assured that bill submitted by the petitioner

would be finalized after execution of the complete work and, in the

process, not a single penny was paid to the petitioner.

5. On the above factual background, the writ petition was filed for

quashing the NIT dated 25.03.2017.

6. The writ petition came to be filed on 03.04.2017 and this Court

passed an order on 11.04.2017 providing that if the work awarded to

the petitioner has not been terminated, he will be permitted to continue

with the work for the time being. Subsequently, the petitioner filed an

amendment application on 02.10.2017, which was allowed by an order

dated 03.12.2019. By the said amendment, the petitioner pleaded that

during the pendency of the petition, the petitioner had completed the

work within the prescribed period of time. However, final measurement

of the constructed water tank had not been done. An additional prayer

was made praying for a direction to the respondents to take final

measurement of the constructed water tank and to pay final bill amount

to the petitioner.

7. The respondent Nos. 1 to 3 filed a return on 04.10.2017, wherein

preliminary objections were also raised. It is pleaded that a letter dated

20.09.2016 was issued to the petitioner informing him that his bid was

accepted and that he should report to the Office within seven days of

receiving the letter for signing the agreement. However, the petitioner

did not turn up. A letter dated 01.10.2016 was thereafter issued stating

that as the petitioner did not appear, as directed, the bid of the

petitioner was cancelled and the earnest money was forfeited.

However, in view of an apology letter being received from the petitioner

on 07.10.2016, by a letter dated 14.10.2016, a further period of seven

days was granted to the petitioner for signing the agreement. The

agreement having been signed on 20.10.2016, the work order was

issued to the petitioner on 20.10.2016 itself. It is stated that though

directed by letter dated 20.10.2016, the petitioner had not submitted

the Soil Bearing Capacity (SBC) test report. Letters dated 30.11.2016

and 09.12.2016 were issued in that context and it is stated that by the

letter dated 09.12.2016, the petitioner was directed to submit the SBC

test report and thereafter, to obtain approval of the design and drawing

and then to commence work of construction of the water reservoir as

per the approved drawing and design. However, without submitting

any SBC test report, the petitioner submitted drawing and design for

approval as per Clause 6.0 of the Annexure E-I of the NIT. As the SBC

test report was not submitted, the drawing and design report submitted

for approval was rejected and returned to the petitioner in original. As

thereafter also the SBC test report was not submitted, invoking

Clauses 13 and 14 of the Conditions of Contract, the work awarded in

favour of the petitioner was terminated by letter dated 25.03.2017

forfeiting the earnest money deposit and informing the petitioner that

a fresh NIT would be initiated and the work would be completed

through a different agency and that difference of amount would be

recovered from the petitioner as recovery of land revenue and

thereafter, on the very next date, fresh NIT was issued for the work in

question.

8. With regard to the claim of the petitioner that 90% work has been

completed, it is stated that such work cannot be certified as the

construction was made without furnishing the SBC test report and

without approval of the drawing and design, as also for not having been

constructed under the supervision of the respondents. The allegation

of submitting SBC test report, as stated in paragraph 8.4 of the writ

petition, was specifically denied.

9. The petitioner filed another application being I.A. No. 03 of 2017,

praying to add paragraphs 8.19 to 8.31 after proposed paragraph 8.18

of the earlier application for amendment, paragraphs 9.14 to 9.28 after

proposed paragraph 9.13 of the earlier application for amendment and

also a prayer as paragraph 10.5 after proposed paragraph 10.4 of the

earlier application for amendment. The first application for amendment

dated 02.10.2017 was registered as I.A. No. 02 of 2017 and the

second application for amendment dated 25.11.2017 was registered as

I.A. No. 03 of 2017. Order-sheet of the Court does not indicate that

any order was passed on I.A. No. 02 of 2017. However, by the order

dated 03.12.2019, I.A. No. 03 of 2017 was allowed. Consolidated writ

application was filed by the petitioner also incorporating the

amendment sought for vide I.A. No. 02 of 2017, though not allowed by

the Court, presuming that I.A. No. 2 of 2017 was also allowed by this

Court. Be that as it may.

10. By the I.A. No. 03 of 2017, the petitioner had pleaded that after

filing of the return of the respondents on 04.10.2017, the petitioner had

come to learn about the order dated 25.03.2017. It is pleaded that the

same was never communicated to the petitioner. It is asserted that the

petitioner had submitted SBC test report before the Department before

commencement of the work alloted to him and the said SBC test report

was approved by Superintending Engineer by letter dated 17.02.2017.

It is pleaded that when the Executive Engineer sought approval from

Superintending Engineer for issuance of a fresh NIT for construction of

the water tank at the risk and cost of the petitioner, the Superintending

Engineer by a letter dated 11.04.2017 disapproved the issuance of NIT

and cancellation of the tender. Nonetheless, the Executive Engineer

went ahead to issue the NIT on 25.03.2017. It is pleaded that the

respondents had inspected the construction work from time to time and

had not raised any objection with regard to the quality of the work and

accordingly, had denied the allegation made that the petitioner had

constructed the water tank without SBC test report and without

approval of drawing and design. The petitioner had also enclosed a

SBC test report. An additional prayer for quashing the termination

order dated 25.03.2017 was also made.

11. On the date of filing of I.A. No. 03 of 2017, the petitioner had also

filed a rejoinder to the return filed by the respondents. In the said

rejoinder, it is stated by the petitioner that the petitioner had filed

application for SBC test report before Engineering College, Bilaspur.

But, as the authority expressed inability to give the report within a short

time and stated that they would require three months time to visit the

site, petitioner wrote a letter to the respondent No.3 for testing to be

conducted by the Public Health and Engineering Department, upon

which, the petitioner was verbally instructed to get the SBC test report

from Chhattisgarh Water Resources Department, Minimata Bango

Quality Control Central Laboratory and accordingly, the petitioner had

made an application, based on which, soil was tested on 29.12.2016

and report was given on 13.01.2017. The petitioner had not only given

SBC test report, but had also submitted material testing report and that

it had also submitted drawing and design, which was duly approved by

the respondent No.3. The construction work of the petitioner was

inspected by the Sub Divisional Officer and the Sub-Engineer and they

had expressed their satisfaction and had not raised any objection in

respect of the work done, which was completed on 19.04.2017.

12. An additional return came to be filed by the respondents on

04.04.2018. In the said additional return, it is categorically denied that

any SBC test report was submitted to the office of the respondent No.3

or in the office of Assistant Engineer, PHE, Korba. It is stated that the

cost of construction of the overhead tank was provided by the office of

the Collector and District Magistrate, Korba under the head of DMFT

and when a visit was made by the Collector to the work site on

25.03.2017, no work was found to be done by the petitioner and

therefore, the contract was terminated. Accordingly, it is stated that the

plea taken by the petitioner that he has completed work on 19.04.2017,

when work was not even started on 25.03.2017, is without any basis.

Even if any construction was raised, no sanctity can be given to such

construction as the same has been constructed without any SBC test

report and without approval of drawing and design. It is stated that

staircase of a similar overhead tank constructed by another contractor

without SBC test report at Village - Basibar, Block - Pali had collapsed

during the testing of the overhead tank and the tank also was tilted.

13. The petitioner filed a covering memo dated 07.01.2020 without

any affidavit showing that one M/s. S.K. Enterprises, Korba has been

granted final bill for construction of RCC overhead tank at Village -

Rampur based upon testing report of Assistant Research Officer, Mini

Mata Hasdev Bango Quality Control Sub Unit, Darri.

14. Noticing from the pleadings of the petitioner that two authorities,

i.e., Executive Engineer and Superintending Engineer seem to take

different stands, this Court required the Secretary of the Public Health

and Engineering Department to file an affidavit and, accordingly, the

Secretary had filed an affidavit on 04.11.2022. It is stated that as per

Clause 3.1 of Annexure-E of the NIT, the petitioner was under an

obligation to submit the plate load bearing test report conducted by

Government Engineering College, Bilaspur and under Clause 6.0 of

Annexure-E-1 of the NIT, after obtaining approval of the design and

drawings from the competent authority, the petitioner was to

commence the work. In the said affidavit, the Secretary, while

reiterating the stand taken in the return submitted on 04.10.2017, has

stated that the order dated 05.03.2017 was duly communicated to the

petitioner through registered post. The postal receipt dated 27.03.2017

was enclosed. With regard to the letter dated 17.02.2017, it is stated

that SBC test report was approved by the Superintending Engineer in

respect of another work, namely, construction of RCC elevated service

reservoir 50 KL capacity at village Rampur and not for the work related

to the petitioner. It is stated that competent authority for grant of

technical sanction for the work in question is the Executive Engineer.

15. A rejoinder-affidavit dated 20.11.2022 was filed by the petitioner

to the aforesaid affidavit of the Secretary. In the said affidavit, the

petitioner reiterated that the Superintending Engineer had considered

the SBC test report given by the petitioner as well as M/s. S.K.

Enterprises and that both the test reports were approved.

16. Mr. A.K. Prasad, learned counsel for the petitioner, submits that

SBC test report and the drawings and design were duly approved by

the Superintending Engineer and that the construction was undertaken

under the supervision of the officials of the respondents and therefore,

when the petitioner has completed the work within the stipulated period

of time, the respondents had acted illegally and arbitrarily in issuing the

cancellation of the work order dated 25.03.2017 as well as in issuing

the second NIT. It is submitted that without any justification the

payment of the petitioner is held up on the specious plea that the

petitioner had constructed the water tank without SBC test report and

without approval of the drawing and design. It is submitted that as the

Government Engineering College, Bilaspur had expressed its inability

to furnish the SBC test report for which they said that they would

require three months, on the oral instructions of the respondent No.3,

the SBC test report was obtained from the Chhattisgarh Water

Resources Department, Minimata Bango Quality Control Central

Laboratory and the same was also duly got approved by the

Superintending Engineer alongwith designs and drawings on

17.02.2017.

17. On the other hand, Mr. Gagan Tiwari, learned Deputy

Government Advocate, appearing for the respondents, submits that

the SBC test report, drawings and designs were not approved by the

Superintending Engineer as alleged and whatever construction was

made by the petitioner was without the same and therefore, the order

dated 25.03.2017 was issued cancelling the work order of the

petitioner. The construction raised by the petitioner cannot be certified

in absence of the drawing and design not being approved and also the

construction having not been supervised by the officials of the

respondents. It is submitted by him that it is also not understood why

the petitioner had allegedly submitted the SBC test report to the

Superintending Engineer when the Executive Engineer is the

competent authority in respect of the work in question. In the

circumstances of the case, it is submitted by him that no case is made

out for granting reliefs to the petitioner, as prayed for.

18. We have considered the submissions of the learned counsel for

the parties and have perused the materials on record.

19. Perusal of the work order dated 20.10.2016 goes to show that the

petitioner was asked to submit SBC test report along with test report of

metals and steel etc. Clause 3.1 of Annexure-E of the tender document

provides that the plate load bearing test should be conducted by

Government Engineering College, Bilaspur for safe bearing capacity at

proposed site below 3 m from ground level. Clause 30.0 lays down

that the tenderer shall have to produce the complete design and

working drawing of each component of structure before starting of

work. Clause 6.0 of Annexure-E-I dealing with special conditions

provides that the contractor will submit the detail design and drawings

of the R.C.C. elevated reservoirs within 30 days from the date of issue

of written order to commence the work for approval of the competent

authority of the Department in five copies.

20. Clauses 13 and 14 of the conditions of contract read as follows :

"13. The works comprised in this tender are to be

commenced immediately upon receipt of the order

commencement given in writing by the E.E. when

possession of aforesaid (but excluding such if any as

may have been postponed by an order from the E.E.)

shall be completed in every respect within 04 months

excluding rainy season from the date of issue of the

aforesaid order and if from any cause whatever other

than wilful obstruction or defaults, on the part of E.E.

or his staff and except as hereinafter provided the

whole of such work shall not be finished to the

satisfaction of the E.E. within the said period, the

contractor(s) shall forfeit to the Governor of C.G. from

his/their security deposit by way of ascertained and

liquidated damages for each defaults and not by way

of penalty, the sum of Rs.3,500/- (Rupee Three

Thousand Five Hundred only) per day for every

completed day of such default provided that the entire

amount of damage to be forfeited under the provisions

of this clause shall not exceed 10% on the whole work

as shown in the tender.

Provided nevertheless that if the contractor(s) shall

be of the opinion that he/they is/are entitled to any

extension of time on account of the works being

altered, varied or added to or on account of any delay

by reason of any inclement whether or causes not

under the control of the contractor(s) in consequence

of orders to that effect from the E.E. himself which

orders, the such cases it shall be competent for E.E.

by an order in writing to extend the aforesaid period

for final completion by such period or periods as he

shall deem reasonable and the contractor(s) is/are to

complete the works within such extended period or

periods as aforesaid. Provided that the contractor(s)

shall not be entitled to any extension of time unless

he/they shall consider himself/themselves entitled to

any extension to the E.E. giving written notice of such

claim to any extension of time and of the ground or

grounds and of the amount thereof unless in any case

the E.E. shall in his discretion dispense with such

notice and certify for a extension of time. Nevertheless

and in case of any extension of time, the aforesaid

provision with amount for damage in defaults in due

completion shall apply in case of non completion of

the works within the extended time. Provided that the

Contractors shall be entitled to any extension of time

in respect of the extra work involved in extra depth of

foundation mentioned in clause 5.

14. If the contractor(s) shall become bankrupt or

compound with or make any assignment for the

benefit of his/their creditors or shall suspend or delay

the performance of his/their part of the contract

(Except on account of causes mentioned in clauses

13 or in consequence of not having proper instructions

for which the contractor(s) shall have dully applied).

The E.E. may give to the Contractor(s) or his/their

assignee or trustee, as the case may be, notice

requiring the work to be proceeded with."

21. The order dated 25.03.2017 reads as follows :

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22. Though Clauses 13 and 14 aforesaid do not prescribe termination

of contract, it appears that since SBC test report was not produced, it

was opined that the petitioner was not interested to do the work. It is

also relevant to note that by that time, almost five months had elapsed

from the date of issuance of the work order. The order of this Court

dated 11.04.2017 provided that the petitioner would be permitted to

continue with the work if the work awarded to the petitioner has not

been terminated. The work order was cancelled on 25.03.2017 and

therefore, the order dated 11.04.2017 will not enure to the benefit of

the petitioner and it is the own case of the petitioner that during the

pendency of the writ petition only he had completed the work. How

the petitioner could continue with the work after the work order was

terminated is not understood.

23. In the letter dated 17.02.2017 of the Superintending Engineer,

though there is reference to the presence of a representative of the

petitioner, it does not appear that SBC test report of the petitioner was

approved. In the said letter dated 17.02.2017, there is reference of

letter No. 6588 dated 20.10.2016 of the Executive Engineer. The letter

No. 6588 dated 20.10.2016 relates to M/s. S.K. Enterprises. In the

said letter dated 17.02.2017, there is also a reference to a letter No. 22

dated 08.12.2016. The date 08.12.2016 is wrongly recorded there and

it should have been 08.11.2016. The said letter was issued by M/s.

S.K. Enterprises and the same is available at page 90 of the reply-

affidavit filed by the Secretary. Therefore, it does appear to the Court

that approval contained in the said letter dated 17.02.2017 relates to

the SBC test report of the petitioner. Even assuming that there was a

SBC test report of another Government organization, though the

petitioner was required to submit such report from Government

Engineering College, Bilaspur, materials on record do not demonstrate

that the drawing and design was approved by the Executive Engineer

as required in terms of Clause 6.0 of Annexure-E-I. There is also no

material on record to indicate that the construction work was done

under the supervision of the officials of the Department.

24. In view of the materials on record, as obtaining, we are of the

considered opinion that the petitioner has failed to make out a case for

granting reliefs, as prayed for, in exercise of powers under Article 226

of the Constitution of India.

25. Taking that view, the writ petition is dismissed.

                   Sd/-                                              Sd/-
          (Arup Kumar Goswami)                                 (Sanjay Agrawal)
            CHIEF JUSTICE                                         JUDGE




Chandra