M/S. Pitambara Construction And Company vs State Of Chhattisgarh

Heard Mr. A.K. Prasad, learned counsel for the petitioner.  Also heard Ms. Astha Shukla, learned Government Advocate, appearing for the respondents.

The petitioner is a partnership firm and is engaged in construction work as well as general work order supply.

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.

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.

On the above factual background, the writ petition was filed for quashing the NIT dated 25.03.2017.

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.

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.

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.

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.

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.

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.

An additional return came to be filed by the respondents on 4.04.2018. 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.

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.

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.

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.

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.

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.

We have considered the submissions of the learned counsel for the parties and have perused the materials on record.

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.

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.

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."

The order dated 25.03.2017 reads as follows :

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.

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.

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.

Taking that view, the writ petition is dismissed.