Northeast Construction Co. vs Union Of India And 2 Ors

Heard Mr. S. Dasgupta, learned counsel for the writ petitioner. I have also heard Mrs. U. Chakraborty, learned Special Senior Railway Advocate, appearing for the respondents.

The writ petitioner herein was awarded the contractual works of "(a) Construction of Relay, Battery, Generator room, ASM room, as per CE'S PLAN No.S/05/2007 at GLGT, NMGY, BLMR, BBGN, JTTN & CMA, (b) Construction of 2 Nos. Location hut at each station yard at GLG, NMGY, BLMR, BBGN, JTTN & CMA and (c) Construction of 1.22 m span RCC Box culvert for Br. No.58 at NMGY yard & Br. No.140 at BLMR yard in connection with Isolation and upgradation of Signaling". According to the Railway authorities, the petitioner could not complete the work despite several extensions granted to it as a result of which, by issuing the order dated 22.11.2017, the authorities had terminated the contract. Aggrieved thereby, the writ petitioner has approached this Court by filing the present petition inter-alia contending that there were changes in the drawings/specifications on several occasions at the instance of the respondents which had contributed to the delay in completion of the work. Moreover, the petitioner has also alleged that the respondents have withheld the payment of an amount of Rs.60 Lakhs (approx) which had seriously hampered the progress of the work.

Taking note of the facts and circumstances of the case and keeping the public interest in mind, this Court had passed an order dated 30.08.2018 seeking a response from the respondents as to whether even at this stage they would be open to granting one last chance to the writ petitioner to complete the work. Responding to the said order passed by this Court, the respondent Nos.1, 2 and 3 have filed an affidavit dated 07.09.2018 sworn by the Executive Engineer/TMR, Maligaon, inter-alia stating that keeping the interest of the passenger safety in mind and urgency of the work the Railway authorities are willing to grant extension for a period of two months to the petitioner to complete the work. Para 5 of the additional affidavit is reproduced herein below for ready reference :-

"5. That looking into the safety of passengers and urgency of the work to be completed as early as possible, the Respondent Railway authorities have already given their consent to give one more chance to the petitioner to complete the work by way of extension of two more months as last chance to complete the works and if the petitioner will fail to complete the work within two months, the contract shall be terminated without any notice and the petitioner shall have no right to agitate against the termination. As such the time beyond two months cannot be given to the petitioner."

In the rejoinder affidavit filed by the petitioner on 13.09.2018, it has been stated that the petitioner agrees to complete the work but had sought more time on the grounds mentioned in the said affidavit. Paragraph 14 of the rejoinder affidavit is reproduced herein below for ready reference :-

"14. That, the petitioner is now unable to complete the balance work after 11 months of its earlier prayer within a period of two months as agreed by the respondent. The petitioner is now required to mobilize resources, men, materials and machineries after such a long gap of time. Further due to non payment for the work executed till termination for that the petitioner is entitled to get running bills which is due from the respondent authority, for which the petitioner is facing financial crisis. After receiving of payment of the work executed till the date of termination the petitioner will be able to carry out remaining work, which will be amounting to Rs.60 Lacs approx. The respondent authority also did not approve the 3rd excess materials variation till date which is also practically difficult to proceed with the contract."

Although the order of this Court was passed nearly a year back and the affidavits in response to the order dated 30.08.2018 were brought on record by both the parties promptly, yet, unfortunately the matter remained pending for more than a year as a result of which, valuable time has already been lost in the matter. Be that as it may, after hearing the arguments advanced by learned counsel for both the parties and after taking note of their stand reflected in the respective affidavits, I am of the view that for ends justice one opportunity should be granted to the writ petitioner to complete the pending work. As agreed to by learned counsel for the parties and without making any observation on the merit of the claims and counter-claims of the parties, I dispose of this writ petition with a direction to the respondents to allow four months time to the petitioner to complete the work. For completion of the balance work, it is reasonable for the contractor to demand payment of the running bills that he is entitled to receive under the contract agreement. Therefore, the petitioner is granted one weeks time to file an application seeking release of the outstanding dues/running bills as per the terms of the contract agreement. The period of four months, as provided by this Court for completion of the work, will run from the date on which his application for release of outstanding dues/running bills is disposed of by the respondent authorities and the site is hand over to the writ petitioner. The respondents to adopt all other measures as may be reasonably necessary for completion of the work within the time frame mentioned in this order. It is, however, made clear that if for any reason, the work is not completed in terms of the order passed by this Court, the respondents shall have the right to take further action in the matter including terminating the contract agreement with the writ petitioner.

The Writ Petition stands disposed of accordingly.