TaxTMI 
TaxTMI 
2021 (9) TMI 1548
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....to consideration for making revised Detailed Project Report (DPR) and thus passed necessary orders for payment of the amount due to the writ petitioner within four months of the receipt of copy of the order. In an appeal filed by the appellants, the Division Bench of the High Court held that resurvey for measurement and DPR would not be just and fair at this stage since five monsoons had passed. Therefore, the only option left to the appellants was to approve the DPR and pay the pending bills on the basis of Final Joint Survey/Measurement Report dated 24.10.2013. 4. Brief facts leading to the present appeal is that a Notice Inviting Tender (NIT) was issued on 22.10.2008 for construction and improvement of road from 26.800 km to 47.850 km between Lumla and Tashigong under Special Accelerated Rural Development Programme (SARDP). The bid of the writ petitioner was accepted at Rs.31,87,58,950/-. The work order was issued on 15.7.2009. The said work order was amended by the parties on 15.3.2012 leading to enhanced work cost at Rs. 35,03,15,695.23. The work order had provided details of the work to be carried out and the estimated amount payable for each work with rate of each work. T....
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....) Embankment filing (cum) Jungle Clearance (10 Sq m) Km 31.000-Km 47.850 (a) Qty of Fmn works provisioned as per dpr 633835.33 15298.87 81438.22 0.00 25275.00 (b) Qty of Fmn works as per joint survey 356166.00 182073.00 337447.00 0.00 23123.00 The quantities as arrived at after joint survey are theoretical only and after completion of formation works Total station survey shall be carried out as per Clause 18 of Special Conditions of Contract to ascertain the actual quantity executed. Hence these quantities be treated as accurate, based on theoretical calculations. The classification of soils as shown in joint survey are based on visual appearance of soil strata. The actual classification of excavation shall be decided during execution by Engg in Charge and OC Contract as per clause 2.2.2 of Particular specification of CA at page no. 87 duly supported with photographs. The quantities of formation works as arrived at after joint survey between Km 26.800 and Km 47.850 as per details given at Appendix 'A' are recommended for execution of ground and will form the basis of RAR payments to be made as per Contract Prov....
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.....00 Mtr length of trapezoidal shape in plum concrete between Km 26.800 and Km 47.850 at locations as arrived at after Joint Survey and mentioned at Annexure-VI to Appendix 'B' are recommended for execution on ground under CA No. CE/VTK/03/2009-10. (g) Road Furniture: Road furniture provisioned between Km 26.800 and Km 47.850 as per Annexure-VII to Appendix 'B' are recommended for providing/fixing on ground under CA No. CE/VTK/03/2009-10. 25. Working drawings of all permanent structures (different sizes/types) are enclosed with this Board of Officers. 26. Construction of permanent structures at designated locations or otherwise will only be executed after obtaining prior approval of Engineer-in-Charge/OC Contract as per ground requirement. 27. The quantity of items of Permanent works as arrived at after Joint Survey between Km 26.800 and Km 47.850 as per details given at Table-2 of Appendix 'B' are recommended for execution on ground and will form the basis of RAR payments to be made as per Contract Provision/Stipulation during execution of works under CA No. CE/VTK/03/2009-10. Amendment in quantities of permanent works is recommended only during ....
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.... 1735.04 7631.42 0.00 0 125.00 217.80 2 31.000 47.850 356166.00 182073.00 337447. 0 0 0.00 23123.0 2174.80 4928 Presiding Officer Lt Col Dhiraj Minotra, OC, 117 RCC (GREF) OC Contract Member 1 Sd/- (Comments KS, AE(Civil) Eng-inCharge 117 RCC (GREF) 2 Shri ____________ A Holder Authorized rep of M/s Puna Hinda 6. The writ petitioner was directed not to cut extra road formation width without obtaining proper written permission from the Competent Authority on 28.1.2013, and in case any formation work was carried out, no payment shall be made after the report of the Board of Officers. 7. The Second in Command of the Unit sought approval of the Headquarters on 24.10.2013 after the joint survey of formation cutting was done by the Joint Survey Team. It is the said Joint Survey Report which was rejected by the Competent Authority at the Headquarter, when the following communication was addressed to the field office with a copy to the writ petitioner. The said communication of the Commissioner on 29.10.2013 reads as under: "Headquarters 763 Boarder Roads Task Force Pin-930763 ....
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....ox.) for extra widening of road beyond 7.45 m. It was communicated as under: ".... (h) It is worth mentioning that vide your letter No. NCUBRO/ L-T/ADM/2013 dated 12 Jul 2013 (copy enclosed as Appx 'D') you claimed unpaid amount just Rs.74,33,631.00 on account of original formation work and Rs. 4.00 Crores (approximately) on account of extra widening of road beyond 7.45m which is beyond the scope of the contract and the same has already been intimated to you vide this HQ letter No. 80914/L-T/26-47/114/E8 dated 19 Aug 2013, in case you have any approval of the dept for doing-extra work or if there is any amendment to work order, the same may please be forwarded for our perusal. 3. In view of the above, it is submitted that each payment has been released to you as per claim based on joint measurement and duly accepted by you till finalization of the formations work as per clause No 18(vi) of special conditions of contract at serially page 72 of contract agreement. Hence any extra claim after fifteen months of completion of formation work is baseless not correct." 10. The writ petitioner communicated on 12.7.2013 that it would be bound to stop/abandon the....
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....E8 dated 28 Jun 2014 whose reply is awaited. (f) As per directions received vide Par 8 of HQ DGBR/ADG Sectt letter No 71004/DGBR/25/ADG Sectt dated 25 Jul 2014 and HQ CE(P) Vartak letter No B0914/LT/26.800 to 47.85/341/E8 dated 30 Jul 2014 (copy of both letters enclosed) recovery of amount on account of non hancing over the quantity of hard rock from the formation works executed has to be incorporated in your final bill on receipt of reply from HQ CE(P) Vartak. (g) Already matter in respect of disputes relating to subject CA is with HQ DGBR." 12. An inter-departmental communication was sent to Head Quarters of Seema Sadak Bhawan (Border Road Office) on 17.4.2015 that Board of Officers were not required to be appointed and Accepting Officer may take the requisite decision. In the status report under Appendix 'A' to the Head Quarter vide letter dated 26.5.2015, it was noted as under: "6. From the above it is evident that "work claimed to have been executed" is much beyond "work ordered to the contractor". Moreover the "excess work claimed to have been executed" by the contractor has not been ordered by Accepting Officer or Commander of work or Officer Co....
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....ocedure, 1908. A writ of mandamus was prayed for to pay a sum of Rs.31,57,16,134/- with 18% interest. In reply to the said writ petition, the assertions made by the writ petitioner were controverted but also an objection was raised that there was a clause for arbitration for resolving disputes arising between the parties, therefore, the writ petitioner should have approached the designated authority by appointment of an arbitrator. 16. The appellants in their affidavit had pointed out that after completion of the formation work, the writ petitioner had communicated expenses of Rs.16,93,51,980/- as against provision of Rs.16,26,71,039.40. It was asserted that the writ petitioner has been paid a sum of Rs.42.27 crores as against original cost of Rs.31.01 crores whereas the contractor has claimed a total sum of Rs.71.86 crores. The letter dated 29.10.2013 has been issued by the Headquarters, Border Road Task Force stating that the minimum distance was to be measured from center line of carriage way and not from the edge of the roadway. Thus, the entire claim was based upon imaginary and arbitrary grounds which was enhanced from time to time. 17. Mr. Nataraj, learned ASG appearin....
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....th property. Such activities may not raise any issue of public law. In the present case, it has not been shown how the contract is statutory. The contract between the parties is in the realm of private law. It is not a statutory contract. The disputes relating to interpretation of the terms and conditions of such a contract could not have been agitated in a petition under Article 226 of the Constitution of India. That is a matter for adjudication by a civil court or in arbitration if provided for in the contract. Whether any amount is due and if so, how much and refusal of the appellant to pay it is justified or not, are not the matters which could have been agitated and decided in a writ petition. The contractor should have relegated to other remedies." 18. Mr. Nataraj also placed reliance on the judgment of this Court reported as Joshi Technologies International Inc v. Union of India & Ors. [(2015) 7 SCC 728] wherein the following was held: "55. Law in this aspect has developed through catena of judgments of this Court and from the reading of these judgments it would follow that in pure contractual matters the extraordinary remedy of writ under Article 226 or Article ....
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.... the rights are governed only by the terms of the contract, no writ or order can be issued under Article 226 of the Constitution of India so as to compel the authorities to remedy a breach of contract pure and simple - Radhakrishna Agarwal v. State of Bihar [(1977) 3 SCC 457], Premji Bhai Parmar v. DDA [(1980) 2 SCC 129] and Divl. Forest Officer v. Bishwanath Tea Co. Ltd. [(1981) 3 SCC 238 : (1981) 3 SCR 662] " x xx x x 69. The position thus summarised in the aforesaid principles has to be understood in the context of discussion that preceded which we have pointed out above. As per this, no doubt, there is no absolute bar to the maintainability of the writ petition even in contractual matters or where there are disputed questi....
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....ed. The letter itself stated that it has been approved by the Competent Authority. It appears that the decision was taken by the competent authority but the communication was issued by an officer on behalf of the competent authority. The basis of Joint Survey Report itself has been found to be fallacious. This Report appears to be a friendly act of some of the officers of the appellant, to grant benefit to the writ petitioner, though even not claimed by the petitioner at an early stage. The claim of Rs.23,68,11,589.02 in the letter dated 17.6.2014 has swelled into an amount of Rs. 35,51,80,651 as per the notice under Section 80 of the Code. Therefore, for the purposes of these proceedings, the communication dated 29.10.2013 cannot be permitted to be disputed by the writ petitioner. 22. The Board of Officers convened its meeting but the same was cancelled vide communication dated 8.6.2015. Thus, an attempt by the appellants to resolve the disputes regarding the measurements by constituting Board of Officers was scuttled by the writ petitioner for the reasons best known to him. 23. The High Court has based its order on the ground that after five monsoons, the final measurements....