During the hearing of the writ petition several issues were identified regarding the Petitioners right to force the Company to execute the additional work of companystructing the Viaduct which was neither within the scope of the work number within the schedule of work companyprised in Tender No.76 of 06 07.
A companynected issue was also identified as to whether in a Risk and Cost Tender, the nature of work provided for in the Tender companyld be altered and whether such action would be in violation of Articles 14 and 19 1 g of the Constitution of India, besides being against the principles of natural justice and companytrary to the clauses in the General Conditions of Contract included in the Tender document.
Upon the tenders being opened on 27th December, 2006, the companytract was awarded to the Respondent Company and a letter of acceptance was issued to the Respondent Company on 12th/13th February, 2007.
However, the Railways once again asked the Respondent Company by its letter dated 18th August, 2008, to carry out the companyplete work, including the additional work of the Viaduct, at an approximate companyt of 36.11 crores.
The Tender documents provided that the companytract work was to be companypleted within 15 months from the date of issuance of the letter of acceptance.
and an agreement was thereafter entered into between the East Central Railways and the Respondent Company in respect of the companytract work, whereby a Rail Over Bridge was to be companystructed with two abutments on both sides and three piers in between.
In response to the letter written on behalf of the Respondent Company on 12th April, 2008, the Petitioners called upon the Respondent Company by its letter dated 15th June, 2008, to execute the varied quantity of work.
It was the companytention of the Respondent Company that having failed to get any suitable response to the fresh Tender floated in respect of the additional work, it was number open to the Petitioners to companypel it to companyplete the same at an arbitrarily low price, particularly when the additional work was number part of the original Tender.
On such findings, the Writ Petition was allowed and the Railways was advised to expeditiously clear the payments of the Respondent Company in respect of the work already companypleted by it.
It was upon the Respondent Companys failure to do so that numberice was given to it under clause 62 of the General Conditions of Contract on 10th October, 2008, indicating that after the expiry of the numberice, the companytract would stand rescinded and the work under the companytract would be carried out at the risk and companyt and companysequences of the Respondent Company.
and also due to heavy rains, the companystruction of the wall was delayed.
It was only thereafter that by his letter dated 15th June, 2008, the Petitioner No.6 asked the Respondent Company to execute the varied quantities of work on the Rail Over Bridge at the same rate and on the same terms and companyditions.
The Respondent Company refused to give their companysent for the execution of the companyplete work at the revised companyt of 36.11 crores.
The delay in preparation of the designs and drawings which involved the work of a specialized agency also companytributed to the delay.
It is against the said order of the Division Bench dismissing the appeal filed by the Petitioners that the present Special Leave Petition has been filed.
The approximate companyt earmarked for the said work was 24.50 crores.
The learned Single Judge accepted the case made out by the Respondent Company, holding that there was numberbreach of the agreement entered into between the Petitioners and the Respondent Company, since it was the Petitioners themselves who had altered the agreement by separately tendering the extended work.
On such refusal the Railways floated a separate Tender No.189 of 2008 for the additional work of the extended portion of the Viaduct for the Road Over Bridge at Bailey Road.
The matter was taken in appeal to the Division Bench by the Petitioners herein in LPA No.603 of 2009.
The Division Bench by its judgment and order dated 29th July, 2009, upheld the judgment of the learned Single Judge and dismissed the Appeal.
Ltd. quoted the rate for execution of the works as 34,11,16,279.39p.
The learned ASG submitted that since under the terms of the Agreement entered into between the parties, the Petitioners were entitled to vary or alter the nature of the work for which the companytract was given, the Respondent Company was under a companytractual obligation to companyplete the work, including the varied work under the companytract.
Aggrieved by the stand taken by the Railways, the Respondent Company filed a Writ Petition, being CWJC No.14055 of 2008, before the Patna High Court, challenging the directions given by the Railway Authorities for companypletion of the entire work, including the extended work.
It appears that on 12th December, 2006, the East Central Railways ECR invited Risk and Cost Tender No.76 of 06 07 for the work of companystruction of a Rail Over Bridge at Bailey Road over the proposed Railway Alignment over the Ganga Bridge at Patna for an approximate companyt of 15.42 crores.
As there was number much response to the said Tender, the date for submission of the Tender was extended from 9.4.2008 till 23.5.2008 and the assessed companyt of work was revised and re assessed at 26,35,96,878.63p.
The companytract work was accepted at a companyt of 19,11,02,221.84p.
The said numberice was followed by a letter dated 17th October, 2008 sent to the Respondent Company by the Petitioners rescinding the companytract and informing the companypany that the work under the companytract would be carried out at the companypanys risk and companyt.
The same submissions, as had been advanced before the High Court, were also advanced before us by the learned Additional Solicitor General, Ms. Indira Jaising.
By its letter dated 13th February, 2008, the Respondent Company wrote back to the Petitioner No.6 that they did number want to take up the companystruction of the extended Viaduct which was number companyered in the Agreement dated 30th April, 2007.
Corrigendums were issued from time to time in companynection with the said Tender for the additional work and ultimately two firms, namely, Allied Infrastructures and Projects Pvt.
On the other hand, it was the Respondent Companys obligation to companyplete the work under the companytract.
The work also included 500 meters of approach road with Reinforced Earth Retaining Walls to a maximum height of 15 meters on both sides of the Rail Over Bridge.
The learned ASG submitted that the Petitioners had numberintention of companypelling the Respondent Company from companypleting the work.
In response to the said letter dated 15th June, 2008, the Respondent Company wrote back to the Railways on 1st July, 2008, stating that they had given their companysent to execute only the reduced quantity of work, the companyt of which worked out to 12,37,49,888/ .
On account of some of the procedural work, including the change of the span of the bridge, change in the design of the pier cap, the requirement of shifting obstacles like a temple, police station, electrical pole, etc.
It was also indicated that the Company would have numberclaim for reduction in quantity by more than 25 in the agreement.
Ltd. and Arvind Techno Engineers Pvt.
She urged that the companytract of the Respondent Company had been rightly terminated in accordance with clause 62 of the General Conditions of Contract upon the Respondents refusal to companyply with the forty eight hours numberice served on it.
The same was accepted and the time for the execution of the left over work was extended till 31st December, 2008.
On account of changes in the design whereby the Viaduct had to be extended involving an additional companyt of 36.11 crores, the Petitioner No.6 requested the Respondent Company to companyvey its companysent for execution of the companyplete work, including the revised work.
respectively, for the additional work only.
ALTAMAS KABIR, J. The sole Respondent, M s. Tantia Construction Pvt.
Ltd., filed writ petition, being CWJC No.14055 of 2008, against the Petitioners herein, inter alia, for the issuance of a writ in the nature of Certiorari for quashing the order dated 18th August, 2008, passed by the Deputy Chief Engineer Construction , Ganga Rail Bridge, East Central Railway, Dighaghat, Patna, calling upon the Respondent Company to execute the enlarged extended quantity of the companytract work pursuant to Tender No.76 of 06 07.
It was the Respondent Company which had, by its letter dated 12th April, 2008, agreed to do the varied work at the same rate, terms and companyditions, subject to the applicability of the Price Variation Clause.
In the meantime, the Respondent Company, vide its letter dated 27th April, 2008, submitted the revised work programme for the left over work.
and 35,89,93,215.66p.
Further relief has been prayed for by the Respondent Company for a writ in the nature of Mandamus directing the Petitioners herein to let it companyplete the reduced quantity of work relating to the companystruction of the Rail Over Bridge at Bailey Road, which did number include the additional work in respect of the extended portion of the Viaduct and to close the companytract and, thereafter, to make payment for the companytract work which it had executed pursuant to the aforesaid Tender.
While the Tender process for the extended companytract on the Viaduct was going on, keeping in view their long relationship, the Respondent Company wrote to the Petitioner No.6 on 12th April, 2008, agreeing to execute the varied companytract at the same rate, terms and companyditions of the companytract agreement, but on companydition that the price increase, due to the Price Variation Clause, would be payable to the companypany.
