M/S Grd Construction (Pvt) Ltd Vs. State of Jharkhand and Ors - Court Judgment

SooperKanoon Citationsooperkanoon.com/61703
CourtJharkhand High Court
Decided OnJul-15-2015
AppellantM/S Grd Construction (Pvt) Ltd
RespondentState of Jharkhand and Ors
Excerpt:
1 in the high court of jharkhand at ranchi w.p.(c) no. 4585 of 2008 m/s. grd construction (pvt.) ltd, a private limited company incorporated under the provisions of the companies act, 1956 having its registered office at daninath house, kumharpara, p.o. ,p.o. town & dist: dumka through its director namely krishna kumar dokania, s/o sri ganesh ram dokania, resident of daninath house, kumharpara, p.o.,p.o. town & district-dumka --------petitioner vs.1. the state of jharkhand through its chief secretary 2. the secretary, water resources department, govt of jharkhand, ranchi 3.the engineer in chief, water resources department, govt of jharkhand, ranchi 4. the chief engineer, water resources department, irrigation division jamtara, town & district-deoghar, jharkhand 5.the superintending engineer, irrigation circle jamtara, town & dist: jamtara 6.the executive engineer, irrigation division jamtara, town & dist- jamtara ........respondents coram: hon'ble mr. justice prashant kumar for the petitioner: mr. sachin kumar for the respondents: mr. anshuman kumar, j.c. to a.g. c.a.v. on 01/07/2015 delivered on 15/ 7 /2015 prashant kumar, j: in this writ application petitioner has prayed for issuance of a writ commanding the respondents to consider the case of the petitioner for payment of increased cost of steel rod and cement in pursuance of recommendation of resp. nos. 4,5 and 6, as the same was allowed by the department with respect to other items of the works under the agreement.2. the respondents issued a notice inviting tenders for construction of acquaduct at chain no. 1543/1541 of ajay main canal. it is stated that petitioner was declared successful tenderer and accordingly he was asked to execute an agreement. it is stated that before execution of the agreement, the price of steel rod and cement in the market increased and thus petitioner requested the respondents to raise the rate of the steel rod and cement in the rate of contract. it is further stated that the executive engineer ( resp. no.6) asked the petitioner to execute the agreement then only the matter relating to increasing the cost of the above items will be considered. on the aforesaid assurance, petitioner executed the agreement on 20.10.2003. it is stated that thereafter petitioner wrote so many letters to the respondents for increasing the rate of the steel rod and cement, but the respondents had only assured the 2 petitioner to increase the same and asked the petitioner to complete the work. it is stated that on the aforesaid assurance, petitioner completed the work, but in spite of that the rate of the steel rod and cement had not been increased. petitioner submits that resp. nos. 5 and 6 vide annexures-12 and 13 had requested the resp. no. 4 to consider the case of the petitioner regarding the increase of the rate of the steel rod and cement, because the said rates had already been increased by the state government taking into account the increased market price. it appears that the chief engineer also sent a letter to the resp. no. 3 for consideration of the case of petitioner, but the resp. no. 3 is not taking any step, hence the present writ filed.3. a counter affidavit filed on behalf of the state wherein it is stated that the petitioner had quoted rate, which was 15% less then the schedule rate. it is stated that as per clause 1.05 of the tender notice, it is open for the tenderer to quote in percentage of rate above or below or as per the estimated rate. it is further stated in the aforesaid clause that no claim on account of any differences and for any variation in any respect, shall be entertained by the department. accordingly, it is stated that at the time of filing bid papers, if the petitioner was knowing that market price of steel rod and cement already increased then he ought to have quoted the rate above than the schedule rate, but in spite of the knowledge, petitioner had quoted a rate, which was 15% below the schedule rate, only with in an intention to get the contract. thus, now as per the terms and conditions of the agreement and tender notice, rate of the steel rod and cement cannot be revised. accordingly, it is submitted that there is no merit in this writ application.4. sri sachin kumar, learned counsel appearing for the petitioner submits that the petitioner had executed the agreement on the promise of resp. no. 4,5 & 6, therefore respondents are bound to revise the rate of the steel rod and cement. he further submits that the action of state in not revising the rate in the case of petitioner is arbitrary and discriminatory, because admittedly the state had revised the rate as per the increased market price of the steel rod and cement. accordingly, it is submitted that a suitable direction may be given to the respondents for considering the case of the petitioner.5. on the other hand, sri anshuman kumar, learned j.c. to a.g. submits that from perusal of the letters of executive engineer as contained in annexure-3 and 5, it is clear that resp. nos. 5 and 6 had not given any assurance for increasing the rate of the steel rod and cement, 3 rather they stated that the decision will be taken in accordance with rules. it is also submitted that the resp. no. 4 had only recommended the case of the petitioner for consideration by the department. he then submits that the department had already taken a decision by annexure-a to the counter affidavit that the revision is not permissible as per the terms and conditions of the agreement. accordingly, learned counsel submits that no relief can be granted to the petitioner in this writ application.6. having heard the submission, i have gone through the record of the case. from perusal of materials available on record, it is clear that the dispute between the parties arose from the works contract. whether as per the terms and conditions of the agreement, petitioner is entitled for revision in the rate of the steel rod & cement depends upon the interpretation of various clauses of the agreement. the hon'ble apex court in rajasthan state industrial development and investment corporation & anr vs. diamond & gem development corporation limited and another reported in (2013)5scc470, has held at paragraph no. 19 that :- “there can be no dispute to the settled legal proposition that matters/disputes relating to contract cannot be agitated nor terms of the contract can be enforced through writ jurisdiction under article 226 of the constitution. thus, the writ court cannot be a forum to seek any relief based on terms and conditions incorporated in the agreement by the parties[vide bareily development authority v.ajai pal singh and state of u.p. v bridge & roof co.(india)ltd.]” thus, in view of the aforesaid law, laid down by their lordships of supreme court, the present writ application is not maintainable. the dispute raised by the petitioner can be adjudicated by another forum such as court or arbitrator, because the same involves disputed questions of fact.7. in view of the discussions made above, i find no merit in this writ application, accordingly, the same is dismissed. ( prashant kumar,j.) jharkhand high court, ranchi dated 15 / 7 /2015 sharda/nafr
Judgment:

1 IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(C) No. 4585 of 2008 M/s. GRD Construction (Pvt.) Ltd, a private Limited Company incorporated under the provisions of the Companies Act, 1956 having its registered office at Daninath House, Kumharpara, P.O. ,P.O. Town & Dist: Dumka through its director namely Krishna Kumar Dokania, S/o Sri Ganesh Ram Dokania, resident of Daninath House, Kumharpara, P.O.,P.O. Town & District-Dumka --------Petitioner Vs.

1. The State of Jharkhand through its Chief Secretary 2. The Secretary, Water Resources Department, Govt of Jharkhand, Ranchi 3.The Engineer In Chief, Water Resources Department, Govt of Jharkhand, Ranchi 4. The Chief Engineer, Water Resources Department, Irrigation Division Jamtara, Town & District-Deoghar, Jharkhand 5.The Superintending Engineer, Irrigation Circle Jamtara, Town & Dist: Jamtara 6.The Executive Engineer, Irrigation Division Jamtara, Town & Dist- Jamtara ........Respondents CORAM: HON'BLE MR. JUSTICE PRASHANT KUMAR For the Petitioner: Mr. Sachin Kumar For the Respondents: Mr. Anshuman Kumar, J.C. to A.G. C.A.V. On 01/07/2015 Delivered On 15/ 7 /2015 Prashant Kumar, J: In this writ application petitioner has prayed for issuance of a writ commanding the respondents to consider the case of the petitioner for payment of increased cost of steel rod and cement in pursuance of recommendation of Resp. Nos. 4,5 and 6, as the same was allowed by the department with respect to other items of the works under the agreement.

2. The respondents issued a notice inviting tenders for construction of Acquaduct at Chain No. 1543/1541 of Ajay Main Canal. It is stated that petitioner was declared successful tenderer and accordingly he was asked to execute an agreement. It is stated that before execution of the agreement, the price of steel rod and cement in the market increased and thus petitioner requested the respondents to raise the rate of the steel rod and cement in the rate of contract. It is further stated that the Executive Engineer ( Resp. No.6) asked the petitioner to execute the agreement then only the matter relating to increasing the cost of the above items will be considered. On the aforesaid assurance, petitioner executed the agreement on 20.10.2003. It is stated that thereafter petitioner wrote so many letters to the respondents for increasing the rate of the steel rod and cement, but the respondents had only assured the 2 petitioner to increase the same and asked the petitioner to complete the work. It is stated that on the aforesaid assurance, petitioner completed the work, but in spite of that the rate of the steel rod and cement had not been increased. Petitioner submits that Resp. Nos. 5 and 6 vide Annexures-12 and 13 had requested the Resp. No. 4 to consider the case of the petitioner regarding the increase of the rate of the steel rod and cement, because the said rates had already been increased by the State Government taking into account the increased market price. It appears that the Chief Engineer also sent a letter to the Resp. No. 3 for consideration of the case of petitioner, but the Resp. No. 3 is not taking any step, hence the present writ filed.

3. A counter affidavit filed on behalf of the State wherein it is stated that the petitioner had quoted rate, which was 15% less then the schedule rate. It is stated that as per Clause 1.05 of the Tender Notice, it is open for the tenderer to quote in percentage of rate above or below or as per the estimated rate. It is further stated in the aforesaid clause that no claim on account of any differences and for any variation in any respect, shall be entertained by the department. Accordingly, it is stated that at the time of filing bid papers, if the petitioner was knowing that market price of steel rod and cement already increased then he ought to have quoted the rate above than the schedule rate, but in spite of the knowledge, petitioner had quoted a rate, which was 15% below the schedule rate, only with in an intention to get the contract. Thus, now as per the terms and conditions of the agreement and tender notice, rate of the steel rod and cement cannot be revised. Accordingly, it is submitted that there is no merit in this writ application.

4. Sri Sachin Kumar, learned counsel appearing for the petitioner submits that the petitioner had executed the agreement on the promise of Resp. No. 4,5 & 6, therefore respondents are bound to revise the rate of the steel rod and cement. He further submits that the action of State in not revising the rate in the case of petitioner is arbitrary and discriminatory, because admittedly the State had revised the rate as per the increased market price of the steel rod and cement. Accordingly, it is submitted that a suitable direction may be given to the respondents for considering the case of the petitioner.

5. On the other hand, Sri Anshuman Kumar, learned J.C. to A.G. submits that from perusal of the letters of Executive Engineer as contained in Annexure-3 and 5, it is clear that Resp. Nos. 5 and 6 had not given any assurance for increasing the rate of the steel rod and cement, 3 rather they stated that the decision will be taken in accordance with Rules. It is also submitted that the Resp. No. 4 had only recommended the case of the petitioner for consideration by the department. He then submits that the department had already taken a decision by Annexure-A to the counter affidavit that the revision is not permissible as per the terms and conditions of the agreement. Accordingly, learned counsel submits that no relief can be granted to the petitioner in this writ application.

6. Having heard the submission, I have gone through the record of the case. From perusal of materials available on record, it is clear that the dispute between the parties arose from the works contract. Whether as per the terms and conditions of the agreement, petitioner is entitled for revision in the rate of the Steel rod & cement depends upon the interpretation of various clauses of the agreement. The Hon'ble Apex Court in Rajasthan State Industrial Development and Investment Corporation & Anr Vs. Diamond & Gem Development Corporation Limited and another reported in (2013)5SCC470, has held at paragraph no. 19 that :- “There can be no dispute to the settled legal proposition that matters/disputes relating to contract cannot be agitated nor terms of the contract can be enforced through writ jurisdiction under Article 226 of the Constitution. Thus, the writ court cannot be a forum to seek any relief based on terms and conditions incorporated in the agreement by the parties[vide Bareily Development Authority V.Ajai Pal Singh and State of U.P. V Bridge & Roof Co.(India)Ltd.]” Thus, in view of the aforesaid law, laid down by their Lordships of Supreme Court, the present writ application is not maintainable. The dispute raised by the petitioner can be adjudicated by another forum such as Court or Arbitrator, because the same involves disputed questions of fact.

7. In view of the discussions made above, I find no merit in this writ application, accordingly, the same is dismissed. ( Prashant Kumar,J.) Jharkhand High Court, Ranchi Dated 15 / 7 /2015 Sharda/NAFR