ORDER
1. Heard the learned Counsel for the petitioner as well as the Government Pleader appearing for the respondents.
Both the Counsel have agreed for final disposal of the writ petition.
2. The only grievance of the petitioner is that even before the determination of the contract, inviting the tenders to execute the balance work of improvement for the construction of earthdam of Mopadu Reservoir in Pamuru Mandal, Prakasam district by the Superintending Engineer -1st respondent vide his tender notice No.SE/DB/5/10/1999-2000 dated 30-4-1999 is illegal, arbitrary and consequently to direct the respondents to permit the petitioner to complete the balance work and to pay the amount to the petitioner for the work done.
3. It is alleged by the petitioner that the petitioner entered into an agreement vide LS No.15/97/98 dated 24-12-1997 and the value of the agreement is Rs.78,84,954/-and as per the contract, the work bas to be completed within nine months and the stipulated time expired by September, 1998. It is stated that due to several reasons beyond his control, the petitioner could not execute the entire work. It is further submitted by the petitioner that even before determination of the contract, tenders have been called for, and therefore, the action of the 1st respondent in inviting the tenders as illegal, arbitrary and contrary to and beyond the scope of the terms of the agreement.
4. Counter has been filed by the respondents stating that as per the agreement, the petitioner should complete the works within nine months from the date of the agreement and the agreement was expired on 24-12-1997 and that the petitioner should have completed the work within the stipulated time. At the request of the contractor, time was extended twice. The writ petitioner has to be blamed for himself for the delay in executing the work. It is stated that the value of the work done upto 23-1-1999 was only 7 1/2% and the petitioner
has executed total value of the work of Rs.67.15 lakhs which includes supplemental items and the said value of supplemental work i.e., Rs.6.95 lakhs and the petitioner is bound to execute the supplemental works under clause 63 PS to APSS for which he is entitled for payment on signing the supplemental agreement.
5. Admittedly, the petitioner executed the value of work of Rs.6.95 lakhs under the supplemental items and he is entitled for payment of the same on signing the supplemental agreement. With regard to the other disputes, t am not inclined to decide the same as it is open for the petitioner to raise the disputes as per the agreement as all disputes above the claim of Rs.50,000/- have to be resolved in a regular civil suit.
6. It is submitted that after following due procedure prescribed under the contract and PS to APSS, the contract has been determined by the Executive Engineer vide letter No.EE/DD/Dl/Mopadu/Package-1/603 dated 20-5-1999. In the said order, it is clearly stated that the Executive Engineer vide his letter dated 2-4-1999 requested to apply for further time, but the petitioner failed to do so. However, suo motu, the respondent extended time upto 31-5-1999 as per clause 11.3 of the general conditions of the contract duly applying the liquidated damages and final notice was served on the petitioner under the provisions of clause 61 of P.S. to APSS vide his letter No.476 M dated 13-4-1999, but he has not employed more labour to speed up the work by 31-12-1999, and there is an urgency to complete the work and that he did not make any effort to increase the labour and therefore the contract under agreement No.LS 15/97-98 dated 24-12-1997 is determined under clause 61 of PS to APSS and the petitioner was requested to be present on 25-5-1995 to witness the final measurement of the work done by the petitioner for the finalisation and to get
the balance work executed by any other agency.
7. The learned Counsel for the petitioner submitted that the Contract ought not to have determined under clause 61 PS to APSS but under 60 of PS to APSS. I am not inclined to decide whether the contract work ought to have been determined under clause 61 or 60. As a matter of fact, determination of the work under clause 61 instead of clause 60 appears to be more beneficial to the petitioner in this case. If the contract is determined under clause 60, the security deposit, total amount with-held under clause 68 and value of the work done not paid shall be liable for forfeiture. Any dispute arising out of the determination, the petitioner is entitled to settle his disputes and all claims by way of a regular civil suit as provided under the terms and conditions of the agreement.
8. So far as calling for tenders by tender notice dated 30-4-1999 is concerned, the action of the respondents in calling for the tenders even before determining the contract and even before finalising the measurements of the remaining contract work, is not fair and just, and therefore, the action of the respondent in calling for the tenders by tender notice dated 30-4-1999 is arbitrary and the same is set aside.
9. In the result, the writ petition is disposed of with the following directions:
Tender notice dated 30-4-1999 issued by the Superintending Engineer is set aside and it is open for the respondents to call for fresh tenders and finalise the same. So far as the execution of the supplemental work amounting to Rs.6.95 lakhs is concerned, the petitioner is entitled for the said payment on signing the supplemental agreement and the respondents shall pay the same within four months from the date of receipt of a copy of this order. The order of determination of the contract under
clause 61 of PS to APSS by the Executive Engineer vide his order dated 20-5-1999 is upheld. It is open for the petitioner to raise any other dispute with regard to this contract and he is at liberty to have all his disputes settled in a regular civil suit as provided in the contract.
10. With the above directions, the writ petition is disposed of. No costs.