The High Court
Case Details
1 IN THE HIGH COURT OF JHARKHAND AT RANCHI W. P. (C) No.6229 of 2011 Nirmata Engineering Construction Co. (P) Ltd. through one of its Directors, Vikramaditya Singh .... .. ... Petitioner(s) The State of Jharkhand & Ors. .. ... ..Respondent(s) Versus ...........
Legal Reasoning
CORAM : HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY ......... For the Petitioner (s) : Mr. R. Krishna, Priyanka, Shaurya, Amandeep, Advs. Mr. H. K. Shikarwar, Advocate : Mr. Rishabh Kaushal, AC to GP.II For the State 20/ 05.03.2024. Heard, learned counsel for the parties. …... 1. The instant Writ Petition has been filed for quashing the order as contained in Memo No.992 dated 15.09.2011 passed by the Executive Engineer, Giridih [Respondent No.7] whereby and whereunder the security deposit made by the petitioner in relation to various accounts and contracts worth total Rs.20,40,000/- has been forfeited. 2. Under the Pradhan Mantri Gram Sadak Yojana, tender was invited for construction of Road from S. H. to Bagodih via Choudhridih. Petitioner participated in the tender and was awarded the construction work with respect to which, agreement was executed being 4F-2 of 2001-02. As per the agreement, the work was commenced from 10.11.2001 and after commencing of the work, some other works were also assigned to the petitioner for which a revised estimate of Rs.1,40,29,802/- was made. 3. Supplementary agreement for the extra work was executed on 22.03.2004 which was sanctioned by the Executive Engineer, REO (Rural Engineering Organization]. After execution of the work, the entire bills of the petitioner were cleared and he received the amount for the work executed. 4. It is submitted that after six years, Executive Engineer, RDD, Giridih issued Letter No.939 dated 06.07.2010 to refund the excess amount of Rs.20,32,704/- made to the petitioner with regard to Package No.JH-08-02 for which Agreement No.4F 2 of 2001-02 was executed. 5. The said amount was recovered from the Agreement No.209F-2 from the security deposit vide agreement of the year 2008-09. Aggrieved by the said recovery, the instant Writ Petition has been filed. 6. As per the impugned order of recovery, the specific stand of the respondent(s)- State is that in the supplementary agreement, the applicable rate for the items was applicable as per the main agreement as per clause 11 of the said agreement. Contrary to the said payment was made on enhanced rate in excess of the original rate in Item Nos.4(a), 4 (b), 4(c) which 2 corresponded with item 5, 6, 7, 12, 13 & 14 of the original agreement. The original agreement was executed on 02.09.2001 whereas the supplementary agreement was executed on 31.05.2004 (Annexure-2). 7. As per the stand of the State, in terms of Clause-11 of the original agreement for any supplementary work, the same rate could have been applicable. The payments were released to petitioner at an enhanced rate, then the original rate, which is apparent from the comparative chart at Annexure-B to the counter-affidavit. In view of the excess payment having been made in breach of the Clause-11 of the original agreement, the forfeiture has been made. This was discovered on scrutiny after six years whereafter completion of work, entire payment has been made to the petitioner. 8. It is not in dispute that supplementary agreement was entered for additional work to be completed. The work involved has been detailed in the Supplementary Agreement (Annexure-2). The work was executed and the payment was also received. Later on Audit objection, recovery was made by invoking Clause 11 of the main agreement which reads as follows :- “11. Engineer-in- Charge shall have power to make any alterations in for additions to the original specifications, drawings designs and instructions that may appear to him to be necessary or advisable during the progress of and the work, the contractor shall be bound to carry out the work in accordance with any instructions which may be given to him in writing signed by the Engineer- in- Charge, and such alteration shall not invalidate the contract, and any additional work which the contractor may be directed to do in the manner above specified as part of the work shall be carried out by the contractor on the same conditions in all respects which he agreed to do the main work, and at the same rates as are specified in the tender for the main work. The time for the completion of the work shall be extended in the proportion that the additional work bears to the original contract work and the certificate of the Engineer in charge shall be conclusive as to such proportion. And if the additional work includes any class of work, for which no rate is specified in this contract, then such class of work shall be carried out at the rates entered in the sanctioned schedule or rates of the locality during the period when the work is being carried on and if such last mentioned class of work is not entered in the schedules of rates of the district then the contractor shall within seven days of the date of his receipt of the order to carry out the work inform the Engineer in charge of the rate which it is his intention to charge for such class of work, and if the Engineer in charge does not agree to this rate he shall be notice in writing be at liberty to cancel his order to carry out such class of work and arrange to carry it out in such manner as he may consider advisable provided always that if the Contractor shall commence work or incur any expenditure in regard thereof before the rates shall have been determined as lastly hereinbefore mentioned then and in such case he shall only be entitled to paid in respect of the work carried out or expenditure incurred by him prior to the date of determination of the rate as aforesaid according to such rate or rates as shall be fixed by the Engineer in charge. In the event of a dispute the decision of the Superintending Engineer of the circle will be final”.- 9. Main contention of the Petitioner is that, the payment has been realized in terms of clause 11 of the agreement, which does not prohibit payment at a higher rate than what is there in the main agreement. This argument cannot be accepted for the reason that, the above clause of the agreement specifically provides that where the rates are available in the original agreement, in the supplementary agreement same rate shall be applicable. There cannot be 3 escape from the irrefutable conclusion that Petitioner had been made excess payment, beyond the term of the agreement. Recovery was fully justified in view of the excess payment, beyond the terms of the agreement. 10. Argument that direction for refund has been made pursuant to the Audit objection raised by the Controller and Auditor General (CAG), but what was real objection has not been stated in the impugned order dated 15.09.2011 (Annexure-10) whereby recovery has been ordered. This is only a technical objection, as the grounds of recovery is abundantly clear and has been pleaded by both the side in the present petition. This cannot be the sole ground to set aside a wholly justifiable order. 11. Lastly it is argued that the recovery could not have been ordered from the Security deposit with respect to a different work agreement in view of the ratio laid down by Hon’ble Supreme Court in 1974(2) SCC 231. 12. Facts of the ratio relied upon is very different to the present case. The present case is about recovery of the excess payment made to the contractor, whereas the ratio relied upon is with regard to payment of damages on account of breach of contract. Therefore, this Court is of the view that once the excess payment is established, Petitioner cannot be permitted unjust enrichment at the cost of State exchequer. This Court does not find merit in the instant writ petitions which stands dismissed. Sandeep/ Uploaded (Gautam Kumar Choudhary, J.)