The High Court
Case Details
IN TH THE HIGH COURT OF ORISSA AT C CUTTACK W.P.(C) No.23645 of 2022 Kanakalata lata Mohapatra …. Petitioner Petit Mr. P. Ch. Nayak Nayak, Advocate -versus- State of Odish Odisha and others …. Oppos Mr. P.P. Moh pposite Parties . Mohanty, AGA CORAM: C D DR. JUSTICE B.R. SARANGI MR. JUSTICE G. SATAPATHY M ORDER 14.09.2022 Order No. 01 mode. This matter is taken up through hybrid mode. This 2. The Petitioner challenges The the order da dated 23rd November, 2021 of Opposite Party No.1 in respect of imposition of of penalty @ 0.10% on the value of the wor he work executed the stipulated period. beyond the stip 3. The The Petitioner is a Special-class Contractor an ment for the work “Construction and main an agreement maintenance of and executed Sanakhudi to di to Paikadiha road under MMSY for 201 r 2018-19 in the district of Bal 19” with stipu Balasore, vide Agreement No.31/P1 MMSY stipulation to complete the same by 10th Octo MMSY of 2018- October, 2019. The work coul k could not be completed within the stipulated d up to 31th December, 2021. Such completio continued up t ulated period and pletion of work beyond the sti the stipulated date was permitted by the oppo in order dated 23rd November, 20 ently subsequently er, 2021 under opposite parties Annexure-1. The Petitioner’s Page 1 of 5 grievance is that in the said order while granting sanction for extension of tim n of time, the condition to levy penalty @ 0.10 0% has been imposed illega illegally and arbitrarily without considerin sidering genuine hindrances. causes of hindr 4. Learned counsel appearing for the Petition Learn etitioner submits that before le levying such penalty, no notice was sen sent nor any opportunity of being heard was granted to the Peti Petitioner. He further submit submits that due to hindrances relating to san sanctioned of Revised estima estimate and drawal of supplementary Agreeme greement, change of design and n and obstruction by Private land owner. Petiti Petitioner could not complete plete the work within the stipulated time. time. It is also submitted that d that para 3.5.5 (V) of the OPWD Code as de as referred in the impugned ugned order does not prescribe imposition of penalty while granting 5.
Legal Reasoning
Mr. anting extension of time, but it speaks otherwise erwise. . P.P. Mohanty, learned Additional G nal Government Advocate subm submits that since the Petitioner could not co complete the work within thin the stipulated time, as per recommendat endation of the technical com committee, the penalty was levied in ter terms of the provision in pa 6. para 3.5.5 (V) of the OPWD Code, Vol.I. Clause (V) of para 3.5.5 of the OPWD Code, Claus Code, Vol.I reads as under: “Percentage Contract will be in addition of “Perc rate, l rate, lump sum contractors etc. In such contrac schedule of quantities shall mention estimate sched such item and amount thereof. The Cont of suc has to has to mention percentage excess or less ov estima estimated cost (in figures as well as words) prescribed format appended to the tender docu prescr Contractors participated in the tender for The of item ontracts the timated rate Contractor ss over the ords) in the r document. for more Page 2 of 5 than one work may offer conditional rebate. R than o offer offer submitted in separate sealed envelope sh opene opened, declared and recorded first. The reba offered, shall be considered after opening offere packa packages called in the same tender notice Contr Contractors who wish to tender for two or work shall submit separate tender for each. work of tender shall have the name and number tender envelope. works to which they refer, written on the envel works bate. Rebate ope shall be e rebate so ning of all notice. The or more each. Each the The adopted format for percentage rate is sa The a that of the form adopted for item rate tende that o the word “item rate” shall be replaced “percentage rate” and the contract form m “perce named as P-1. In this for time is the essence named Contr Contractor is required to maintain a certain r progre progress specified in the contract. The contrac also be terminated with penalty when the pro also b of wo of work is not as per the conditions of contrac quant quantity mentioned can be increased or reduc the extent of 10% for individual items subjec the ex maxim maximum of 5% over the estimated cost. excee exceeds the limit stated above prior approv competent authority is mandatory before comp any payment. The period of completion is fixe any p canno cannot be altered except in case of excep circum circumstances with due approval of next authority. autho is same as tenders but placed by may be ssence. The rtain rate of contract can the progress ontract. The reduced to subject to a cost. If it approval of making is fixed and exceptional higher percentage In cas In case of percentage Rate tenders, only perce quoted by quoted shall be considered. Percentage quot quote d in figures the Contractor shall be accurately filled in f the C ncy. If any and w and words, so that there is no discrepancy. I quoted in discre discrepancy is found in the percentage quot quoted by words and figures, then the percentage quote words rrect. If the Contractor in words shall be taken as corr the C quoted any discrepancy is found in the percentage quoted by in percentage excess/less and total rate quote in per taken as the Contractor then percentage will be tak tender correc correct. The percentage quoted in and not and witho without mentioning excess or will be supported with the corresponding amount w suppo less the Page 3 of 5 treated as excess. The Contractor will treate percen percentage excess or less upto one decimal only. only. If he writes the percentage excess or less two or more decimal point, the first decimal two o shall shall only be considered without rounding Wher Where the Contractor has omitted to quote the either either in figures and words the officer openin tender should record the omission. tender will write cimal point or less upto cimal point unding off. ote the rates opening the Bills f Bills for percentage rate tenders shall be prepa the estimated rates for individual items only an the es percen less shall be adde percentage excess or bill. substracted from the gross amount of the bill. substr prepared at only and the added or This may not be applicable to the works fund This m World World Bank and other external agencies, in case their guidelines shall be followed.” case s funded by s, in which (emphasis supp supplied) 7. As per the submission of the Petitioner, imposition of penalty @ 0.10 10% is grossly illegal and arbitrary since th nce the contract has not been term terminated, but extension of time has been granted. Further as per A s per Annexure-1, extension of time was grante granted without any price escalatio alation and without any monetary compensat pensation. We find substantial forc force in the contention of the Petitioner. Be Because, it is not the case where where the contract has been terminated for non for non- completion of the work w ork within the stipulated time. Clause (V) of V) of para 3.5.5 of the OPWD Code Vol.I prescribes that the con contract can be terminated wit with penalty when the progress of work is is not as per the conditions of ns of contract. So when the contract ha ct has not been terminated, ed, rather an extension of time has been been granted as permissible in in the terms of contract (Clause-4), the lev levy of penalty @ 0.10% by by resorting to para 3.5.5 (V) of the OPWD Code, appears unjust unjustified in the circumstances of the case. case. Accordingly, Page 4 of 5 the same is liab liable to be quashed. 8.
Decision
The writ petition is allowed and Annexure-1 The 1 is quashed to the extent of tent of levy of penalty @ 0.10%. The Opposite posite Parties are further directed irected to release the withheld bill value of the of the Petitioner for the work, i ork, if any, in favour of the Petitioner within ithin a period of two months from the date of receipt of a certified fied copy of this order. 9. Urgent certified copy of this order be granted Urge ranted on proper application. (DR. B.R. SARA SARANGI) DGE JUDGE (G. SATAPAT APATHY) DGE JUDGE Alok/Subhasmita Page 5 of 5