D DR. JUSTICE B.R. SARANGI MR. JUSTICE v. NARASINGH M ORDER
Case Details
IN TH THE HIGH COURT OF ORISSA AT C CUTTACK W.P.(C) No.24487 of 2019 Er. Biswajit wajit Samantaray …. Mr. P. Ch. Nayak Petitioner Nayak, Advocate -versus- State of Odish Odisha and others …. Oppos Mr. P.P. Moh pposite Parties . Mohanty, AGA C CORAM: D DR. JUSTICE B.R. SARANGI MR. JUSTICE V. NARASINGH M ORDER 12.07.2022 Order No. 04. 1. This matte matter is taken up through hybrid mode. 2. The Petiti Petitioner challenges the order dated 05.0 05.04.2019 of Opposite Party Party No.3 in respect of imposition of pena penalty @ 0.5% on the value of alue of the work executed beyond the stipulated ulated period. 3. The Petitio Petitioner is a ‘A’-class Contractor and ex for the work “Construction of School B agreement for ool Building at executed an Rajapur of Be of Beguniapada Block in the district of Gan njam for the year 2011-12 12” with stipulation to complete the same by the 13.12.2013. T . The work could not be completed eted within the stipulated peri d period and continued till 13.03.2016. Such Such completion of work beyon beyond the stipulated date was permitted by th by the Opposite Parties subsequ ubsequently in order dated 05.04.2019 under Annexure-3. Page 1 of 5 The Petitioner itioner’s grievance is that in the said order whi while granting sanction for extension of time, the condition to levy levy penalty @ 0.5% has be as been imposed illegally and arbitraril itrarily without considering ge genuine causes of hindrances. 4. Learned counsel appearing for the Petitioner su submits that before levyin levying such penalty, no notice was sent sent nor any opportunity of being heard was granted to the Peti Petitioner. He further submit ubmits that due to hindrances relating to issu issues like (i) Delay in selec selection of site due to non availability of su suitable land, (ii) Philin Cyc in Cyclone and Subsequent Flood. Petitioner itioner could not complete the the work within the stipulated time. It is also also submitted that para 3.5. a 3.5.5 (V) of the OPWD Code as refer referred in the impugned orde order does not prescribe imposition of pen penalty while granting extens extension of time, but it speaks otherwise.
Legal Reasoning
5. Mr. P.P. M .P. Mohanty, learned Additional Government rnment Advocate submits that since the Petitioner could not complete mplete the work within the stip e stipulated time, as per recommendation of th n of the technical committee, the the penalty was levied in terms of the pr provision in para 3.5.5 (V) (V) of the OPWD Code, Vol.I. 6. Clause (V) e (V) of para 3.5.5 of the OPWD Code, Vol e, Vol.I reads as under: “Perc “Percentage Contract will be in addition of rate, l rate, lump sum contractors etc. In such contrac schedule of quantities shall mention estimate sched of suc such item and amount thereof. The Cont has to has to mention percentage excess or less ov estimated cost (in figures as well as words) estima 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 e 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 s correct. 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 the submission of the Petitioner, imposition sition of penalty @ 0.5% is grossl grossly illegal and arbitrary since the contract ntract has not been terminated, bu but extension of time has been granted. nted. Further as per Annexure-3, extension of time was granted withou without any price escalation and and without any monetary compensatio ensation. 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, ra 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 @ 0.5% by re resorting to para 3.5.5 (V) of the OPWD WD Code, appears unjustified in in the circumstances of the case. According ordingly, the same is Page 4 of 5 liable to be qua quashed. 8. The writ pe rit petition is allowed and Annexure-3 is quas is quashed to the extent of levy f levy of penalty @ 0.5%. The Opposite Parties arties are further directed to rele to release the withheld bill value of the Petitio Petitioner for the work, if any, any, in favour of the Petitioner within a per a period of two months from the date of receipt of a certified copy of th this order. 9. Urgent cert t certified copy of this order be granted anted on proper application. Alok (DR. B.R. SAR . SARANGI) DGE JUDGE RASINGH) ( V. NARASI JUDGE Page 5 of 5