A.M.KHANWILKAR, J. - (1.) Leave granted.
(2.) This appeal challenges the judgment of the Division Bench of the High Court of Orissa at Cuttack dated 7 th November 2012 in Writ Petition (Civil) No. 1093/2006.
(3.) Briefly stated, on 2nd December 2002 the appellants issued notice inviting tenders for the work of extraction and transfer of Coal/Coal Measure Strata (CMS) by deploying "Surface Miners" on hiring basis at various Open Cast Projects, inter -alia, at Lakhanpur. The respondents were declared the lowest bidder having quoted Rs.17/ - per cubic meter for the stated contract. A letter of intent was issued in favour of the respondents on 4 th April, 2003 which was accepted by the respondents on 14th April, 2003. Work order was issued in favour of the respondents on 23 rd April, 2003 and a formal agreement was executed between the parties on 26 th May 2003. The relevant clauses of the agreement are clauses 2 to 5 which read as under: "2) Time shall be considered as one of the essence of the contract and the time for the completion of the contract shall be counted from 16.04.2003 of from the date of issue of L.O.I. to which terms the contractor agreed at the time when his tender was accepted and the contract shall be completed by 15.04.2004 provided, sufficient face is provided by the management. 3) The work order has already been issued for a period of one year for a quantity of 49,50,000 Cum. At the rate of Rs. 17.00/Cum. for an amount of Rs. 8,41,50,000.00. 4) The contractor shall re -deploy the Surface Miner in other OCPs as per direction of the Company. 5) The tendered quantity may be reduced or increased by +/ - 30%. No claim shall lie on the company for such variation in quantity whether increase or decrease. The tenderer must be in a position to increase the machine capacity upon 30% extra daily quantity within 45 days notice." (emphasis supplied) ;