- (1.) There are at least two reasons why an intervention through a writ petition, which the petitioner seeks for, in my view, is not possible. The petitioner is a contractor, who has done some work for the respondents at a rate, which he had quoted and which was found to be the lowest for the work, estimated by the respondents themselves at Rs.6,92,32,076/-. The petitioner's quote at Rs.6,14,29,614/- was found to be the lowest and the petitioner had been awarded the contract. At the time when the final bills had been prepared, the respondents have made deductions relying on certain clauses in the agreement, which according to the petitioner, are objectionable. The contract runs to several pages and it is not denied by the petitioner that the deductions, which the respondents are making, are only by invoking the terms of the contract. The petitioner would, however, contend that the term of the contract is oppressive and it had been surreptitiously introduced without petitioner's knowledge. The particular clause, which according to the petitioner, is oppressive in Clause 1.43 that is considered below:-
(2.) General Rules and directions set forth for the works are brought out in Schedule F. Clause 12.2 and 12.3 relate to deviation limits for building works as 30%. What this deviation work could mean, is seen elsewhere in the contract and the same is reproduced as under:- Clause 12. Deviations/Variations Extent and Pricing The Engineer-in-Charge shall have power (i) to make alteration, in, omissions from additions to, or substitutions for the original specifications, drawings, designs and instructions that may appear to him to be necessary or advisable during the progress of the work and (ii) to omit a part of the works in case of non-availability of a portion of a portion of the site or for any other reasons and the contractor shall be bound to carry out the works in accordance with any instructions given to him in writing signed by the Engineer-in-Chief and such alterations, omissions, additions or substitutions shall form part of the contract as if originally provided therein and any altered, additional or substituted work which the contractor may be directed to do in the manner specified above as part of the works, shall be carried out by the contractor on the same conditions in all respects including price on which he agreed to do the main work except as hereafter provided. 12.1 The time for completion of the works, shall in the event of any deviations resulting in additional cost over the tendered value sum being ordered, be extended, if requested by the contractor as follows:- (i) In the proportion which the additional cost of the altered, additional or substituted work bears to the original tendered value plus (ii) 25% of the time calculated in (i) above or such further additional time as may be considered reasonable by the Engineer-in-Charge. 12.2 Deviation, Extra Items and Pricing In the case of extra item (s), the contractor may within fifteen days of receipt of order or occurrence of the item(s) claim rates, supported by proper analysis, for the work and the engineer-in-charge shall within one month of the receipt of the claims supported by analysis after giving consideration to the analysis of the rates submitted by the contractor, determine the rates on the basis of the market rates and the contractor shall be paid in accordance with the rates so determined. In the case of substituted items, the rate for the agreement item (to be substituted) and substituted item shall also be determined in the manner as mentioned in the aforesaid para.
(3.) The above clause would make it clear that it is possible for the Engineer-in-Charge to make deviations of the quantum of work and the Contractor will be bound to carry out the same but at the rates which are mentioned clearly in 12.2 which allows for a particular procedure viz., raising a bill and after due analysis of the rates quoted by the Contractor, would determine the rates on the basis of market rate and the contractor would be paid in accordance with the rates so specified. When the bills were ultimately worked out, the respondents had worked out the details in a statement which is produced as Annexure P-13. In this statement, the calculations have been made in terms of Clause 1.43, which is reproduced as under:- 1.43 Justified amount (X) shall be worked out by the Board at the time of award of work while analyzing the bids received. The allotment amount (excluding escalation) (Y) shall be at %age O = (Y - X)/X above or below the said justified amount which will be called 'original %age above or below' as the case is. Revised justified amt (X), on the same parameters as worked out at the time of award of work, shall be worked out at the time of completion of work with the actual quantities. The actual amount of work (excluding escalation) (Y) at the time of completion of work shall be at a %age A = (Y - X)/X above or below the said revised justified amount which will be called ''actual % age above or below' as the case is. The agency will give suitable rebate in case the ''actual %age'' (A) exceeds the ''original %age'' (O) so that the ''actual %age remains at par or with in the'' original %age.;