- (1.) BOTH the cases have been preferred by common petitioner, M/s. Himachal Construction Co. Pvt. Limited and sought for similar relief in respect to two agreements. They were heard together and are being disposed of by this common order.
(2.) W .P. (C) no. 5408/2001 relates to agreement no.3/SMC/8 -89 in respect to residual earthwork of Chandil Left Main Canal from K.M. 22.555 to K.M. 25.481 whereas W.P. (C) no. 5465/2001 relates to agreement no. 1/SMC/87 -88 for residual earthwork of Chandil Left Main Canal from K.M. 21.39 to K.M. 22.19, 30.57 to 31.03 and 31.33 to 31.69. The petitioner has prayed for issuance of an appropriate writ or a writ in the nature of mandamus for direction on the respondents to allow the petitioner to complete the balance work in respect to agreements aforesaid. The petitioner has also challenged the entire tender process in connection with the aforesaid work on the ground that no tender could have been floated as long as there is a subsisting agreement between the petitioner and the respondents. Alternative prayer has also been made to allow the petitioner to complete the work aforesaid at the prevailing schedule of rates or the lowest bidding rate submitted pursuant to the fresh tender for the same work. The agreements in question were made on 24.9.1987 in respect to agreement no. 1 /SMC/87 -88 (1st agreement for short) and on 17.1.1989 in respect to agreement no. 3/SMC/88 -89 (2nd agreement for short). The 1st agreement was to be completed within 15 months and the 2nd agreement was to be completed within six months. According to petitioner, the quantity of work already done and payment received by the petitioner was about 80% of the total work but rest of 20% of the agreement could not be completed because of inaction on the part of the respondents.
(3.) TO suggest that both the agreements are still persisting having not rescinded, the petitioner referred one or other letter such as letter dated 12.9.1996 written by petitioner to the Executive Engineer and the letter of Executive Engineer dated 27.8.1998 in respect to 1st agreement. The Executive Engineer vide letter dated 27.8.1998 asked the petitioner that if it was willing to complete the construction work on a contract rate then to give its consent within a week. Reference was also made therein to the proceedings of the meeting held on 12.8.1998 between the Builders' Association and the Project Officers at Jamshedpur. According to petitioner, the letter is in five parts namely: "(i) Work allotted to the petitioner is not completed till now and the department is desirous to complete the balance work in phases. (ii) Department is contemplating to arrange funds for the same and a sum of Rs. 40.00 crore is likely to be allotted for first phase for completing the work from km. 0 to 16. . (iii) Residual work between KM 16 and beyond will be taken in second priority. (iv) The proceedings in the meeting held on 12.8.1998 may be referred to. (v) If the petitioner is willing to complete the above work on the contract rate, the written consent may be sent within a week. ;