@JUDGMENTTAG-ORDER
M. Jaichandren, J.@mdashSince, the issues arising for consideration, and the facts and circumstances of both the Writ Petitions are similar in nature, a common order is passed.
2. In the Writ Petition, in W.P(MD). No. 6347 of 2008, the Petitioner has prayed for the issuance of a Writ of Mandamus to direct the Respondents to grant the benefit of price adjustment, in respect of the rise in cost of bitumen and diesel, to the Petitioner, during the agreement period, in respect of the work, which is the subject matter of the agreement No. CR. Agt. No. 32/2007-08, dated 10.08.2007, entered into between the Petitioner and the third Respondent, pertaining to the widening of the road Namanasamuthram to Ponnamaravathi Km.18/0-27/6 to 38/0-42/7. Likewise, in the Writ Petition, in W.P(MD). No. 6348 of 2008, he has prayed for the issuance of a Writ of Mandamus to direct the Respondents to grant the benefit of price adjustment, in respect of the rise in cost of bitumen and diesel, to the Petitioner, subsequent to the submission of tender, in respect of the work, which is the subject matter of the agreement No. CR. Agt. No. 2008-09, dated 02.04.2008, entered into between the Petitioner and the third Respondent, pertaining to improvement in the riding quality in Km 60/20-69/0 of NH 210.
3. It has been stated that the Petitioner is a registered Class 1 Contractor. He had successfully completed a number of Government works allotted to him in the past several years. While so, in respect of Writ Petition, in W.P(MD). No. 6347 of 2008, it has been stated that the second Respondent had issued a notification bearing No. 22/2006-2007/Ve.2, dated 13.03.2007, inviting applications from tenders for the widening of Namanasamuthram to Ponnamaravathi road. The Petitioner was one of the participants in the tender process. However, the tender process could not be finalized by the authorities concerned in time and the work order had been issued only, on 23.07.2007, after a gap of three months, from the date of the submission of the tender.
4. Likewise, in the Writ Petition, in W.P(MD). No. 6348 of 2008, it has been stated that the third Respondent had issued a notification inviting applications from tenders, with regard to the improvement in the riding quality in Km. 60/20-69/0 of NH 210. He had participated in the tender process in the month of January, 2008 and the tender process had been finalized by the authorities concerned only on 02.04.2008, after a gap of three months, from the date of the submission of the tender.
5. It has also been stated that the period agreed for the completion of the works, in respect of the works, which is the subject matter of the Writ Petition, in W.P(MD). No. 6347 of 2008, was 12 months and in respect of the works in question in the Writ Petition, in W.P(MD). No. 6348 of 2008, was 4 months. However, due to the delay in the issuance of the work order, the works had to be carried on, beyond the period, which had been originally fixed by the Respondents. During the extra three months, the value of bitumen (tar) had risen from Rs. 28/-to Rs. 34.50 per kilo gram. However, at the time of the submission of the tender, it was only Rs. 23/-per kilo gram.
6. The main grievance of the Petitioner in both the Writ Petitions is that the price of bitumen (tar), diesel and the other raw materials used to carry out the works had risen enormously. In such circumstances, the Petitioner had requested the authorities concerned to invoke the price adjustment clause to compensate for the loss incurred by the Petitioner, in carrying out the works, as per the Government Order, in G.O.(Ms). No. 60, Public Works (G2) Department, dated 14.03.2008.
7. It has been further stated that, as per the statutory rules enshrined in the Tamil Nadu Transparency in Tenders Rules, 2000, it is mandatory on the part of the authorities concerned to include the price adjustment clause, if the agreement period is 18 months and above. Based on the various representations made on behalf of the contractors, the Government of Tamil Nadu, had issued the Government order, in G.O.(Ms). No. 60, Public Works (G2) Department, dated 14.03.2008, wherein, it had been directed that the price adjustment clause should be adopted and implemented by the Public Works and Highways Department, with immediate effect, in the interest of further facilitating timely completion of the works. In such circumstances, there is an obligation on the part of the Respondents to consider the request of the Petitioner for price adjustment and to grant the necessary relief''s, as prayed for by him.
8. The main contention of the learned Counsel appearing on behalf of the Petitioner is that the Respondents should follow the instructions issued by the Government of Tamil Nadu, in G.O.(Ms). No. 60, Public Works (G2) Department, dated 14.03.2008, and to accept the request of the Petitioner for price adjustment, with regard to the works carried out by him. He had also submitted that Government of Tamil Nadu and the other authorities concerned should come forward to help the Petitioner, who is a registered Clause 1 Contractor, based on the ''fairness principle''. The said principle should be made applicable to both the works carried out by the Petitioner, which are subject matter of the above Writ Petitions.
9. The learned Counsel had also submitted that it would not be proper for the Government of Tamil Nadu to apply the Government order, in G.O.(Ms). No. 60, Public Works (G2) Department, dated 14.03.2008, only in respect of the works allotted, based on tenders, which had been called for, on or after 14.03.2008. The said Government order should be applied to all agreements, subsisting on the date of the issuance of the said Government Order, as per the principles enshrined in Article 14 of the Constitution of India. It has also been submitted that Rule 14(8) of the Tamil Nadu Transparency in Tenders Rules, 2000, mandates that there should be a price adjustment clause in the agreement, in respect of works, which are to be carried out beyond the period of 18 months. However, the said Rule does not include the application of the price adjustment clause for contracts, wherein the period of execution of the works would be less than 18 months. The classification of contract works into two separate categories does not have a reasonable nexus to the object sought to be achieved. Therefore, the Government order, in G.O.(Ms). No. 60, Public Works (G2) Department, dated 14.03.2008, should be applicable to the works carried out by the Petitioner.
10. In the counter affidavits filed on behalf of the fourth Respondent, it has been stated that, since, the value of the works carried out by the Petitioner, in both the Writ Petitions, were more than rupees two corers, the tenders had to be finalized by the Commissioner ate of Tenders, Chennai. In such circumstances, the time taken for the finalization of the tenders is reasonable. As such, it is not open to the Petitioner to claim that there has been an undue delay in the finalization of the tenders. It has also been stated that the Petitioner had signed the agreement only after considering all the relevant aspects, including the inflationary trends, in the market and therefore, he cannot claim that he had suffered undue hardships and monetary loss, due to the increase in the cost of bitumen (tar), diesel and other raw materials used in carrying out the works. It has also been stated that in the Government Order, in G.O.(Ms). No. 60, Public Works (G2) Department, dated 14.03.2008, it has been clearly stated that the revised price adjustment system for the escalation in the cost of materials shall come into effect prospectively and that it shall be available only for those tenders, which have been called for, on or after, the date of the said Government Order. In such circumstances, the claim made by the Petitioner that the price adjustment mechanism should be applicable to the tenders in question, cannot be accepted. As such, the Writ Petitions filed by the Petitioner are devoid of merits and therefore, they are liable to be dismissed.
11. In view of the averments made in the affidavits filed in support of the Writ Petitions and in the counter affidavits filed on behalf of the fourth Respondent, and in view of the submissions made on behalf of the learned Counsels appearing on behalf of the parties concerned, this Court is of the considered view that the Petitioner in the Writ Petitions has not shown sufficient cause or reason to grant the reliefs, as prayed for by the Petitioner, in the above Writ Petitions.
12. With regard to the prayer of the Petitioner in the Writ Petition, in W.P(MD). No. 6347 of 2008, from the records available before this Court, it is found that the date of the tender for the widening work of Namanasamuthram to Ponnamaravathi road was 27.04.2007, and the date of acceptance of the tender was 05.07.2007. It has also been noted that the date of the issuance of the work order was 23.07.2007 and the date of agreement was 10.08.2007. Likewise, with regard to the Writ Petition, in W.P(MD). No. 6348 of 2008, it is seen that the date of tender was 04.01.2008, the date of acceptance of tender was 16.02.2008, the date of issuance of the work order was 07.03.2008 and the date of agreement was 02.04.2008.
13. The Government Order, in G.O.(Ms). No. 60, Public Works (G2) Department, dated 14.03.2008, had come into force, on 14.03.2008. As it is said to be only prospective in its application, it would not be applicable to both the tenders, which were prior to the date of the Government Order. Even though the date of agreement for the work of improvement of the riding quality in Km 60/20-69/0 of NH 210 was 02.04.2008, which is subsequent to the coming into force of the said Government Order, it cannot be said that it would be applicable to the tender process, which had commenced, on 04.01.2008, even though it had culminated in an agreement, dated 02.04.2008. As such, the above Writ Petitions are devoid of merits and therefore, they are liable to be dismissed. Hence, they are dismissed. Consequently, the connected miscellaneous petitions are also closed. No costs.
