@JUDGMENTTAG-ORDER
1. Aggrieved by impugned order dated 12.8.2013 in W.P. (C) No. 152 of 2013, by which the learned Single Judge declined to entertain the writ petition on the ground that the prayer seeking a direction to release a sum of Rs. 4,98,784/- arose from a contract and therefore, the dispute can be resolved only by filing a civil suit, the appellant has approached this Court by filing the present Letters Patent Appeal. The brief facts of the case are that, in response to a tender floated by respondent Nos. 2-4 for miscellaneous service of maintenance in Shyamali Township and MECON Head Office at Ranchi for removal of refuse from house to house and garbage disposal by truck in three Schedules namely, Schedule-A, Schedule-B and Schedule-C, the appellant submitted his bid and vide work order dated 30.7.2007 the work was allotted to the appellant for two years w.e.f. 1.8.2007. Clause-8 of the tender document provides extension of contract with mutual consent of the parties and accordingly, in view of satisfactory performance of the appellant, the respondents vide letter dated 30.7.2009 extended the period of contract for one more year beyond 31.7.2009. Though the appellant has been paid for work under Schedule-A and Schedule-C items, the respondents did not pay for the work under Schedule-B item. Although, the respondents themselves took a decision on 30.6.2010 to make payment in respect of Schedule-B item of work for 500 trips in a year @ Rs. 352/- per truck of 200 CFT, no payment was made to the appellant and therefore, the appellant submitted representation to the respondents and lastly approached this Court in W.P. (C) No. 152 of 2013 which has been dismissed by the impugned order dated 12.8.2013.
2. The respondent Nos. 2-4 have filed counter-affidavit stating that the appellant did not comply with the terms and conditions of the tender and the appellant violated conditions contained under Clause 4 to 9 and Clause 16 in respect of Schedule-B work. It is stated that the appellant never maintained the register for the daily-work done, neither maintained a separate register for the number of truck trips which was required to be checked/certified by the authorised representative of the respondents. It is further submitted that permission from local municipal authorities for disposal/dumping of the refuse and debris at specified dumping ground was never produced by the appellant and even at the time of filing of the present Letters Patent Appeal the appellant has not submitted the bill for the work done.
3. The appellant has filed rejoinder to the counter-affidavit and a supplementary-affidavit stating that the bills alongwith necessary documents were submitted to the respondents however, the respondents have not considered the same and refused to make payment. A supplementary-affidavit has also been filed on behalf of the respondent Nos. 2-4 refuting the claim made by the appellant.
4. We have heard the learned counsel appearing for the parties and perused the documents on record.
5. The learned counsel appearing for the appellant has submitted that the law on the subject is well settled and it cannot be doubted that even in contractual matters the writ petition is maintainable. Relying on decision of Hon''ble Supreme Court in
6. Mr. K.B. Sinha, the learned Senior Counsel appearing for the respondent Nos. 2-4 has submitted that the appellant did not carry out Schedule-B work in terms of agreement and it never maintained the record of daily-work done and the number of truck trips done. The appellant also failed to produce necessary permission from the municipal authorities for dumping refuses including garbage, debris etc. at specified dumping place and even after liberty given to the appellant by this Court vide order dated 18.2.2014, the appellant failed to submit bills in proper format and with necessary documents.
7. Clauses 6 to 9 and 16 of the conditions relating to Schedule-B work are as under:--
6. The Contractor will maintain the record of daily work done/number of trips done on separate register/sheets which must be get checked/certified by the authorized representative of the department and will have to be submitted alongwith monthly bill of the job.
7. The Contractor will have to carry out minimum 1 (one) Truck or 2 (two) Tractor trip every day. Payment shall be made to the Contractor per trip basis. Based on requirement additional/extra trips as per direction of Engineer-in-Charge will be done and payment to the Contractor shall be made of the total number of trips done during the month at the same rate for actual job done.
8. The Contractor''s truck/worker will contact the authorized representative of the department every day before start of the work and again after collection but before final disposal the truck/trip will be checked/certified by the department''s representative.
9. The sweeping of all the area dustbins, their steps and nearby areas shall be done everyday by the Contractor''s workers after collection of refuses into truck to keep the place neat and clean.
16. The Contractor will obtain necessary permission from local Municipal Authorities at his own cost for disposal/dumping the refuses and debris etc. at the specified dumping ground. If the refuse and debris are not disposed at the specified dumping ground the Contractor shall be responsible for any dispute etc. on this account.
8. In the supplementary affidavit dated 21.4.2014 filed on behalf of respondent Nos. 2-4 the respondents have asserted that though the appellant submitted fresh representation alongwith certain documents on 27.2.2014, no documentary evidence with respect to daily-work done, number of truck trips duly certified by the representative of the department and necessary permission of the municipal authorities were not submitted and in absence of the same the claim of the appellant could not be finalised.
9. It appears that when the appellant-contractor encountered difficulties in disposal of the garbage at dumping place outside Shyamali, it used alternative method for garbage disposal. The appellant has stated that it carried out the disposal work in respect of Schedule-B work during the period 9 p.m. to 9 a.m. as during this period "city entry is not barred". It is also stated that since the disposal work was carried out during the night time, the truck trips certification could not be organised. In view of the representation of the appellant-contractor, a 4-man committee was constituted on 26.3.2010 which submitted its recommendation on 12.4.2010 for the settlement of claim of M/s. Eskay Enterprises, the appellant herein. From the proceeding dated 30.6.2010, it is noticed that the respondents have admitted that M/s. Eskay Enterprises was carrying out the contract work satisfactorily and in view of the above, the work order was extended for further one year. It is also seen that the 4-man committee recommended that:--
a. Alternative method of disposal of garbage may be allowed in view of the extraordinary situation arisen due to no entry restrictions during the day time.
b. Removal of 500 truck trips of 200 CFT capacity each in a year may be considered for payment as claimed by contractor and verified by MECON based on above calculation.
c. As the garbage has been disposed off outside Shyamali Township, BOQ rate of work order i.e. Rs. 352.00 (Rupees Three Hundred Fifty-two only) per truck trip of 200 CFT capacity may be considered for payment.
10. In view of the recommendation of the 4-man committee, the contractor was called on 22.6.2010 and explanation was sought from him for not raising the bill since October, 2007 for Schedule-B work. After considering the recommendation and explanation of the appellant-contractor the following proposals were submitted:--
(i) Alternative methodology of disposal of garbage considered by the above committee is acceptable.
(ii) Number of trips of trucks of garbage disposal per annum is also acceptable which is as per above committee calculation as well as rate and quantity in line with the work order, which is @ 352/- per truck trip (200 cft.).
(iii) In view of the above, it is proposed that M/s. Eskay Enterprises may be paid for "Schedule-B" item of the work order considering 500 trips per annum @ Rs. 352/- per truck trip (200 cft.).
11. Referring to the proceeding dated 30.6.2010, it has been submitted that a proposal was considered whereunder the appellant was to be paid @ Rs. 352/- per truck trip (200 CFT) for a maximum of 500 trips every year, however, the respondent-MECON has asserted that the said proposal was not accepted by the AGM (Finance), AGM (C & C) and DGM-In-charge (Personnel) and therefore, the respondents decided not to accept the said proposal.
12. From the facts noticed hereinabove, what emerges is that the appellant-contractor had some genuine difficulties in carrying out the Schedule-B work during the day time due to no entry restriction in the city and consequently, the truck trip certification could also not be obtained by the appellant. As rightly contended by the counsel for the appellant, the respondent Nos. 2-4 have not denied that the appellant-has carried out the Schedule-B work completely for full term of the contract. The only objection raised by the respondent Nos. 2-4 is that the appellant could not produce the certification for total number of truck trips and the requisite permission from the Ranchi Municipality. However, it has been stated in the affidavits filed on behalf of the respondent Nos. 2-4 and also submitted by the learned Senior Counsel Mr. K.B. Sinha appearing for the respondent Nos. 2-4 that the respondent-MECON is still ready to pay for Schedule-B work carried out by the appellant provided he produces the above documents. In so far as, the certification for total number of truck trips is concerned, the 4-man committee recommended for acceptance of the alternative methodology for disposal of garbage and a proposal was submitted for acceptance of such alternative methodology for disposal of garbage. In so far as, the requisite permission from Ranchi Municipality is concerned, it is not brought on record whether the Ranchi Municipality has initiated any action against the appellant-contractor for disposal of garbage at an unauthorised place.
13. In view of the above, we are of the opinion that the respondent-MECON should have accepted the proposals recommended vide proceeding dated 30.6.2010. It is stated that out of eight members, three members did not sign the proceeding dated 30.6.2010. We do not find any reason in the proceeding dated 30.6.2010 indicating why the three members of the committee refused to sign the proceeding. We are of the opinion that, since the respondent-MECON has not denied that the appellant has completed the Schedule-B work satisfactorily, it should have paid for Schedule-B work in terms of the recommendation made in proceeding dated 30.6.2010. Since, we find that no valid reason has been disclosed for not accepting the proposal contained in proceeding dated 30.6.2010 and it has been rejected arbitrarily, the writ court should have entertained the writ petition and ordered payment to the appellant in terms of proceeding dated 30.6.2010. In the result, the impugned order dated 12.8.2013 is set aside and the Letters Patent Appeal stands allowed and the respondent Nos. 2-4 are directed to make payment to the appellant in terms of the proposal Nos. (ii) and (iii) contained in proceeding dated 30.6.2010.
