B. Lamare, J.@mdashHeard MR. V. K. Jindal, learned senior counsel assisted by Mr. L. Lyngdoh, learned counsel for the petitioner and Mr. N.D. Chullai, learned Govt. Advocate for the respondents.
2. These two writ petitions are taken together as the same questions of law and facts are involved.
3. Brief facts leading to the filing of these two writ petitions are :
(a) In W.P.(C) 358(SH)2002, the respondent No. 3 issued a notice inviting tenders dated 24.6.1998 for construction of Meghalaya Institute of Mental Health and Neurological Science, Shillong (including site preparation). The last date for receipt of the tenders was fixed as 15.7.1998. In response to the said Notice inviting Tenders (for short NIT), the petitioner submitted her tenders. The petitioner was informed by letter dated 25.3.1999 issued by the respondent No. 3 that the work will be allotted to her and accordingly she was allotted the work by work order dated 9.9.1999 at par of schedule of Rates for 1995-96. According to the NIT, the time for completion of the work was fixed for 24 months from the date of issue of the work order.
(b) The petitioner could not start the work after issue of the work order as the site for construction of the building was not handed over to her. It was only on 14.5.2001 that the respondent No. 3 has requested the petitioner to attend to his office to enable them to finalise the site for the construction. By another letter dated 18.6.2001, the respondent No. 3 requested the petitioner to be present at the site on 20.6.2001 for giving the line for construction of the building. However, the line for construction was not finalised. By another letter dated 4.9.2001, office of the respondent No. 3 has intimated the petitioner to be present at the site on 5.9.2001 for giving the final line of the construction work of the building.
4. In W.P.(C) No. 360(SH) 2002, the respondent No. 3 issued a notice inviting tenders in the month of October, 1996 for construction of the OPD at Ganesh Das Hospital, Shillong including sanitary installation, septic tank and internal and external water supply at the estimated cost of Rs. 57,93,000 (Rupees fifty seven lakhs ninety three thousand). The petitioner in response to the said NIT submitted her tender to respondent No. 3 and the respondent No. 3 vide letter dated 5.5.1998 intimated the petitioner of the acceptance of her tender as per the schedule of rate (for short SOR) for buildings 1991-92. The work was finally allotted to the petitioner vide work order dated 10.9.1998. The time for completion of the work was fixed at 18 months from the date of issue of the work order.
5. After the work order dated 10.9.1998 was issued to the petitioner, the petitioner could not start the work as the site was not handed over to her. The site was finalised and handed over to the petitioner only in October, 1999.
6. The case of the petitioner in both the cases is that although the tender notice in W.P. (C) 358(SH) 2002 was issued on 24.6.1998 whereby the SOR was prescribed as per the SOR of 1995-1996, but the work order was issued to the petitioner only on 9.9.1999, i.e., more than one year from the date of issue of the NIT. Thereafter the petitioner could not start the work as the site was not finalised and handed over to the petitioner. The site was handed over to the petitioner only on 4.9.2001, i.e., for more than 2 years from the date of issue of the work order. Therefore the time for completion of the work as per the allotment of the work order and the tender agreement to complete the work within 24 months from the date of issue of the work order was already exhausted by the delay in finalisation of the site and handing over of the same to the petitioner. By the time the site of construction was handed over to the petitioner, the Govt. of Meghalaya has published another SORs for the year 2000-2001 which became effective from 1st September, 2000. The petitioner could start her work only after the SORs for 2000-2001 was published and by this time the cost escalation has increased and the SOR of 1995-1996 is no more applicable in the construction allotted to the petitioner, but the SOR applicable for the construction work allotted to the petitioner is the SOR of 2000-2001, The petitioner, therefore, claims for revising the rate as per the SORs of 2000-2001 instead of 1995-1996.
7. The claim of the petitioner in W.P. (C)360(SH) 2002 is that the work order was issued to the petitioner on 10.9.1998 by the respondent No. 3 as per the SGRs of 1991-1992 and the period of completion of the work was 18 months. The site was not handed over to the petitioner immediately after the work order was issued. But the site was handed over to the petitioner only in October, 1999, i.e., after more than one year after the issue of the work order. By the time the site was handed over to the petitioner to start with the construction, the time for completion of the construction work as per NIT has almost expired and by the time the site was handed over to the petitioner, the SOR for 1995-1996 was adopted by the respondents in the Health Department of the Govt. of Meghalaya. The petitioner, therefore, claim that as per the SORs of 1995-1996 the same was published by the Public Works Department of the Govt. of Meghalaya taking into consideration the price escalation and therefore the petitioner is entitled to be given to the revised SORs of 1995-1996 instead of SORs Of 1991-1992.
8. In both these both the cases the grievances of the petitioner is therefore to grant her the revised SORs of 1995-1996 and also of the SORs of 2000-2001 which became effective from 1st October, 1995 till 31st of August, 2000 and with effect from 1.9.2000 till date respectively.
9. According to the petitioner the work allotted to her in W.P.(C) 358(SH) 2002 could be started by her only after 4.9.2001 after finally handing over of the site to here. Therefore, she could not start the work from the date of the issue of the work order. By the time the site was handed over to her there was a high escalation in prices and it is for this reason that the Govt. of Meghalaya, Public Works Department has issued SORs of 2000-2001 with effect from 1.9.2000 after taking price escalation into consideration. The petitioner, therefore, claims that similar works allotted after 1.9.2000 were granted SORs of 2000-2001. The petitioner, therefore, cannot be discriminated to do the work at the lower rate then those who were allotted the work as per the SORs of 2000-2001. Respondents cannot take advantage of the rate quoted by the petitioner and compel the petitioner to complete the work at the lower rate whereas for the same nature of work respondents are paying at the new SORs at the higher rate.
10. Similarly in W.P.(C)360(SH) 2002, the petitioner claim that although the work order was issued to her on 10.9.1998, but she could start the work only in October, 1999 as the site was not handed over to her in time. Therefore by the time the site was handed over to her, the SORs of 1995-1996 is made applicable in the Department. As such the petitioner was made to do work at the lower rate according to the SORs of 1991-1992 ; whereas by the time the work was to be started by the petitioner the SORs of 1995-1996 was infored and similar works during the same period when the petitioner was undertaking the construction work were allotted as per the SORs of 1995-1996. In this case also the petitioner was made to do the work at the lower rate during the same period ; whereas other works were allotted at the higher rate as per the SOR of 1995-1996.
11. The question to be examined in both the cases is whether the petitioner is entitled to the SORs as claimed by her.
12. The respondents have resisted the claim of the petitioner by filing affidavit in opposition. In the affidavits filed in both the cases, the case of the respondents is that the Public Works Department, Govt. of Meghalaya issued the SORs from time to time to keep pace with the escalation of market prices in the State, but the publication of such new SORs does not nullify the effectiveness of previous SORs adopted and applied in ongoing works allotted by the Department. The SORs once adopted and applied will continue to be effective till the completion of the work regardless of circulation of new SOR. Therefore, according to the respondents, publication of SOR for the years 1995-1996 and SOR for the year 2000-2001 does not invalidate the SOR adopted and applied to the petitioner for the respective works. The respondents stated that the works allotted to the petitioner for construction of Mental Institute and Neurological Science building were allotted as per the SOR of 1995-1996 and 1991-1992 respectively.
13. The respondents, however, in their affidavit in opposition did not deny about the date of handing over of the site to the petitioner for starting the construction work. The reason given by the respondents is that there was a delay in finalisation of the site of work due to inability to fell down the standing trees pending permission to do so from the Forest Department, Govt. of Meghalaya which in turn had to obtain the same from the Ministry of Environment and Forest, Govt. of India. It was only after the permission was obtained from the said authorities to clear the standing trees and other formalities that the site could be handed over to the petitioner. The respondents also stated that the construction of the Nurses Hostel at Ganesh Das Hospital is a separate work altogether and has no connection/relation with the construction of Meghalaya Institute of Mental Health and Neurological Sciences. It is also denied that the rates for construction of Nurses Hostel was increased due to publication of SOR of 2000-2001, but the increase in the rate was due to additional costs arising out of the contract which is 36% above adopted SOR of 1995-1996.
14. The records shows that with regard to the construction of Meghalaya Institute of Mental Health and Neurological Sciences, Shillong, the NIT was issued on 24.6.1998 and the last date for receipt of tenders was 15.7.1998 and the SORs were of 1995-1996. In the work order, it is also stipulated that if the contractor fails to complete the work in time he may apply for extension of time by explaining the reasons for the delay. The said work, however, could not be started by the petitioner immediately after issue of the work order and this fact is also admitted by the respondents in paragraph 9 of their affidavit in opposition when it is stated that the delay in finalisation of the said site of work is due to inability to fell down the standing trees pending to do so from the Forest Department which in turn had to obtain the same from the Ministry of Environment and Forest, Govt. of India. Permission was finally received in March, 2001. The site for work was shown to the contractor only after clearing it of the trees. This statement is also supported by the letter dated 18.6.2001 from the respondent No. 3 to the petitioner whereby the petitioner was asked to meet the respondent No. 3 on 20.6.2001 for giving line for construction of Mental Hospital. The final line was given to the petitioner only on 4.9.2001 as intimated by letter dated 4.9.2001 (Annexure-10) issued to the petitioner.
15. From the above fact, it shows that the petitioner could start the work only from September, 2001; whereas the work order was issued to her on 9.9.1999 and the time of completion is for 24 months. Had the petitioner could start the work immediately after the issue of the work order, she would have completed the construction by September, 2001, to be specific on or before 9.9.1999 by which the period of 24 months prescribed in the work order expired. But in the instant case the petitioner could start the work only in September, 2001, i.e., after the period of completion specified in the work order has already expired.
16. During this gap of issue of the work order and the handing over of the site to the petitioner there was a price escalation and therefore the SORs of 2000-2001 was issued which conies into effect from 1.9.2000. The delay in starting/completing the work is therefore not due to the fault of the petitioner, but it is due to the delay of the respondents in handing over the site to her. For this fault of the respondents, the petitioner cannot be made to work at the old rate as it was not her fault. She had to start the work belatedly after 24 months of issue of the work order and the new SORs was issued.
17. Publication of SORs is in line with the Govt. policy to fix the rates of all constructions in the State Govt. as well as in the Departments. This policy of issuing SORs from time to time is keeping with the price escalation prevailing in the State and this fact is also admitted by the respondents in paragraph 4 of the affidavit in opposition when it is stated that the Schedule of Rates are published periodically by Public Works Department to keep pace with the escalation in the markets in the State.
18. In the instant case the petitioner had to start the work only from September, 2001 due to delay of handing over the site to her, and therefore it would not be justified for the respondents to make the petitioner to do the work at the lower quoted rates when it is admitted position that the SORs of 2000-2001 was published after taking into consideration the escalation of market price in the State. For these reasons, I am of the view that the petitioner is entitled to the price escalation as published in the SORs of 2000-2001.
19. Similarly with regard to the construction of the OPD at Ganesh Das Hospital, Shillong allotted to the petitioner by work order dated 10.9.1998. The work could not be started by the petitioner immediately after the issuance of the work order to her. The fact, is that the work order was issued on 10.9.1998 and the rate quoted was as per the SORs for the year 1991-1992 and the completion of the work is scheduled for 18 months from the date of issue of the work order. The period of 18 months from the date of issue of the work order would expire on or before March, 2000, but the respondents did not hand over the site to the petitioner to start with the construction work.
20. In the work order it is specified that the work is to be completed within the specified period without fail and in case the petitioner fails to complete the work in time, the petitioner may apply for extension of time by explaining the reasons for delay. The site was handed over to the petitioner only in October, 1999 and from which date the petitioner could start the work. This delay in handing over the site to the petitioner is also admitted by the respondents when it is stated in paragraph 7 of the affidavit in opposition that the delay in finalisation of site of work is due to delay in granting of permission for construction of the building by the Chief Executive Officer, Shillong Municipality and also permission to fell the standing trees to be issued by the Forest Department. These formalities could be cleared only in October, 1999.
21. This statement of the respondents supported the case of the petitioner that she could start the work only in October, 1999. By the time the petitioner could start the work a period of more than one year has elapsed which is not the fault of the petitioner. On the other hand it is the respondents who caused the delay. The petitioner could not start the work for more than one year. Had the petitioner could start the work immediately after the issue of the work order, by the time the site was handed over to her, the work could have nearly been completed. In the mean time the SORs of 1995-1996 has been adopted by the respondents which is valid with effect from 1st October, 1995 to 31.8.2000. Therefore by the time the petitioner could start the work there was already a price escalation in the market and as such the State of Meghalaya in consonance with the policy of keeping pace with price escalation has issued the SORs of 1995-1996 effective from 1.10.1995. The petitioner therefore had to carry out the work according to the market price prevailing with effect from 1.10.1995.
22. Although the petitioner has quoted the rates as per 1991-1992 SORs, but she could not start the work when the said SORs was applicable. She could start the work only after the 1995-1996 SORs came into effect. As already discussed, the State Govt. has published the SORs keeping in view of the escalation of market prices in the state which in this case is also admitted by the respondents in paragraph 4 of the affidavit in opposition when it is stated that Schedule of Rates are published periodically by Public Works Department to keep pace with escalation of market prices in the State. This statement by the respondents clearly shows that the SORs are published periodically on the basis of the escalation of market prices. In the instant case it would not be justified to direct the petitioner to do the work at the lower rate as admittedly there was a price escalation for which publication of 1995-1996 SORs was necessatiated.
23. In the case of
24. In these 2 cases also the delay in handing over the site to the petitioner was beyond the control of the petitioner and on the other hand it was the delay on the part of the respondents. There was also escalation of prices in the mean time and the Govt. in keeping of its policy of issuing SORs from time to time has issued the SORs in question fixing the rates according to market prices in the State. This very fact shows that the rates as quoted by the petitioner became unworkable by the time she was to start the work as the market price at relevant time has increased and the new SORs were published and adopted by the respondents.
25. For the aforesaid reasons, I am of the opinion that the petitioner is entitled to the Schedule of Rates of 2000-2001 for construction of Meghalaya Institute of Mental Health and Neurological Sciences, Shillong and also the SORs of 1995-1996 for the construction of OPD at Ganesh Das Hospital, Shillong.
26. It is, therefore, directed that the respondents shall grant the petitioner the SORs of 2000-2001 for Meghalaya Institute of Mental Health and Neurological Sciences, Shillong and SORs of 1995-1996 for the construction of OPD at Ganesh Das Hospital at Shillong.
These writ petitions are allowed to the extent indicated above.
