Orissa High Court
Nirmal Chandra Rout vs State Of Odisha on 4 February, 2026
ORISSA HIGH COURT : CUTTACK
W.P.(C) No.18144 of 2022
In the matter of an Application under Articles 226 & 227
of the Constitution of India, 1950
***
Nirmal Chandra Rout
Aged about 51 years
Son of Chandra Sekhar Rout
Residing at Barapada, P.O.: Sendtira
P.S.: Bonth, District: Bhadrak ... Petitioner
-VERSUS-
1. State of Odisha
Represented through Secretary
Rural Development Department
Government of Odisha
Loka Seva Bhawan, Bhubaneswar
District: Khordha.
2. Executive Engineer
Rural Works Division, Bhadrak
At/P.O.: Bhadrak Town
District: Bhadrak.
3. Superintending Engineer
Rural Works Division
At/P.O.: Bhadrak Town
District: Bhadrak.
4. Assistant Engineer (Estimator)
Rural Works Division
At/P.O.: Bhadrak Town
District: Bhadrak. ... Opposite Parties
W.P.(C) No.18144 of 2022 Page 1 of 67
Counsel appeared for the parties:
For the Petitioner : Mr. Surya Prasad Misra,
Senior Advocate
Assisted by
M/s. Asit Kumar Dash,
Abhishek Dash, Ms. Sakshi Rout,
Advocates
For the Opposite Parties : Ms. Aishwarya Dash,
Additional Standing Counsel
P R E S E N T:
HONOURABLE CHIEF JUSTICE
MR. HARISH TANDON
AND
HONOURABLE JUSTICE
MR. MURAHARI SRI RAMAN
Date of Hearing : 26.11.2025 :: Date of Judgment : 04.02.2026
J UDGMENT
MURAHARI SRI RAMAN, J.--
Questioning the legality and tenability of Order dated
09.06.2022 passed by the Superintending Engineer,
Rural Works Division, Bhadrak, opposite party No.3
(Annexure-7) passed in pursuance of decision taken by a
Committee in its meeting held on 09.06.2022 (Annexure-
6) in compliance of Order dated 15.03.2022 passed in
W.P.(C) No.3773 of 2022 of this Court, in rejecting the
claim of the petitioner with respect to price variation/
W.P.(C) No.18144 of 2022 Page 2 of 67
escalation for transportation of minor minerals for use in
the work "Improvement to Road and CD Works under
Pradhan Mantri Gram Sadak Yojana" vide Package
No.OR-04-320(A)/PMGSY-III (Batch-II) (Barapada
Kandava PWD Road to PWD Road Panpadi Chhak via
Bodakpatna, Odanga, Sarmara, Gohira, Jirina in the
district of Bhadrak for the year 2021-22 pertaining to
Agreement No.09/PMGSY-III of 2021-22, dated
01.12.2021, the petitioner approached this Court by way
of filing this writ petition to invoke power of judicial
review under Article 226 of the Constitution of India,
with the following prayer(s):
"It is therefore, humbly prayed that this Hon‟ble Court
may graciously be pleased:
i. To admit the writ petition, issue Rule Nisi;
ii. call upon the opposite parties to show cause as to
why the rejection of petitioner‟s claim vide order
dated 09.06.2022 under Annexure-7 shall not be
set-aside and be directed to pay the escalation
prices incurred by the petitioner.
iii. and if the opposite parties fail to show cause or
show insufficient cause, to make the said Rule
absolute by issuing writ of mandamus directing the
opposite party No.3 to pay the petitioner the
admitted dues towards variation prices incurred for
procurement of minor minerals as this Hon‟ble Court
deems fit and proper;
W.P.(C) No.18144 of 2022 Page 3 of 67
And/or to pass such other order(s), direction(s) as
this Hon‟ble Court deems just, fit, equitable and
proper in the facts and circumstances of the present
case;
And for this act of kindness, the petitioner shall as in
duty bound ever pray."
Facts:
2. Factual matrix unfurled by the writ petitioner, a works
contractor engaged in the business of execution of works
of civil construction, emanates that in response to the
Notice Inviting Tender dated 06.08.2021 (for short,
"NIT"), submitted his bid for "Improvement to Roads &
CD Works under Pradhan Mantri Gram Sadak Yojana
(PMGSY) of Barapada Kandava PWD Road to PWD Road
Panpadi Chhak via Bodakpatna, Odanga, Sarmara,
Gohira, Jirina" in the district of Bhadrak valued at
Rs.3,81,49,328/-.
2.1. Being declared successful bidder in the competitive
bidding, he was awarded with the work for execution to
be commenced from 01.12.2021 and as per agreement
date of completion was stipulated as 31.10.2022 with
contract price fixed at Rs.3,81,49,328/-, which is 7.77%
less than the corresponding estimated cost of
Rs.3,79,84,665/- besides maintenance cost of
Rs.31,16,071/-.
W.P.(C) No.18144 of 2022 Page 4 of 67
2.2. Consequent upon the said agreement, the petitioner
commenced the work in question as per the
specifications under the Bill of Quantity ("BOQ", in
short). The agreed cost and/or the bid price, based on
the estimates given by the Rural Works Sub-Division,
included the procurement of minor minerals, such as
moorum, metal, chips and dust (for convenience
collectively be referred to as "minerals" hereinafter) from
Kupari Quarry sourced by the opposite parties. Basing
on the same, the bid price was furnished and the cost
was agreed upon by the petitioner, which is 7.77% less
than the corresponding estimated cost for execution of
said work.
2.3. Kupari Quarry, the sole lead provided by the Rural
Works Sub-Division in its estimates, remained closed for
undertaking mining activities since 21.10.2019 by an
Order of the learned National Green Tribunal, Principal
Bench, New Delhi, which restrained the petitioner from
procuring the above mentioned minerals from said
quarry. Since the petitioner faced much difficulty in
procuring the minerals from the said quarry, he made an
inquiry under the Right to Information Act, 2005 from
the Tahasildar, Khaira in the district of Balasore, which
resulted in supply of information by the Tahasildar,
Khaira that the Kupari Quarry was given on lease for five
years from the year 2017 to 2018, but the same was
W.P.(C) No.18144 of 2022 Page 5 of 67
closed pursuant to the above referred order of the
learned National Green Tribunal. The Superintending
Engineer-opposite party No.3 furnished information to
an application under the Right to Information Act, 2005
that:
"Office of the Superintending Engineer
Rural Works Division, Bhadrak
No.5492/Dated: 24.12.2021
To
Sri Nirmal Chandra Rout,
At: Kuans, Post/District: Bhadrak, PIN: 756100
Sub.: Your RTI application on 29.11.2021
Sir,
With reference to your RTI application dated
29.11.2021, I am to inform you that as per the
estimates under R.W. Sub-Division, Bonth from
21.10.2019 the following quarries lead are given:
1. Moorum : Dhenka/Kupari
2. Metal : Kupari
3. Chips : Kupari
4. Dust : Kupari
Yours faithfully,
Sd/-
Public Information Officer
O/o. the Superintending Engineer
R.W. Division, Bhadrak."
2.4. Showing concern to complete the work in question
within the time stipulated in terms of the agreement, the
W.P.(C) No.18144 of 2022 Page 6 of 67
petitioner was forced to procure the minerals from
Chandeidhara, which is near about 80 kilometres far off
from the Kupari Quarry.
2.5. The petitioner made a representation dated 11.01.2022
(Annexure-4) before the Superintending Engineer-
opposite party No.3 for revising rates in tune with the
variation clause to provide him with the actual unit cost
of WMM and GSB to make the execution of work
financially feasible and economically viable as he could
not procure the minor minerals necessary for execution
of the work entrusted due to closure of lead mine, viz.,
Kupari Quarry.
2.6. Since the opposite party No.3 has not responded to such
request made by way of above representation, eliciting
inaction, a writ application, bearing W.P.(C) No.3773 of
2022 was filed, which came to be disposed of on
15.03.2022 with the following Order:
"This matter is taken up through hybrid mode.
2. Heard learned counsel for the parties.
3. The petitioner has filed this writ petition seeking
direction to the opposite parties to consider the claim
of the petitioner vide letter dated 11.01.2022
(Annexure-4) in view of the terms of the General
Clauses of Contract and further seeking direction to
the opposite parties to allow the variation prices
W.P.(C) No.18144 of 2022 Page 7 of 67
towards procurement of Minor Minerals for execution
of the works.
4. In course of hearing, learned counsel for the
petitioner states that the petitioner has already
made representation before the opposite party no.3-
Superintendent Engineer, R.W. Division, Bhadrak
Town, Bhadrak vide Annexure-4 series, and the
same may be directed to be disposed of within a
stipulated time.
5. As agreed by learned counsel for the parties, this
Court, without expressing any opinion on the merits
of the case, disposes of the writ petition directing
opposite party No.3 to consider the representation
filed by the petitioner vide Annexure-4 series and
pass appropriate order in accordance with law
within a period of three months from the date of
production of certified copy this order.
Issue urgent certified copy as per rules."
2.7. The petitioner, thereafter, submitted his grievance
petition before the opposite party No.3 on 08.04.2022. In
response thereto, the opposite party No.3 called a
meeting on 09.06.2022 to discuss the issue pursuant to
the order of this Court dated 15.03.2022. As a fall out of
decision taken in said Meeting, the Superintending
Engineer, Rural Works Division, Bhadrak based on
clarification contained in RD Department Office
Memorandum No.28585300182013, dated 03.03.2017
referring to Clause 13.4 of the Standard Bidding
Document pertaining to Construction and Maintenance
W.P.(C) No.18144 of 2022 Page 8 of 67
of Rural Roads under the Pradhan Mantri Gram Sadak
Yojana/ADB Assisted PMGSY and Clause 7.1 of said
Standard Bidding Document, vide Order dated
09.06.2022 rejected the claim of the petitioner for
invoking escalation clause to revise the rate/price with
respect to minor minerals procured from a place other
than the agreed Kupari Quarry.
2.8. For better comprehension, the Minutes of the Meeting
dated 09.06.2022 is reproduced hereunder:
"Proceedings of the Meeting held in the Chamber of
Superintending Engineer, Rural Works Division, Bhadrak
on dt.09.06.2022 to discuss the issue arising out of
Order passed by Hon‟ble High Court, Odisha
dt.15.03.2022 over W.P.(C) No.3773 of 2022
(Nirmal Chandra Rout Vrs. State of Odisha and others)
and the grievance petition filed by Sri Nirmal Chandra
Rout.
Members Present:
1. Sri Shantanu Kumar Naik, Superintending Engineer,
R.W. Division, Bhadrak.
2. Sri Nadupuri Ravikumar, DAO-II, R.W. Division,
Bhadrak.
3. Smt. Malati Gochhayat, Assistant Engineer
(Estimator), R.W. Division, Bhadrak.
4. Sri Nirmal Chandra Rout, Petitioner.
In obedience to the order of Hon‟ble High Court, Odisha,
Cuttack dt.15.03.2022 arising out of W.P.(C) No.3773 of
2022 (Nirmal Chandra Rout Vrs. State of Odisha and
others) and with reference to the grievance petition
W.P.(C) No.18144 of 2022 Page 9 of 67
dt.08.04.22 of Sri Nirmal Chandra Rout, the petitioner
and the agency for the work "Improvement to Road & CD
works under PMGSY vide Package No.OR-04-320(A)/
PMGSY-III (Barapada-Kandava PWD Road to PWD road
Panpadi Chhak via: Bodakpatna, Odanga, Sarmara,
Gohira, Jirina) in the District of Bhadrak for the year
2021-22. (Agreement No.09/PMGSY-III of 2021-22), the
grievances of Sri Nirmal Chandra Rout was regarding
allow of variation prices for procurement of miner minerals
for execution of above work.
But the RD Department office memorandum
No.28585300182013 dt.03.03.2017, referring clause 13.4
of the Standard Bidding Documents (SBD) of construction
and maintenance of Rural roads under PMGSY/ADB
Assisted PMGSY and clause 7.1 of SBD where it has
clarified that the rates and prices quoted by the bidder
shall be fixed for the duration of contract and shall not be
subject to adjustment and further, the contractor engaged
in execution of PMGSY work both completed and ongoing
work have agreed to the above clause of SBD and entered
into a contract agreement with Government.
In view of the above, the claim of the petitioner and the
agency Sri Nirmal Chandra Rout of the above work for
price variation on minor minerals is not tenable and as
such cannot be entertained. The agency has to execute
the above work on his quoted agreement rates only.
Accordingly the matter is disposed off and all concerned
are to be informed for taking further necessary action.
Sd/-
Superintending Engineer,
R.W. Division, Bhadrak"
W.P.(C) No.18144 of 2022 Page 10 of 67
2.9. Consequent upon such decision, an Order dated
09.06.2022 was passed by the opposite party No.3,
which is reproduced hereunder:
"Office of the Superintending Engineer
Rural Works Division, Bhadrak
No.2099/Dated: 09.06.2022
ORDER
The Hon‟ble High Court, Odisha, Cuttack passed order No.02 dated 15.03.2022 of W.P.(C) No.3773 of 2022 filed by Nirmal Chandra Rout Son of Chandra Sekhar Rout, At:
Barapadi P.O.: Sendtira, P.S.: Bonth in the District of Bhadrak Vrs. State of Odisha & others disposes of the writ petition directing OP No.3 i.e. Superintending Engineer, Rural Works Division, Bhadrak to consider the representation filed by the petitioner i.e. Sri Nirmal Chandra Rout vide Annexure-4 series and passed appropriate order in accordance with law within a period of three months from date of production of certified copy of this order.
In obedience to the order of Hon‟ble High Court, Odisha, Cuttack dated 15.03.2022 arising out of WP(C) No.3773/2022 (Nirmal Chandra Rout vrs. State of Odisha and others) and with reference to the grievance petition dt.08.04.22 of Sri Nirmal Chandra Rout, the petitioner and the agency for the work "Improvement to Road & CD works under PMGSY vide Package No.OR-04- 320(A)/PMGSY-III (Barapada-Kandava PWD Road to PWD road Panpadi Chhak via: Bodakpatna, Odanga, Sarmara, Gohira,Jirina) in the District of Bhadrak for the year 2021-
22. (Agreement No.09/PMGSY-III of 2021-22), the grievances of Sri Nirmal Chandra Rout was W.P.(C) No.18144 of 2022 Page 11 of 67 regarding allow of variation prices for procurement of minor minerals for execution of above work.
But the RD Department Office Memorandum No.28585300182013 dated 03.03.2017, referring Clause 13.4 of the Standard Bidding Documents (SBD) of construction and maintenance of Rural roads under PMGSY/ADB Assisted PMGSY and Clause 7.1 of SBD, where it has clarified that the rates and prices quoted by the bidder shall be fixed for the duration of contract and shall not be subject to adjustment and further, the contractor engaged in execution of PMGSY work both completed and ongoing work have agreed to the above clause of SBD and entered into a contract agreement with Government.
In view of the above, the claim of the petitioner and the agency Sri Nirmal Chandra Rout of the above work for price variation on minor minerals is not tenable and as such cannot be entertained. The agency has to execute the above work on his quoted agreement rates only.
Accordingly, the matter is disposed off and all concerned are to be informed for taking further necessary action.
Encl.: Proceedings of Meeting Sd/-
Superintending Engineer R.W. Division, Bhadrak"
2.10. Hence, the present writ petition calls in question the propriety and legal justification for such rejection of claim of the petitioner in absence of material to show that he was at fault in procuring the minerals from the place other than the lead quarry, i.e., Kupari Quarry.W.P.(C) No.18144 of 2022 Page 12 of 67
Counter affidavit filed by the opposite parties:
3. The opposite parties while supporting denial by the opposite party No.3, disputed that having signed the agreement, thereby accepting the terms and conditions of the Bid Document (Notice Inviting Tender), the petitioner cannot maintain the writ petition.
3.1. In Clause-7 of Section:2-- Instructions to Bidders of the NIT, it has been reflected that the employer either expressly or implicitly makes no representation/ assurance with regard to the accuracy, adequacy, correctness, reliability and/or completeness of any assessment, statement or information provided in the NIT. So, it is the responsibility of the prospective bidder to examine all required conditions for execution of work at his own cost before submission of Bid. So, the petitioner cannot blame the opposite parties with regard to the closure of Kupari Quarry from which he was to procure minor minerals.
3.2. It is not unknown that the operation of stone quarry in Khaira Tahasil was halted by an order of the learned National Green Tribunal. Hence, before submission of the Bid, i.e., on 25.08.2021, the operation of Kupari Stone Quarry was totally stopped. It was for the petitioner to ascertain the sources of procurement of materials before submission of the Bid. The claim for W.P.(C) No.18144 of 2022 Page 13 of 67 variation of price after execution of the agreement in respect of non-availability of minerals from the lead quarry, viz. Kupari Quarry, has rightly been rejected.
The opposite party No.3 has rejected the claim of the petitioner in view of the specific conditions stipulated in the NIT and made part of the agreement.
3.3. Clause 13.4 under Section 2 of the Instructions to Bidder appended to NIT stipulated that the "rates and prices" quoted by the bidder shall be "fixed for the duration of the contract" and "shall not be subject to adjustment". Hence, the opposite party No.3 has not committed any flaw in rejecting the claim of the petitioner. The petitioner, being well aware of the above- noted terms and conditions, submitted his Bid and he, being the lowest bidder, agreed to execute the work on the above terms and conditions. So, the petitioner is estopped to raise the contention with regard to variation in price.
3.4. The NIT, the foundational document to submit the Bid, stipulated that all prospective bidders were advised to go through the detailed terms and conditions envisaged therein before submission of the bid to participate in the tender. The petitioner participated in the tender process by submitting his Bid. Furthermore, the petitioner upon complying with the formalities executed agreement and accepted the conditions stipulated. For any change in W.P.(C) No.18144 of 2022 Page 14 of 67 the site conditions, the opposite parties cannot be held responsible. After accepting the terms and conditions of the contract, which is binding upon the petitioner, he cannot stop the execution of developmental work of the Government meant for the welfare of the public or claim immunity from the conditions accepted by him.
3.5. The petitioner has submitted his bid quoting 7.77% less than the amount put to tender for execution of work. The preparation of estimate by the opposite parties is the internal factor of the Department to assess the possible expenditure required for the execution of work, which has got no nexus with quotation of price of a prospective bidder.
3.6. Accepting the terms and conditions provided in the NIT, the petitioner submitted his Bid to participate in the tender and also later signed the agreement to execute the work. Before submission of Bid by the petitioner, the said Kupari Quarry was closed since 21.10.2019. Hence it is obvious that the petitioner was aware as regards detailed condition of work site and source of procurement of minerals etc. Having quoted price, and being declared successful, with knowledge of the terms and conditions he executed the agreement. The petitioner is, therefore, estopped to turn around to request the opposite parties to vary with the terms of agreement.
W.P.(C) No.18144 of 2022 Page 15 of 673.7. The petitioner has signed the agreement to complete the work. The petitioner had executed only 22% of the value of work put to tender as by January, 2023. This fact itself is sufficient to entail his claim rejected.
3.8. As per the Tender Document, all prospective bidders were requested to visit the site and after being satisfied with regard to all requirements necessary to execute work, they were required to submit the Bids. Once the bid is submitted and agreement is drawn to execute the work, there is little scope to relax any condition. Nonetheless, to consider his grievance a Committee was constituted and the Committee unanimously decided that the price variation claimed by the petitioner is not tenable and it cannot be entertainable. The Committee also observed that the petitioner was required to execute the work on his quoted rate. The opposite party No.3- Superintending Engineer communicated the decision to the petitioner vide Order No.2099, dated 09.06.2022. It is for justified reasons the claim for revision of price in view of the clear restriction contained in the Standard Bidding Document has been rejected.
Rejoinder affidavit filed by the petitioner:
4. The petitioner suffered escalation of price as he had to procure minerals from Chandeidhara, which is approximately 80 Kms. farther from Kupari Quarry, that W.P.(C) No.18144 of 2022 Page 16 of 67 was the lead quarry provided by the employer for procuring such minerals under the BOQ and was the basis for the assessing the bid price. The closure of the lead quarry, i.e., Kupari Quarry, by interdiction of the learned National Green Tribunal, compelled the petitioner to lift minor minerals from a farther place. By no reasonable means it could be ascertained before submitting the bid that such difficulty would arise. The fact of closure being not disclosed, and the opposite parties having estimated the tender taking into consideration distance covered for procuring the minor minerals from Kupari Quarry, their action in rejecting the genuine claim for price variation is tainted with arbitrariness.
4.1. The petitioner has acted upon the information provided for by opposite party No.3 in the Bid Documents which provided that the lead quarry would be Kupari Quarry for procurement of the minerals in question. The petitioner prepared and furnished his Bid based on the estimate of the opposite parties which included minor minerals from Kupari Quarry. Therefore, in view of the admission in the counter affidavit, the opposite parties have misrepresented fact and, hence, they cannot wriggle out of the obligation.
4.2. The denial of variation or escalation in price for procurement of the minor minerals, i.e., moorum, metal, W.P.(C) No.18144 of 2022 Page 17 of 67 chips and dust by referring to Clause 13.4 of the Standard Bidding Document is based on misconstruction of the document. Clause 13.4 of Standard Bidding Document speaks of rate of sand prices quoted by bidder, which shall remain fixed for the duration of the contract and shall not be subject to adjustment. The same having consciously excluded other minor minerals, like moorum, metal, chips and dust, they could be subject to price variation in terms of Clause 35 of "Qualification Information" vide Section 3 of the NIT.
4.3. The price variation was incurred by the petitioner is not for reasons attributable to him, but is consequent upon the closure of Kupari Quarry by the Order of learned National Green Tribunal. The change of event by operation of law, causing escalation of prices towards procurement of minor minerals, was beyond the comprehension of the petitioner and it could not have been reasonably ascertained, more so when the lead quarry identified by the opposite parties was Kupari Quarry. There was no reason to further suspect or cause verification of the same.
4.4. The petitioner undertook site visit in terms of Clause 7 to assess the possible difficulty, risk and hazard that are likely to arise in course of work and in order to familiarise himself with the site. The same cannot be W.P.(C) No.18144 of 2022 Page 18 of 67 construed to mean that petitioner was duty bound to even verify the correctness of information presented under the NIT read with estimates prepared by the opposite parties. Since the petitioner was required to procure minor minerals from Kupari Quarry, the bid price was quoted accordingly. The opposite parties having misrepresented for their benefit, they cannot shift the blame upon the petitioner to deny legitimate cost. Moreover, it is the duty of the employer to propose the approved quarry lead and provide quarry charts from which minor minerals are to be lifted for use in road works so that they can ensure quality of materials used for such construction of roads. In that event, the contractor would, however, be responsible for procurement of materials from authorized sources and voluntarily disclose the source of procurement for the purpose of billing as per the provisions of the Odisha Public Works Department Code.
4.5. On perusal of item (vii) of sub-clause (a) of Clause 3.4.16 of Volume-I read with Para-C under Appendix IV of Volume-II of the Odisha Public Works Department Code (abbreviated "OPWD Code") it evinces that the employer must propose the approved quarry lead and provide quarry charts from which minor minerals to be procured and used in road works. The contractors would, however, be responsible for procurement of materials W.P.(C) No.18144 of 2022 Page 19 of 67 from authorized sources in order to maintain the quality required or desired by the contractee.
4.6. The OPWD Code, Volume-I, under Clause 3.4 dealing with "Preparation of Estimates" provides for "Different Estimates" in sub-clauses 3.4.1 to 3.4.38. Sub-clauses so far as relevant for the present purpose stand as follows:
"B. Roads.--
3.4.15. It may be regarded as a fundamental rule that no road, bridge, ferry, tunnel, ropeway or causeway in charge of the Public Works Department should be abandoned or allowed to fall out of repairs without the prior sanction of the Government.
3.4.16. (a) Before the estimate for road project is prepared, preliminary investigation is to be carried out where necessary. Projects for roads when submitted for sanction should be accompanied by the following documents:
(i) Report detailing history, design, scope, rates, specifications, volume of traffic, nature of soil references, cost and mode of execution etc.
(ii) Detailed measurements and abstract of cost.
(iii) Index map, scale 1:50,000.W.P.(C) No.18144 of 2022 Page 20 of 67
(iv) Plans, scale 1:5,000. Longitudinal and crosses or transverse sections, scale horizontal 1:1,000 to 1:100 and vertical 1:100 to 1:10 as applicable.
(v) Detailed drawings of all engineering works such as bridges etc. scale 1:100 or 1:50 for plan and estimates.
(vi) Detailed drawings, as per scale given in
(v) above of structures, dwellings or inspection bungalows, and quarters for subordinates and gangs.
(vii) For the purpose of estimate, the approved quarry lead is to be provided judiciously.
Engineers-in-Charge would be responsible for ensuring the quality of the materials supplied. The contractors would however, be responsible for procurement of materials from authorized sources and voluntarily disclose the source of procurement for the purpose of billing. Besides, the bidder would be required to submit the details of quarry for procurement while submitting the bids.
Note: (a) The scale noted above may be reduced or increased according to the nature of the project.
(b) Estimates for new lines of road should include the cost of all dwelling and inspection houses intended to be built along with it for accommodation of sub-
ordinates and others.
W.P.(C) No.18144 of 2022 Page 21 of 67(c) Necessary provision should also be made for shifting of pipe lines, drainage works, electrical poles, cables and telephone lines, if any, coming in the way of new alignment."
4.7. Relevant portion of Volume-II of the OPWD Code is extracted hereunder:
"Appendix-IV Guide lines for preparation of estimates for different types of works C. Roads.--
(a) The projects for roads when submitted for sanction should be accompanied by the following documents:
(i) Report detailing history designs, scope, rates, specifications, preferences, cost and mode of executions, etc.
(ii) Detailed measurements and abstract of cost.
(iii) Index map, scale 1-50 M.
(iv) Plans, scale 1.5 m Longitudinal and cross or transverse sections, scale horizontal 11M and vertical 1.100M.
(v) Detailed drawings of all engineering works such as bridges, etc. scale 1.100 or 1.50 for plan and estimate.
(vi) Detailed drawings, as per scale given in (v) above of structures, dwelling or inspection bungalows, and quarters for subordinate and gangs.W.P.(C) No.18144 of 2022 Page 22 of 67
(vii) Quarry charts showing the various, quantities from where road metal is proposed to be obtained.
(b) Estimates for bridges, in addition, to the reports and plans, as above, should be accompanied by water way calculations and sections of trial pits and foreign of the stream bed.
Note: The scale noted above may be reduced or increased according to the nature of the project:
(i) Necessary provision should be made for shifting of pipe lines, drainage, electrical Poles, cables and telephone lines if any, coming in the way of new alignment.
(ii) Before detailed estimates; for bridges are made as many, trial pits or borings as are considered necessary should be taken. It is necessary to make a careful preliminary investigation of the subsoil in order to ascertain exact nature of the strata and determine accurately the stability of sites for bridgest, large buildings etc., and the depths, to which foundations should be taken.
(c) Estimates for bridges must be accompanied by adequate calculations and the report should show how the stream has been crossed hitherto, why it is proposed to bridge it, the kind and volume of traffic expected, whether the stream has ever been bridged before, if so, a description of which should be given and if it failed the reasons the kind of bridge now proposed, the reasons for the amount of water way allowed the height of road, way allowed for boats, if any the nature and size of stages, W.P.(C) No.18144 of 2022 Page 23 of 67 if any, the drainage of the stream whether flat or hilly, the velocity of current in rainy and dry whether, liability to sudden floods, whether the stream is used for flatting out timber and if so, how the nature of bed and bank whether the banks are liable to erosion whether the stream is navigated and if so, by what types of vessel, the highest flood level, maximum and normal, and the nature of materials available within a reasonable distance.
(d) Whenever it is proposed to construct or modify a bridge, culvert, dam, diversion on other work which might effect any railway line in the vicinity, the Railway Administration should be consulted in regard to the adequacy of the water ways etc. provided in the proposals, where there is disagreement, the matter should be referred to the S.E. concerned.
(e) In addition to the actual bridge plans, the following plans should accompany an estimate for a new bridge:
A plan of the stream of 1.5 Km. above and below the proposed crossing, with connected cross section, in every quarter of a Kilometre (or oftener, if necessary) a cross section of the stream at the proposed bridge site showing the general level of, the country on either bank as well as that of road approaches, the various Water levels, depth at which good foundation is available and its nature.
(i) The code of practice prescribed by the Indian Roads Congress should be followed in general."W.P.(C) No.18144 of 2022 Page 24 of 67
4.8. The denial of variation or escalation in prices for the minor minerals being procured from a farther source is not only irrational but also sounds illogical. The opposite parties fell in error in applying the true purport of Clause 13.4 of NIT. Such clause is not applicable to the present minerals as the clause imposes a fixed rate on „sand‟ only. Clause 13.4 of NIT speaks of rate of sand prices quoted by bidder which would remain fixed for the duration of the contract, and the same is not to be subject to adjustment. The same having consciously excluded other minor minerals, like moorum, metal, chips and dust, the decision of the opposite party No.3 is bad and illegal. Thus the minor minerals being procured from Chandeidhara, but not the lead source at Kupari Quarry, due to exigencies, the price variation ought to have been allowed in terms of Clause 35 of Section 3 of the NIT.
4.9. It is evident from letter dated 24.12.2021 that the proposed lead for procurement of minor minerals excluding "sand" was Kupari Quarry. In order to participate in the tender process, the petitioner had no other alternative but to accept and act according to the said information. The obligation to visit site was to assess the challenges at the site and not to assess the status of the Kupari Quarry. The opposite parties now W.P.(C) No.18144 of 2022 Page 25 of 67 cannot take benefit of their own wrong to deprive the petitioner of his legitimate dues.
Hearing:
5. As the pleadings are completed, the matter is taken up for final hearing on the consent of the counsel for the respective parties.
5.1. Heard Mr. Surya Prasad Misra, learned Senior Advocate being assisted by Mr. Asit Kumar Dash, Advocate along with Ms. Sakshi Rout, proxy counsel for the petitioner and Ms. Aishwarya Dash, learned Additional Standing Counsel for the opposite parties.
5.2. Hearing being concluded, the matter was reserved for preparation and pronouncement of Judgment.
Discussions and analysis:
6. The undisputed factual matrix as adumbrated in the writ petition reveals:
i. With the last date for receiving Bid Documents on 25.08.2021 up to 5.00 p.m., e-procurement notice was floated by the Additional Chief Engineer, Rural Works Circle, Balasore specifying the work described above under the Pradhan Mantri Gram Sadak Yojana (PMGSY).W.P.(C) No.18144 of 2022 Page 26 of 67
ii. Though by virtue of an order of the learned National Green Tribunal, the quarry operations were directed to be stopped at Kupari Quarry, the petitioner was not made aware by the opposite parties about such interdiction, but it was required to procure moorum, metal, chips and dust from said Quarry, which fact is evident from Letter dated 24.12.2021 of the Public Information Officer, Superintending Engineer, Rural Works Division, Bhadrak.
iii. The petitioner, lowest bidder, executed agreement for execution of work advertised. Conditions stipulated in NIT formed part of such agreement.
iv. The petitioner claimed for variation of price inasmuch as it had to lift the minor minerals for use in the work from a distant place instead of Kupari. Such claim being refused, the writ petition is filed.
7. It is submitted by Sri Surya Prasad Mishra, learned Senior Advocate that the petitioner had to procure the minerals approximately 80 kilometres far from Kupari Quarry. Since the stoppage of quarrying operation at Kupari was not within his knowledge and the opposite parties disclosed the source for procurement of minor minerals from Kupari as the lead quarry, the opposite W.P.(C) No.18144 of 2022 Page 27 of 67 parties through learned Additional Standing Counsel cannot take shelter of the contents available in the downloaded copy of the Standard Bid Documents.
7.1. Sri Surya Prasad Mishra, learned Senior Advocate with his usual vehemence canvassed that the denial of escalation (variation) in prices for procurement of the minerals referring to Clause 13.4 of NIT is inappropriate, outcome of misreading and without proper appreciation of terms of such document.
7.2. He would arduously submit that since the minerals in question were "moorum, metal, chips and dust" in respect of which price variation is sought for, there is no inhibition to claim with respect to such minerals in terms of Clause 13.4 as the restriction contained therein is applicable only with respect to "sand". To bolster his contention, Sri Surya Prasad Mishra, learned Senior Advocate drew support from Clause 13 and Clause 17 finding place under the heading "Bid Prices" vide Section 2: Instructions to Bidders, which are reproduced hereunder:
"13. Bid Prices.--
13.1 The Contract shall be for the whole Works, as described in Clause 1.1 of ITB (Instructions to Bidders), based on the priced Bill of Quantities submitted by the Bidder online.W.P.(C) No.18144 of 2022 Page 28 of 67
13.2 The Bidder shall make online entries to fill the Percentage Rate or Item Rates in Bill of Quantities as specified in the Appendix to ITB; only the same option is allowed to all the Bidders. The Bidder is not required to quote his rate for Routine Maintenance. The rates to be paid for routine maintenance by the Employer are indicated in the Bill of Quantities.
Percentage Rate Method requires the bidder to quote a percentage above/below/at par of the schedule of rates specified in the Appendix to ITB.
Item Rate Method requires the bidder to quote rates and prices for all items of the Works described in the Bill of Quantities. The items for which no rate or price is entered by the Bidder will not be paid for by the Employer when executed and shall be deemed covered by the other rate sand prices in the Bill of Quantities.
Upon numerical entry, the amount in words would automatically appear and upon entry of rates in items of work, or upon entering percentage rate, total bid price would automatically be calculated by the system and would be displayed.
13.3 While quoting rates, the GST component shall not be added in rates, which all other duties, taxes, royalties and other levies payable by the Contractor under the Contract, or for any other cause, shall be included in the rates, prices, and total bid price submitted by the Bidder.W.P.(C) No.18144 of 2022 Page 29 of 67
13.4 The rate sand prices quoted by the Bidder shall be fixed for the duration of the Contract and shall not be subject to adjustment.
***
17. Alternative Proposals by Bidders.--
17.1 Bidders shall submit offers that comply with the requirements of the bidding documents, including the Bill of Quantities and the basic technical design as indicated in the drawings and specifications. Alternative proposals will be rejected as non-responsive."
7.3. To counter such submission, Ms. Aishwarya Dash, learned Additional Standing Counsel strenuously argued that there was typographical error crept in the NIT and referred to a downloaded copy of Standard Bidding Document. Valiant attempt was made by her to urge that the contention of learned Senior Counsel is fallacious inasmuch as the expression "The rate sand prices quoted by the Bidder shall be fixed for the duration of the Contract and shall not be subject to adjustment" as finds place in the NIT is to be read as, "The rates and prices quoted by the Bidder shall be fixed for the duration of the Contract and shall not be subject to adjustment". Strong objection has been raised by Ms. Aishwarya Dash, learned Additional Standing Counsel that the minerals in question are covered under the said clause, but it is fallacious to say that said clause takes within W.P.(C) No.18144 of 2022 Page 30 of 67 its sweep only "sand". Hence, no infirmity can be imputed to the decision taken by the Committee in rejecting the claim of the petitioner.
7.4. Per contra, it is submitted by the learned Senior Counsel that had it been an innocuous error, such fact could have been brought on record by way of counter affidavit. Such conscious error, if at all, is reflected at more than one place. Nothing in this regard has been spelt out by the opposite parties neither in the counter affidavit nor was any response has been put forth in this regard as agitated in the rejoinder affidavit. Therefore, such a stance of the opposite parties does not warrant consideration in absence of pleading.
7.5. It is also pointed out by the learned Senior Counsel that no corrigendum or amendment to the NIT is brought forward by the opposite parties; nevertheless, the opposite parties have affirmed that the terms and conditions do form part of the agreement entered into between the Superintending Engineer and the petitioner. To demolish such firm stance taken by the learned Additional Standing Counsel without bringing on record any corroborative evidence by way of affidavit to contradict such clause as it appeared in the NIT forming part of the agreement, it is submitted that it was well within the knowledge of the opposite parties that Kupari Quarry was not in operation, yet the estimate was made W.P.(C) No.18144 of 2022 Page 31 of 67 taking into consideration the royalty of moorum, metal, chips and dust by adding carriage to the cost. The NIT disclosed as "rate sand price" in Clause 13.2 and Clause 13.4 of the Instructions to Bidders. Sri Surya Prasad Mishra, learned Senior Advocate referred to copy of the document titled "ODISHA STATE RURAL ROADS AGENCY, STANDARD BIDDING DOCUMENT FOR PRADHAN MANTRI GRAM SADAK YOJANA (PMGSY) FOR CONSTRUCTION AND MAINTENANCE: YEAR 2021-22: PMGSY-III, BATCH-II, DISTRICT: BHADRAK, OFFICE OF THE ADDITIONAL CHIEF ENGINEER, RURAL WORKS CIRCLE, BALASORE: OR-04-320(A)"
authenticated by the Superintending Engineer, Rural Works Division, Bhadrak on 01.12.2021 (Annexure-8) enclosed with Affidavit dated 18.08.2023 filed on the direction of this Court. The copy of "Agreement" entered into between the Superintending Engineer, Rural Works Division, Bhadrak and the petitioner on 01.12.2021 depicts as follows:
"The following documents shall be deemed to form and be read and construed as part of this Agreement:
i. Letter of Acceptance;
ii. Notice to proceed with works;
iii. Contractor‟s Bid;
iv. Contractors Data;
W.P.(C) No.18144 of 2022 Page 32 of 67
v. Special Condition of Contract and General
Conditions of Contract;
vi. Specifications;
vii. Drawings;
viii. Bill of Quantities; and
ix. Any other document listed in the contract data as
forming part of the contract."
7.6. From the above, having found force in the submission of the learned Senior Counsel, the contents of format of "Standard Bidding Document", which is stemmed upon by the learned Additional Standing Counsel to buttress her argument, cannot be taken into consideration. The specific document, i.e., NIT (Annexure-8) having formed part of the agreement, reveals "rate sand prices", not "rates and prices" in Clauses 13.2 and 13.4 of Section 2: Instructions to Bidders. This document is related to the present tender (NIT), which forms part of and appended to the document titled "GOVERNMENT OF ODISHA: RURAL DEVELOPMENT DEPARTMENT: NAME OF THE WORK: IMPROVEMENT TO ROADS AND CD WORKS UNDER PRADHAN MANTRI GRAM SADAK YOJANA (PMGSY) IN THE DISTRICT OF BHADRAK: PACKAGE NO.OR-04-320(A)/PMGSY-III (B-II) (BARAPADA-KANDAVA PWD ROAD TO PWD ROAD PANPADI CHHAK VIA: BODAKPATNA, ODANGA, SARMARA, GOHIRA, JIRINA". The Agreement dated 01.12.2021 entered into between parties binds inter se and it indicated that the W.P.(C) No.18144 of 2022 Page 33 of 67 petitioner was to execute the said work. This document being relevant and related to the instant contract work as awarded to the petitioner, this Court on scrutiny finds that Clause 13.4 under the Heading "Bid Prices"
reflected in Section 2: "Instructions to Bidders"
contained "The rate sand prices quoted by the Bidder shall be fixed for the duration of the Contract and shall not be subject to adjustment". Since this is specific to the award of contract in question and the agreement was entered into between the Superintending Engineer, Rural Works Division and the petitioner with eyes open, it is crystal clear that the opposite parties confined such clause to "sand" only, but not to any other minerals. Since there is no mention about exclusion of other minerals, viz., moorum, metal, chips and dust, the escalation/price variation could not have been denied. Glance at 13.2 of said section removes doubt and clarifies that the opposite parties have restricted Clause 13: Bid Prices to "sand" only.
7.7. In order to comprehend the distinctive feature contained between the terms of the NIT vis-a-vis the downloaded copy of Standard Bidding Document, which was referred to by the learned Additional Standing Counsel, the principles of construction of documents binding inter se parties, it may be apposite to have reference to Concise Law Dictionary, by P.G. Osborn, published by Sweet and W.P.(C) No.18144 of 2022 Page 34 of 67 Maxwell, 1927, which describes the word "deed" as "a writing or instrument written on paper or parchment, sealed and delivered, to prove and testify the agreement of the parties whose deed it is, to the things contained in the deed"; "A deed generally consists of the following parts-- the premises, the habendum, the tenendum, the reddendum, the conditions, and the covenants".
7.8. To interpret a document to understand the legal sanctity thereof it is not inept to have regard to the following observations made by the Hon‟ble Supreme Court of India in Mahakali Sujatha Vrs. The Branch Manager, Future Generali India Life Insurance Company Limited, (2024) 4 SCR 724:
"46.2.In DDA Vrs. Durga Chand Kaushish, AIR 1973 SC 2609, it was observed:
„In construing document one must have regard, not to the presumed intention of the parties, but to the meaning of the words they have used. If two interpretations of the document are possible, the one which would give effect and meaning to all its parts should be adopted and for the purpose, the words creating uncertainty in the document can be ignored.‟ 46.3. Further, in Central Bank of India Ltd. Vrs. Hartford Fire Insurance Co. Ltd., AIR 1965 SC 1288, it was held:
„11. *** what is called the contra proferentem rule should be applied and as the policy W.P.(C) No.18144 of 2022 Page 35 of 67 was in a standard form contract prepared by the insurer alone, it should be interpreted in a way that would be favourable to the assured.‟ 46.4. In Sahebzada Mohammad Kamgarh Shah Vrs.
Jagdish Chandra Deo Dhabal Deb, AIR 1960 SC 953, it was observed that where there is an ambiguity it is the duty of the court to look at all the parts of the document to ascertain what was really intended by the parties. But even here the rule has to be borne in mind that the document being the grantor's document it has to be interpreted strictly against him and in favour of the grantee."
7.9. There is no cavil for the proposition that every word of the tender document should be given its meaning and the entire tender document has to be read together so that no condition stipulated therein is rendered otiose. The sanctity of the conditions in the NIT must be maintained and the negligent approach on the part of the opposite parties cannot take away the legitimate claim made by the petitioner. An agreement executed for the particular work prevails over the specifications and as the petitioner-contractor had executed the work in accordance with the instructions of the Superintending Engineer, who floated the tender, the opposite parties cannot escape the non-disclosure of factum of non- operation of Kupari Quarry and shun liability on the ground that the price quoted while taking part in the W.P.(C) No.18144 of 2022 Page 36 of 67 bidding process is sacrosanct and under no circumstance can it be varied. To fortify such observation, reference may be had to Municipal Committee Vrs. Beli Ram & Co., AIR 1933 Lah 1011 = 1933 SCC OnLine Lah 361, wherein it was held that:
"5. Mr. Badri Das for the defendant Committee relied on para. 38 of the printed specifications (Ex. P.W. 13-
20) and argued that as the change from uncoursed to coursed masonry was admittedly more than Rs.1,000 in value and the sanction in writing of the President had not been obtained, the Committee was not liable to pay for it, even though the work had been executed under the express orders of the Engineer-in-Charge. In my opinion this argument is without force and I have no hesitation in overruling it. As stated already, the conditions of the contract between the parties were embodied in the deed, Ex.
P.W. 13-19, and their respective rights and obligations were to be regulated by its terms. The book of specifications, issued by the Committee a year and a half earlier, merely contained an offer of the conditions on which the Committee intended at that time to have the work done. These "conditions" were modified in several important particulars in the course of the negotiations, and the terms ultimately agreed upon between the Committee and the contractors were entered in the written contract, Ex. P.W. 13-19. There can therefore be no manner of doubt that if on any point there is a conflict between Ex. P.W. 13-20 and Ex. P.W. 13-19, the latter must prevail. A comparison of the terms of the two documents makes it abundantly clear that Ex. P.W. 13-19 superseded para. 38 of the printed W.P.(C) No.18144 of 2022 Page 37 of 67 book of specifications; and the Engineer-in-Charge was invested with very wide powers in connection with the construction of these buildings, and the contractors were required to execute the work in strict accordance with his directions. The class of masonry in which the walls of the tanks were to be constructed was clearly a matter on which the contractors were bound to follow the instructions given by him. It is not contended that the plaintiffs disobeyed these instructions. Indeed, the very basis of their claim is that they had executed the work in strict accordance with the orders issued by Mr. Henderson. The class of masonry in which the walls were to be built is not a matter to which para. 12 of Ex. P.W. 13-19 applied and I have no doubt that the Committee cannot escape liability on the highly technical ground urged by Mr. Badri Das."
7.10. It is not out of place to have well-established principle to be borne in mind that the Court must, as far as possible, avoid a construction which would render the words used by the author of the document meaningless and futile or reduce to silence any part of the document and make it altogether inapplicable.
7.11. With such interpretative tools at hand, when the clauses in NIT is perceived, a plausible and reasonable inference can be drawn to support the argument canvassed by Sri Surya Prasad Mishra, learned Senior Advocate that Kupari Mines, a stone quarry, being the authorised source to lead moorum, metal, chips and dust (minor minerals), which was restrained from carrying out any W.P.(C) No.18144 of 2022 Page 38 of 67 mining activities by dint of order of the learned National Green Tribunal, obviously the price variation clause would not apply to these minerals. Therefore, the exclusion of "sand" can be perceived from Clauses 13.2 and 13.4 under the Head-- Bid Prices.
7.12. Minute excursion into the NIT would not leave any manner of ambiguity if reference is made to "Explanatory Note" appended to the NIT. Said note contains the following:
"Format of the Bidding Document The standard Bidding Document for Pradhan Mantri Gram Sadak Yojana (PMGSY) follows the format of the MoRTH Bidding Document, which is similar to the format for National Competitive Bidding for Works (India Version)-- as approved by the Ministry of Finance for World Bank aided projects.
The document has the added feature of maintenance of roads for five years by the contractor who constructs the road."
7.13. The words "similar to" appearing in said Explanatory Note clinch the present issue that there could be variation in clauses from the terms stipulated in the Standard Bidding Document to suit specific contract works to be executed. The use of the word "similar" in commercial parlance qua commodities can be noticed from the following interpretation set forth by the Hon‟ble Supreme Court of India in the case of Union Carbide W.P.(C) No.18144 of 2022 Page 39 of 67 India Ltd. Vrs. State of Andhra Pradesh, (1995) 2 SCR 785:
"The meaning of the significant words and description of the wood products as intermediate materials meant for manufacture of final products clearly indicate that „laminated wood‟ means a wood product prepared by placing layer on layer and „block board‟ is a plywood board with a core of wood. Any plywood board with a core of wood in which there are layers, one above the other is, therefore, laminated wood similar to plywood or, veneered panels. It is „similar laminated wood‟ included in the heading „Plywood, veneered panels and similar laminated wood‟. Similarity with, and not identity with plywood or veneered panels is required. In Nat Steel Equipment Private Ltd. Vrs. Collector of Central Excise, (1988) 34 ELT 8 (SC) = (1988) 2 SCR 732, while considering the meaning of the word „similar‟ in a tariff item, in similar context, it was stated thus:
„*** The expression „similar‟ is a significant expression. It does not mean identical but it means corresponding to·or resembling to in many respects; somewhat like; or haivng a general likeness. The statute does not contemplate that goods classed under the words of „similar description‟ shall be in all respects the same. If it did these words would be unnecessary. These were intended to embrace goods but not identical with those goods. ***‟ This test is satisfied. Thus, the meaning given to the expression „similar laminated wood‟ in the HSN is not any special meaning thereof but the general meaning as understood internationally in the field of „Forestry and Wood Production‟."W.P.(C) No.18144 of 2022 Page 40 of 67
7.14. Such being the connotation of the term "similar", said word in Explanatory Note appended to the NIT makes it unambiguous that the words and the terms of Bid Document (NIT) in question can be „similar‟ though not worded with exactitude. The words "rate sand price" in subject Bid Document being found at variance with "rates and price" in Clause 13.4 of the Standard Bidding Document, the former would prevail. It is obvious because Kupari Quarry, the lead mine for the petitioner to procure above minor minerals is a stone quarry, but not sand source. It is well within knowledge of the opposite parties in the year 2021 when the tender was floated that the operational activities in said quarry was restricted by the learned National Green Tribunal. Therefore, this Court is of the strong belief and finds force in the submission of the learned Senior Counsel that the clauses particularly Clause 13.2 and Clause 13.4 under the "Price Bid" reflected correct position "rate sand prices" and not "rates and prices". Absence of pleading in opposition in this respect by the opposite parties strengthens the case of the petitioner.
7.15. To appreciate the stand taken in the counter affidavit by the opposite parties, having perused paragraph 4 it transpired that "the opposite party No.3 has rejected the claim of the petitioner in view of this specific conditions stipulated in the DTCN and latter made part of the W.P.(C) No.18144 of 2022 Page 41 of 67 agreement" and "further Clause 13.4 under Section 2, Instructions to Bidders of the Agreement clearly stipulates that the rates and prices quoted by the bidder shall be fixed for the duration of the contract and shall not be subject to adjustment". A clear and untrammelled stance is taken at paragraph 6 of the counter affidavit with respect to adherence to the conditions stipulated in NIT forming part of the agreement, which demonstrates as follows:
"*** The petitioner is well educated and an experienced contractor and well versed with regard to tenns and conditions stipulated in the Detailed Tender Call Notice (DTCN) and has participated in the Tender process by submitting his bid. Further, when petitioner was instructed by work order to execute Agreement by complying with the official formalities has agreed and accepted the above conditions stipulated above and signed the Agreement to execute the work. For any change in the site conditions, the opposite parties cannot be made responsible because of the above noted conditions germinated into the contractor and were accepted by the petitioner by putting his signature in the Agreement. After accepting the terms and conditions of the contract which is binding upon the petitioner, the petitioner cannot stop the execution of developmental work of the Govt, meant for the welfare of public or claim immunity from the conditions accepted by the petitioner."
7.16. It is misnomer to say that there was any change in the site condition. Rather the disclosed source being not in W.P.(C) No.18144 of 2022 Page 42 of 67 operation, carriage cost was demanded by the petitioner for leading the minor minerals from Chandeidhara, which is farther place than Kupari Quarry. Such being the fact-situaition, the document (downloaded) relied on by the learned Additional Standing Counsel, being not forming part of the counter affidavit nor is it made part of record, cannot have any bearing to dispel the contention of the petitioner.
7.17. Clause 13.4 of Section 2, Instructions to Bidders of NIT, reveals that the word contained therein is "rate sand", not "rates and". Hence, bare reading of contents of Clause 13.4 of NIT makes it abundantly clear that it is the rate of sand prices quoted by bidder which shall remain fixed during the period of contract. In other words, for the minor minerals other than "sand" such restrictive reading of the clause is inapposite. This having consciously been excluded other minor minerals like moorum, metal, chips and dust, as procured by the petitioner is subject to price variation clause laid in Clause 35 of Section 4 of the NIT dealing with General Conditions of Contract.
7.18. At this juncture reference to Clause 35 of Section 4 of the NIT dealing with "Conditions of Contract" may be relevant which is quoted hereunder:
"D. Cost Control
Bill of Quantities
W.P.(C) No.18144 of 2022 Page 43 of 67
35. The Engineer shall, having regard to the scope of the works and the sanctioned estimated cost, have power to order, in writing, variations within the scope of the works, he considers necessary during the progress of the works. Such variation shall form part of the contract and the contractor shall carry them out and include them in updated programme produced by the contractor. Oral orders of the Engineer for variations, unless followed by written confirmation, shall not be taken into account."
7.19. Perusal of decision taken in the Meeting of the Committee held on 09.06.2022 (Annexure-6) and the Order dated 09.06.2022 does not transpire that the terms of Clause 35 was taken into consideration. However, it is ex facie on record vide Annexure-3, i.e., Letter dated 24.12.2021 wherein the Superintending Engineer, Rural Works Division, Bhadrak asserted that moorum, metal, chips and dust were to be led from Kupari Quarry, despite he was conscious about the fact that the quarry operations in Kupari Quarry was not permitted. In this connection Ms. Aishwarya Dash, learned Additional Standing Counsel made a statement that in terms of Clause 7 of Section 2 (Instructions to Bidders) of the NIT1, the petitioner having visited site 1 Clause 7 of Instructions to Bidders of the "Notice Inviting Tenders for Pradhan Mantri Gram Sadak Yojana Works in Odisha: National Competitive Bidding through e-Procurement: Bid Identification No.SE-BLS-NCB-297, Ref. No.2709, dated 06.08.2021" is reproduced hereunder:
"7. Site Visit.--
7.1 The Bidder, at his own cost, responsibility and risk, is encouraged to visit, examine and familiarise himself with the Site of Works. The Bidder acknowledges that prior to the submission of the bid, the W.P.(C) No.18144 of 2022 Page 44 of 67 before taking part in the bidding process, it is presumed that he would not be able to "lift and lead" the minor minerals from said Quarry. Nevertheless, such stand of the opposite parties cannot have any assistance to countenance the argument of learned Additional Standing Counsel inasmuch as the clause showing "Site Visit" at pre-bid stage is only to assess the location and feasibility for commencement and conclusion of the work at the site. Indubitably it is admitted by the opposite parties vide Letter No.5492, dated 24.12.2021 issued from the Office of Superintending Engineer, Rural Works Division, Bhadrak (Annexure-3) that the estimates of the works were made on the basis of lead given from Kupari Quarry with respect to minerals namely moorum, metal, chips and dust. Though it was within the knowledge of the opposite parties on the date of issue of "Notice Inviting Tenders for Pradhan Mantri Gram Sadak Yojana Works in Odisha: National Competitive Bidding through e-Procurement: Bid Identification No.SE-BLS-NCB-297, Ref. No.2709, dated 06.08.2021" that the operations at Bidder/Contractor has, after a complete and careful examination, made an independent evaluation of the Scope of the Project, Specifications and Standards of design, construction and maintenance, Site, local conditions, physical qualities of ground, subsoil and geology, suitability and availability of access routes to the Site and all information provided by the Employer or obtained, procured or gathered otherwise, and has determined to its satisfaction the accuracy or otherwise thereof and the nature and extent of difficulties, risks and hazards as are likely to arise or may be faced by it in the course of performance of its obligations hereunder. The Employer makes no representation whatsoever, express, implicit or otherwise, regarding the accuracy, adequacy, correctness, reliability and/or completeness of any assessment, assumptions, statement or information provided by it and the Bidder confirms that it shall have no claim whatsoever against the Employer in this regard."W.P.(C) No.18144 of 2022 Page 45 of 67
Kupari Quarry was stopped by virtue of Order of the learned National Green Tribunal, they could not have misguided the participants including the petitioner. As on the date preparing the estimates by the opposite parties Kupari Quarry was made non-functional/non- operational since 21.10.2019, there was no necessity for inclusion of royalty and carriage of above mentioned minor minerals from Kupari Quarry. This Court, therefore, repels the contention of Ms. Aishwarya Dash, learned Additional Standing Counsel that in view of Clause 7 afore-referred, it is the petitioner who was required to verify the correctness of information contained in the said Bid Document.
7.20. This Court, thus, finds force in the contention of the learned Senior Counsel that since no plea is taken by the opposite parties in the counter affidavit to the effect that the words "rate sand price" would have to be read as "rates and prices", the decision of the Committee in its Meeting dated 09.06.2022 in pursuance of direction of this Court vide Order dated 15.03.2022 passed in W.P.(C) No.3773 of 2022 and consequent Order dated 09.06.2022 of the Superintending Engineer cannot be upheld. On a misreading of terms of NIT, the Order dated 09.06.2022 rejecting the claim of the petitioner for price variation (escalation) on the specious plea that in respect of works in question "price variation on minor W.P.(C) No.18144 of 2022 Page 46 of 67 minerals is not tenable and as such cannot be entertained" and "the agency has to execute the above work on his quoted agreement rates only" has come to be passed. Therefore, the decision and the order (Annexures-6 and 7) cannot withstand judicial scrutiny.
8. Another aspect which is highlighted by the learned Senior Counsel is this that there was no absolute prohibition on the part of the opposite parties to consider variation2 in prices within the scope of work in view of Clause 35 and Clause 36 of Section 4 of Part-I of General Conditions of Contract appended to the NIT read with Clause 3.4 of Volume-I and Paragraph C under Appendix-IV of Volume-II of the OPWD Code.
8.1. Clause 35 and Clause 36 of Section 4 of Part-I of General Conditions of Contract appended to the NIT are reproduced hereunder:
"35. Variations.--
35.1. The Engineer shall, having regard to the scope of the works and the sanctioned estimated cost, have power to order, in writing, variations within the scope of the works, he considers necessary during the progress of the works. Such variations shall form part of the contract and the contractor shall carry them out and include them in updated Programme 2 The word "Variation" is found mentioned in the NIT as follows:
"Section-I Part-I : General Conditions of Contract *** A variation is an instruction given by the Engineer, which varies the works."W.P.(C) No.18144 of 2022 Page 47 of 67
produced by the contractor. Oral orders of the Engineer for variations, unless followed by written confirmation, shall not be taken into account.
36. Payments for variations.--
36.1 If the quantity of work for any BOQ item is varied, it will not constitute a variation for the purpose of payment to the contractor, at a rate other than the one mentioned in the Agreement.
36.2 If the items for variation are not specified in the Bill of Quantities, the Engineer shall derive the rate for such variation item from similar items in the Bill of Quantities.
36.3 If the rate for variation item cannot be determined in the manner specified in Clause 36.2, the Contractor shall, within 14 days of the issue of order of variation work, inform the Engineer the rate which he proposes to claim, supported by analysis of the rates. The Engineer shall assess the quotation and determine the rate based on prevailing market rates within one month of the submission of the claim by the contractor. As far as possible, the rate analysis shall be based on the standard data book and the relevant schedule of rates of the State. The recommendation of the Engineer on the rate so determined shall be submitted to the employer for approval. The decision of the employer shall be final and binding on the Contractor."
8.2. Said clauses do not put absolute fetter on the opposite parties to consider price variation. It is not in dispute that due to certain circumstance, the lead source for minerals could not be used. The variation in price arose W.P.(C) No.18144 of 2022 Page 48 of 67 due to non-disclosure of appropriate source by the opposite parties to lead and lift the minor minerals. Even though it was within the knowledge of the opposite parties on the date of floating the tender, instead of bringing it to the notice of participants, i.e., the fact of closure of Kupari Quarry, shelter of Clause 7 of Section 2 (Instructions to Bidders) of the NIT has been taken to put entire blame on the petitioner. True it is when the opposite parties are candid vide Letter dated 24.12.2021 (Annexure-3) in stating that the lead quarry was Kupari for lifting minerals like moorum, metal, chips and dust in order to execute the work awarded to the petitioner, there was no other option left but to procure these minerals from other source(s), which in the present case was 80 kilometres far off Kupari.
8.3. A cue can be derived from the Variation Clause, i.e., Clause 36.2 of Section 4 of Part-I of General Conditions of Contract appended to the NIT, which is clear indicator that if the minerals are not specified in the Bill of Quantities, the Engineer shall derive the rate for such item from similar items in the Bill of Quantities.
8.4. To analyse above aspect, paragraph 9 of the counter affidavit can be taken into consideration wherein it has been admitted by the opposite parties that, "At the cost of repetition, it is once again submitted that the preparation of estimate is the internal work of the W.P.(C) No.18144 of 2022 Page 49 of 67 Department to access the possible expenditure required for execution of work, which has got no relevance for execution of work after a prospective bidder quoting his price submits a bid and later enters into Agreement to execute work."
8.5. Detailed Estimate for "Improvement to Road and CD Work under PMGSY-III (Batch-II)", made part of record as Annexure-9 enclosed with Affidavit dated 18.08.2023 filed by the petitioner, makes it abundantly clear that the estimate of the opposite parties was made taking into account distance between Kupari Quarry and work site. The Lead Statement appended thereto is reproduced hereunder:
"Lead Statement Lead Statement for Plant Mixed Materials Name of Unit Basic Cost + Name Lea Carria Royal Carriag items Rate of Carriage of d in ge ty e+ Balaso Quarr KM Royalty re y 26.5mm Cum 794.29 943.96 Kupar 5 149.67 130 279.67 size i C:B.H.G. Metal 20mm Cum 1060.0 1209.67 -do- 5 149.67 130 279.67 size 0 C:B.H.G. Chips 13.2mm Cum 1083.8 1233.48 -do- 5 149.67 130 279.67 size 1 C:B.H.G. Chips 6.7mm Cum 739.05 888.72 -do- 5 149.67 130 279.67 size C:B.H.G. 4.7mm Cum 674.29 823.96 -do- 5 149.67 130 279.67 size C:B.H.G. Stone Cum 83.81 233.48 -do- 5 149.67 35 184.67 W.P.(C) No.18144 of 2022 Page 50 of 67 Screening Dust Bitumen MT 46037. 46646 Balas 61 608.96 0 608.96 (Bulk) 08 ore 60/70 (VG-30) Certified that the leads provided in this estimate are correct and minimum to the best of my knowledge.
Sd/- 06.04.2021 Sd/- 06.04.2021 Sd/- 06.04.2021 Junior Engineer Assistant Executive Executive Engineer Rural Works Section Engineer, Rural Works Rural Works Division Bonth Sub-Division, Bonth Bhadrak."
8.6. It admits of no doubt that the estimate so projected by the opposite parties consisted the cost, royalty and carriage, to be incurred on the minor minerals procured from Kupari Quarry. When the estimator had the knowledge about stoppage of operations at said Quarry on the date of making estimates, maybe that is an internal factor, in the present set of material facts as pleaded it would lead to demonstrate that the opposite parties misrepresented the factual position at site. The opposite parties cannot, therefore, take protection under Clause 7 of Section 2 of the NIT stating that the same forms part of agreement.
8.7. In Food Corporation of India Vrs. A.M. Ahmed & Co., (2006) 13 SCC 779, it was held that „escalation‟ is normal and routine incident arising out of gap of time in this inflammatory age in performing any contract of any type. In Suryamani Nayak Vrs. Orissa State Housing Board, AIR 2005 Ori 26, this Court held that the W.P.(C) No.18144 of 2022 Page 51 of 67 expression „escalation‟ used in an agreement ordinarily means an agreement allowing for adjustment up and down according to change in circumstances as in cost of material in works contract or in cost of living in wage agreement. However, it would not bring within its sweep higher rate of wage which a contractor is otherwise liable to pay. In this respect a reference to Raghunath Sahu Vrs. State of Odisha, AIR 2022 Orissa 37 would throw light to resolve the issue flagged in the present case. The following is the pertinent observation made by this Court in said reported judgment:
"20. Therefore, taking into consideration the meaning attached to the word „escalation‟, as per terms and conditions of the agreement, the petitioner is entitled to get escalation cost but not the compensation, for which the blockage of the escalation benefit has been made. Needless to say, an „undertaking‟ is nothing but a standard form, which every contractor has to sign and submit to the effect that he shall not claim for compensation for delay in work and extend the period of work. This is submitted whenever extension of time is granted for completion of work or else extension will not be granted. This document is signed, without adjudicating the merits of the claim of the petitioner, and is done under duress or else the contract would be liable to be terminated with penalty, even though the petitioner may not be responsible for delay in execution of work."
8.8. Taking cue from the above it can be mentioned that as the opposite parties did not disclose about closure of W.P.(C) No.18144 of 2022 Page 52 of 67 Kupari Quarry by dint of an order of the learned National Green Tribunal, yet the work site was shown to the intending bidders/participants to work out/prepare price bids. Thus, the terms of agreement could be varied by considering that none can be forced to do the impossible. The maxim "lex non cogit ad impossibilia"
may fit into the present set of facts, which means that the law does not expect the performance of the impossible.
8.9. Careful reading of representation dated 11.01.2022 of the petitioner (Annexure-4) would reveal that since he was restrained from leading minerals from the Kupari Quarry, he was forced to procure the minor minerals from Chandeidhara, which is 80 kilometres farther from the Kupari mines. Such impasse made it impossible for him to execute the work at the quoted/accepted price. Therefore, he would only claim the variation in price only on account of procurement of minor minerals.
8.10. In Faizabad-Ayodhya Development Authority, Faizabad Vrs. Dr. Rajesh Kumar Pandey, (2022) 3 SCR 190 it has been observed as follows:
"315.In Chandra Kishore Jha Vrs. Mahavir Prasad, (1999) 8 SCC 266, an election petition was to be presented in the manner prescribed in Rule 6 of Chapter XXI-E of the Patna High Court Rules. The Rules stipulated that the election petition, could under no W.P.(C) No.18144 of 2022 Page 53 of 67 circumstances, be presented to the Registrar to save the period of limitation. The election petition could be presented in the open court up to 4.15 p.m. i.e. working hours of the court. The Chief Justice had passed the order that court shall not sit for the rest after 3.15 p.m. Thus, the petition filed the next day was held to be within time. In Mohd. Gazi Vrs. State of M.P., (2000) 4 SCC 342, the maxim "actus curiae neminem gravabit" came up for consideration along with maxim "lex non cogit ad impossibilia"-- the law does not compel a man to perform act which is not possible. Following observations had been made:
„7. In the facts and circumstances of the case, the maxim of equity, namely, actus curiae neminem gravabit-- an act of the court shall prejudice no man, shall be applicable. This maxim is founded upon justice and good sense, which serves a safe and certain guide for the administration of law. The other maxim is, lex non cogit ad impossibilia-- the law does not compel a man to do what he cannot possibly perform. The law itself and its administration are understood to disclaim as it does in its general aphorisms, all intention of compelling impossibilities, and the administration of law must adopt that general exception in consideration of particular cases. The applicability of the aforesaid maxims has been approved by this Court in Raj Kumar Dey Vrs. Tarapada Dey, (1987) 4 SCC 398 and Gursharan Singh Vrs. NDMC, (1996) 2 SCC
459.‟ W.P.(C) No.18144 of 2022 Page 54 of 67
316. Another Roman Law maxim "nemo tenetur ad impossibilia", means no one is bound to do an impossibility. Though such acts of taking possession and disbursement of compensation are not impossible, yet they are not capable of law performance, during subsistence of a court‟s order; the order has to be complied with and cannot be violated. Thus, on equitable principles also, such a period has to be excluded. In Industrial Finance Corpn. of India Ltd. Vrs. Cannanore Spg. & Wvg. Mills Ltd., (2002) 5 SCC 54, this Court observed that where law creates a duty or charge and the party is disabled to perform it, without any default and has no remedy over, there the law will in general excuse him. This Court relying upon the aforesaid maxim observed as under:
„30. The Latin maxim referred to in the English judgment lex non cogit ad impossibilia also expressed as impotentia excusat legem in common English acceptation means, the law does not compel a man to do that which he cannot possibly perform. There ought always thus to be an invincible disability to perform the obligation, and the same is akin to the Roman maxim nemo tenetur ad impossible. In Broom‟s Legal Maxims, the state of the situation has been described as below:
„It is, then, a general rule which admits of ample practical illustration, that impotentia excusat legem; where the law creates a duty or charge, and the party is disabled to perform it, without any default in him, and has no remedy over, there the law will in general excuse him W.P.(C) No.18144 of 2022 Page 55 of 67 and though impossibility of performance is, in general, no excuse for not performing an obligation which a party has expressly undertaken by contract, yet when the obligation is one implied by law, impossibility of performance is a good excuse. Thus in a case in which consignees of a cargo were prevented from unloading a ship promptly by reason of a dock strike, the Court, after holding that in the absence of an express agreement to unload in a specified time there was implied obligation to unload within a reasonable time, held that the maxim lex non cogit ad impossibilia applied, and Lindley, L.J., said: "We have to do with implied obligations, and I am not aware of any case in which an obligation to pay damages is ever cast by implication upon a person for not doing that which is rendered impossible by causes beyond his control.‟ ‟
317. In HUDA Vrs. Babeswar Kanhar, (2005) 1 SCC 191, this Court considered the general principle that a party prevented from doing an act by some circumstances beyond his control, can do so at the first subsequent opportunity as held in Sambasiva Chari Vrs. Ramasami Reddi, ILR (1899) 22 Mad 179. In HUDA Vrs. Babeswar Kanhar, (2005) 1 SCC 191, it was observed thus:
„5. What is stipulated in Clause 4 of the letter dated 30.10.2001 is a communication regarding refusal to accept the allotment. This was done on 28.11.2001. Respondent 1 cannot be put to a loss for the closure of the office of W.P.(C) No.18144 of 2022 Page 56 of 67 HUDA on 01.12.2001 and 02.12.2001 and the postal holiday on 30.11.2001. In fact, he had no control over these matters. Even the logic of Section 10 of the General Clauses Act, 1897 can be pressed into service. Apart from the said section and various provisions in various other Acts, there is the general principle that a party prevented from doing an act by some circumstances beyond his control, can do so at the first subsequent opportunity (see Sambasiva Chari Vrs. Ramasami Reddi, ILR (1899) 22 Mad 179). The underlying object of the principle is to enable a person to do what he could have done on holiday, on the next working day. Where, therefore, a period is prescribed for the performance of an act in a court or office, and that period expires on a holiday, then the act should be considered to have been done within that period if it is done on the next day on which the court or office is open. The reason is that the law does not compel the performance of an impossibility.
(See Hossein Ally Vrs. Donzelle, ILR (1880) 5 Cal 906.) Every consideration of justice and expediency would require that the accepted principle, which underlies Section 10 of the General Clauses Act, should be applied in cases where it does not otherwise in terms apply. The principles underlying are lex non cogit ad impossibilia (the law does not compel a man to do the impossible) and actus curiae neminem gravabit (the act of court shall prejudice no man). Above being the position, there is nothing infirm in the orders passed by the forums below. However, the rate of interest W.P.(C) No.18144 of 2022 Page 57 of 67 fixed appears to be slightly on the higher side and is reduced to 9% to be paid with effect from 03.12.2001 i.e. the date on which the letter was received by HUDA.‟
318. In Presidential Poll, In re, (1974) 2 SCC 33, this Court made similar observations. When there is a disability to perform a part of the law, such a charge has to be excused. When performance of the formalities prescribed by a statute is rendered impossible by circumstances over which the persons concerned have no control, it has to be taken as a valid excuse. The Court observed:
„15. The impossibility of the completion of the election to fill the vacancy in the office of the President before the expiration of the term of office in the case of death of a candidate as may appear from Section 7 of the 1952 Act does not rob Article 62(1) of its mandatory character. The maxim of law impotentia excusat legem is intimately connected with another maxim of law lex non cogit ad impossibilia. Impotentia excusat legem is that when there is a necessary or invincible disability to perform the mandatory part of the law that impotentia excuses. The law does not compel one to do that which one cannot possibly perform. „Where the law creates a duty or charge, and the party is disabled to perform it, without any default in him, and has no remedy over it, there the law will in general excuse him.‟ Therefore, when it appears that the performance of the formalities prescribed by a statute has been rendered impossible by W.P.(C) No.18144 of 2022 Page 58 of 67 circumstances over which the persons interested had no control, like the act of God, the circumstances will be taken as a valid excuse. Where the act of God prevents the compliance of the words of a statute, the statutory provision is not denuded of its mandatory character because of supervening impossibility caused by the act of God. (See Broom‟s Legal Maxims, 10th Edn. at pp. 162- 63 and Craies on Statute Law, 6th Edn. at p.
268).‟
319. In Standard Chartered Bank v. Directorate of Enforcement, (2005) 4 SCC 530, the legal maxim "impotentia excusat legem" has been applied to hold that law does not compel a man to do that which cannot possibly be performed. Though the maxim with respect to the impossibility of performance may not be strictly applicable, however, the effect of the court‟s order, for the time being, made the authorities disable to fulfil the obligation. Thus, when they were incapable of performing, they have to be permitted to perform at the first available opportunity, which is the time prescribed by the statute for them i.e. the total period of 5 years excluding the period of the interim order.
320. The maxim actus curiae neminem gravabit is founded upon the principle due to court proceedings or acts of court, no party should suffer. If any interim orders are made during the pendency of the litigation, they are subject to the final decision in the matter. In case the matter is dismissed as without merit, the interim order is automatically dissolved. In case the matter has been filed without any merit, the W.P.(C) No.18144 of 2022 Page 59 of 67 maxim is attracted commodum ex injuria sua nemo habere debet, that is, convenience cannot accrue to a party from his own wrong. No person ought to have the advantage of his own wrong. In case litigation has been filed frivolously or without any basis, iniquitously in order to delay and by that it is delayed, there is no equity in favour of such a person. Such cases are required to be decided on merits. In Mrutunjay Pani Vrs. Narmada Bala Sasmal, AIR 1961 SC 1353, this Court observed that:
„5. *** The same principle is comprised in the Latin maxim commodum ex injuria sua nemo habere debet, that is, convenience cannot accrue to a party from his own wrong. To put it in other words, no one can be allowed to benefit from his own wrongful act.‟
321. It is not the policy of law that untenable claims should get fructified due to delay. Similarly, sufferance of a person who abides by law is not permissible. The 2013 Act does not confer the benefit on unscrupulous litigants, but it aims at and frowns upon the lethargy of the officials to complete the requisites within five years.
322. ***
323. In GTC Industries Ltd. Vrs. Union of India, (1998) 3 SCC 376, it was observed that while vacating stay, it is the court‟s duty to account for the period of delay and to settle equities. It is not the gain which can be conferred. In Jaipur Municipal Corpn. Vrs. C.L. Mishra, (2005) 8 SCC 423, it has been observed that interim order merges in the final order, and it W.P.(C) No.18144 of 2022 Page 60 of 67 cannot have an independent existence, cannot survive beyond final decision. In Ram Krishna Verma Vrs. State of U.P., (1992) 2 SCC 620, reliance was placed on Grindlays Bank Ltd. Vrs. CIT, (1980) 2 SCC 191. It was held that no one could be permitted to suffer from the act of the court and in case an interim order has been passed and ultimately petition is found to be without merit and is dismissed, the interest of justice requires that any undeserved or unfair advantage gained by a party invoking the jurisdiction of the court must be neutralised.
324. ***
325. ***
326. In A.R. Antulay Vrs. R.S. Nayak, (1988) 2 SCC 602, this Court observed that it is a settled principle that an act of the court shall prejudice no man. This maxim actus curiae neminem gravabit is founded upon justice and good sense and affords a safe and certain guide for the administration of the law. No man can be denied his rights. In India, a delay occurs due to procedural wrangles. In A.R. Antulay Vrs. R.S. Nayak, (1988) 2 SCC 602, this Court observed:
„102. This being the apex court, no litigant has any opportunity of approaching any higher forum to question its decisions. Lord Buckmaster in Montreal Street Railway Co. Vrs. Normandin, 1917 AC 170 (PC) (sic) stated:
„All rules of court are nothing but provisions intended to secure the proper administration of justice. It is, therefore, essential that they W.P.(C) No.18144 of 2022 Page 61 of 67 should be made to serve and be subordinate to that purpose.‟ This Court in State of Gujarat Vrs. Ramprakash P. Puri, (1969) 3 SCC 156, reiterated the position by saying:
„5. *** Procedure has been described to be a handmaid and not a mistress of law, intended to subserve and facilitate the cause of justice and not to govern or obstruct it. Like all rules of procedure, this rule demands a construction which would promote this cause.‟ Once judicial satisfaction is reached that the direction was not open to be made and it is accepted as a mistake of the court, it is not only appropriate but also the duty of the court to rectify the mistake by exercising inherent powers. Judicial opinion heavily leans in favour of this view that a mistake of the court can be corrected by the court itself without any fetters. This is on principle, as indicated in Alexander Rodger Vrs. Comptoir D‟Escompte De Paris, (1969-71) LR 3 PC 465 = 17 ER 120. I am of the view that in the present situation, the court‟s inherent powers can be exercised to remedy the mistake. Mahajan, J. speaking for a four-Judge Bench in Keshardeo Chamria Vrs. Radha Kissen Chamria, 1953 SCR 136 = AIR 1953 SC 23, SCR p. 153 stated: (AIR p. 28, para 21) „21. *** The Judge had jurisdiction to correct his own error without entering into a W.P.(C) No.18144 of 2022 Page 62 of 67 discussion of the grounds taken by the decree-holder or the objections raised by the judgment-debtors.‟ ***"
8.11. With such clarity in perspective of legal position, it can now safely be said that the petitioner was led to believe that he was to lead the minor minerals in question from Kupari Quarry and accordingly he quoted the price. In the representation dated 11.01.2022, he has only requested for consideration of revision of rates by indicating that he had to lift the minerals from Chandeidhara which was farther in distance than Kupari Quarry. This factual aspect is not controverted by the opposite parties.
8.12. This Court, therefore, does not find the plight reflected in the grievance petition of the petitioner, as presented before the opposite parties, to be unreasonable.
Conclusion:
9. It is elucidated from the pleadings and the arguments advanced by the counsel for the respective parties that the petitioner was not allowed to lead the minerals, such as moorum, metals, chips and dust from Kupari Quarry which was suggested at the time of issue of NIT with the knowledge of the opposite parties that the quarry operation has been restricted by virtue of an order of the W.P.(C) No.18144 of 2022 Page 63 of 67 learned National Green Tribunal. The representation of the petitioner which was considered by a Committee constituted to comply with the direction of this Court in earlier round of litigation, vide Order dated 15.03.2022 in W.P.(C) No.3773 of 2022. Having not denied the fact stated therein that "to carry out the work and execute the same to keep in the time Schedule I am forced to procure the minor minerals now from Chandeidhara which is further 80 kilometres from the Kupari Mines. This has thus accruing to more overhead expenses towards the transport in particular", merely relying on Clause 13.4 of the Standard Bidding Documents the Committee refused to accede to the claim of the petitioner for price variation to the extent of extra overhead expenses incurred by him for execution of work, for the opposite parties failed to provide access to Kupari Quarry to procure the minor minerals.
9.1. It could be discerned from the counter affidavit as discussed in the foregoing paragraphs that the reason for rejecting claim of the petitioner based on Clause 13.4 is inapplicable. To affirm such contention of the petitioner and negative the argument canvassed by the learned Additional Standing Counsel it is apt to observe that the opposite parties are candid enough to say that the Standard Bid Document formed part of NIT and Agreement was entered into between the petitioner and W.P.(C) No.18144 of 2022 Page 64 of 67 the Superintending Engineer on 01.12.2021. The documents enclosed with the Affidavit dated 18.08.2023 do evince the fact projected by the opposite parties that moorum, metal, chips and dust (minor minerals other than sand) would be led from Kupari Quarry. Due to the failure of the opposite parties to facilitate procurement of minerals from Kupari Quarry-- resulting from a restraint order issued by the learned National Green Tribunal-- an impediment arose that could not reasonably have been foreseen by the petitioner during his "Site Visit" as required under Clause 7, Section 2:
Instructions to Bidders appended to the NIT. Consequently, the petitioner incurred additional overhead charges. Therefore, the assertion made by the learned Additional Standing Counsel supporting refusal by Order dated 09.06.2022 of the Superintending Engineer to consider his claim for revision of prices is hereby rejected. The "Lead Statement" forming part of the "Detailed Estimate for Improvement to Road and CD Work under PMGSY-III (Batch-II)" of Office of the Executive Engineer, Rural Works Division, Bhadrak vide Annexure-9 enclosed with Affidavit dated 18.08.2023 filed by the petitioner, without any doubt in mind clarifies that the estimate included cost, royalty and carriage of above minor minerals (other than "sand") led from Kupari Quarry.W.P.(C) No.18144 of 2022 Page 65 of 67
9.2. In the aforesaid premises, the decision taken in the Meeting dated 09.06.2022 by the Committee and the Order dated 09.06.2022 of the Superintending Engineer, Rural Works Division stemming on Clauses 13.4 and 7.1 of the NIT cannot be said to be correct approach and reasonable or rational. The decision and the order are held to be misdirected approach and misconstruction of the terms and conditions laid down in the specific NIT which formed part of the agreement between the Superintending Engineer and the petitioner on 01.12.2021. In view of the discussions set forth in the preceding paragraphs, there can be no other view than to hold that the petitioner is entitled to the benefit claimed for in his representation dated 11.01.2022 (Annexure-4).
9.3. Having diligently considered all the material aspects, this Court comes to the conclusion that the rejection of claim of the petitioner vide Order dated 09.06.2022 (Annexure-7) by the Superintending Engineer, Rural Works Division, Bhadrak passed as a sequel to the decision taken in the Meeting dated 09.06.2022 (Annexure-6) by the Committee constituted in pursuance of Order dated 15.03.2022 passed in W.P.(C) No.3773 of 2022 of this Court to consider the representation dated 11.01.2022 (Annexure-4) of the petitioner seeking escalation/variation in price/rate for revision as per W.P.(C) No.18144 of 2022 Page 66 of 67 terms of variation contained in Clause 35 of Section 4:
General Conditions of Contract cannot be countenanced and the matter deserves indulgence.
9.4. In the result, the Order dated 09.06.2022 (Annexure-7) by the Superintending Engineer, Rural Works Division, Bhadrak passed and the decision taken in the Meeting dated 09.06.2022 (Annexure-6) are set aside.
9.5. Having done so, this Court directs the Superintending Engineer, Rural Works Division, Bhadrak to consider the representation dated 11.01.2022 of the petitioner afresh pragmatically in the light of the discussions supra. The decision taken on revised variation in price be communicated to the petitioner at the earliest not later than six weeks from date.
9.6. With the aforesaid observations and directions, this writ petition is disposed of and pending interlocutory applications, if any, are disposed of accordingly.
9.7. In the circumstances, there shall be no order as to costs.
I agree.
(HARISH TANDON) (MURAHARI SRI RAMAN) CHIEF JUSTICE JUDGE Signature Not Verified High Court of Orissa, Cuttack Digitally Signed Signed by: ASWINI KUMAR SETHY Designation: Personal Assistant The 4th February, 2026/Aswini/MRS/Laxmikant (Secretary-in-charge) Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 04-Feb-2026 17:22:42 W.P.(C) No.18144 of 2022 Page 67 of 67