Orissa High Court
M/S Santosh Kumar And Co vs State Of Odisha And Others .... Opposite ... on 22 September, 2021
Bench: S.K. Mishra, Savitri Ratho
A.F.R.
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.5454 of 2017
M/s Santosh Kumar and Co., .... Petitioner
represented by Khusboo Poddar
Mr. B.P. Tripathy, Advocate
-versus-
State of Odisha and others .... Opposite Parties
Mr. A.K. Nanda, AGA
CORAM:
JUSTICE S.K. MISHRA
JUSTICE SAVITRI RATHO
ORDER
22.09.2021 Order No.
06. 1. This matter is taken up through hybrid mode.
2. This matter is listed today in the "to be mentioned" category as the order could not be dictated on 06.09.2021.
3. Heard Mr. B.P. Tripathy, learned counsel for the petitioner and Mr. A.K. Nanda, learned Addl. Government Advocate.
4. The petitioner in this case is a contractor partnership firm. The managing partner having died during pendency of the writ petition has been substituted by the surviving partner Smt. Khusboo Poddar. The petitioner executed a work for the State of Odisha in the Department of Rural Works Division. The Page 1 of 6 // 2 // claim of the petitioner is that since it completed the work within the time, it is entitled to an incentive. As per the petitioner's contention, the value of the work was Rs.1,51,29,541/- and the scheduled date of commencement and completion of the work was 17.07.2015 and 16.04.2016, respectively. The work was completed on 11.02.2016. Hence, as per the Clause 2.20(B) of the Detailed Tender Call Notice (DTCN), he is entitled to an incentive. The aforesaid Clause 2.20(B) of the DTCN reads as follows:-
"2.20(B) For availing incentive clause in any project which is completed before the stipulated date of completion, subject to other stipulations it is mandatory on the part of the concerned Executive Engineer to report the actual date of completion of the project as soon as possible through fax or e-mail so that the report is received within 7 days of such completion by the concerned SE, CE and the Administrative Department. The incentive for timely completion should be on a graduate scale of one percent to 10 percent of the contract value Assessment of incentives may be worked out for earlier completion of work in all respect in the following scale-
Before 30% of contract period = 10% of Contract Value Before 20% to 30% of contract period = 7.5 % of Contract Value.
Before 10% to 20% of contract period = 5 % of Contract Value.Page 2 of 6
// 3 // Before 5% to 10% of contract period = 2.5% of Contract Value.
Before 5% of contract period = 1% of Contract Value."
5. It is, therefore, prayed by the petitioner that the opposite parties be directed to release a sum of Rs.6,05,182/- being the incentive of 7.5% of the agreement. The learned Addl. Government Advocate, on the other hand, relies upon the Rules of OPWD Code, which is appearing as at Annexure-B/2 to the counter affidavit and the same has been inserted as an amendment of 2004 and 2006. The O.P.W.D. Code as amended in 2004 and 2006 reads as follows:-
" AMENDED 2004 & 2006 [Note I - Provision of incentive will be made in the Agreement. This incentive will be @ 1% in case of completion of work ahead of the month (Part of the month shall be excluded) and the maximum amount payable will be fixed at 2% if the work is completed two months ahead of the Schedule time.
Incentive should be paid in respect of individual project for new construction/substantial additional or improvement works, the minimum, value of which is mentioned below:
_______________________________________ Name of the work Minimum Value ________________________________________ Page 3 of 6 // 4 //
1. Building work/P.H. work Rs.40.00 lakhs
2. Road work Rs.3.00 crores
3. Irrigation work Rs.10.00 crores _______________________________________ Incentive will be paid with approval of next higher authority of tender accepting authority on completion of original work before original time schedule."
6. It is, therefore, contended by the learned Addl. Government Advocate that in a road work, the contractor is entitled to incentive only if the minimum value of the work is Rs. 3.00 crores for which the writ application should be rejected.
7. The learned counsel for the petitioner, on the other hand, submits that the DTCN, especially Clause 2.20 (B) do not provide that such note appearing in the OPWD Code will be applicable to the present case. It is also submitted that the petitioner should not be discriminated by not awarding the incentive on the basis of value of the work. The learned counsel for the petitioner, therefore, submits that very provision is violative of principles of equality as enshrined under Article 14 of the Constitution.
8. The learned Addl. Government Advocate, on the other hand, submits that the petitioner knew when it entered into the contract about such provision in the OPWD Code and, Page 4 of 6 // 5 // therefore, he cannot take a stand that it is a violative of principles of equality as enshrined under Article 14 of the Constitution.
9. It is not disputed at this stage, that the DTCN did not provide any where that this provision of incentive for early execution of work will not be applicable to the petitioner. In fact, Clause 2.20(B) of the DTCN provides for incentive. So, at this stage, it shall not be inappropriate and inacceptable to argue that the petitioner is not entitled to the incentive as provided in the Clause. Therefore, the contention of the learned Addl. Government Advocate is not acceptable in this case.
10. Moreover, we do not find any justification in including only persons, who have executed road work of Rs.3.00 crores or above. In fact, it is violative of principles of equality as enshrined both in the Preamble of India as well as under Article 14 of the Constitution. A reference to the Preamble of India reveals that the constituent assembly took up the equality of status and opportunity, as one of the basic principle on which the welfare State of India were to be built upon. Article 14 of the Constitution of India provides that the State shall not deny to any person equality before law or the equal protection of law within the territory of India. In fact, Article 14 of the Constitution provides two essential equalities, one is equality before law and the second is equal protection of law. So, we do not understand why the State should prefer to give incentive Page 5 of 6 // 6 // only to rich contractors, who execute road work, the value of which is more than Rs. 3.00 crores and why a person, who has executed a work of Rs. 1.5 crores before time, should not be given incentive.
11. It is also commented upon by the learned Addl. Government Advocate that the petitioner having known the provision of the OPWD Code, cannot claim such incentive. We are of the opinion that such contention is not acceptable as the Rule of estoppel does not apply the fundamental rights enshrined in the Constitution of India and Article 14 of the Constitution is a fundamental right.
12. In that view of the matter, we are of the opinion that there is enough merit in the writ petition. Hence, the writ petition is allowed. We direct the opposite parties to pay Rs.6,05,182/- as an incentive of 7.5% of the agreement within a period of three months from the date of receipt of certified copy of this order along with a copy of the brief.
13. Urgent certified copy of this order be granted as per rules.
(S.K. Mishra ) Judge (Savitri Ratho ) Judge pcd Page 6 of 6