Jayram Pujahari vs State Of Odisha And Others

This matter is taken up by hybrid mode.

Heard learned counsel for the parties.

The petitioner has filed this writ petition seeking to quash the order dated 18.04.2023 passed by opposite party no.1 under Annexure-1 in approving sanction of incentive to the extent of 5% for early completion of work as per O.M. No.5288/W dated 04.05.2016.

Mr. P.C. Nayak, learned counsel appearing for the petitioner contended that O.M. No.5288/W dated 04.05.2016 is not the part of the conditions of tender and agreement, therefore, the order dated 18.04.2023 passed by opposite party no.1 cannot be sustained in the eye of law. It is further contended that direction should be given to the opposite parties to pay incentive @10% for early completion of the work as per clause-76(4)(B) of the conditions of the contract and as per the amended para 3.5.5 (V) Note-III of the OPWD Code, as well as recommendation of the Superintending Engineer, vide letter dated 15.04.2023 under Annexure-2, after deducting Rs.80,37,686/- paid for the work “Construction of H.L. Bridge over Raxapali Nallah at 71/50 km on Sambalpur Sonepur Road (SH-15) under CRF” vide agreement No.114 P1 2015-16. It is further contended that opposite party no.1 be directed to make payment of interest at the rate of 12% for illegally withholding the amount of the petitioner, i.e., Rs.80,37,686/- from the date of actual completion of the work, i.e., 21.12.2016, till final payment. It is contended that showing a circular, it cannot be given retrospective effect. It is further contended that the petitioner had earlier approached this Court by filing W.P.(C) No. 30637 of 2020, which was disposed of vide order dated 18.03.2021, by setting aside the order dated 20.08.2020 passed by the Commissioner-cum-Secretary, Works Department, Govt. of Odisha in refusing the claim of the petitioner for grant of incentive. It is contended that against the said order, the State preferred S.L.P.(C) No. 12359 of 2021, but the same was dismissed on 05.04.2023. Thereafter, the petitioner filed CONTC No. 3658 of 2021, which was disposed of vide order dated 12.09.2023 observing that since Government has approved sanction of incentive amounting to Rs.40,18,843/- in favour of the petitioner for the work under agreement no.114P1 of 2015-16, if the same has not been paid to the petitioner, the same should be disbursed in favour of the petitioner.

Mr. P.P. Mohanty, learned Addl. Government Advocate appearing for the State-opposite parties contended that the aforesaid amount has already been disbursed in favour of the petitioner.

But fact remains, the petitioner claims for an amount of Rs.80,37,686/- as incentive at the rate of 10% for early completion of work on 21.12.2016. If that be so, the petitioner has to approach the appropriate forum ventilating his grievance in accordance with law for payment of balance amount. Instead of doing so, the petitioner has approached this Court by filing the present writ petition. Once this Court has directed for payment of the amount, now what is the quantum of incentive the petitioner is entitled to get, that has to be adjudicated by the appropriate forum.

In the above view of the matter, this Court is not inclined to entertain this writ petition, which is accordingly dismissed.

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