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Judgment
Vinod K. Sharma, J.—The order shall be disposed of W.P.(MD)Nos.1684 and 1685 of 2006, as the common question of law and facts are involved. For the sake of brevity, the facts are being taken from W.P.(MD) No. 1684 of 2006.
The Petitioner, in both the writ petitions, seeks writ, in the nature of certiorari, for quashing the condition No. 17 of the impugned work orders, dated 14.02.2006.
The Petitioner, is a registered contractor with Sattur Panchayat Union, for executing the contract, floated by the Department of Panchayat Union.
In pursuance to the tender notice, dated 25.01.2006, the Petitioner submitted his tender to lay the metal road. The tender of the Petitioner was accepted.
The cost of the work was estimated at Rs. 4,85,000/- (Rupees Four Lakhs and Eighty Five thousand only] and the Petitioner, accordingly, deposited a sum of Rs. 12,125/- [Rupees Twelve thousand One hundred and Twenty five only] as Earnest Money. Whereas the cost of work was estimated at Rs. 3,50,000/- [Rupees Three Lakhs and Fifty thousand only] and the Petitioner deposited a sum of Rs. 8750/- [Rupees Eight thousand Seven hundred and Fifty only].
The Petitioner did not complete the work within the stipulated period. Subsequently, instead of extending the time for execution of the work, the Respondents issued another work order, dated 14.02.2006, in continuation of the tender notice earlier issued.
The Petitioner, being aggrieved by the condition of additional deposit, approached this Court, by invoking the writ jurisdiction of this Court.
The contention of the learned Counsel for the Petitioner is that once in pursuance to the tender notice, the Petitioner had submitted his offer, which was accepted, and contract stood concluded, it could not be unilaterally altered.
It is also the contention of the learned Counsel for the Petitioner that in pursuance to the extension in time, by way of subsequent order, the Petitioner has already completed the work without any complaint. No penalty has been recovered or order passed, claiming any amount from the Petitioner. The impugned condition, therefore, ceased to have any effect.
The writ petition is opposed by the learned Additional Government Pleader for the State, by contending that as the Petitioner having accepted the tender, cannot now to challenge the terms of tender.
It is also the contention of the learned State counsel that the Petitioner, if aggrieved, should have appealed to the Engineer, in terms of the rules, thus, these writs are not competent.
On consideration, I find force in the contention raised by the learned Counsel for the Petitioner. It was not open to the Respondents to unilaterally alter the terms of the contract, by asking for additional earnest money. In case, the Respondents had any grievance, they could have enforced the terms of the contract by taking action against Petitioner, but the terms of the contract could not be unilaterally altered, merely because the time was extended for execution of the work.
The learned Counsel for the Petitioner is also correct, in contending that condition No. 17 of the contract under challenge, has ceased to be in operation, as the Petitioner has already completed the work satisfactorily. The object of deposit was only to secure penalty or damage, if any, to which the Respondents could have been entitled to.
The security deposit is not meant, as the payment to the Department, but is only a security for successful completion of the work.
The contention of the learned Counsel for the Respondents that it is not open to the Petitioner, now to challenge the terms of the contract, may look attractive on the face of it, but in the facts and circumstances of this case, this plea cannot be accepted.
Admittedly, without a fresh agreement or deposit of security amount, the Respondents allowed the Petitioner to execute the work successfully, without any complaint from the Department. Till date, no order of penalty has been passed, nor any defect pointed out. It is too late in a day, now for the Respondents, to agitate this matter, after having kept quite for more than five years. It is also not in dispute that the Petitioner has already successfully executed the contract.
These writ petitions are, accordingly, disposed of, by holding that condition No. 17 to be no longer enforceable in law, after the competition of the contract satisfactorily.
No costs.