W.P.(C) No.18144 of 2022 Page 1 of 67

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 2 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

JUDGMENT

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 3 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 4 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 5 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 6 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 7 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 8 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 9 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 10 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 11 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 12 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 13 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 14 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 15 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 16 of 67

3.7. 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 17 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 18 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 19 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 20 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 21 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 22 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 23 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 24 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 25 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 Q uarry. 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 26 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 27 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 28 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 29 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 30 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 31 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 32 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 33 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 34 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 35 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 36 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 37 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 38 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 39 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 40 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 41 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 42 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 43 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 44 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 NIT

1, 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 45 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 46 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 47 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 variation

2 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 48 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 49 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 50 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

items

Unit Basic

Rate of

Balaso

re

Cost +

Carriage

Name

of

Quarr

y

Lea

d in

KM

Carria

ge

Royal

ty

Carriag

e +

Royalty

26.5mm

size

C:B.H.G.

Metal

Cum 794.29 943.96 Kupar

i

5 149.67 130 279.67

20mm

size

C:B.H.G.

Chips

Cum 1060.0

0

1209.67 -do- 5 149.67 130 279.67

13.2mm

size

C:B.H.G.

Chips

Cum 1083.8

1

1233.48 -do- 5 149.67 130 279.67

6.7mm

size

C:B.H.G.

Cum 739.05 888.72 -do- 5 149.67 130 279.67

4.7mm

size

C:B.H.G.

Cum 674.29 823.96 -do- 5 149.67 130 279.67

Stone Cum 83.81 233.48 -do- 5 149.67 35 184.67

W.P.(C) No.18144 of 2022 Page 51 of 67

Screening

Dust

Bitumen

(Bulk)

60/70

(VG-30)

MT 46037.

08

46646 Balas

ore

61 608.96 0 608.96

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 52 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 53 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 54 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 55 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 56 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 57 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 58 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 59 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 60 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 61 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 62 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 63 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 64 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 65 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 66 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 67 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

High Court of Orissa, Cuttack

The 4

th February, 2026/Aswini/MRS/Laxmikant