IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD MONDAY, THE FIRST DAY OF DECEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE D.S.R.VARMA and THE HON'BLE MR JUSTICE G.CHANDRAIAH W.P.M.P.NOs.2583 AND 2584 OF 2008 and WRIT APPEAL NO : 1722 of 2008 AND WRIT APPEAL NO.1487 OF 2008 (Writ Appeals under Clause 15 of the Letters Patent against the Order dated 2/11/2005 in W.P.No.5073 of 2005 and the Order dated 22/11/2005 in WP NO : 5056 OF 2005, respectively, on the file of the High Court.) WRIT APPEAL NO.1722 OF 2008: Between 1 Government of Andhra Pradesh, rep. by its Principal Secretary, Finance (Works and Projects) Department, Secretariat, Hyderabad. 2 The Chief Engineer, I & CAD Department & GLIS, S.R.S.P. Stage- II, Chintaguttu, K.C. Camp, Warangal. 3 The Superintending Engineer, I & CAD Department, S.R.S.P. Statge-II Circle, K.C. Camp, Warangal. 4 The Executive Engineer, Division No.1, S.R.S.P. Stage-II, K.C. Camp, Hanamkonda. 5 The Pay and Accounts Officer, SRSP, K.C. Colony, Hanamkonda, Warangal District. ..... APPELLANT(S) AND Sri Lakshminarayana, Contractor, Rep. by its Managing Partner, Sri R.Ramanatham, S/o.Chinna Venkata Subbaiah, Aged 49 years, R/o.5/134, Kamsali Street, Stone Housepet, Nellore, Nellore District. .....RESPONDENT Counsel for the Appellant:GP FOR IRRIGATION & COMM AREA DEV. Counsel for the Respondent No.: MR. V.SREE RANGA RAO WRIT APPEAL NO : 1487 of 2008 Between: 1 Government of Andhra Pradesh, rep. by its Secretary, Irrigation and Command Area Development, Secretariat, Hyderabad. 2 Government of Andhra Pradesh, rep. by its Principal Secretary, Finance (Works and Projects) Department, Secretariat, Hyderabad. 3 The Chief Engineer, I & CAD Department & GLIS, S.R.S.P. Stage- II, Chintaguttu, K.C. Camp, Warangal. 4 The Superintending Engineer, I & CAD Department, S.R.S.P. Statge-II Circle, K.C. Camp, Warangal. 5 The Executive Engineer, Division No.1, S.R.S.P. Stage-II, K.C. Camp, Hanamkonda. 6 The Pay and Accounts Officer, SRSP, K.C. Colony, Hanamkonda, Warangal District. ..... APPELLANT(S) AND M/s Deepika Constructions, Registered Partnership Firm, H.No.8-2-10/120/A/118/C, Nandini Nagar, Road No.14, Banjara Hills, Hyderabad. .....RESPONDENT Counsel for the Appellant:GP FOR IRRIGATION & COMM AREA DEV. Counsel for the Respondent No.: MR.B.VIJAYSEN REDDY The Court made the following : THE HON’BLE SRI JUSTICE D.S.R.VARMA AND THE HON’BLE SRI JUSTICE G.CHANDRAIAH W.P.M.P.Nos.2583 and 2584 of 2008 and Writ Appeal No.1722 of 2008 and Writ Appeal No.1487 of 2008 Oral Common Judgment: (per D.S.R.Varma, J.) Heard the learned Government Pleader for Irrigation and Command Area Development, appearing for the appellants in both the writ appeals; Sri V.Sree Ranga Rao, learned Counsel appearing for respondent in W.A.(SR).No.117163 of 2008 and Sri B.Vijaysen Reddy, learned Counsel appearing for respondent in W.A.No.1487 of 2008. 2. Having regard to the facts and circumstances stated in the affidavit filed in support of the petition W.A.M.P.No.2583 of 2008 in W.A.(SR).No.117163 of 2008, though the petition seeking condonation of delay is filed in a most unsatisfactory circumstances and not deserved to be entertained, still, in view of the condonation of delay in similar petition in W.A.No.1487 of 2008 and in order to dispose of both the writ appeals, since the subject matter in both the writ appeals is common and absolutely similar, the delay is condoned and both the writ appeals are being disposed of by this common judgment, inasmuch as, the subject matter of the controversy involved is similar and the impugned order being common. 3. W.A.M.P.No.2584 of 2008 in W.A.(SR).No.117163 of 2008 is allowed and filing of the certified copy of the judgment is dispensed with. 4. The appellants in both the writ appeals are respondents and the respondents are petitioners, respectively, in both the writ petitions. 5. For the sake of convenience, in this common judgment, the parties herein are referred to as per their array in the writ petitions. 6. The facts that led to filing of these writ appeals are as under: Respondent No.3-The Chief Engineer (I & CAD) Department, SRSP Stage-II, KC Camp, Warangal issued Tender Notice No.42/2003-04, dated 24-11-2003, inviting tenders for excavation of earth work and forming embankment of Kakatiya Main Canal from 317.00 Km., to 318.00 Km., including construction of structures. Subsequently, the work was awarded to the petitioner-Firm and an agreement dated 23-02-2004 was executed by respondent No.4. The time for completion of the work was 12 months from the date of the agreement. 7. As per the rates specified in Schedule-A annexed to the agreement, the rate for excavation of canal cutting in hard rock and boulders more than 3 cubic metres in size and for that, the rate was mentioned as Rs.284.05 ps. per cubic metre. 8. It appears that, even in the tender notification, the same rate was mentioned. In the other writ petition also, the facts are similar. 9. Now the grievance was that having been executed the agreements and having agreed to pay the rates mentioned in the agreement, the respondents subsequently offered a sum of Rs.96.72 ps. per cubic metre only, basing on G.O.Ms.No.34, dated 29-12-2003. Therefore, it was contended in both the writ petitions that the said reduction of the price from the originally agreed prices is illegal and arbitrary. 10. It was stated in the counter-affidavits that the tender notice was only an invitation for application indicating the name of work, value of the work etc., and the same does not indicate the rates for each item prepared by the department and therefore, the rate quoted by the Agency was not relevant. The actual rates would be indicated in the relevant agreements concluded, after accepting the offer made by the petitioners. 11. It was further averred that as postulated in G.O.Ms.No.34, Finance (W&P) Department, dated 29-12-2003, all the departments have to follow the rates fixed by the I & CAD Department in the said memo for various items of earthwork excavation and consequently, the petitioners were entitled for Rs.96.72 ps. per cubic metre only, but not the rate prescribed originally. 12. The learned Government Pleader, it appears, while placing reliance upon a judgment of Division Bench of this Court in Govt. of A.P., v. Sri Rama Engineering Constructions (E&C), further contended that the petitioners cannot maintain the writ petitions for enforcement of contractual obligations arising under the agreements. 13. However, the learned single Judge had pointed out that there is no dispute as regards the questions of fact after referring to the facts in the said case and found that the tender notices were issued in the month of December, 2003 and the agreements were executed in the month of July, 2004. Though G.O.Ms.No.34, which was being relied on by the appellants, was issued on 20-12- 2003, it implies that even by the date of the agreements, the said G.O., was very much in force, the respondents did not choose to include the rates as specified in the said G.O., in the respective agreements and it is not in dispute that the respondents had agreed to pay higher rate than the rates mentioned in the Schedule. 14. It was further pointed out in the impugned common order that the petitioners were never put on record about the said rate prescribed under G.O.Ms.No.34, dated 29-12-2003 and undisputedly, the appellants did not even execute supplementary agreements with regard to the revised rates on the basis of the said G.O. It further appears that no opportunity was accorded to the petitioners before altering the rates. 15. Law is settled that unilateral change in the agreements is impermissible and consequently the same is arbitrary. 16. Yet another thing that was pointed out by the learned single Judge in the impugned common order is that there was no clause in the agreements that the department is at liberty to vary the rates agreed after the agreement was entered into at a latter point of time. 17. Therefore, in the absence of any such specific clause in the agreements, the only irresistible conclusion is that the appellants have resorted to change the agreements/contracts unilaterally. 18. In view of the detailed reasoning assigned by the learned single Judge in the impugned common order, we do not find any merit in the writ appeals calling for interference by this Court. 19. Accordingly, both the writ appeals are dismissed, at the stage of admission, confirming the impugned common order passed by the learned single Judge of this Court. ____________________ JUSTICE D.S.R.VARMA ____________________ JUSTICE G.CHANDRAIAH 01st December, 2008. Ak ........REGISTRAR To 1. 2.2 CD copies Form-NIC-OGS/WA {AVLR}