IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.13364 of 2008 TANTIA CONSTRUCTION COMPANY LTD., a Company incorporated under the Indian Companies Act, 1956 having its office at Block-EP, Plot-Y6,Sector-5,Salt Lake City,Kolkata through its Vice President Contracts Anjan Sharma son of Professor P.C. Sarma. Residence at Bye Lane,4(west),R.G.Baruah Road, P.O. Silpukhuri P.S. Geeta Nagar,District,Kamrup,Assam. Versus 1. THE UNION OF INDIA through the Chairman, Railway Board,Rail Bhawan, New Delhi. 2. The Chairman, Railway Board, Rail Bhawan, New Delhi. 3. The General Manager, East Central Railway, Hajipur,District- Vaishali. 4. The Chief Administrative Officer (Construction),Mahendru Ghat,Patna,District-Patna. 5. The Chief Engineer (Construction) (South),East Central Railway, Mahendru Ghat,Patna,District-Patna. 6. The Deputy Chief Engineer/Con., East Central Railway, Danapur,District-Patna. 7. The Deputy Chief Engineer (Construction)/II/Hajipur,East Central Railway, Hajipur,District- Vaishali. 8. Deputy Chief Engineer (Construction),East Central Railway/Dehri-on-sone,District- Rohtas. 9. District Engineer (Construction) Incharge,E.C.Railway,Danapur,District-Patna. 10. Executive Engineer (Construction),E.C.Railway/Ara. ----------- 4 10.12.2008 Petitioner in this writ application is a firm of contractors with a longstanding relationship with the Railway.For construction of the new broad gauge line between Ara and Sasaram, petitioner was awarded contract on 20.6.2006 for supply, transporting and stacking of 40000 cubic meters of stone ballast. The contract was to be completed within six months but was extended twice and ultimately cancelled by the railway. It is re-tendered for the balance work “at the risk and cost of the petitioner” to which petitioner objects and that is the petitioner’s first grievance. The second grievance is for payment of material already supplied after proper measurement in presence of the petitioner. 2 Railway have filed its counter affidavit and the case has been heard with the consent of the parties at this stage for final disposal. It is not in dispute that the petitioner having entered into an agreement on 28.10.2005, was required to complete the work within six months but this time was extended first to 30.6.2006 and then was extended again by the railway to 31.12.2006. Petitioner- Company vide their letter dated 27.12.2006 again requested for extension of time as the site was not cleared and available for stacking. Here I may note that before petitioner could bring the stone ballast for stacking some primary earth work had to be done by another contractor under separate agreement. That earth work was delayed. Noticing this, the railway then extended the time to 31.5.2007 with reference to clause 17A(iii) of the General Condition of the Contract. Once again the time was extended for the said work by the railway. Here I may mention that clause 17A(iii) of the General Condition of the Contract contemplates extension of time to be granted by the railway in event of failure or delay on the part of the railway in completing the work. Thus, it stands admitted by the railway itself that the delay was attributable to the railway and not the petitioner. Now, when the petitioner was to seek further extension, allegedly, to save their skin, the railway authorities have refused to extend or close the contract rather they have cancelled the contract and intend to re-tender the same at the risk and cost of the 3 petitioner. The effect of this action is that the petitioner would be liable to pay the enhanced differential cost of completion of work even though the delay is not caused by it and it is to suffer a further penalty of forfeiture security etc. Having considered the matter, in my view, the facts are not at all disputed, the railway themselves have admitted delay on their part while granting extension .In the passage of time cost has considerably increased . A contract, which was to be completed within six months has got extended for two years. If the railway were to act fairly they ought to have realized this and close the contract and re- tender the same but not at the risk and cost of the petitioner. Doing otherwise would be penalizing the petitioner for no fault of it rather for fault of the railway. In similar case of the petitioner itself disposed of today being CWJC No. 13352 of 2008, same issue has been decided in favour of the petitioner. Following the same, there is no escape that the action of the railway in re-tendering at the risk and cost of the petitioner cannot be sustained. Railways are at liberty to re-tender but not at the risk and cost of the petitioner. This closes first issue. Second issue is with regard to payment of stone ballast already supplied. Petitioner’s grievance is that the supplied stone ballast is not being verified physically in presence of the petitioner to make proper calculation for payment. 4 I do not propose to deal with the factual aspect of this dispute but only to observe and direct that upon due notice to the petitioner, supply would be quantified and payment made by the railway. That would be just and proper. With the above observation and direction this writ petition stands disposed of. SINGH (Navaniti Pd. Singh, J.)