HONOURABLE SRI JUSTICE A.RAMALINGESWARA RAO WRIT PETITION Nos. 17466 of 2007 and 18166 of 2010 DATED 13th OCTOBER, 2014 Between M/s.P.Narasimha Rao & Company, Rep. by its Managing Partner Mr.P.Narasimha Rao Secunderabad.
…..Petitioner in both WPs And Government of Andhra Pradesh, Rep. by its Principal Secretary, Municipal Administration, Secretariat, Hyderabad and ors ….Respondents in both WPs.
HONOURABLE SRI JUSTICE A.RAMALINGESWARA RAO WRIT PETITION Nos. 17466 of 2007 and 18166 of 2010 COMMON ORDER:
Heard the learned Counsel for the petitioner and the learned Standing Counsel for the second and third respondents.
These two writ petitions are being disposed of by this common order in view of involvement of same cause of auction.
The Chief Engineer, third respondent issued tender dated 19.01.2004 for execution of work, namely, ‘Construction of Parallel Bridge across river Musi beside Muslimjung Bridge (Balance Works)’. As the tender of the petitioner was lowest, the same was accepted and work was awarded to it after entering into agreement dated 01.09.2004 for the contract value of Rs.4,52,53,598/-. The work was originally awarded to M/s. National Building Construction Corporation (NBCC) Limited on ‘Turnkey Basis’. The said National Building Construction Corporation appointed one M/s Consulting Engineering Services Limited, New Delhi, as its consultant for their turnkey contract works. After executing the works to some extent, for the reasons best known to them, the said National Building Construction Corporation had withdrawn from the works leaving construction incomplete. In those circumstances, the third respondent called for fresh tenders and the work was awarded to the petitioner on item rate contract (though it was called as lump sum contract). The third respondent entrusted the responsibility of preparing design to another consultancy, namely, M/s. Descon Associates under a separate agreement dated 15.07.2003. When the petitioner completed substantive work except the approaches, the Technical Experts were asked to check the works and the works were measured for payment and payment was also released to the petitioner later on. However, show cause notice dated 18.06.2007 was issued asking the petitioner to show cause as to why it (the petitioner) should not be black listed for the cracks developed in the construction works, for preparing gross defective structural design endangering the structures and further, as to why action should not be taken for withholding the amounts due for causing financial loss to the Government etc.,. The petitioner submitted its explanation on 27.06.2007. However, the third respondent denied the receipt of explanation given therein. Thereafter the third respondent addressed letter No.CE/GHMC/TA-H/K6/2007-252, dated 28.06.2007 to the Engineers-in-Chief of Public Health, Panchayat Raj, R&B Department, I & CAD Departments and Principal Chief Engineer, Rail Nilayam, South Central Railway requesting them to stop/withhold all payments due to the petitioner. Challenging the said letter, the petitioner filed Writ Petition No. 17466 of 2007 and this Court by order dated 24.09.2007 suspended the operation of the said letter. It is represented by the learned Counsel for the petitioner that consequent to the interim suspension granted by this Court, amounts due from the respective departments have been released to the petitioner and therefore nothing survives for adjudication in the said Writ Petition. Recording the said submission of the learned Counsel for the petitioner, Writ Petition No. 17466 of 2007 is closed.
However, the learned Counsel for the petitioner submits that an amount of Rs.50.00 lakhs is due from the second respondent and the same is not released to the petitioner till today.
The learned Standing Counsel submits that impugned proceedings came to be issued when cracks are developed in the pier caps of piers P5 to P9 of bridge construction work which was executed by the petitioner. After noticing the defects in the said construction, a Technical Expert Committee was constituted vide proceedings dated 17.06.2007 consisting of Engineers of Government and Private Companies to conduct an in-depth study of the defects noticed and to suggest temporary and permanent rehabilitation measures for making it fit for the design period serviceability. The Technical Expert Committee submitted its report on 04.01.2008 which reads as under:
“ 1. M/s. NBCC/CES Ltd ( First Contractor of the bridge) To bear 50% of all cost, direct and indirect required for rehabilitation of sub- structure and pier caps of the above mentioned work as they have given wrong designs and misled the subsequent work.
2. M/s. Descon Associates (also called as the Consultant) A penalty of 50% total agreement amount is to be imposed as fine. The firm is to be removed from list of empanelled structural Engineers from GHMC.
3. Greater Hyderabad Municipal Corporation:
To bear 50% of all costs, direct and indirect, required for rehabilitation of substructure and pier caps as there are policy mistakes involved in the contract.
4. Officers of the GHMC:
The following officers connected with pier cap designs and drawings shall be given minor punishments.
1. Sri J.V.Mukhedkhar, Deputy Chief Engineer
2. Sri V.S. Mohan, Deputy Executive Engineer
3. Sri Venkateswarloo, Asst. Executive Engineer
4. Smt. K.Gouthami, Asst. Executive Engineer.
5. M/s. P.Narasimha Rao & Co ( the petitioner herein):
It shall cooperate with GHMC in the rehabilitation work of piers and pier caps.”
The counter affidavit of the second respondent further states that the Technical Expert Committee had made an inference that the petitioner has a moral responsibility for the said mistake and that the petitioner did not come forward to cooperate with the Department in rehabilitation and repairs of damaged structures on account of which the Department had to complete the repairs and rehabilitation through other agency spending huge expenditure. When this Court asked the second respondent as to whether any letter was addressed to the petitioner pursuant to the report of the Technical Expert Committee seeking cooperation of the petitioner, the second respondent did not produce any letter seeking cooperation of the petitioner. In the circumstances, it cannot be held that the petitioner did not cooperate with the second respondent in rehabilitation work of piers and pier caps. So far as the rehabilitation of the substructure and pier caps is concerned, the Technical Expert Committee apportioned the burden in between M/s. NBCC/CES Ltd (first contractor ) and third respondent in the ratio of 50% : 50%. The subsequent consultancy was imposed penalty of 50% of total agreement amount as fine. So far as the petitioner is concerned, it was merely indicated that it (the petitioner) should cooperate with the third respondent in the rehabilitation work of piers and pier caps. However, no such cooperation from the petitioner is sought for by the second respondent as stated supra. The report submitted by the Technical Expert Committee, which was a third party, on 04.01.2008 did not impose any liability on the petitioner. In the circumstances, the second respondent on its own cannot ignore the recommendations of the Technical Expert Committee and seek recovery of amount from the petitioner.
In the light of the same, the second respondent is directed to release the amounts pending with it in respect of the works executed by the petitioner within a period of one month from the date of receipt of a copy of this order.
Accordingly Writ Petition No.18166 of 2010 is allowed to the extent indicated above., Miscellaneous petitions pending consideration if any in both the Writ Petitions shall stand closed. No order as to costs.
JUSTICE A. RAMALINGESWARA RAO
DATED 13TH OCTOBER, 2014.
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