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NKC Projects Pvt. Ltd. v/s State of Odisha

    W.P.(C) No. 11919 of 2017

    Decided On, 24 February 2020

    At, High Court of Orissa

    By, THE HONOURABLE MR. JUSTICE S.K. MISHRA & THE HONOURABLE DR. JUSTICE A.K. MISHRA

    For the Petitioner: ------ For the Respondent: ------



Judgment Text

Heard Mr. Milan Kanungo, learned Senior Counsel for the petitioner and Mr. Prabhu Prasad Mohanty, learned Addl. Govt. Advocate.

2. The final hearing of the writ petition is taken up at the stage of admission in view of filing of I.A. No.12979 of 2019 to which the opposite parties have filed objections.

Facts essential for disposal of the writ petition are stated thus; the petitioner-Company was engaged as a Contractor by the opposite party no.2 for the work of widening and strengthening of existing carriageway to 2-Lane Road from Pirhat-Chandbali Road (KM.27/500 to KM.45/000 of SH-09) (Balance work) OSRP-CW-ICB-P02B. The agreement was executed on 14.10.2016. The period of completion was 18 months from the date of the notice of commencement. The said notice was given on 15.11.2016 and scheduled date of completion was 15.05.2018. The Contractor-petitioner faced obstacles in carrying materials as curfew was clamped from 6.4.2017 to 12.05.2017. Opposite party no.3 issued notice for termination on 12.06.2017 vide Annexure-10 and without considering the show cause of the petitioner, terminated the contract vide letter dated 27.06.2017 vide Annexure-11. The petitioner filed the present writ petition challenging such termination notice and order (Annexure-10 and 11).

3. After hearing the parties, this Court in Misc. Case No.13705 of 2017 vide order dated 31.07.2017 stayed the order of termination of contract (Annexure-11) and allowed the petitioner to continue with the work. The said interim order continued and the opposite party no.2 did not at any point of time take steps for modification of the same.

4. It is the case of the petitioner that the execution of the work has successfully been completed on 28.07.2019 and taking over certificate has been issued by the Engineer In-charge on 3.8.2019 as per the provisions of Clause 10.1(a) of General Conditions of Contract vide Annexure-A/1 to the I.A. No.12979 of 2019.

5. Learned Sr. Counsel for the petitioner submits that as the work has already been executed by issuance of Taking Over Certificate by the opposite party no.3 with the knowledge of concerned Executive Engineer, the termination order dated 27.06.2017 has become infructuous and accordingly the writ petition may be disposed of.

Learned Addl. Govt. Advocate, Mr. P.P. Mohanty submits that even though the work has been completed and completion certificate has already been issued, the validity of the termination is a question of arbitration not for this Court to decide.

6. We carefully peruse the termination letter dated 27.06.2017 (Annexure-11) and the joint verification report as well as taking over certificate vide Annexure-A/1 to the interim application. We are of the considered opinion that as the work has already been executed and the authority-in-charge has already issued taking over certificate after joint verification, the termination of contract dated 27.06.2017 (Annexure-11) has become infructuous.

The opposite party having allowed the petitioner to perform the contract and having issued the completion of work certificate without leave of this Court, the petitioner cannot be deprived of the consequence of the performance

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of the contract for which Taking Over Certificate has already been issued. 7. For the aforesaid reasons, the termination of contract dated 27.06.2017 (Annexure-11) to the writ petition is found to be infructuous. The writ petition is disposed of accordingly. All interim applications/misc. cases stand disposed of in terms of the above order.
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