1 2025:CGHC:1877-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WPC No. 148 of 2025 M/s Raj Construction Comapny A Partnership Firm Through Its Partner Namely Amit Chauhan, S/o Shri Dinesh Chauhan, Aged About 39 Years, Having Its Mandir, Bengalipara, New Sarkanda, Bilaspur, Chhattisgarh. ... Petitioner(s) versus 1. State of Chhattisgarh Through The Secretary, Department of Water Resources, Mahanadi Bhawan, Naya Raipur, Atal Nagar, Post OfÏce Rakhi, District- Raipur, Chhattisgarh. 2. Chief Engineer Minimata (Hasdeo) Bengo Project, Bilaspur, District- Bilaspur, Chhattisgarh. 3. Superintending Engineer Hasdeo Project Circle, Rampur/korba, Chhattisgarh. 4. Executive Engineer Hasdeo Canal Water Management Division Janjgir, Chhattisgarh. ... Respondent(s) For Petitioner : Dr. N.K. Shukla, Senior Advocate, assisted by Mr. Dinesh K. Bole, Advocate. For Respondents/State : Mr. Shashank Thakur, Deputy Advocate General. BRIJMOHAN MORLE Digitally signed by BRIJMOHAN MORLE Date: 2025.01.14 10:38:12 +0530 2 Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Ravindra Kumar Agrawal , Judge Order on Board Per Ramesh Sinha , Chief Justice 13 . 01 .202 5 1. Heard Dr. N.K. Shukla, learned Senior Advocate, assisted by Mr. Dinesh K. Bole, learned counsel for the petitioner. Also heard Mr. Shashank Thakur, learned Deputy Advocate General, appearing for the State. 2. The present writ petition has been filed by the petitioner with the following prayers: “1. That, this Hon’ble Court may kindly be pleased to call for the entire record pertaining to the case of the petitioner. 2. That, this Hon’ble Court may kindly be pleased to issue a writ/direction/order thereby directing the respondent authorities to give escalation from the date when the BID was submitted. 3. That, this Hon’ble Court may kindly be pleased to issue a writ/direction/order thereby directing the respondent authorities to declare the condition in para 4.3.17.1, wherein 10 years period for General Maintenance has been provided, violative to Article 14 & 23 of the Constitution of India. 3 4. That, this Hon’ble Court may kindly be pleased to issue a writ/direction/order thereby directing the respondent authorities to bear liability of GST which accrued due to enhancement of rate of GST from 12% to 18%, in the interest of justice. 5. Cost of the petition may kindly be granted to the petitioner. 6. Any other relief, which this Hon’ble Court deems fit and proper, may also kindly be granted to the petitioner, in the interest of justice.” 3. Learned Senior Advocate for the petitioner submits that the petitioner is a partnership firm having its name as M/s Raj Construction Company, registered in the year 1983-84 by the Registrar of Firms of Madhya Pradesh. It was registered as 906 of 1983-84. The firm was registered on 01.10.1983. He also submits that the firm by passing of the time was reconstituted and reconstituted time to time and of such reconstitution taken place on 01.04.2016, which was registered by the Registrar of Firms & Societies, Madhya Pradesh, Gwalior. The petitioner Firm is Class-A Contractor registered with the Works Department, State of Chhattisgarh. 4. It is further submitted by the learned Senior Advocate for the petitioner that the Department of Water Resource invited a tender for hard rock cutting in BED and CC lining of Hasdeo LBC from RD 28000 M to RD 44000 M. The probable amount of contract worth Rs. 9,37,40,250/- (Nine Crores Thirty Seven Lakh Forty Thousand Two Hundred Fifty). The 4 contract period was 15 months including rainy season. The tender was conducted online tender. The petitioner submitted the tender and his tender was found lowest and the copy of work order was issued. He further submits that on 16.06.2022, the petitioner has written a letter to the Secretary of Water Resource Department, Mahanadi Bhawan, Naya Raipur, Atal Nagar, Raipur in which the petitioner has drawn attention that the respondent by the escalation clause according to the agreement where as it would have been from the date of the agreement where as it should have been from the date of submission of the bid. 5. Learned Senior Advocate for the petitioner states that the notice inviting the tender was issued on 08.02.2022, the work order was issued on 20.05.2022 i.e. after 03 months from the date of tender. There is gap of 03 months from the floating of the tender and entering into agreement. It is further submitted that on 25.02.2022 when the bid was submitted by the petitioner the rate of Steel 70 thousand per ton and diesel was 92.32 per liter and however, on the date when the agreement was executed by the petitioner and the respondent the steel was 72 thousand 05 hundred per ton and the price of diesel was 102.84 per liters. He also states that it is unreasonable for the respondent to give price escalation clause into effect from the date of agreement. The base price of the commodities must be calculated from the point of time when the bid was submitted because the contractor submits his bids on the basis of price of the commodities prevailing on the date when the bid is submitted. Since the petitioner was the lowest amongst the other bidders, the work was allotted to the petitioner. The last date for submission of tender was 25.02.2022, but by a corrigendum, the last date for submission of tender was extended to 5 03.03.2022. It is further submitted that in Sl.No. 4 of corrigendum dated 08.02.2022 clause 2.40.1, 2.40.2, 2.40.3, 2.40.4 were made applicable, which were not applicable earlier. These clauses are quoted in page 23 of the Notice Inviting Tender document. 6. It is further contended by the learned Senior Advocate that on 09.05.2022 ofÏce of the Executive Engineer, Hasdeo Canal Water Management Division, Janjgir, informed the petitioner regarding acceptance of tender and invitation for execution of agreement. Thereafter, on 20.05.2022, the Executive Engineer also issued a work order. According to this work order, the work is deemed to be commenced from the date of issuance of this work order i.e. 20.05.2022 and the outer limit for completion of work was 20.08.2023. He also contended that due to reasons beyond the control of the petitioner, the work could not be completed within the time stipulated i.e. 20.08.2023, therefore, the petitioner filed an application for extension of time and the respondent granted extension without penalty and the date of completion was extended to 30.06.2025. The extension was granted without penalty which shows that the work could not be completed due to reasons beyond the control of the petitioner. 7. Learned Senior Advocate for the petitioner would submit that according to the Clause 2.17.1, the financial bid offered by the Contractor shall be inclusive of royalties, all direct and indirect taxes of central and State Government i.e., GST (Goods and Services Tax), income tax and cess and local taxes as applicable the contractor shall have to pay all applicable taxes and cess for the performance of his contract. The government shall deduct such taxes at source as per applicable law, if 6 any, New Tax (not increase or decrease in existing taxes, duties, royalties, cess and surcharge etc.) is levied on the contractor, the Engineer-in-Charge shall reimburse the amount of such 'New Tax' on submission of proof of such payments of tax by the contractor on this account. He would states that the petitioner submitted the bid on its due date and time i.e. on 25th of Feburary, 2022 (extended period as per corrigendum) and Bid was accepted on 09.05.2022. It is submitted that after submission of Bid inclusive the taxes provided in the above clause, the rate of GST was increased from 12% to 18% on 18.07.2022. The word new tax is mentioned. New tax is not defined anywhere, however, the GST Council periodically changes quantum of tax i.e., tax slab. 8. Learned Senior Advocate for the petitioner further submits that the object of the above clause is to reimburse in increase in the rate of taxes also. The doctrine of unjust enrichment, which says that the State cannot be enriched unjustifiably provides that when other unseen circumstances come and created after date of agreement, that part of the financial burden should have been borne by the State Government. New tax does not mean that a new kind of tax is imposed, but also includes increase of the existing taxes. He also submitted that in the above clause the word (to the following effect not increase or decrease in existing taxes, duties, royalties, cess and surcharge etc.) is unjust, unfair, unreasonable or violative to Article 14 of the Constitution of India. The Bid can be submitted by the petitioner only on the basis of calculation based above the present taxable burden/financial burden attached with the contractor, and therefore, it is respectfully submitted that it is apt to hold that the liability of new tax after submission of bid include also increase or 7 decrease in existing taxes, duties, royalties, cess and surcharge etc. and the word not increase or decrease in existing taxes, duties, royalties, cess and surcharge etc. be accordingly held that it is violative to Article 14 of the Constitution of India. It is respectfully submitted that the Ministry of Water Resources, Department of State of Chhattisgarh on 21.09.2022 amended the proforma of Form-B. By way of amendment, the bracket has been removed and the condition is amended. This amendment has been withdrawn on 30.09.2022. That, it is respectfully submitted that in this format it is notified by the Government the word any other NEW TAX or levy or cess is imposed by statute or any deviation in existing royalty/tax/levy/cess/GST after the last stipulated date for the receipt of the tender including extensions, if any, shall be treated as ‘NEW TAX’. It is respectfully submitted that this change is also applicable on the work which is still going on, although the notification is issued subsequent to the amendment. The reason is that the person, who entered an agreement before the date of notification and the persons who enter to agreement subsequent to the notification, they constitute one class only because the agreement was entered prior to notification which relaxes the financial burden of taxes upon the contractor, is hit by Article 14 of the Constitution of India. Hence, this petition. 9. On the other hand, learned State counsel opposes the prayer made by the learned counsel for the petitioner and submits that the Contractor Association submits a representation before the respondents authorities and acting on their representation, the price escalation clause was considered by the government, but the said amendment cannot be given on the ongoing project, it shall be applicable for subsequent project. He 8 further submits that if the petitioner is aggrieved by any terms & conditions of the tender, he should raised objection at the time of acceptance of tender and as per Clause 4.3.17.1 of the agreement, wherein the said clauses stated the defect liability of the contractor shall remain valid upto a period of ten years from the date of completiton. 10. We have heard learned counsel for the parties and perused the prayers and pleadings made in the writ petition along with the annexures annexed in this case. 11. For ready reference, Clause 4.4.17.1 & 4.3.17.2 of the agreement, reads as under: “4.3.17.1 Contractor liable for damage done for general maintenance. If the contractor or his work people, or servants shall break, deface, injure or destroy any part of a building in which they may be working or any building road, road kerbs, fences enclosure, water pipe, cables, drains, electric or telephone posts or wires, trees, grass or grass land, or cultivated ground contiguous to the premises on which the work or any parts of is being executed or any damage shall happen to the work while in progress or completed from any cause whatever, or any imperfections become apparent in it after a certificate, final or otherwise of its completion shall have been given by the Engineer-in-charge as aforesaid, the Contractor shall make the same good at his own 9 expense or in default the Engineer-in-charge may cause the same to be made good by other workmen and conduct the expenses (of which the certificate of the Engineer-in-charge shall be final) from any sum that may be then or at any time thereafter may become due to the Contractor. The defect liability of the contractor shall remain valild upto a period of 10 years from the date of completion. The contractor is liable for the general maintenance of the construction for which the certificate of its completion has been issued by the Engineer-in-charge for a period of 10 (ten) years. The period of maintenance shall commence form the next date after the issue of completion certificate by the Engineer- charge. The purview of maintenance shall include general repair and upkeep of the structure/asset created under the agreement, maintaining the earthen embankments and canals to its required profiles, keeping those free from grass, weed growth and vegetation, incurring maintenance work in pitching concrete, masonry, pipeline etc. or any creation under the agreement as directed by the Engineer-in-charge.” 12. From perusal of the agreement, it is evident that the petitioner has already agreed to the conditions of the agreement executed between the parties and he has already doing the work, now he has come up before this Court with the grievance of the agreement, but considering the clause 10 4.3.17.1 of the agreement, we are not inclined to interfere in the present matter. 13. In view of the above, the present petition is dismissed on this ground alone. Sd/- Sd/- (Ravindra Kumar Agrawal) (Ramesh Sinha) Judge Chief Justice Brijmohan