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STATEMENT OF CASE IN RESPECT OF COURT CASE NO WP (C) 2092/2021

FILED BY M/S KHAJURIA CONSTRUCTIONS V/S UOI & OTHERS BEFORE THE
HON’BLE HIGH COURT OF J&K AT SRINAGAR

INTRODUCTION

1. “Design and Construction of 70 Mtr (Now 71 Mtr) Span Steel Superstructure

(Through type) Major Pmt Bridge on open foundation over Isham Nallah at km
11.542 on road Uri-Salamabad-Kaman Post in 760 BRTF sector under Project
Beacon in J&K State” was awarded to M/s Khajuria Constrictions, Amrit Vihar, Lane
No.6, Hatli Morh, Kathua (J&K) vide HQ CE (P) BCN letter No 800650/Isham
Nallah/38/E8 dated 23 Nov 2007 for Rs 2,69,00,000.00/.

2. Accordingly work Order No. 01 Dated 11 Dec 2007 was placed by OC

Contract with the date of commencement and completion of CA as under:-

S/ Details WO/DO Commencement Completion Remark

No date Date
(a) WO No.01 dated 11 Dec 2007 11 Dec 2007 10 Dec 2009
(b) DO No. 02 dated 19 Aug 2010 - 10 Sep 2010 TEP
(c) DO No. 03 dated 25 Mar 2019 - 31 Mar 2019 TEP
(d) DO No. 04 dated 31 Dec 2020 - 21 Sep 2020 TEP

3. The Contractor has filed a Petition No WP(C) 2092 of 2021 at Hon'ble Court,
J&K, Srinagar on 06 Oct 2021, requesting the release of outstanding payment of
subject CA.

PROPOSAL

4. Time is the essence of any Contract which was neglected by the Contractor.
Negligence of Contractor regarding completion of contract should not be born by the
State as per the terms and conditions of the subject contract which was already
accepted by the Contractor. Hence, The Writ Petition filed by M/s Khajuria
Constrictions at Hon'ble Court J&K, Srinagar needs to be dismissed as it is a
misrepresentation of facts. The Draft Counter Affidavit needs to be vetted by the
Competent Authority for filling the replies in the Hon'ble High Court of Jammu and
Kashmir, Srinagar.
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JUSTIFICATION
5. “Design and Construction of 70 Mtr (Now 71 Mtr) Span Steel Superstructure
(Through type) Major Pmt Bridge on open foundation over Isham Nallah at km
11.542 on road Uri-Salamabad-Kaman Post in 760 BRTF sector under Project
Beacon in J&K State” was awarded to M/s Khajuria Constrictions, Amrit Vihar, Lane
No.6, Hatli Morh, Kathua (J&K) vide HQ CE (P) BCN letter No 800650/Isham
Nallah/38/E8 dated 23 Nov 2007 for Rs 2,69,00,000.00/.

6. Accordingly work Order No. 01 Dated 11 Dec 2007 was placed by OC

Contract with the date of commencement and completion as under:-

S/ Details WO/DO Commencement Completion Remark

No date Date
(a) WO No.01 dated 11 Dec 2007 11 Dec 2007 10 Dec 2009
(b) DO No. 02 dated 19 Aug 2010 - 10 Sep 2010 TEP
(c) DO No. 03 dated 25 Mar 2019 - 31 Mar 2019 TEP
(d) DO No. 04 dated 31 Dec 2020 - 21 Sep 2020 TEP

7. Road Uri-Salamabad-Kaman Post is a strategically important road that is the

feeder road to various troops deployed along the LOC in the area. Moreover, the
road is also an international trade route between India and POK, which is being
operated as a confidence-building measure between the two countries.

8. The subject Contract was awarded for the construction of a 70 m Span Steel
Superstructure Bridge. Due to site requirements, the firm had launched a 71 m span
bridge. HQ DGBR had approved the design and drawing of 71 m span instead of 70
m vide their letter No 42978/ISHAM/BCN/19/Brs & Tnls Dte dated 30 Jun 2015
within lump sum quoted rate and no extra cost to the department.

9. The work was trailing behind the schedule from the beginning and therefore
according to the Contract Agreement, the Contractor was instructed repeatedly to
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accelerate the progress of the work vide various diligence notices issued from OC
Contract, Commander Contract, and Accepting Officer.

10. Even after making many correspondences, the Contractor had not progressed
the work satisfactorily and therefore a Final Notice was issued by the Accepting
Officer vide HQ CE (P) BCN letter No 800650/13/E8 dated 18 Jul 2016. Finally, the
Contract was cancelled by the Accepting Officer on 10 Feb 2017 due to non-
completion of the work within the stipulated time frame under the contract obligation
vide HQ CE(P) BCN letter No 800650/28/E8 dated 10 Feb 2017 and also the
balance work to be executed through other agency at risk and cost of the present
contractor.

11. Further, a Technical Board of Officers was convened by HQ BCN for

assessment of Risk and Cost work for subject CA vide Order No.
150017/CO/BOO/72/Corrd dated 17 Oct 2017. The Board was submitted by HQ 760
TF to CE(P) Beacon along with Risk and Cost amount for the balance Work
(22.09%) amounting to Rs 116.90 Lakh with recommendation of Commander
Contract vide HQ 760 TF letter No 8809/55/E8 dated 16 Jan 2018. TBOs was
approved by the Competent Authority vide HQ CE (P) Beacon letter No
800650/98/E8 dated 03 Feb 2018.

12. The Contractor M/s Khajuria Constrictions of Kathua has submitted a request
for revocation of Cancellation of CA along with an Affidavit for completion and Time
Progress Chart vide their letter No KSK/Beacon/ISHAM/0008/18 dated 17 Mar 2018.
Based on the recommendations of Commander Contract on Contractor letter, the
Accepting Officer has revoked the order of Cancellation issued vide HQ Beacon
letter No. 800650/28/E8 dated 10 Feb 2017 with immediate effects vide HQ CE (P)
Beacon letter No. 800650/207/E8 dated 11 Jun 2018 along with other terms and
conditions and are as under:-

(a) No escalation of prices shall be admissible in the contract after 10 Sep

2010 despite any number of extensions of time granted by the department
post revocation of cancellation.
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(b) Any Payment due to the contractor shall be released only after the
truss superstructure is ready in all respect for the casting of the deck slab.

13. Further, the Contractor M/s Khajuria Constrictions of Kathua had submitted a
request for replacement of rivets with HD bolts vide their letter No
KSK/Beacon/ISHAM/53 RCC/1027/18 dated 11 Jun 2018. The case was forwarded
to HQ DGBR/B&T for approvals of Competent Authority vide HQ Beacon letters No
800650/218/E8 dated 06 Jul 2018 and 800650/225/E8 dated 27 Oct 2018.

14. The Competent Authority has approved the drawings vide their letter No.
40798/ISHAM (Red) Bridge/ Beacon/DGNR/35/B&T date dated 16 Nov 2018.

15. M/s Khajuriya Constrictions has been completed the subject bridge on 21 Sep
2020 vide 53 RCC letter No 8273/122/E8 dated 21 Sep 2020.

16 Despite giving numerous diligence notices by the various formation of

department the work was over delayed. It was the contractor responsibility to appoint
a suitable person to take charge of all the stores & materials and not to blame the
department for his negligence. Important events regarding the construction of the
subject bridge, in chronological order, is tabulated as under:

S No. Particulars Dates

Load Classification Of Bridge– IRC 70R WHEEL Loading

a) CA Acceptance, issue of work order, the casting of From 23 Nov 2007 to

abutments of both sides 28 Mar 2008

b) Procurement of bearings, expansion joint and 28 Mar 2008 to 23 Jun

superstructure components 2011

c) Nil progress which led to cancellation at risk and cost of Jul 2011 to May 2018
the contractor

d) Revocation of CA, completion of superstructure erection, Jun 2018 to 21 Sep

the casting of deck slab and load testing of bridge 2020
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e) Time extension approved after the request of Contractor

for 540 days up to including 21 Sep 2020 without any
financial effect

17. Final bill was submitted by TF to this HQ for approval. Due to the non-
submission of some required documents by the Contractor, the Final bill was returned
to HQ 760 TF with observation vide HQ CE (P) Beacon letter No
800650/Vol-VI/85/E8 dated 16 Sep 2021.

18. Further, the Legal Notice has been served by M/s M Umar Mir, Advocate, J&K
High Court, and Srinagar on behalf of M/s Khajuriya Constrictions vide their letter
No.LN/UM/JKHC/51-55 dated 02 Sep 2021. Para wise reply of legal notice was
forwarded to Shri Tahir Majid Shamsi, ASGI, Hon’ble High Court, Srinagar for vetting
vide HQ CE(P) Beacon letter No 800650/95/E8 dated 29 Nov 2021.

19. The Contractor has filed a Petition No. WP(C) 2092 of 2021 at Hon'ble Court,
J&K, Srinagar on 06 Oct 2021, requesting for the release of outstanding payment of
subject CA.

20. The Contractor had been paid RAR whenever desired by the Contractor. It is
an interim payment as advance and has to be adjusted against Final Bill after
submission of all original invoices and Contract related documents which were in the
custody of the Contractor. However, the Contractor has not submitted the original
invoices and all other contract-related documents which were held in the custody of
the Contractor.

21. Details of payment made to the Contractor for the executed work are as
under:-

S/ RA Date of % Cumulativ Date of Gross amount Net amount

No. R Measurement progress e % Payment Paid paid
No. during progress
period
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(a) I 28 Mar 2008 46.50 46.50 31.03.2008 1,18,33,272.00 1,03,50,000.00

(b) II 16 Aug 2010 8.50 55.00 18.08.2010 21,82,824.00 18,90,000.00
(c) III 10 Sep 2010 9.00 64.00 21.10.2010 22,99,087.00 19,90,000.00
(d) IV 23 Mar 2011 8.60 72.60 31.03.2011 28,85,312.00 24,60,000.00
(e) V 23 Jul 2011 5.31 77.91 27.07.2011 14,29,373.00 12,47,000.00
(e) VI 29 Mar 2019 10.59 88.50 31.03.2019 27,34,014.00 26,20,000.00
2,33,63882.00 2,05,57,000.00

FINANCIAL IMPLICATION

22. There is no financial effect as the Writ Petition filed by M/s Khajuria
Constrictions at Hon'ble Court J&K, Srinagar will be dismissed as it is a
misrepresentation of facts. The draft objections, Para wise replies and statement of
the case needs to be vetted by Competent Authority for filling the replies in the
Hon'ble High Court of Jammu and Kashmir, Srinagar.

23. The Contractor has submitted details of their outstanding payment i.e Rs
1,05,00,000/-(Rupees One Crore Five Lakh Only). Whereas, only the final bill of the
subject CA amounting to Rs 35.36 lakh is pending due to the non-submission of
original documents by the contractor.

CONCLUSION

24. Time is the essence of the Contract which was neglected by the Contractor.
Hence, the Negligence of the Contractor side should not be borne by the State as
per the terms and conditions of the subject contract which was already accepted by
the Contractor. Hence, Writ Petition filed by M/s Khajuria Constrictions at Hon'ble
Court J&K, Srinagar needs to be dismissed as it is a misrepresentation of facts. The
Draft Counter Affidavit needs to be vetted by the Competent Authority for filling the
replies in the Hon'ble High Court of Jammu and Kashmir, Srinagar.
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Station: C/o 56 APO (IK Jaggi)

Brigadier
Dated : _____Jan 2022 Chief Engineer