Madhya Pradesh High Court
M/S Vinay Construction Company vs The State Of Madhya Pradesh on 4 October, 2017
HIGH COURT OF JUDICATURE MADHYA PRADESH,
JABAPLUR
SB: Hon'ble Shri Justice Subodh Abhyankar, J
WRIT PETITION NO.7818 OF 2017
M/s Vinay Construction Company
through its Proprietor Shri Sitaram Tiwari.
Vs.
State of Madhya Pradesh & others.
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Shri Devendra Singh Baghel, learned counsel for the
petitioner.
Shri Shivendra Pandey, learned Govt. Advocate for the
respondents-State.
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ORDER
(Passed on the 04th day of October, 2017) In the present case the petitioner is a construction Company. They are aggrieved by the order dated 8.5.2017 (Annexure P-16) passed by the respondent No.2/Executive Engineer, PHE Sidhi, whereby the contract awarded to the petitioner for construction of dug-well at District Sidhi has been cancelled on the ground that the petitioner has failed to complete the allotted work within the stipulated period and consequently the petitioner's security has also been forfeited and the petitioner has also been restricted not to participate in any work for one year.
2. In brief, the facts of the case are that the respondents had issued a tender for construction of 6 square meter dug-well 15 meter in Village Ladkeri, Kusmi block within a period of three months. The petitioner participated in the aforesaid tender and was awarded the contract. According to the petitioner, since the respondents failed to take any action in the matter, on 21.4.2016 he sent a letter to the respondents that in the estimate submitted by the petitioner, the charges for de-watering and excavating of mud are not included, hence the same may be included immediately so that the work may be performed, and since no action was taken by the respondents on his letter, the petitioner again sent a letter dated 27.4.2016 and finally on 5.5.2016 and thereafter the respondents made a communication wherein it is stated that there is no need to amend the contract after accepting the tender and executing the same. Thereafter other request was made by the petitioner, hence a communication was made on 27.10.2016 in which it is stated that inspection shall be made on the spot and the petitioner was requested to keep drawing and design present so that the same may be examined. Thereafter the petitioner started digging well and on 7.10.2016 another inspection was made and on 25.10.2016 resistivity survey was also made and vide letter dated 18.11.2016 it was found by the Assistant Engineer that there was accumulation of water around the spot. Hence, the petitioner sent a letter to the respondents on 21.11.2016 asking to reduce depth of well as also requested for de- watering charges. The aforesaid request was refused by the respondents on the ground that such specifications are not provided, hence it cannot be accepted. On 25.1.2017 again a letter was sent by the petitioner wherein he has asked for some money for de-watering and it was submitted that in the estimate there was no provision of de-watering, hence the work is required to be stopped. Since the respondents did not respond to the petitioner's request, a legal notice was also sent on behalf of the petitioner on 30.1.2017, the reply of which was also given by the respondents on 3.3.2017 in which the allegations made by the petitioner were denied and it was stated that the petitioner has to complete the allotted work within time and in absence of any condition, payment can be made to him. Thereafter various notices were again sent by the petitioner regarding his stand and finally on 8.5.2017 the final order was passed in which it was inter alia held that since the petitioner was found negligent in performing the contract hence contract is cancelled, his earnest money is forfeited and he is black listed for one year.
3. It is further submitted by the petitioner that he is the owner of the vehicle bearing registration No.MP-53-GA 0559, which was rented by the respondents on monthly rent and since the respondents did not pay the monthly rent for the years 2008-09, 2009-10 and 2010-11, hence many requests were made by the petitioner, but no action was taken by the respondents. However, in a complaint made in the Jan-Sunwai before the Collector, and the Collector directed the respondents to make the monthly rent to the petitioner. Simultaneously, a departmental enquiry was also conducted against the erring officer, and in the enquiry it was found that the then Assistant Engineer RS Kushwaha and PR Kumhar, Assistant Engineer were responsible for payment of Rs.38,700/- and vide order dated 17.4.2017 the said amount was directed to be deducted from the salary of the aforesaid officers, and because of this reason the said officers, on account of malice, approached the officer concerned and pressurized him to cancel the dug well agreement and finally the petitioner's contract was terminated on 8.5.2017 vide Annexure P-16.
In the impugned order, it is mentioned that in Clause 2.4 of the agreement, it is clearly provided that the water carrying charges shall not be paid but for one reason or the other the petitioner has kept the matter pending due to which the State targets are being affected, hence the contract awarded to the petitioner is terminated. By the impugned order, the earnest money is forfeited and the petitioner has also been restricted not to participate in any work for one year.
4. It is further submitted by the petitioner that against the aforesaid order dated 8.5.2017, he preferred an appeal before the Chief Engineer, who vide its order dated 13.6.2017 has dismissed the said appeal/representation and black listed the petitioner for two years instead of one year which order is under challenge in this petition.
5. In reply, the respondents' contention is that the petitioner himself was negligent in performing his work and after accepting the terms and conditions of the contract, as per the rate list, which was submitted by the petitioner only, he has not completed the work and has sought to include the rate which were specifically excluded. The respondents have also referred to Para 2.4 of the terms and conditions of the NIT, which reads as under:
"2.4 Lead and lift of water-- No lead and lift for carting of water will be paid."
Thus the contention of the respondents is that when it was specifically provided in the contract that no lead and lift for carting of water will be paid, then it was unjust on the part of the petitioner to claim de-watering charges from the respondents and that too after the contract was executed. It is further submitted that the agreement was executed on 23.5.2016 and accordingly the work was to be completed till 23.8.2016 and the petitioner knew about the conditions of contract right from the beginning and he entered into the contract with his eyes wide open and therefore he cannot claim for inclusion of any item, and since the petitioner has not completed the allotted work within the stipulated period, hence his contract was terminated vide impugned order dated 8.5.2017 (Annexure P-16) and vide order dated 13.6.2017 he has also been placed under black listed for a period of two years. It is further submitted by the respondents that the dispute raised by the petitioner can be raised in the arbitration proceedings and the question of black listing of the petitioner is concerned, the same is just and proper and as per the Government guidelines.
6. Heard the learned counsel for the parties and perused the record.
7. So far as the dispute regarding the inclusion of de-watering charges in the contract is concerned, in the absence of any objection by the petitioner in the counter reply, in the considered opinion of this Court, it is the dispute which can only be decided by raising appropriate dispute by availing alternative remedy through the arbitration proceeding as per the agreement, hence no observations be made so far as merits are concerned.
8. So far as the black listing of the petitioner is concerned, which was earlier for one year and subsequently when the petitioner preferred an appeal before the appellate authority, it was increased from one year to two years, the aforesaid order of black listing has been passed against the petitioner without affording any opportunity of hearing and in fact the same was passed on the petitioner's appeal/representation filed against the order of black listing for one year only. In the circumstances, as it is the settled position of law that in case of black listing of a private company by the Government organization, a prior notice to show cause is sine qua non hence in the absence of the same, the order cannot be upheld. It is surprising that on one hand, the respondents have terminated the petitioner's contract by holding that he is restricted not to participate in any work for one year, whereas the appellate authority has imposed harsh penalty of two years and placed the petitioner in the black list for a period of two years, which is contrary not only to the principles of natural justice but is contrary to the various decisions of the Hon'ble Apex Court, hence the order of black listing of the petitioner for a period of two years is liable to be set aside.
9. In the result, the petition filed by the petitioner is partly allowed and the order dated 13.6.2017 so far as it relates to petitioner's black listing for a period of two years is concerned, the same is hereby quashed with a liberty to the respondents to issue proper show cause notice to the petitioner and proceed in accordance with law by giving an opportunity of hearing to the petitioner. No costs.
(Subobh Abhyankar) Judge 04/10/2017 Ansari