Gujarat High Court
Classic Network Private Limited vs State Of Gujarat & on 2 February, 2015
Bench: Vijay Manohar Sahai, R.P.Dholaria
C/SCA/2019/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 2019 of 2015
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CLASSIC NETWORK PRIVATE LIMITED....Petitioner(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR KG SUKHWANI, ADVOCATE for the Petitioner(s) No. 1
MR. PARTH BHATT, AGP, for the Respondent(s) No. 1
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CORAM: HONOURABLE THE ACTING CHIEF JUSTICE MR.
VIJAY MANOHAR SAHAI
and
HONOURABLE MR.JUSTICE R.P.DHOLARIA
Date : 02/02/2015
ORAL ORDER
(PER : HONOURABLE THE ACTING CHIEF JUSTICE MR. VIJAY MANOHAR SAHAI) We have heard learned advocate Mr. K.G. Sukhwani for the petitioner and learned AGP Mr. Parth Bhatt for the respondents.
2. The petitioner was awarded the contract for the work of widening and strengthening of Upleta - Kolki - Paneli - Jamjodhpur Road between Km. 0/0 to 26/0 under Taluka to Taluka Program by Agreement No. CE/B-2/53/2012-13.
3. The petitioner submits that the tender was accepted vide order dated 29.9.2012 and he submits that FDR of Rs. 85,79,300/- and Performance Bond of Rs. 1,71,58,600/- issued by Oriental Bank of Commerce, Rajkot, along with a letter dated 8.10.2012 were furnished. Work order was issued Page 1 of 3 C/SCA/2019/2015 ORDER to the petitioner on 24.12.2012 with stipulated period of 24 months to complete the work on or before 23.12.2014. The land on which the road was to be strengthened and widened was forest protected area and unless the Forest Department granted permission, the petitioner could not start the work of strengthening and widening of the road. This is clear from the letter dated 26.5.2013 filed as Annexure-E to the petition. The Executive Engineer, R & D Division, Rajkot, wrote a letter dated 9.5.2013 to the Deputy Conservator of Forest, Extension division, M.S. Building 5/3, Rajkot, by which proposal and documents were submitted to him as the tender work has been finalized to grant approval. This is clear from letter annexed as Annexre-F to the writ petition. The Executive Engineer again wrote a letter to the Deputy Forest Conservator, Social Forest Division, Rajkot, on 22.5.2015 annexed as Annexure-S to the writ petition wherein the reply to the queries made by the Deputy Forest Conservator was given and it was mentioned in this letter that due to non-clearance of forest Department, completion of work will be delayed for which financial liabilities will be increased and therefore, it was requested that further proceedings be completed meaning thereby that approval be granted. The Executive Engineer again wrote a letter on 1.10.2014 to the Deputy Forest Conservator stating that approval be granted so that construction work of road strengthening and widening can be started. However, it appears that no permission or approval was granted by the Forest Department and the petitioner's contract now came to end on 23.12.2014. Therefore, on 24.12.2014, the petitioner served a notice to the State Government as well as to the Executive Engineer to either provide him the possession of the land on which the road is to be strengthened and widened and Page 2 of 3 C/SCA/2019/2015 ORDER extend the period of construction along with suitable escalation in the price or refund the deposits made by the petitioner. It appears that on this no decision has been taken by the Executive Engineer nor any such communication has been given and the petitioner is under threat that since the contract period is over, the respondents may encash his bank guarantee as well as the FDR. In view of the peculiar facts of this case, we are of the opinion that the respondents cannot encash bank guarantee and the FDR as they have themselves not granted approval and have not provided the construction site to the petitioner. Therefore, non-performance of the contract by the petitioner, prima facie, appears to be due to the fault of the respondents. Therefore, the petitioner is entitled to interim relief.
4. Until further orders, the respondents are directed not to encash FDR No. 0128341 of Rs. 85,79,300/- issued by Oriental Bank of Commerce, Rajkot and Performance Bond of Rs. 1,71,58,600/- issued by Oriental Bank of Commerce, Rajkot, photo copies of which have been annexed at Annexure- B to the writ petition at page Nos. 19 and 20.
5. Learned AGP Mr. Parth Bhatt prays and is allowed one month's time to file counter affidavit and thereafter three weeks' time is granted to the petitioner to file reply. List on 24.3.2015.
Direct service today is permitted.
(V.M.SAHAI, ACJ.) (R.P.DHOLARIA,J.) (pkn) Page 3 of 3