Madhya Pradesh High Court
Feedback Infra Pvt. Ltd. Through Its ... vs M.P. Paschim Kshetra Vidyut Vitaran Co. ... on 10 February, 2023
Author: Sushrut Arvind Dharmadhikari
Bench: Sushrut Arvind Dharmadhikari, Prakash Chandra Gupta
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE SUSHRUT ARVIND DHARMADHIKARI
&
HON'BLE SHRI JUSTICE PRAKASH CHANDRA GUPTA
ON THE 10 th OF FEBRUARY, 2023
WRIT PETITION No. 3526 of 2023
BETWEEN:-
FEEDBACK INFRA PVT. LTD. THROUGH ITS
AUTHORIZED SIGNATORY ANURAG RAIZADA S/O SHRI
ANIL KUMAR RAIZADA, AGED ABOUT 43 YEARS, 311,
3RD FLOOR, VARDHMAN PLAZA, PLOT NO.6, SECTOR-
12, DWARKA, NEW DELHI (DELHI)
.....PETITIONER
(SHRI VINAY SARAF, LEARNED SENIOR COUNSEL WITH SHRI R.S.
RAGHUWANSHI, LEARNED COUNSEL FOR THE PETITIONER)
AND
1. M.P. PASCHIM KSHETRA VIDYUT VITARAN CO.
LTD. MANAGING DIRECTOR GPH COMPOUND,
POLO GROUND, INDORE (MADHYA PRADESH)
2. M.P. PASCHIM KSHETRA VIDYUT VITARAN CO.
LTD. THROUGH ITS PROJECT DIRECTOR (RDSS)
HAVING OFFICE AT GPH COMPOUND, POLO
GROUND, INDORE (MADHYA PRADESH)
.....RESPONDENTS
(SHRI PRASANNA PRASAD, LEARNED COUNSEL FOR THE
RESPONDENTS)
This petition coming on for admission this day, JUSTICE SUSHRUT
ARVIND DHARMADHIKARI passed the following:
ORDER
Heard on the question of admission and interim relief.
In this writ petition under Article 226 of the Constitution of India, the petitioner is challenging the impugned order dated 22.11.2022(Annexure-P/1) Signature Not Verified Signed by: PREETHA NAIR Signing time: 2/13/2023 7:36:06 PM 2 whereby the respondent No.2 has terminated the award of Consultancy Services Agreement dated 29.09.2022(Annexure-P/1) whereby the respondent No.2 has terminated the award of Consultancy Services Agreement dated 29.09.2022.
Learned counsel for the petitioner submitted that in pursuance to the proposal dated 25.03.2022 for inviting proposals for providing Consultancy Services for assisting and supporting in Project Management and Monitoring and Supervision of quality of works (PMA) to the respondents under "Revamped Reforms-Linked Results-Based Distribution Sector Scheme". The petitioner was awarded the contract for the aforesaid work. The respondent No.2 has passed the order of termination of contract without following the principal of natural justice.
In fact the petitioner had fulfilled all its obligation under the contract by providing the requisite Key Experts and Non-Key Experts for the project and also a slight delay in providing the Contract Performance Security(CPS), the contract has been terminated. A proper explanation to the show cause notice was given by the petitioner explaining the slight delay in performance of CPS in original as well as deployment of Engineers/Staff was sent to the respondents. However, the impugned order of termination of the award was passed which is without jurisdiction and has been passed in colourable exercise of power.
At this stage, learned counsel for the Caveator has opposed the prayer vehemently and submitted that as per the conditions of contract, Clause-53 provides for dispute resolution which states as under :-
53.1 Any dispute between the Parties arising under or related to this Contract that cannot be settled amicably may be referred to by either Party to conciliation/adjudication/arbitration in accordance with the provisions specified in the SCC. However, in case of any dispute Signature Not Verified Signed by: PREETHA NAIR Signing time: 2/13/2023 7:36:06 PM 3 among CPSEs & Govt. Department, it may be settled as per DPE Guideline on Resolution of Dispute, dated 21.02.2020."
The petitioner has not availed the statutory alternative remedy and the petition involves disputed questions of facts, the same cannot be gone into by this Court and, therefore, the petition deserves to dismissed on the ground of maintainability.
Learned counsel for the respondents relied on the judgment of this Court in W.P. No.5636/2016(Meil Kepco Vs. MPPKVVCL and others) decided on 03.10.2016 in which it has been laid down that in case there is an arbitration clause in the agreement, the petitioner may raise a dispute by invoking the arbitration clause. Therefore, the petition is not maintainable. Learned counsel further relied on the judgment of the Apex Court in the case of Smt. Rukmanibai Gupta Vs. Collector, Jabalpur & Ors.[(1980 4 SCC 556] wherein it has been held that The Arbitration Act, 1940 is a self-contained and exhaustive code and when there is the arbitration clause, the writ jurisdiction under Article 226 of the Constitution of India should not be invoked. In the case of National Highways Authority Vs. Ganga Enterprises [(2003) 7 SCC 410], it has been held that the dispute relating to contract cannot be agitated under Article 226 of the Constitution of India.
In reply to the aforesaid, learned counsel for the petitioner contended that when a notice is issued without pre-meditation, a writ petition would be maintainable. Learned counsel relied on the judgment of the Apex Court in the case of Siemens Ltd. Vs. State of Maharashtra & Ors.[(2006) 12 SCC 33] in which it is held that .... in the instant case, the statutory authority already forming an opinion regarding liability of the appellant and the only question of quantification thereof remaining, the same will not remain in the realm of show-
Signature Not Verified Signed by: PREETHA NAIR Signing time: 2/13/2023 7:36:06 PM 4cause notice. Hence, held that the writ petition was maintainable, therefore, the impugned judgment was set aside and remitted the matter to the High Court for re-consideration. In the case of Pratham National Security Vs. Union of India and Others reported in [(2022) 1 MPLJ 547] it is held that :
6. In case of availability of alternate remedy, the High Court, normally should not entertain a petition under Article 226 of the Constitution. However, there is no complete bar in exercising such a plenary power in exceptional circumstances when High Court finds that the action of the State or its instrumentality is arbitrary, unreasonable and violative of Article 14 of the Constitution, the High Court has jurisdiction to intervene in exercise of its power conferred under Article 226 of the Constitution, regardless of the existence of other remedies(See : Uttar Pradesh Power Transmission Corporation Ltd. v. C.G. Power and Industrial Solutions Ltd., Union of India v. Tantia Construction Pvt. Ltd.).
Learned counsel also relied on the judgment of the Coordinate Bench in the case of Rajkamal Builders Pvt. Ltd. Vs. State of M.P. Ors.[2016(1) M.P.L.J. 373].
Learned counsel for the petitioner contended that the respondents with pre-determined mind issued the show cause notice dated 11.11.2022 with the rider to submit the reply within a period of seven days. The notice of termination was sent to the petitioner through e-mail on 15.11.2022 as also through the Registered Post of which acknowledgment shows that the same was dispatched on 15.11.2022. Meaning thereby, even without waiting for seven days to file the reply, the impugned order has been passed. Even a caveat application which was filed on 17.01.2023 was before expiry of seven days notice period, it is mentioned that the Company has terminated the award of Consultancy Services which goes to show that the contract has been illegally terminated. The petitioner Company has stepped in to correct such injustice. Injustice, whenever and wherever it takes place, has to be struck down as an anathema to the rule of law and the provisions of the Constitution. Hence, this Signature Not Verified Signed by: PREETHA NAIR Signing time: 2/13/2023 7:36:06 PM 5 Court has no hesitation to hold that the alternative remedy is not an absolute bar to invocation of writ jurisdiction of this Court.
Reply be filed by the respondents within a period of four weeks. In the meanwhile, as an interim measure, the respondents are stopped from encashing the original Contract Performance Security(CPS) submitted by the petitioner till the next date of hearing.
The award of fresh contract, if any, shall remain subject to final outcome of this writ petition.
List this case in the week commencing 13.03.2023.
(S. A. DHARMADHIKARI) (PRAKASH CHANDRA GUPTA)
JUDGE JUDGE
pn
Signature Not Verified
Signed by: PREETHA NAIR
Signing time: 2/13/2023
7:36:06 PM