Madhya Pradesh High Court
M/S S. Singh And Company vs The State Of Madhya Pradesh on 18 September, 2014
Author: Anil Sharma
Bench: Anil Sharma
1 WP.No.12665/2014
HIGH COURT OF MADHYA PRADESH : JABALPUR
DB: HON'BLE SHRI JUSTICE RAJENDRA MENON &
HON'BLE SHRI JUSTICE ANIL SHARMA, JJ.
Writ Petition No. 12665 / 2014
M/s. S. Singh & Company
-Vs-
State of Madhya Pradesh & others
-----------------------------------------------------------------------------------------------
Shri Abhishek Arjaria, learned counsel for the petitioner.
Shri Rahul Jain, learned Dy. Advocate General for the
respondents / State on advance notice.
-----------------------------------------------------------------------------------------------
ORDER
(18/09/2014) Challenging order dated 30/6/2014 passed by the appellate authority and original order dated 13.11.2013 passed by the Chief Engineer / respondent no. 3 in the matter of suspending the registration of petitioner as contractor with the State Government for a period of one year, this writ petition has been filed.
2. The petitioner is a registered contractor with the Public Works Department and has been granted registration under category B-Civil. A contract was entered into between the petitioner and the State government on 8.5.2012 for the purpose of executing a work pertaining to construction of Samnapur Tank Scheme Unit-II. The work consisted of earth work for a canal construction (VRB, CD) and various other construction activities as are detailed in para 5.2 of the writ petition. As the contract which was executed on 8.5.2012, the schedule for conclusion of the contract was 12 calendar months including rainy season. According to the petitioner, stipulated day for completion of work was 28.5.2013 and drawings and designs for the contract to be 2 WP.No.12665/2014 done was supplied to the petitioner only on 24.5.2013 i.e. four days before conclusion of the 12 months, as such the petitioner could not conclude the work in time. The petitioner seems to have submitted application for extension of contract but it was not allowed, instead after issuing notice, the contract was rescinding on 4.7.2013.
3. Petitioner challenged rescinding of the contract in a writ petition before this court i.e. W.P.No.11147/2013, a Division Bench of this court on 17.9.2013 refused to interfere into the matter on account of availability of a remedy for arbitration before the M.P. Madhyastham Adhikaran Adhiniyam. Accordingly, it is said that the matter has been now referred to the said Arbitration Tribunal and in reference petition no. 131/2013, the question of cancellation of the contract and various other claims made by the petitioner are pending. After cancellation of the contract, on 22.10.2013 a show cause notice was given to the petitioner asking him to show cause as to why his licence / registration should not be cancelled / suspended for a period of one year for non- performance of the work as per the contract.
4. The petitioner submitted his reply to the same on 6.11.2013 and vide order dated 13.11.2013 when the registration was suspended for a period of one year, the petitioner approached this court by filing a writ petition being W.P.No.3594/2014 and this court vide order Annexure- P/33 on 22.4.2014 found that after the contract was cancelled, the petitioner had filed an appeal and as the appellate authority vide order dated 1.2.2014 dismissed the appeal without application of mind and without passing a speaking order, the said appellate order was quashed and the matter was remanded back for deciding the appeal afresh in 3 WP.No.12665/2014 accordance with law by a detailed speaking order. The same having been done now vide Annexure-P/34 dated 30.6.2014 the petitioner is again before this Court challenging the appellate order. Shri Abhishek Arjaria, learned counsel took us through the show cause notice issued to the petitioner, the reply and the documents submitted by the petitioner to emphasize that the complete set of drawing was given to the petitioner only vide Annexure-P/15 dated 20.5.2013 and without considering his request made and reminders sent vide Annexures-P/8, P/9, P/10 & P/11, action undertaken to cancel the registration for a period of one year is nothing but an arbitrary decision. The contention of the petitioner is that to commence the work providing of the maps and drawings just 4 days before the period of 12 months was not proper, it is said that this action of the respondents is arbitrary. It is further argued that in the matter due to non-availability of the land also commencement of the work was not possible as compensation under the land acquisition was not given, this was also a cause for the delay. Submitting all these factors which was highlighted by the petitioner in his reply to show cause and in the appeal, this writ petition is filed and Shri Arjaria learned counsel for the petitioner based on the aforesaid tried to emphasize that the appeal has been rejected without due consideration and the matter be now interfered with.
5. Shri Rahul Jain, learned Dy. Advocate General inviting our attention to the considerations made by the appellate authority in para 1 and 2 of the impugned order Annexure-P/34, pointed out that the appellate authority has clearly indicated that adequate land for starting the work was available. On inspection it was found that in the spot in 4 WP.No.12665/2014 question there was no agitation nor any complaint was made to any authority including the police authority in the matter of non-availability of land due to obstruction by land owners. Referring to para 2 of the impugned order, Shri Rahul Jain, learned Dy. Advocate General points out that on 23.6.2012 drawings were supplied to the petitioner and thereafter, on various other dates i.e. 26.6.2012, 4.10.2012, 11.10.2012, 20.10.2012, 26.11.2012, 29.11. 2012, 20.12.2012 and 15.3.2013 also various drawings and layout, more than 16 in number were given to the petitioner and inspite of the same, the petitioner did not commence the work or did the work even in accordance with the drawings and sketches as were granted, it is pointed out that all these facts have been taken note of and the order was passed suspending the registration of the petitioner, therefore, now no further indulgence into a proceeding under Article 226 of the Constitution can be made by this court.
6. We have heard learned counsel for the parties and perused the record.
7. In the matter of black listing or suspending the registration of a contractor, a writ court exercising jurisdiction under Article 226 of the Constitution has a very limited role to play. It is only to be seen as to whether proper opportunity of hearing before taking the impugned action is granted and the requirement of the principles of natural justice followed. What is subjected to judicial review in such cases is only the decision making process and not the decision itself. Judicial review in such cases is limited to extent to see as to whether the decision taken is so perverse or arbitrary in nature that the Wednesbury theory of 5 WP.No.12665/2014 reasonableness get attracted. That being the limited scope of review, we propose to consider the matter in the light of the legal principle as indicated hereinabove.
8. If the contentions advanced by the petitioner are taken note of it would be seen that there main contention is that designs and drawings were only granted vide Annexure-P/15 dated 20.5.2013 i.e. just a 9 days prior to the date of completion. It is said that the work order was issued on 29.05.2012 and the work was to be completed on 28.5.2013. It is accordingly tried to be emphasized that complete drawings and designs were only given 4 days before conclusion of the period of 12 months. However, if the findings recorded by the appellate authority and the material available on record are perused, it would be seen that from 23.6.2012 upto 15.3.2013 on various dates more than 16 sketches and drawings were supplied and the petitioner was to commence part of the work with regard to these sketches and drawings granted to the petitioner. On inspection it was found that against the 16 sketches, drawings and layout granted, only 7 number of work based on the sketches granted were completed, 4 were incomplete and in remaining 5 even initiation of work had not progressed. The authorities have found that it was not necessary to give complete drawings for commencement of the work. Commencement of the work could be done even based on the 16 sketches granted and even for these 16 sketches granted during the period in question between 23.6.2012 till the date of taking action, only 7 work were concluded, 4 were incomplete and in 5 even the initial work had not commenced. These aspects were taken note of by the appellate authority to come to a 6 WP.No.12665/2014 conclusion that the petitioner is unable to complete the work within the period fixed in the contract.
9. As far as second ground with regard to handing over site after land acquisition and payment of compensation is concerned, it is found that upto 27.5.2012, 1.6.2012, 8.6.2012, 25.12.2012 more than 8000 to 11310 running meters of area were made available, layout for the same was also provided. There was no complaint either to the department or the police authority with regard to any obstruction by the agriculturists with regard to this area and authorities found that when 8000 to 11310 running meters were made available and no work was started, the complaint of the petitioner that delay is caused due to availability of land is found to be unsustainable. If the reasonings given by the authorities as are indicated in the order, particularly the appellate authority as indicated above, is taken note of, we find that contention of the petitioner as is made out in the writ petition to say that the drawings were made available to him only 4 days prior to the period of 12 months, therefore the work could not be completed seems to be incorrect. On the contrary, departmental submissions and the findings of the appellate authority go to show that adequate land, maps and drawings were provided to the petitioner and even this work was not satisfactorily concluded. This being the reasons which have come on record, we are of the considered view that this is not a fit case where we can take a different view and interfere. We see no error apparent on the face of record in the order of the appellate authority on the decision taken by the department. In this case the requirement of the principles of natural justice has been followed and based on material available a 7 WP.No.12665/2014 reasonable decision has been taken which cannot be termed as perverse to the extent that a prudent man approach is not undertaken, the respondents have considered the matter in accordance with requirement of law and now, we see no ground to interfere into the matter. That apart, the question involved in the matter with regard to making available the land and the drawings is also a disputed question of fact which cannot be adjudicated by us in these proceedings. Ultimately, if the Arbitration Tribunal where the dispute is sub-judice comes to a conclusion and gives a finding that termination of contract was illegal, the petitioner can always claim damages.
10. Accordingly, for the present, finding no case for interference, this petition is dismissed.
(Rajendra Menon) (Anil Sharma)
Judge Judge
Parouha/-