Chattisgarh High Court
Bhagya Rao vs State Of Chhattisgarh on 4 November, 2024
Author: Ramesh Sinha
Bench: Ramesh Sinha
1/5
2024:CGHC:42615-DB
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
WPC No. 5438 of 2024
1 - Bhagya Rao S/o Gajendra Rao Aged About 50 Years H.No. 00, Res Colony,
Bijapur, Bijapur, Chhattisgarh
... Petitioner
versus
1 - State Of Chhattisgarh Through Ist Secretary, Department Of Police Works
Department Mantralaya, Raipur, District Raipur, Chhattisgarh.
2 - The Chief Engineer Pwd Bastar Zone Jagdalpur, District Bastar.
3 - The Suprintending Engineer Pwd, Bastar Circle, Jagdalpur, District Bastar.
4 - The Executive Engineer Pwd (B And R) West Bastar Division Bijapur,
District Bijapur.
5 - The Sub Divisional Officer Pwd, Sub Division, Madded, Bijapur, District
Bijapur.
... Respondents
For Petitioner : Mr. Vikram Sharma, Advocate For Res./State : Mr. Prafull N. Bharat, Advocate General along with Mr. Shashank Thakur, Deputy Advocate General Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Bibhu Datta Guru, Judge Order on Board Per Ramesh Sinha, Chief Justice 04/11/2024
1. The petitioner in the instant petition has prayed for the following reliefs: 2/5
"10.1 the Hon'ble Court may kindly be pleased to direct the respondent authorities to quash the impugned order dated 03.09.2024, declaring it illegal, arbitrary, and in violation of the principles of natural justice.
10.2 The Hon'ble Court may also direct the respondent authorities Direct the respondents to allow the petitioner to complete the remaining work in accordance with the original contract terms, specifically allowing work to resume post-monsoon season. 10.3 The Hon'ble Court may kindly be pleased to issue the appropriate writ to set aside the fresh tender dated 30.09.2024 so far as it relates to the petitioner work shown at S.No. 8 of the impugned Fresh NIT dated 30.09.2024 (Annexure P/10). 10.4 Cost of the petition may also be granted to the petitioner. 10.5. Any other relief which this Hon'ble Court deems fit and proper may also kindly be granted to the petitioner, in the interest of justice."
2. Facts of the case is that the petitioner was awarded the work for Construction of widening to two lane and Improvement of Road and Culverts of Bijapur-Modakpal-Tarlaguda Road in km 29.00 to 31.00 = 3.00 km under L.W.E Scheme (Left Wing Extremism) agreement has been terminated by invoking Clause of 3(1) of the contract agreement without following the due procedure, in spite of the fact that there remains for completion the time till 30.11.2024. It is pleaded that the petitioner has been awarded with the aforesaid construction work for an amount of Rs 484.07 Lakhs under L.W.E Scheme. Though the work was awarded to the petitioner firm on 07.10.2016 and estimated time period allotted for the completion was 8 months excluding rainy season. However, for the reason of non- availability of the adequate security measures of the Police Force, as the site where the work needs to be performed is highly affected by Naxal Activity and without there being any appropriate protection of police force, it is impossible to carry out the construction work, the progress of the work got delayed. During the currency of agreement itself the scope of work has been increased, by sanctioning of Revised Estimate dated 25.01.2023, and the amount of the same was 3/5 increased from Rs 484.07 Lacs to Rs 792.26 Lakhs. However, the time was not extended for carrying out the same. Till date the work to tune of Rs 595.15 Lakhs was completed and only the balance work of Rs 197.11 Lakhs is remaining to be carried out, which could not be carried out, because of rainy season from 16 of June to 15th of October. The petitioner was awarded with the extension of time till 30.11.2024 however during this period, the work could not be completed because of the unprecedented rains and due to the non-transportation of required materials, because of the Blockage of the Roads by the other contractors, as the site which was allotted to the petitioner falls in the middle of the total stretch of 10Kms. Nonetheless, from 16.06.2024 there was a rainy season, and petitioner waited for the completion of the rainy season for carrying out the remaining work, as the same cannot be carried out during rainy season, and can only be carried out after 15.10.2024. However, on 12.08.2024, the petitioner was issued with Show Cause Notice asking the petitioner to show cause, within the period of 15 days as to why the above mentioned contract should not be terminated. On perusal of show cause notice, it appears that the petitioner has show caused on the ground of Fundamental Breach of Contract for very slow progress in work. The show cause notice was issued in between the currency of the rainy season and since the work which remains to be carried out is of only laying of the Bitumen, which cannot be carried out in the rainy season. Therefore, the petitioner replied to the said show cause notice within the stipulated time period of 15 days and has apprised the said fact to the respondent authorities by a letter dated 27.08.24 and requested the Respondent Authorities to revoke the Show Cause Notice and to allow the petitioner to carry out the Bitumen work after completion of rainy season till 31.12.2024. Further 4/5 that without adhering to the fact that there still exists a time till 30.11.2024 the Executive Engineer has terminated the work of petitioner by issuing Impugned Order dated 03.09.2024. It is further pleaded that the Impugned Order dated 03.09.2024 was passed in complete violation of the Terms and Conditions of Contract and by perusal of the Impugned Order dated 03.09.2024 it appears that the same has been passed under Clause 3 (2), (a), (c), (d), (e) of Clause 3 of the Contract Agreement. However, the show cause notice was only issued with the reason that the petitioner has committed fundamental breach of Contract because of slow progress of work. Thereby, the Impugned Order was passed beyond the facts of show cause notice, which in itself amount to gross violation of Principle of Natural Justice and for this reason alone, the Impugned Order dated 03.09.2024 deserve to be dismissed and set aside. After passing Impugned Order dated 03.09.2024 the department has floated a fresh tender on 30.09.2024 for re-tendering the balance work, and the last date of submission of bid is shown to be as 21.10.2024.
3. Learned counsel for the petitioner submits that by the order dated 14.06.2024, the petitioner has been granted extension to complete the work till 30/11/2024. Hence, in spite of said extension, the impugned order terminating contract has been passed.
4. Learned counsel for the State submits that six times extension has been granted to the petitioner for completion of the work, however, till date he fails to do so.
5. In the interest of justice as the petitioner has expended so much time and money in the work which was granted to him vide order dated 07.10.2016, we deem it appropriate to allow him to complete the work till 30.11.2024 which was granted to him and modify the tender mentioned 5/5 at serial No. 8 dated 30/09/2024 to the extent that the petitioner would complete the allotted work to him of tender for 29 to 31 kilometers only within the said extended period.
6. With the above modification, in the tender notice dated 30.09.2024, the writ petition is disposed of.
SD/- SD/-
(Bibhu Datta Guru) (Ramesh Sinha)
Judge Chief Justice
amita
Digitally signed
by AMITA
DUBEY
Date: 2024.11.05
15:26:30 +0530