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14. The reliance placed by the learned counsel for the petitioner on the judgment of the learned Single Judge in the case of M/s NCC Ltd . (supra) with reference to paragraph no.23 as with regard to maintainability of the writ application is primarily misconceived for two reasons. Firstly, the learned Single Judge in the case of M/s NCC Ltd. (supra) while referring to a judgment of the Apex Court in the case of M/s Popcorn Entertainment & anor. V. City Industrial Development Corporation & anor., reported in (2007)9 SCC 593, had not even taken into account the judgment of the Apex Court in the case of M/s Radhakrishna Agarwal (supra). As a matter of fact from reading of the judgment of M/s Popcorn Entertainment (supra) it would be very clear that the City Industrial Development Corporation (CIDC) had awarded the contract in question to M/s Popcorn Entertainment in exercise of a statutory power governed by the regulations framed while allotting the plot in question for developing it in to a multiplex cinema complex. Thus, the case of M/s Popcorn Entertainment (supra) would even otherwise be covered by the ratio laid down in the case of M/s Radhakrishna Agarwal (supra) where under three categories, a writ application arising out of a statutory contract has been held to be maintainable. This vital aspect having been not noticed by the learned Single Judge in the case of M/s NCC Ltd. (supra) would not be a binding precedent for me and has to be in fact held to be per incurium.

34. Having thus regard to the factual scenario of the present case this Court would not find that the ratio laid down by the learned Single Judge in the case of M/s NCC Ltd. (supra) can be made ipro facto applicable to the case of the petitioner. Here in the present case the show cause notice was issued whereas in the case of M/s NCC Ltd. (supra) the learned Single Judge has noted the submission in paragraph no.13 that the impugned order dated 18.10.2011 in the case of the petitioner NCC Ltd. was passed even without issuance of any show cause notice. Thus, whatever has been laid down as a law in the peculiar facts of M/s NCC Ltd. on account of non-issuance of show cause notice cannot be made applicable to the petitioner in whose case the show cause notice was issued and it is surprising that though the petitioner has received the impugned order on the same address as declared in the agreement as also all other communication it claims to have not received only the show cause notice which was again sent by the Engineer-in-Chief on the same declared address. This Court, therefore, cannot accept the plea of the impugned order being in violation of principles of natural justice.

(Underlining for emphasis)

36. The last of the submission of Mr. Vikas Kumar, learned counsel for the petitioner, that the department cannot itself take an action because it is a party to the agreement and the matter has to be referred to a neutral person for determining as to whether the petitioner had committed any breach of terms and conditions of the agreement has to be also noted for its being rejected. The reliance of the learned counsel for the petitioner to certain observations made in this regard in paragraph no.26 in the case of M/s NCC Ltd. (supra) seems to be wholly misplaced, inasmuch as the sweeping observation on the basis of a judgment of Apex Court in the case of M/s J.G.Engineers Private Ltd. v. Union of India & anor., reported in (2011)5 SCC 758, is too far wide and in fact not at all contextual. In the case of M/s J.G.Engineers Pvt. Ltd. (supra) the issue actually was with regard to correctness of an award of the arbitrator. The terms and conditions of the agreement were, therefore, pressed into action to examine as to whether the counter claim of the Union of India against the contractor M/s J.G.Engineer could be rejected by the arbitrator in view an unilateral decision of the authorities of the Union of India. Let it be noted that the arbitrator had held that the contractor had committed no delay and thus, was entitled to certain relief of payment of amount under the terms and conditions of the agreement as claimed by it in the arbitration proceeding but the High Court had reversed the decision of the arbitrator against which the contractor M/s J.G.Engineers had moved the Apex Court. It was in that context that certain observations were made with regard to unilateral decision taken by the department which were examined by the arbitrator and were found to be not correct. The said judgment of M/s J.G.Engineers Pvt. Ltd. (supra), therefore, is not an authority that in no case the department or the Government awarding contract can take its decision as also annul the contract on the ground of violation of terms and conditions of the contract and for each and every issue such decision has to be taken by a neutral person.

37. Such declaration made by this Court in the case of M/s N.C.C. (supra) would place the contractor on dictating terms because firstly it would default in completing work and then it would expect the department to refer the matter to a neutral person to adjudicate as to whether there was no fault on the part of the contractor. That, however, is not the ratio of the judgment of the case of M/s J.G.Engineer Pvt. Ltd. (supra) which in fact lays down the law only with regard to the grounds on which the award of the arbitrator can be interfered by the Court in exercise of power under section 34 of the Arbitration and Conciliation Act. Thus, whatever has been held by the learned Single Judge in the case of M/s NCC Ltd. (supra) on the basis of ratio laid down by the Apex Court in the case of M/s J.G.Engineers Pvt. Ltd. (supra) does not seem to be correct ennunciation of law.