B.M.S. Associates, Jamshedpur vs The State of Jharkhand and Others

Aparesh Kumar Singh, J.—Heard counsel for the parties. The petitioner is aggrieved because the agreement executed with him on 07.1.2006 being Agreement no. 16-F2 of 2005-06 has been terminated and the respondents have forfeited the security deposit and earnest money without any show cause or notice.

According to the petitioner, he had participated in a tender notice bearing N.I.T. no. 5 of 2005-06 for carrying out certain works in relation to Chandil left main canal of Swarnrekha for protection work of upstream and downstream slopes of structure at Kilometers 13.75 vide Annexure-1-N.I.T. Counsel for the petitioner submits that the petitioner was allotted the said work and agreement was also executed vide Agreement no. 16-F2 of 2005-06 but the work could not be executed for some practical difficulties, which were pointed out before the Superintending Engineer, Swarnrekha Canal Circle, Jamshedpur vide letter dated 12.1.2008, contained at Annexure-6 and the petitioner also represented before the Executive Engineer, Swarnrekha Canal Circle, Gangudih for modification of the design in order to ensure completion of rest of the work. However, the impugned order has been passed as contained at Annexure-9 dated 28.6.2012 apparently, without any show cause or notice, which is unsustainable in law.

Counsel for the respondent-State on the other hand submits that mere perusal of the impugned order passed by the Executive Engineer, Swarnrekha Canal Circle, Gangudih, Jamshedpur would show that the petitioner was allotted the said work in February, 2006 and required to be executed as per the N.I.T. no. 5 of 2005-06 in a maximum period of two months as would appear from Annexure-1 also, where the work in question is indicated at serial no. 6. However, the petitioner did not initiate the work and thereupon he was given notice vide letter no. 533 dated 01.06.2012. When the petitioner did not appear, a press notice by paper publication was made in Hindi Daily ''Prabhat Khabar'' on 10.6.2012 indicating that the respondents- authorities would undertake the final measurement of the work and thereafter the final measurements of the work were undertaken on 14.6.2012 in the presence of the representative of the contractor-petitioner. Thereafter invoking the provisions of agreement contained in Clause 2 and 3 dated 11.2.2006, a decision has been taken to terminate the agreement in question as the petitioner has failed to carry out the works as per the agreement in time stipulated therein.

Counsel for the respondents, therefore, submits that the petitioner had full knowledge of these notices and the publications made in the Newspaper and he has obligation to execute the work within a time specified under the agreement and the N.I.T., which is related to construction of protection work of the Chandil left main canal of Swarnrekha to be executed within two months. Since 2006 to 2012, the petitioner has failed to execute the said work. Moreover, these questions are within the domain of contractual rights of the rival parties, which can be properly agitated before the appropriate forum for determination on question of facts and the fault of either of the parties can be duly adjudicated by the parties. Therefore, the impugned order is wholly just and proper and need not to be interfered in the discretionary writ jurisdiction.

I have heard counsel for the parties and have gone through the relevant materials on record.

The petitioner was awarded a work under the N.I.T. contained at Annexure-1 bearing no. 05 of 2005-06 for certain protection work in the Chandil left main Canal at 13.75 Kilometers, which was to be executed within a period of two months under the estimated value of Rs. 13.10 Lacs. The petitioner got the agreement executed in his favour in February, 2006 itself and even after six years, the petitioner has not completed the work properly as per the terms of the agreement. The respondents have issued notice vide letter no. 533 dated 1.6.2012 upon the petitioner for taking final measurements and upon no response being shown from him, a paper publication was also made on 10.6.2012 whereafter the final measurements were taken on 14.6.2012. Invoking the terms of the agreement, the respondents have cancelled the agreement executed with the petitioner by the impugned order and decided to forfeit the security deposit as well as the earnest money.

In these facts and circumstances, this Court is not inclined to exercise the powers of discretionary writ jurisdiction in the instant writ petition, where the rights of the rival parties are governed by the terms and conditions of the agreement, which they have consciously entered into. However, the petitioner, at this stage, can not be allowed to say that the execution of the work has not been done within the specified time due to certain practical difficulties, as it is the requirement while participating in any such tender to get acquainted by site conditions before offering the bid.

Be that as it may, the petitioner may have alternative remedy to approach before the appropriate forum where such questions arising out of the contractual rights and reciprocal promises of the rival parties can be determined. In that view of the matter, this writ petition is, accordingly, dismissed.