M/s Arun Span Architect & Consultant Pvt. Ltd. vs State Of M.P And Ors

Vandana Kasrekar, J.

The petitioner has filed the present writ petition challenging the order passed by the respondent No.2 Chief Municipal Officer, Jaora whereby

cancelling the allotted tender work to the petitioner without awarding any opportunity of hearing to the petitioner.

The petitioner is a private limited company and is engaged in business of architect work and consultancy work in the government projects since year

2005. The respondent no.2 has published a notice inviting tender for some construction work. The petitioner being a bidder has submitted his bid for

the said tender. The petitioner was declared as successful in the said tender process accordingly he was informed about this fact by the respondent

no.2 on 12.06.2017 and a bid was expected at the value of Rs.8,59,000/-. The petitioner thereafter, completed other formality which are required for

the issuance of the work order. Thereafter, the respondent no.2 vide order dated 14.06.2017 has issued a work order in favour of the petitioner

through e-mail correspondence. The petitioner submits that on receiving the work order the equally consultancy and preparations of the Detail Project

Report (DPR) as the work was so allotted to the petitioner so the tender was initiated by the team of the petitioner company. Thereafter, various

correspondences has been made between the petitioner as well by the respondent no.2 in respect of the said tender. The petitioner has submitted the

Detailed Project Report (DPR), however, the Chief Medical Officer dated 14.03.2018 again pointed out the fact that the DPR was full of irregularities

and the DPR needs to be modified at the petitioner's end and threatens to revocation of the tender contract. Thereafter, a meeting was held between

the petitioner's representatives along with the Chief Engineers of the Nagar Parishad however, no modification was pointed out by the Chief Engineer.

The necessary corrections, modifications in the DPR has not been made by the petitioner, therefore the Chief Medical Officer, Jaora has issued an

order in the form of a letter dated 18.05.2018 cancelling the tender and revoking the contract in light of the Clause no.6 in Annexure P-12 tender

document stating that the petitioner is not complying with the directions issued by the Chief Engineer. The petitioner submits that the DPR was

prepared and submitted to MPP Jaora on 01.08.2017 and the same was approved by the respondent no.4 and was submitted to the office of Executive

Engineer, Ujjain. Therefore, the petitioner had issued a bill dated 01-0-2017 for 20% amount of total fees but Nagar Parishad Jaora has not paid the

amount till now in respect of the petitioner's remainder dated 23.01.2018 and 21.02.2018 and Nagar Parishad Jaora has not given any reason for non

payment of the above bill. As the amount has not been paid to the petitioner therefore, the petitioner has filed the present writ petition.

The respondent has filed reply and in the said reply the respondent has taken preliminary objection stating that the respondent no.2 invited the tender

for selection of consultant in a project for prevention of pollution and beautification of Piliya Khal, Jaora. Under such contract, the contractor has to

conduct a survey thereafter, prepare design, drawing, estimation and preparation of tender documents as well as necessary assistance during the

progress of work. Meaning thereby, by virtue of the tender the service contract has been executed. Such service contract is a work contract as per

amendment (published in the Gazzatte on 17.01.2017) made by legislature under Section 2(i) of Madhya Pradesh Madhyastham Abhikaran Adhiniyam,

1983. In view of the said amended definition under the adhiniyam it is clear that work contract or any dispute arises out of the work contract has to be

referred before the Madhyastham Abhikaran constituted under Madhyastham Abhikaran Adhiniyam,1983 and therefore, this Hon'ble Court has no

jurisdiction to interfere in the present petition and petition deserves to be dismissed. The Full Bench of this Court in the matter of VIVA HIGHWAYS

LTD. V/S MPRDC AIR 2017 MP 103 (FB) nad held that aggrieved party at works contract may refers its dispute in writing to the Tribunal

irrespective of facts whether exist any agreement between parties which contain arbitration or not. The respondent has also relied on the judgment

passed by the Apex Court in the matter of MPRRDA V/S L.G.CHOUDHARY reported in 2018 SCC ONLINE 407 and Full Bench of this Court in

matter of GOURIE GANESH V/S EXECUTIVE ENGINEER PWD AC 40/16 ORDER DATED 03.05.2018 reported in 2018 Volume-III MPLJ

163.

Without prejudice to the foregoing submissions the respondent no.2 further respectfully submits that the clause no.4 of the condition of the contract

specifically provides that all disputes relating to the assignment of such consultancy work shall be referred to the Engineer in Chief. In the present

case, the dispute has not been referred to the Engineer in Chief and they directly approach to this Court under Article 226 of the Constitution of India,

therefore, for want of alternate remedy, this writ petition is not maintainable.

So far as the merit of the case are concerned the respondent has stated that the petitioner has not carried any modification or rectification in the DPR

instead of repeating asking by the Chief Engineer, therefore the present action has been taken by the respondent after taking the due submissions.

Heard learned counsel for the parties and perused the record.

In the present case, NIT was published by the respondent no.2 inviting the offer for selection of consultant Jaora project for prevention of pollution

and beautification of Piliya Khal Jaora. The petitioner being eligible has submitted his tender and by letter dated 12.06.2017 his tender was accepted

and he was directed to execute the contract. The petitioner submits that as per the petitioner the agreement was executed and thereafter he submitted

the Detailed Project Report (DPR). The petitioner further submits that as per the requirement of the respondent he modified the DPR and no further

directions has been given for modification and without any notice the contract has been terminated by impugned order dated 18.05.2018. The

petitioner has claimed the relief for cancellation of the termination order as well as the cancellation of subsequent tender.

The respondent has raised the preliminary objection that the work allotted to the petitioner has come under the definition of work contract as per the

amendment (published in the Gazzatte vide dated 17.01.2017) made by legislature under Section 2(i) of M.P. Madhyastham Abhikaran Adhiniyam,

1983 and as the work allotted to the petitioner falls under the definition of the work's contract, therefore, as per the clause 4 of the said tender

document any dispute arises between the parties in relation to the work contract that dispute has to be referred to the tribunal. This Court also in Full

Bench as well as the Division Bench of this Court has held that aggrieved party of work contract may refer the dispute in writing to the tribunal in

respective of the fact whether exist any agreement between the parties which contain arbitration clause or not. Thus, as per the judgments although

arbitrational clause does not exist in the agreement then also the parties are required to refer the dispute to the tribunal.

Thus, in light of the aforesaid submissions made by the learned counsel for the respondent, I also found that the petitioner has the alternate remedy to

their raised their dispute before the tribunal MP Madhyastham Abhikaran as the work awarded to the petitioner falls under the definition of work

contract. Therefore, the petition filed by the petitioner is dismissed on the ground of availability of the alternate remedy.

Certified copy as per rules.