M/s. Rajlaxmi Construction vs State of Madhya Pradesh

Heard on the question of admission. The petitioner-firm has filed this writ petition under Article 226 of the Constitution of India for quashment of the show cause notice, (Ann. P-18), dated 21.1.2013, issued under Clause 33 of the alleged agreement dated 23.4.2008, (Ann. P-4) directing the petitioner to submit its explanation with a direction to submit an explanation within fifteen days with respect of the subject matter enumerated in the notice regarding breach of contract condition by the petitioner. In addition to it, the notice dated 8.11.2011, (Ann. P-19) issued by the respondent-authority whereby after considering the reply of the petitioner (Ann. P-19) of aforesaid show cause notice (Ann. P-18), it was intimated by the respondent - authority for taking the action and steps under Clause 33 of the aforesaid agreement has also been challenged.

Having heard the petitioner''s counsel at length, keeping in view his arguments, We have carefully gone through the papers annexed with the petition including aforesaid show cause notice, (Ann. P-18) and its reply, (Ann. P-19) as well as said intimation, Ann. P-20 along with the case law of the Full Bench of this Court cited by the petitioner''s counsel in the matter of B.B. Verma and Another and S.C. Batra and Another Vs. State of M.P. and Another, .

It is apparent fact that the petition has not filed this writ petition against any recovery order or the order whereby the petitioner has been directed to pay the sum with respect of losses or the damages suffered by the respondent-State on account of violation of terms and conditions of the agreement. In fact some show cause notice was issued by the respondent-authority regarding violation of some terms and conditions of the contract by the petitioner, in response to which objection was filed by the petitioner and considering the same, the intimation with respect of final action under Clause 33 of the Agreement, (Ann. P-4) was given to the petitioner. In such premises, the alleged notices have not been issued for any recovery of the sum and at present no such proceeding is pending against the petitioner.

In the aforesaid cited decision of Full Bench of this Court, it was decided that unless the contractor disputes regarding amount is decided by the Superintending Engineer or the Tribunal, the directed sum could not be recovered from the Contractor. So far the principle laid down in the cited case is concerned, there is no dispute. But on account of different facts of the cited case and the case at hand, the same is not helping the petitioner.

It is apparent from the agreement, (Ann. P-4) that on arising the a dispute relating to the contract to resolve the same, the petitioner has a remedy to approach under Clause 24 of the Contract to Dispute Redressal System and subject to order of the Authority of such System, on arising the occasion, the petitioner has a remedy to refer the matter for arbitration under Clause 25 of the same agreement, (Ann. P-4) and it is undisputed position that the petitioner has come to this court with this petition without exhausting the remedy of aforesaid Clauses 24 and 25 of the agreement. So in such premises, petition being prematured could neither be entertained nor decided on merits. Consequently, the same is hereby dismissed. However, before parting with the case, we observe that if any objection or the application of the petitioner with respect of the dispute raised in this petition is pending before the competent authority of Dispute Redressal System under Clause 24 of the agreement, then such authority is directed to decide the same on merits on some early date within the prescribed limitation in accordance with prescribed procedure of law. It is needless to say that subject to such order, on arising the occasion, the petitioner shall be at liberty to approach for arbitration under Clause 25 of the said agreement, (Ann. P-4).

It is also observed that on consideration of the respondent-authority comes to conclusion that sum with respect of the alleged dispute is to be recovered from the petitioner and the same is directed to be recovered before exhausting remedy of Dispute Redressal System as well as of the Arbitration as provided under Clauses 24 and 25 under the Agreement, (Ann. P-4), then the petitioner will be at liberty to approach the appropriate forum with appropriate proceeding to obtain appropriate order. The petition is dismissed with aforesaid direction, observation and liberty.