Parties Name Smt. Surabhi Trivedi vs Pushkar Trivedi

In this petition filed under Article 226 of the Constitution of India, the petitioner has prayed for following relief:

"1. It is therefore most humbly prayed that the Hon''ble Court be kind enough to quash the order, Annexure P/1 and as a consequence Annexure P/2 with the direction to the respondents to restore the work of the petitioner and to provide vacant site and the way so to complete the work, in the interest of justice. 2. Any other relief which this Hon''ble Court deems fir and proper may also be granted, with cost of the petition, in the interest of justice."

Mr. Khan, learned counsel for the petitioner submits that by tender notice dated 19.08.2016, the petitioner was allotted the work of "Repairing of damaged Wharf Wall (East Side) at B.G. Siding under Newton Sub Area". The site was handed-over to the petitioner on 21.10.2016. The petitioner on 22.10.2016 sent the material on site, but since no vacant space in the site was available the material could not be dumped. The respondent issued reminder dated 24.10.2016 (Annexure-P/7) and instructed the petitioner to complete the work within stipulated time. The petitioner with great difficulty started work and completed it to the extent possible. The photographs showing the same are filed with the petition. By drawing attention of this Court to various letters written by the petitioner, Mr. Khan, learned counsel for the petitioner submits that respondents have erred in terminating the contract and imposing penalty/recovery. Mr. Khan, learned counsel for the petitioner further submits that delay in completion of work is solely attributable to the respondents. Since vacant site was not made available, the petitioner could not complete the work within stipulated time.

Per-contra, Mr. Kherdikar, learned counsel for the respondents placed reliance on the return and contended that the allegation that vacant site was not given is factually incorrect. By taking this Court to para 5.3, 5.5, 5.6, 5.7 & 5.8 of the return, it is submitted that the respondents have specifically denied that the vacant site was not provided to the petitioner. He further submits that since there was delay in completion of job, the respondents were left with no other option but to cancel the tender and issue a fresh tender because the Wharf Wall is important for dispatch of coal and for safety of workers employed in loading. Furthermore, it is averred that no penalty has been imposed upon the petitioner. Indeed, he was required to deposit additional performance security as agreed by him as per Annexure- R/2.

No other point has been pressed by the learned counsel for the parties.

I have heard the parties at length and perused the record.

In order to determine who is responsible for termination of contract, the basic factual issue needs to be determined is whether the vacant site was given to the petitioner by the other side or not. Putting it differently, the factual aspect relating to handing-over of vacant site is the basic issue which will have a bearing on the question whether the petitioner was responsible for delay in completion of work. As noticed, both the parties have taken diametrical opposite stand on this factual aspect. The petitioner contended that vacant land was not provided to him by the other side, whereas the respondents have denied the same and have taken a contrary stand. In my view this factual aspect cannot be decided in a writ petition. In 2015 (9) SCC 433 [State of Kerala & others vs. MK Jose], the Apex Court held that a writ court should not entertain a writ petition wherein there is breach of contract involving disputed questions of facts. In this view of the matter, I am not inclined to entertain this petition. The disputed question cannot be decided in the proceedings of this nature. Resultantly, this petition is dismissed. Liberty is reserved to the petitioner to avail the appropriate remedy for the present grievance.