Sasi Road Finishers and Engineering Constructions vs The Divisional Engineer and The Superintending Engineer

P.R. Shivakumar, J.—This writ petition has been filed in the name of Sasi Road Finishers and Engineering Constructions represented by its

authorized representative against the respondents, praying for the issue of a writ of certiorarified mandamus or any other appropriate writ or order

or direction in the nature of writ, calling for the records relating to the order of the first respondent made in his Proceedings No. Sa.4897/06/A6

dated 11.02.2006 and quash the same and to direct the respondents to foreclose the contract and refund the amount deposited by the petitioner

along with interest. One S. Muneer, Son of Abdul Sukkur, claiming to be the authorized representative of the above said concern, has chosen to

swear the affidavit on behalf of Sasi Road Finishers and Engineering Constructions figuring as the petitioner in the writ petition. Nothing has been

mentioned either in the cause title or in the affidavit filed in support of the writ petition regarding the nature of the constitution of the concern shown

as the petitioner in the writ petition. It is not known whether it is an incorporated company or a partnership firm or a proprietary concern. It is also

not known as to how the deponent of the affidavit came to be appointed/recognized as the authorized representative of the business concern

shown as the petitioner. The affidavit is also signed by the said Muneer with the following descriptions:

Sasi Road Finishers and Engineering Constructions

Sd/-

Authorized signature

It has not been stated anywhere in the affidavit as to how was he authorized and what is the document by which he was authorized to sign on

behalf of the above said Sasi Road Finishers and Engineering Constructions and no document has been produced to show how the deponent

Muneer is entitled to act as the authorized representative of Sasi Road Finishers and Engineering Constructions. With the above said preliminary

observations let us move to the other aspects of the case.

Admittedly, Sasi Road Finishers and Engineering Constructions, Mathigone Pallayam, Dharmapuri District was awarded the contract of

widening and strengthening of Singaperumal Koil-Sriperumbudur-Tiruvallur-Redhills Road between 56/2-60/2 kms. It was also claimed by the

respondents that the work was entrusted to the above said concern, which figures as the writ petitioner, on 28.02.2006. It is also not in dispute

that as per the contract, the parties agreed that the widening and strengthening of the road in that stretch should be completed within nine months

i.e., on or before 27.11.2006. However, Sasi Road Finishers and Engineering Constructions did not complete the above said work as per the

terms of the contract and in fact, the contractor did not even start the work despite several reminders. Ultimately, by the impugned proceedings of

the first respondent in Sa.4897/06/A6 dated 11.02.2006, the contract was cancelled and Rs. 3,73,000/- deposited by the contractor as Earnest

Money Deposit was forfeited. In addition, it was also informed that the work of widening and strengthening of the above said stretch of the road

would be entrusted to another contractor and any additional expenditure that might be incurred by the Department would be recovered from the

petitioner. The said order of the second respondent is impugned in the present writ petition and it has been prayed that the said order shall be

quashed and the respondents shall be directed to foreclose the agreement and refund the amount paid by the said contractor as Earnest Money

Deposit with interest. The above said prayer has been made on the premise that though the contract in writing was entered into incorporating a

clause that the contract should be completed in a phased manner within a period of 9 months from the date of commencement of the contract, the

contract period did not commence as the site for the work was not handed over to the contractor free from encumbrances/obstructions as

contemplated under the preliminary Specification to Standard Specification on Roads and Bridges in Form 1-9. The petitioner also cited the

following reasons as the failure to commence the work:

i) The Election Code of conduct came into force on 01.03.2006 in view of the general elections to be held in May 2006 during which time no

development activity could be carried out by the Government Departments.

ii) The site was not made free till the date of passing of the impugned order and till the date of filing of the writ petition as there existed 56 trees,

137 Palmera Trees, 2 electric transformers, 47 electric posts, 12 telephone posts, water pipe line to a length of 2000 meters, a School compound

wall to a length of 120 meters, PWD Bund to a length of 1250 meters and residential houses numbering 52 in the area earmarked for widening and

strengthening of the road without the removal of which the work could not be commenced.

According to the averments made in the writ petition, since the above said obstructions were within 1 to 1.50 meters from the edge of the

existing road, whereas the proposal was to widen the road to 4.5 meters, for commencing the road widening and strengthening, the above said

obstructions had to be removed for which the respondents did not take any steps. According to the further averment made in the affidavit filed in

support of the writ petition, since the site was not handed over to the writ petitioner free from encumbrances/hurdles using Form 19, it must be held

that the contract period had not commenced. It is the further contention made in the writ petition that the respondents chose to issue periodical

notices to start and finish the work despite the presence of the above said obstructions and without removing none of the obstructions and that

hence, the impugned order, terminating the contract and forfeiting the Earnest Money Deposit, is to be held nonest. It is the further contention

made in the writ petition that in the event of inability to start the work due to the above said reasons, the respondents ought to have foreclosed the

contract in stead of terminating the same and on that ground also the impugned order is liable to be quashed.

The writ petition has been opposed contending that the same is not maintainable either in law or on facts and the same is liable to be dismissed in

limine; that though the widening and strengthening of Singaperumal Koil-Sriperumbudur-Tiruvallur-Redhills Road between 56/2-60/2 kms had

been sanctioned at a cost of Rs. 660 lakhs under Traffic and Transportation Scheme 2004-05 and the contract for the said work was awarded to

the writ petitioner, who happened to be the successful bidder, by the letter of Superintending Engineer dated 07.02.2006 and the agreement was

signed by the parties on 28.02.2006 which contains a clause for the completion of work within 9 months, the petitioner had failed miserably even

to start the preliminary base and sub-base work in that road and that 50% of the work ought to have been completed on or before 28.08.2006

and the balance work should have been completed on or before 27.11.2006, but the project remained a non-starter, which necessitated the

termination of the contract by issuing the impugned order. It has also been contended that the termination of the contract and forfeiture of the

Earnest Money Deposit were made in accordance with the rules and that the plea made in the writ petition challenging the impugned order should

be rejected as untenable.

The arguments advanced by Ms. Narmadha Sampath, learned counsel for the petitioner and by Mr. M.S. Ramesh, learned Additional

Government Pleader, representing the respondents were heard and the materials brought before the Court were also perused.

Admittedly, Sasi Road Finishers and Engineering Constructions emerged as the successful bidder for getting the contract for executing the work

of widening and strengthening of Singaperumal Koil-Sriperumbudur-Tiruvallur-Redhills Road. It is also not in dispute that after the acceptance of

the bid made by M/s. Sasi Road Finishers and Engineering Constructions, the contract was awarded to it by the letter of the second respondent

dated 07.02.2006 bearing Letter No. 62/2005/D2. It is also not in dispute that the agreement was signed on 28.02.2006. However, in the

affidavit filed in support of the writ petition, it has been stated that according to the agreement, work had to be completed within a period of 12

months from the date of handing over of the site, whereas the respondents in their counter would state that the time for completion of the work, as

per the agreement, was 9 months from the date of agreement and that the work should have been completed on or before 27.11.2006. Neither

party has produced the original or a copy of the agreement dated 28.02.2006. Though the writ petitioner would have contended in the affidavit

filed in support of the petition that the time for completion of contract work, as per the terms of the agreement was 12 months, during the course of

arguments, learned counsel for the writ petition admits the correctness of the averments made in the counter that the period agreed for completion

of the work was 9 months as contended in the counter affidavit. The main controversy is from which date the period shall commence. As per the

affidavit filed in support of the writ petition, it would commence only from the date of handing over of the site for the execution of the work. No

doubt the respondents also do not dispute the correctness of the said contention that the time for completion of the work shall commence from the

date of handing over of the site. However, there is a controversy as to whether the site was handed over to the contractor in accordance with the

rules or not.

According to the submissions made by the learned counsel for the petitioner, the site was not handed over using Form 19 as per the preliminary

Specification to Standard Specification on Roads and Bridges, which forms part of the agreement. It is the further contention raised by the learned

counsel for the petitioner that since there were obstructions in the form of Trees, electric transformers, electric and telephone posts, school

compound wall, water pipelines and residential houses etc., unless and until those obstructions were removed and the site was given free of those

obstructions, it was quite impossible for the contractor to commence the work and that despite the fact that repeated request was made to the

respondents for handing over the site after removal of the obstructions, the respondents did nothing towards the same and on the other hand were

issuing repeated letters accusing the contractor of not adhering to the time stipulated for the completion of the work; that ultimately, the first

respondent issued impugned order terminating the contract and forfeiting the Earnest Money Deposit and that the impugned order which suffers

from illegality, according to the petitioner, should be quashed.

Per contra, it is the contention raised on behalf of the respondents that the site was handed over on the date of agreement itself, but the

contractor failed to carry out even the preliminary base and sub-base work in the road for the widening and strengthening of the said road as per

the terms of the contract; that despite the repeated remainders informing the contractor that the work was a non-starter due to the default on the

part of the contractor, the contractor did not respond to such remainders; that having remained silent till the impugned order came to be passed

after several remainders, the contractor has now come forward with the present writ petition as a vexatious attempt to challenge the lawful order

passed by the first respondent and that hence the writ petition is liable to be dismissed.

As pointed out supra, the writ petition has been filed in the name of Sasi Road Finishers and Engineering Constructions, said to be represented

by its authorized representative. What is the nature of composition of Sasi Road Finishers and Engineering Constructions and who is the authorized

representative has not been stated anywhere in the writ petition or in any other document produced by the petitioner. It is not known whether the

said Sasi Road Finishers and Engineering Constructions is a company or a partnership firm or a proprietary concern. The cause title also does not

indicate who is the authorized representative. On the other hand, the affidavit has been signed by one Muneer subscribing below his signature

authorized signature"". How was he authorized and what was the document by which he was authorized has not been mentioned. What was his

position in the above said concern has also not been mentioned. In view of the same, this Court has to come to a necessary conclusion that the writ

petition has not been filed in proper name and hence, the same is liable to be dismissed in limine as not maintainable.

Even if it is assumed that the above said defect is only a formal defect on which the maintainability of the writ petition cannot be assailed, the

writ petition is bound to be dismissed on merits. Admittedly, agreement in writing was entered into on 28.02.2006. As indicated above, though

there is an averment has been made in the affidavit filed in support of the petition that the time for completion of the contract, as per the agreement,

was 12 months, there is no document to substantiate the same and on the other hand, learned counsel for the petitioner has admitted the

correctness of the averment made in the counter affidavit that the time for completion of the contract, as per the terms of the agreement, was 9

months. It is also not in dispute that till the date of passing of the impugned order and even as on the date of filing of the writ petition, the contractor

did not start the execution of the work entrusted to it under the agreement. On the other hand, it is contended on behalf of the writ petitioner that

the period for completion of the contract had not begun because the site was not handed over to the contractor (writ petition) as per the rules.

Of course, the respondents have not produced documents showing that the site was handed over using Form 1-9 as per preliminary

Specification to Standard Specification on Roads and Bridges. However, the mere failure to use the Form shall be only a formal defect and in

case, the site was actually handed over for carrying out the contract work, the formal defect of failure to use the particular form will not give a

leverage to the contractor to contend that the site for the execution of the contract work was not handed over to him and hence, the contract

period had not commenced.

Communications were sent: i) by the Assistant Divisional Engineer, Highways, Tiruvallur on 21.08.2006, ii) by the Divisional Engineer,

Highways, Tiruvallur on 11.10.2006, iii) by the Assistant Divisional Engineer (Highways), Tiruvallur on 23.10.2006, iv) by the Divisional Engineer

(Highways), Tiruvallur on 02.11.2006 and v) by the Assistant Divisional Engineer (Highways) on 16.11.2006 stating that the contractor did not

complete the agreed percentage of works on the dates of communication of those letters and on the other hand, it had been stated that after doing

some preliminary work, the work had been abruptly stopped. In all those letters the contractor was advised to start the work and complete the

work within the time stipulated in the agreement. Though the petitioner has chosen to include copies of those documents in the typed-set of papers,

there is nothing to show that any one of the said letters was replied by issuing a reply either admitting or disputing the contents thereof. The writ

petitioner remained a mute spectator without showing any progress in the work despite the service of the above said remainders, the last of which

contains a warning that failure to recommence and complete the work as per the schedule would lead to termination of the contract and forfeiture

of the Earnest Money Deposit. Since the last communication was also not replied and the petitioner did not recommence the work, the first

respondent has chosen to issue the impugned order in S.S.R.B. Rule No. 109-07.

Though the petitioner would have chosen to project that there was no proper handing over of the site for execution of the contract work,

namely widening and strengthening of the road, on the premise that the obstructions provided by the trees, electric transformers, electric and

telephone posts, school compound wall, water pipelines and residential houses were not removed, there is nothing to show that the petitioner did

make a request for the removal of the said obstructions. As there is no document to show that he made any request for removal of the

obstructions, the contention of the petitioner that the site was not handed over as per the rules and hence the petitioner could not be found fault

with for not completing the contract work within the period, cannot be countenanced. The work of construction of the road, widening of the road

and strengthening of the road is to be carried out within a time bound manner, lest the cost of the work would get escalated, besides the denial of

the better road facility to the road users and public. The contractor, who gets the work, should not have chosen to show inaction or lethargy. If at

all the site was not handed over to the contractor within a reasonable time and the contract was not commenced within a reasonable time, then the

contractor could have very well used the option of seeking foreclosing the contract and refund of the Earnest Money Deposit. In this case, the

contractor did not exercise his right of seeking foreclosure. On the other hand, he commenced the preliminary work which would show that the site

was handed over to him for carrying out the contract work. If at all any obstructions for the completion of the work was found, the contractor

ought to have made a request to the concerned authorities for the removal of the same and if necessary, for the extension of the time for completion

of the work. In this case, the contractor/writ petitioner simply remained idle without doing anything after commencing the preliminary work. He had

not even responded to the calls and remainders made by the officials for the early completion of the work.

Under the above facts and circumstances, this Court is of the considered view that the prayer made in the writ petition challenging the

impugned order of the first respondent dated 11.02.2006 made in Proceedings No. Sa.4897/06/A6 is bound to fail and that the writ petition is

bound to be dismissed. In the result, the writ petition fails and the same is dismissed. However, there shall be no order as to costs.