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2006 DIGILAW 1229 (DEL)

GUPTA CONSTRUCTION CO v. C. P. W. D.

2006-07-26

ANIL KUMAR

body2006
ANIL KUMAR, J. ( 1 ) THE petitioner has impugned the levy of a penalty of Rs. 43,765/-under clause 2 of the agreement between the petitioner and the respondent on account of delay in completion of the work pursuant to an agreement No. 37/ee/dad 2004-05 executed between the parties. ( 2 ) THE contention of the petitioner is that respondent No. 2 acted illegally and issued a show cause notice dated 21st April, 2006 to the petitioner under clause 2 of the contract agreement alleging that the work was not completed with in time allowed under the agreement and then levying the penalty in terms of clause 2. ( 3 ) ACCORDING to the respondent, the work was completed not on 26th july, 2005 as contended by the petitioner but it was completed on 16th January, 2005. The petitioner gave a reply to the show cause notice alleging that the work was held up due to building shuttering material reinforcement workshop of main contractor which was coming in the layout of the road; work was also held up due to wanter tank, batching plant, generator shed of main contractor on west side of the building and because of petrol pump and electric poles of NSG authorities and it was also held up due to M. S. Steel stone cutting machine and scaffolding material. The petitioner sought extension of time up to 16th january, 2006 without levy of compensation alleging that the government had not suffered any liquidated damages and the petitioner also undertook not to claim anything extra over and above the justified delays in the work. The plea of the petitioner was considered and thereafter an amount of Rs. 43,765/- has been levied which is challenged by the petitioner seeking quashing of the letter/order dated 17th May, 2006. ( 4 ) THE learned counsel for the petitioner has relied on 127 (2006)DLT 346, Ramjee Power Construction Limited Vs. Union of India and Ors. to contend that the writ petition even in respect of contractual or commercial dealing with the authorities will be within the sweep of Article 12 of the constitution. ( 4 ) THE learned counsel for the petitioner has relied on 127 (2006)DLT 346, Ramjee Power Construction Limited Vs. Union of India and Ors. to contend that the writ petition even in respect of contractual or commercial dealing with the authorities will be within the sweep of Article 12 of the constitution. ( 5 ) THOUGH it is not disputed that a writ petition is maintainable in respect of contractual or commercial dealings by an authority within the sweep of Article 12 of the Constitution, however, while looking into the dispute of this nature, the Court has to be vigilant not to trespass in a purely commercial dispute. The scope of an investigation or the ambit of judicial review is to be restricted to the presence or adherence of principle of natural justice and absence of Wednesburry unreasonableness. The Court has to be see whether the decision suffer from illegality, illegality and procedural impropriety. ( 6 ) THIS is not disputed, in the present facts and circumstances, that the petitioner was given a show cause notice which was duly replied by him. The petitioner has been given due opportunity and after considering his reply and reasons for delay in work and his prayer for extension of time till 16th january, 2006 which was declined, a penalty of Rs. 43,765/- was imposed. ( 7 ) THE reasons for delay as given by the petitioner, whether will constitute sufficient reason within the agreement between the parties entitling the petitioner for extension of time up till 16th January, 2006, are such disputed question of facts which would require detailed evidence which may not be adjudicated under Article 226 of Constitution of India in the present facts and circumstances. ( 8 ) THE decision of the respondents to levy penalty and not to grant extension of time in completing the work, can not to be termed illegal, irrational or suffering from procedural impropriety so as to exercise extraordinary jurisdiction by this Court under Article 226 of the Constitution of India. The disputes raised by the petitioner are not pertaining to presence or adherence of principle of natural justice or absence of Wednesbury unreasonableness. ( 9 ) LEARNED counsel for the petitioner has also relied on an order dated 22nd February, 2006 in Writ Petition No. 7468/2005 whereby certain questions were framed by another learned single Judge. The disputes raised by the petitioner are not pertaining to presence or adherence of principle of natural justice or absence of Wednesbury unreasonableness. ( 9 ) LEARNED counsel for the petitioner has also relied on an order dated 22nd February, 2006 in Writ Petition No. 7468/2005 whereby certain questions were framed by another learned single Judge. On the basis of the said order, it cannot be inferred that the same questions arise in the present petition also or this Court would be justified in interfering in the disputes which are of commercial nature. ( 10 ) IN the facts and totality of circumstances, therefore, there are no grounds to interfere in the writ petition filed by the petitioner seeking quashing of penalty imposed on the petitioner. ( 11 ) WRIT petition is, therefore, dismissed. The petitioner, however, shall be free to take such other civil remedies which shall be available to him in the facts and circumstances.