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Madhya Pradesh High Court · body

2009 DIGILAW 549 (MP)

RAJESH VERMA v. JABALPUR DEVELOPMENT AUTHORITY

2009-04-27

DIPAK MISRA, R.K.GUPTA

body2009
Judgment ( 1. ) THE present petition is filed by the petitioner challenging the order by which the contract of the petitioner has been terminated which is referred to in the resolution passed by the respondent to terminate the contract. The petitioner challenges the resolution Annexure P/4 of the respondent whereby the work has been allotted to another Contractor on risk and cost basis. The petitioner also challenges the communication dated 16. 2. 2000, which is Annexure P/10. ( 2. ) THE facts leading to the present case are that petitioner was awarded the work of constructing the first floor, North block, Vikas Bazar, Jabalpur and accordingly the work order was issued on 22. 11. 93. The work was to be completed within a period of 15 months including rainy season. ( 3. ) THE petitioner could not complete the work within the stipulated period and there had been delay in completion of work. Ultimately, because of delay, the respondent passed a resolution whereby it has been decided to terminate the agreement and accordingly a letter was issued to the petitioner which is Annexure R/1. This letter further stipulates that remaining work shall be carried out by the respondent on risk and cost basis. The resolution is placed on record as annexure P/4. ( 4. ) THE petitioner submitted a representation to the State govt. and the State Govt. by its order Annexure P/9 dated 21. 6. 99 directed the respondent to reconsider the same by condoning the delay. ( 5. ) THE matter was again placed in the meeting of the respondent and the respondent by an order dated 16. 2. 2000, annexure P/10 affirmed the earlier decision. ( 6. ) WHILE arguing the case, learned counsel for the petitioner did not argue about the termination of the contract but it is submitted by him that in the present case though the contract was terminated on 6. 8. 96 but the tender for the remaining work was issued by the respondent on 8. 3. 98. On this basis, it is submitted on behalf of the petitioner that the remaining work which has been carried out on risk and cost basis by another contractor for which NIT was issued on 8. 3. 8. 96 but the tender for the remaining work was issued by the respondent on 8. 3. 98. On this basis, it is submitted on behalf of the petitioner that the remaining work which has been carried out on risk and cost basis by another contractor for which NIT was issued on 8. 3. 98, there had been an inordinate delay by the respondent, therefore, the question with regard to risk and cost basis should not have been applied to the petitioner to recover the balance amount. ( 7. ) ON behalf of the respondent, it is contended that though the agreement was terminated on 6. 8. 96 and thereafter a fresh tender was invited by the respondent on 8. 3. 98 which is filed along with the return as Annexure R/2. It is further contended that since there was no response to the same as no offers were received, therefore, another tender was issued on 13. 4. 98 which was also not responded. The date of tender was extended which is clear from the document and the advertisement filed on record but there was no response to the same. The respondent issued another NIT on 23. 5. 98 and 26. 9. 98 which was also not responded to even though the date for submitting the tender was extended. It is contended on behalf of the respondent that inspite of issuance of numerous tenders since no offers were received, therefore, the respondents are justified in recovering the balance amount from the petitioner by applying the principle of risk and cost basis. ( 8. ) THE question that arises for consideration in the case at hand whether the contract/agreement of the petitioner which had earlier been terminated on 6. 8. 96 was it justified on the part of the respondent to issue the first tender on 8. 3. 98. Thus, the factual scenario clearly exposits considerable delay. The justification which is sought to be given that number of tenders were issued but no response was received. But, the said tenders were issued after 8. 3. 98 but not prior to that. Under these circumstance, we are of the considered opinion the cost that was incurred by the respondent for completion of the work could not have been recovered from the petitioner. But, the said tenders were issued after 8. 3. 98 but not prior to that. Under these circumstance, we are of the considered opinion the cost that was incurred by the respondent for completion of the work could not have been recovered from the petitioner. The delay, as we inclined to think had occurred due to the negligence and fault of the respondent in granting the work order on the second occasion. ( 9. ) IN view of the aforesaid, the orders contained in annexure P/4 and P/10 are quashed and the difference of amount in this regard be refunded to the petitioner. As far as other aspects are concerned, as the learned senior counsel abundant the same, we refrain from answering the same. ( 10. ) THE writ petition is allowed the extent as indicated above. There shall be no order as to costs.