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2012 DIGILAW 1462 (JHR)

Harihar Singh Private Ltd v. State of Jharkhand

2012-09-24

APARESH KUMAR SINGH

body2012
Order Heard learned counsel for the parties. 2. The petitioner has sought for quashing the letter dated 18.06.2007 whereby the contract for execution of residual earth work in connection with Chandil left main canal of specified description for total consideration amount of Rs. 58,06,188.50/-, has been cancelled without giving any notice and without giving any opportunity to the petitioner. 3. According to the learned counsel for the petitioner, petitioner is a Government Contractor registered in category 1A who participated upon the notice inviting tender for entering into an agreement for the said work and subsequently, the agreement in question was executed on 19.02.2007 (Annexure-1 to the writ petition). The nature of work was performance of residual earth work for specified description and length in connection with Chandil left main canal. The time specified for execution of work was six months from the date of commencement of tender i.e. from 19.02.2007 concluded by 18.09.2007. The contention of the petitioner is that the petitioner could not start the execution of work on account of practical difficulties as the portion of the canal was water logged and in spite of representation made to the respondent authorities vide Annexure-2 series, the respondents did not provide the site free from all difficulties. The petitioner received order dated 18.05.2007 by which the agreement has been cancelled without any show cause or notice. 4. The counsel for the respondent, on the other hand, submits that the petitioner was given a number of notices as contained in Annexure-A series for starting execution of work as the work itself was to be completed within a period of six months. It is submitted that vide letter no. 317 dated 05.04.2007 (Annexure-A/2), the Executive Engineer concerned representation reminded the petitioner that he had not even started the work and was not taking interest in execution of agreement. By the said letter he was further directed to start the work at the earliest failing which he would be responsible for the delay. It is further submitted that by letter dated 14.05.2007 (Annexure A/4), the petitioner was informed once again that as per the agreement dated 19.02.2007, out of six months time specified to conclude the execution of work, three months time had already elapsed, but no progress of work has been noticed. It was also indicated that if works are not started then there would be difficulty because of impending rainy season. It was also indicated that if works are not started then there would be difficulty because of impending rainy season. The Executive Engineer informed the petitioner to take steps within three days for execution of work failing which after 20.05.2007, final measurement would be taken and recommendation for termination of agreement would be made for which the petitioner would himself be liable. From perusal of Annexure-2, it appears that the petitioner received the said letter dated 14.05.2007 and responded. However, from perusal of the said letter, it appears that the petitioner once again raised issue of practical difficulties in the execution of work stating that he was not responsible for removal of water for the execution of work. In a sense, the petitioner failed to take steps for execution of work. Thereafter, the Executive Engineer passed the impugned order dated 18.05.2007 by which the agreement no. 4F2/2006-07 has been terminated in terms of clause-3(a) of the said agreement. 5. Learned counsel for the petitioner submits that the said order has been passed without notice or show cause. He relied upon the judgment of the Court in the case of Modi Projects Ltd., Ranchi Vs State of Jharkhand and Ors and other analogous cases reported in 2012(3) JLJR 6. It is submitted that in similar circumstances the order of termination of contract has been quashed as it was done without opportunity and in violation of principle of natural justice. 6. The counsel for the respondents, on the other hand, submits that even in the said case as would appear that the work was executed atleast to the extent of 60-65 percent, but in this case, no work was executed. Moreover, the petitioner was given proper notice before termination of the agreement representation between petitioner and respondents and the same was terminated as per terms and conditions of the agreement under clause-3(a) by which the respondent was empowered to rescind the agreement. It is further submitted that the remedy to the petitioner lies elsewhere and not under Article 226 of the Constitution of India in circumstances where one of the parties of agreement has failed to execute his promise even to minimum extent. 7. It is further submitted that the remedy to the petitioner lies elsewhere and not under Article 226 of the Constitution of India in circumstances where one of the parties of agreement has failed to execute his promise even to minimum extent. 7. After having heard the learned counsel for the parties and going through the relevant materials brought on record including the judgment relied upon by the petitioner, it is apparent that in the instant case, the order of termination has been issued after show cause and notice to the petitioner vide Annexure-A/2 to the counter affidavit dated 14.05.2007 being one of the series of letters issued by the Executive Engineer in which the petitioner was categorically directed to start the execution of work for which time limit of six months was specified under the agreement in question. The agreement itself was for residual earth work in connection with the construction of Chandil left main canal. The date of completion of work was 18.08.2007 and the petitioner was reminded duly for initiation of the work and delay would create serious difficulties as rainy season would start soon and there will be impending difficulties in residual earth work of canal. The petitioner also responded to the said notice, as already recorded hereinabove vide Annexure-2 of the writ petition. The impugned order has been passed in accordance with law and terms and conditions agreed between the parties when it was found that the petitioner had failed to execute any part of the agreement. The grievance of the petitioner is that there were practical difficulties in execution of work which was not within the realm of the terms of contract. 8. However, before entering into a contract the party is required to acquaint himself of the site condition before submitting the tender with the nature of work required to be executed for the purpose of making his financial and technical bid. After execution of the agreement, the consequences arising out of failure to perform reciprocal parties fall within the realm of terms and conditions of the contract. The aggrieved party has remedy of arbitration or before the competent court for enforcement of his contractual rights. After execution of the agreement, the consequences arising out of failure to perform reciprocal parties fall within the realm of terms and conditions of the contract. The aggrieved party has remedy of arbitration or before the competent court for enforcement of his contractual rights. In the present case the judgment relied upon by the petitioner is not applicable to the facts of the present case as in the said case, this Court found that the work executed was upto 60-65% and, thereafter on account of non-compliance of principle of natural justice, in the said case, the impugned order of termination was set aside. Whereas in the present case the petitioner has not executed even a part of the work and the respondents have repeatedly issued notices reminded him to execute the work failing which the agreement itself would be terminated. 9. Therefore, I find that the impugned order does not suffer from any violation of principle of natural justice and it has been passed after due notice to the petitioner where this petitioner failed to comply any part of execution of work as promised under the terms and conditions. 10. Accordingly, I do not find any merit in this writ petition and it is dismissed.