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2012 DIGILAW 92 (CHH)

Macadum Makers v. State of Chhattisgarh

2012-03-23

MANINDRA MOHAN SHRIVASTAVA, SATISH K.AGNIHOTRI

body2012
JUDGMENT : 1. By this petition under Article 226 of the Constitution of India, the petitioner has prayed for quashing and setting aside the order dated 3-12-2010 (Annexure P-1) passed by respondent No. 4, the Executive Engineer-cum-Member Secretary, Project Implementation Unit-II, Pradhan Mantri Gram Sadak Yojana (for short "P.M.G.S.Y."), Balodabazar, as also order dated 10-12-2008 (Annexure P-9) passed by respondent No. 3, the Executive Engineer-cum-Member Secretary, Project Implementation Unit-I, P.M.G.S.Y. Raipur. Relevant facts of the case, necessary for adjudication of the controversies involved in the writ petition, are that the petitioner is a registered "A-5" Class Contractor with the respondents - Department. Vide letter of acceptance dated 24-10-2001 (Annexure P-2), the petitioner was awarded a contract for construction of rural roads. An agreement between the parties was also executed on standard form of contract, copy of which has been placed on record as part of Annexure P-3, along with tender documents. A notice of commencement of work was also issued to the petitioner on 16-11-2001 (Annexure P-4). A certificate of completion of work was issued on 19th January, 2004 (Annexure P-5). Under the terms of contract, petitioner was duty bound to maintain the road constructed under the contract for a period of 16 months from the date of its completion i.e. up to 31-3-2008. 2. Disputes between the parties, however, surfaced when upon inspection made by National Quality Monitor, unsatisfactory work was reported. A letter was issued to the petitioner on 6-11-2008 (Annexure P-7), whereby the petitioner was informed that upon inspection, work has been found to be unsatisfactory and direction has been issued to repair the damaged part. It was further stated that if the work is not started and completed within the time stipulated, action against the petitioner shall be taken under Clauses-16 & 19 of the Agreement and amount of Rs. 48.06 lacs as cost for repair/re-construction of the road would be recovered along with interest. In response there to the petitioner, vide his letter dated 14-11-2008 (Annexure P-8), submitted that he had completed the work within the time stipulated under the agreement and final bills were prepared only after full satisfaction of the quality of the work as per the standard parameters and even the security deposits were refunded to the petitioner. Therefore, the classification of the work as unsatisfactory is not proper and the petitioner is not responsible. Therefore, the classification of the work as unsatisfactory is not proper and the petitioner is not responsible. Thereafter, impugned letter dated 10-12-2008 (Annexure P-9) was issued, informing the petitioner that the petitioner's justification as contained in letter dated 14-11-2008 is not acceptable and it was directed that the petitioner should deposit the entire amount towards cost of construction i.e. Rs. 48.06 lacs, failing which, action would be taken towards recovery of the said amount by adjustment against other amounts deposited in the departmental account and for balance, recovery as arrears of land revenue. The petitioner then submitted a letter on 22-12-2008 (Annexure P-10) to the Superintending Engineer by taking appropriate action under the agreement which was followed by another letter dated 31-1-2009 (Annexure P-11) addressed to the Superintending Engineer to proceed and pass appropriate orders under Clause-29 of the Agreement. Thereafter, impugned order has been issued on 3-12-2010 (Annexure P- 1) by the Executive Engineer informing all the Executive Engineers under the Project Implementation Units of P.M.G.S.Y. not to make any payment or refund any amount to the petitioner and to inform regarding such deposits or pending payments so that steps may be taken towards recovery of the said amount of Rs. 48.06 lacs. 3. Aggrieved by the aforesaid action of the respondents, instant petition has been filed. 4. Learned counsel for the petitioner contended that the action of respondent-Executive Engineer in seeking to recover the disputed amount against the petitioner by directing other offices not to make payments of petitioner's due payments and deposits and to adjust the amount payable to the petitioner under other contracts and transactions with other offices is arbitrary, unreasonable and violative of Article 14 of the Constitution of India. It was contended that none of the terms and conditions of the agreement entitled respondents to seek recovery of any disputed amount from the petitioner without proper adjudication of the disputes between the parties as provided in Clause-29 of the Agreement. He submitted that when respondents claimed that petitioner is liable to pay an amount of Rs. It was contended that none of the terms and conditions of the agreement entitled respondents to seek recovery of any disputed amount from the petitioner without proper adjudication of the disputes between the parties as provided in Clause-29 of the Agreement. He submitted that when respondents claimed that petitioner is liable to pay an amount of Rs. 48.06 lacs on the allegation that he failed to construct/maintain road by satisfactorily standard and also failed to reconstruct the road as per letter dated 6-11-2008, the petitioner denied his liability for payment of such amount and consistent with the scheme of adjudication of disputes provided under Clause-29 of the Agreement, wrote a letter on 22-12-2008 (Annexure P-10) and 31-1-2009 (Annexure P-11). The Superintending Engineer did not pass any order in the matter and, therefore, unless the matter is adjudicated in the manner provided in Clause-29 of the Agreement, respondents had no authority to take coercive steps by issuing impugned letter dated 10-12-2008 and 3-12-2010 by assuming to itself the role of arbiter, Judge of its own cause. 5. According to learned counsel for the petitioner, in case where demand has been made which has been disputed by the petitioner and adjudication has been sought from the Superintending Engineer by the process of arbitration action of the respondents in proceeding to recover the amount without awaiting adjudication, is arbitrary and unreasonable. In support of his submissions, learned counsel for the petitioner relied upon the decisions in the case of State of Karnataka Vs. Shree Rameshwara Rice Mills, Thirthahalli, (supra), A.K. Construction Company v. The State of M.P. 2005 (4) M.P.H.T. 15 CG and B.B. Verma and Another and S.C. Batra and Another Vs. State of M.P. and Another, AIR 2008 MP 202 , 6. On the other hand, learned counsel for the State has opposed the prayer. Learned counsel for the State has raised specific objection with regard to maintainability of the petition by submitting that as there exists an arbitration Clause-29 under the Agreement between the parties, which provides for an in-house procedure of adjudication of dispute between the parties, firstly before the Superintending Engineer and then by way of arbitration at the instance of party aggrieved by the order of Superintending Engineer, present writ petition is not maintainable. He submits that the dispute between the parties arises out of a contract and the petitioner is, therefore, not entitled under the law to seek enforcement of rights and obligation qua contract through the extraordinary remedy of writ jurisdiction. He also submitted that though initially the petitioner had completed the work and completion certificate was issued, bills paid and security amount refunded, later on, during inspection, it was found that repair/reconstruction of the road was not up to the mark and as per standard parameters. Therefore, letter was issued to the petitioner to reconstruct the road within the time stipulated, which the petitioner failed to do. In this situation impugned letters dated 10-12-2008 and 3-12-2010 were issued to recover the amount. He submits that the recovery has been ordered against the petitioner strictly in accordance with the provision contained in Clauses-16 & 19 of the Agreement between the parties and once such steps have been taken, the only remedy of the petitioner is to take recourse to provision relating to adjudication of dispute as specified in Clause-29 of the Agreement and not by way of writ petition. 7. We have given our anxious consideration to the submissions made by learned counsel for the parties and perused the records. 8. As preliminary objection with regard to maintainability of the writ petition has been raised by learned counsel for the State respondents, we shall first deal with the said objection. 9. The pleadings and documents placed on record undisputedly show that after completion of work, a completion certificate (Annexure P-5) was issued on 19th January, 2004, showing that the work has been completed on 31st March, 2008. The certificate records that the contractor has satisfactorily completed the work on 31st March, 2003. From the Inspection Details (Annexure P-6) and letter dated 6-11-2008 (Annexure P-7), it is reflected that the work by the petitioner was found to be unsatisfactory and the petitioner was directed to re-construct the road, failing which, recovery was proposed against the petitioner. The petitioner vide his letter dated 14-11-2008 (Annexure P-8) denied his liability, but, his explanation was not accepted and again a letter dated 10-12-2008 was issued directing the petitioner to deposit the entire amount along with interest. The petitioner vide his letter dated 14-11-2008 (Annexure P-8) denied his liability, but, his explanation was not accepted and again a letter dated 10-12-2008 was issued directing the petitioner to deposit the entire amount along with interest. At this stage, the petitioner took recourse to the provision contained in Clause-29 of the Agreement (Annexure P-3) by submitting letters dated 22-12-2008 (Annexure P-10) and 31-1-2009 (Annexure P-11) to the Superintending Engineer, yet, impugned order dated 3-12-2010 (Annexure P-1) was issued. 10. In the case of ABL International Ltd. and another v. Export Credit Guarantee Corporation of India Ltd. and Ors. (2004) 3 SCC 553 , dealing with a dispute arising out of contractual matter between the parties, wherein, one of the parties was a State under Article 12 of the Constitution of India, the Supreme Court observed : 13.... This Court in the case of LIC of India proceeded on the facts of that case and held that a relief by way of a writ petition may not ordinarily be an appropriate remedy. This judgment does not lay down that as a rule in matters of contract the Court's jurisdiction under Article 226 of the Constitution is ousted. On the contrary, the use of the words "Court may not ordinarily examine it unless the action has some public law character attached to it" itself indicates that in a given case, on the existence of the required factual matrix a remedy under Article 226 of the Constitution will be available.... 23. It is clear from the above observations of this Court, once the State or an instrumentality of the State is a party of the contract, it has an obligation in law to act fairly, justly and reasonably which is the requirement of Article 14 of the Constitution of India. Therefore, if by the impugned repudiation of the claim of the appellants the first respondent as an instrumentality of the State has acted in contravention of the above said requirement of Article 14, then we have no hesitation in holding that a writ Court can issue suitable directions to set right the arbitrary actions of the first respondent.... 11. The law propounded by the Supreme Court in the case of ABL. International Ltd. (supra), has been reiterated in the case of Karnataka State Forest Industries Corporation Vs. Indian Rocks, (2009) 1 SCC 150 , in the following words: -- 38. 11. The law propounded by the Supreme Court in the case of ABL. International Ltd. (supra), has been reiterated in the case of Karnataka State Forest Industries Corporation Vs. Indian Rocks, (2009) 1 SCC 150 , in the following words: -- 38. Although ordinarily a superior Court in exercise of its writ jurisdiction would not enforce the terms of a contract qua contract, it is trite that when an action of the State is arbitrary or discriminatory and, thus, violative of Article 14 of the Constitution of India, a writ petition would be maintainable. (See ABL International Ltd. v. Export Credit Guarantee Corpn. of India Ltd.) 12. In yet another decision in the case of Sushila Chemicals Pvt. Ltd. and Another Vs. Bharat Coking Coal Ltd. and Others, (2010) 10 SCC 388 , the aforesaid principles have been reiterated in following words : 20. It is settled by a series of decisions of this Court starting from Kumari Shrilekha Vidyarthi and Others Vs. State of U.P. and Others, (1991) 1 SCC 212 , that even in the domain of contractual matters, the High Court can entertain a writ petition on the ground of violation of Article 14 of the Constitution when the impugned act of the State or its instrumentality is arbitrary, unfair or unreasonable or in breach of obligations under public law. 13. The grievance of the petitioner in the present writ petition is against the action of the respondent authorities in seeking to recover a disputed amount without adjudication as provided in the arbitration Clause-29 of the agreement between the parties. Even though the petitioner referred the matter for adjudication to the Superintending Engineer, as per Clause-29 of the agreement, without any adjudication, the respondents have proceeded to take coercive steps towards recovery of amount by seeking to adjust the same from bills, due payments and deposits of the petitioner with other offices with whom the petitioner is dealing. It is not a case where the petitioner has approached the Court for enforcement of any of his rights qua contract without taking recourse to the arbitration proceedings as per the terms of contract. Present is a case where the petitioner has taken recourse to the extraordinary remedy seeking to invoke writ jurisdiction of this Court, alleging the action of respondents as arbitrary and unreasonable. In the case of Kisan Sahkari Chini Mills Ltd. and Others Vs. Present is a case where the petitioner has taken recourse to the extraordinary remedy seeking to invoke writ jurisdiction of this Court, alleging the action of respondents as arbitrary and unreasonable. In the case of Kisan Sahkari Chini Mills Ltd. and Others Vs. Vardan Linkers and Others, (2008) 12 SCC 500 , while entertaining challenge to order passed by the authorities staying operation of allotment letter and subsequent cancellation of allotment, the Supreme Court observed : -- 18. Ordinarily, the remedy available for a party complaining of breach of contract lies for seeking damages. He will be entitled to the relief of specific performance, if the contract is capable of being specifically enforced in law. The remedies for a breach of contract being purely in the realm of contract are dealt with by civil Courts. The public law remedy, by way of a writ petition under Article 226 of the Constitution of India, is not available to seek damages for breach of contract or specific performance of contract. However, where the contractual dispute has a public law element, the power of judicial review under Article 226 of the Constitution of India may be invoked. The scope of interference in a writ petition arising out of a contractual dispute was explained as below: -- 23. If the dispute was considered as purely one relating to existence of an agreement, that is, whether there was a concluded contract and whether the cancellation and consequential non-supply amounted to breach of such contract, the first respondent ought to have approached the civil Court for damages. On the other hand, when a writ petition was filed in regard to the said contractual dispute, the issue was whether the Secretary (Sugar), had acted arbitrarily or unreasonably in staying the operation of the allotment letter dated 26-3-2004 or subsequently cancelling the allotment letter. In a civil suit, the emphasis is on the contractual right. In a writ petition, the focus shifts to the exercise of power by the authority, that is, whether the order of cancellation dated 24-4-2004 passed by the Secretary (Sugar), was arbitrary or unreasonable. The issue whether there was a concluded contract and breach thereof becomes secondary. In a civil suit, the emphasis is on the contractual right. In a writ petition, the focus shifts to the exercise of power by the authority, that is, whether the order of cancellation dated 24-4-2004 passed by the Secretary (Sugar), was arbitrary or unreasonable. The issue whether there was a concluded contract and breach thereof becomes secondary. In exercising writ jurisdiction, if the High Court found that the exercise of power in passing an order of cancellation was not arbitrary and unreasonable, it should normally desist from giving any finding on disputed or complicated questions of fact as to whether there was a contract, and relegate the petitioner to the remedy of a civil suit. Even in cases where the High Court finds that there is a valid contract, if the impugned administrative action by which the contract is cancelled, is not unreasonable or arbitrary, it should still refuse to interfere with the same, leaving the aggrieved party to work out his remedies in a civil Court. In other words, when there is a contractual dispute with a public law element, and a party chooses the public law remedy by way of a writ petition instead of a private law remedy of a suit, he will not get a full-fledged adjudication of his contractual rights, but only a judicial review of the administrative action.... 14. In view of the settled judicial pronouncements, which have been laid down by the Supreme Court, we are inclined to reject the objection with regard to maintainability of the writ petition. 15. The tender documents under which the tender was floated and work was awarded to the petitioner as also agreement between the parties towards execution of the works, have been placed on record as Annexure P-3. Clause-16 which entitles the respondents to recover compensation in certain contingency, in its opening words, clearly states "If at time before the security deposit is refunded to the contractor". There is no dispute that the security deposits were refunded to the contractor. Clause-19 renders the contractor liable for damages in the circumstances specified therein. Clause-29 provides for procedure regarding in house redressal system termed as "Arbitration clause". There is no dispute that the security deposits were refunded to the contractor. Clause-19 renders the contractor liable for damages in the circumstances specified therein. Clause-29 provides for procedure regarding in house redressal system termed as "Arbitration clause". The same is reproduced hereunder: -- Clause 29- Except as otherwise provided in this contract all question and dispute relating to be meaning of the specifications, designs, drawings and instructions herein before mentioned as to thing whatsoever in any way arising out of or relating to the contract, designs, drawings, specifications, estimate, concerning the works, or the execution or failure to execute the same, whether arising during the progress of the work, or after the completion of abandonment thereof shall be referred to the Superintending Engineer in writing for his decision, within a period of 30 days of such occurrence. There upon the Superintending Engineer shall give his written instructions and/or decisions within a period of 60 days of such request. This period can be extended by mutual consent of parties. Upon receipt of written instructions or decisions, the parties shall promptly proceed without delay to comply such instructions or decisions. If the Superintending Engineer fails to give his instructions or decisions in writing within a period of 60 days or mutually agreed time after being requested and if the parties are aggrieved against the decision of the Superintending Engineer, the parties may within 30 days prefer an appeal to the Chief Engineer, who shall afford an opportunity to the parties of being heard and to offer evidence in support of his appeal. The Chief Engineer will give his decision within 90 days. If any party is not satisfied with the decision of the Chief Engineer he can refer such disputes for arbitration to an Arbitration Tribunal to be constituted by the State Govt. In case such an Arbitration Tribunal is not constituted by the State Govt., then the aggrieved party shall invoke Arbitration and Conciliation Act, 1996 as amended till the date of such reference. A reference to Arbitration Tribunal shall be no ground for not continuing the work on the part of the Contractor and payment as per original terms and conditions of the agreement shall be continued by the Engineer-in-charge. 16. On 10-12-2008 (Annexure P-9), letter was issued to the petitioner directing him to deposit an amount of Rs. 48.06 lacs. A reference to Arbitration Tribunal shall be no ground for not continuing the work on the part of the Contractor and payment as per original terms and conditions of the agreement shall be continued by the Engineer-in-charge. 16. On 10-12-2008 (Annexure P-9), letter was issued to the petitioner directing him to deposit an amount of Rs. 48.06 lacs. The petitioner, thereafter, raised dispute by submitting letter to the Superintending Engineer on 22-12-2008 (Annexure P-10) followed by a detailed letter dated 31-1-2009 (Annexure P-11) invoking Clause- 29 of the Agreement. There is no material placed before this Court by the respondents that the dispute raised by the petitioner by submitting letters before the Superintending Engineer under Clause- 29 was decided by the Superintending Engineer. The stand of the respondents, curiously enough, is that the petitioner having raised a dispute, abandoned the said cause half way. We are unable to comprehend as to how the petitioner abandoned. The petitioner specifically raised dispute as is evident from his letter dated 22-12-2008 & 31-1-2009. Without there being any adjudication as provided in Clause-29 of the arbitration clause, the respondent-Executive Engineer has proceeded to issue impugned letter dated 3-12-2010 for recovery of the amount, by taking coercive steps, directing other offices not to release due payments and deposits of the petitioner, to facilitate adjustment against alleged recovery of Rs. 48.06 lacs. In our considered opinion, such an action of the respondent Executive Engineer, to say the least, is absolutely arbitrary and unreasonable. Once the dispute between the parties has to be decided in accordance with the terms of the arbitration clause, none of the parties are entitled to recover any amount by becoming arbiter, Judge in its own cause. Respondent-Executive Engineer himself adjudicated the dispute and declared that the petitioner is liable to pay damage/compensation of Rs. 48.06 lacs because construction of road was not satisfactory. Unless the matter is decided by the Superintending Engineer, as provided in the scheme of adjudication and arbitration under Clause 29 of the Agreement between the parties, the action of the Executive Engineer is clearly an act of high-handedness. It appears that commanded by some letter dated 22-10-2008, referred to in the impugned communication/letter dated 3-12-2010 (Annexure P-1), proceedings have been initiated against the petitioner. It appears that commanded by some letter dated 22-10-2008, referred to in the impugned communication/letter dated 3-12-2010 (Annexure P-1), proceedings have been initiated against the petitioner. By an affidavit filed on 10-3-2011, it has been stated that the petitioner has not been served with a copy of order dated 22-10-2008 and on inquiring about the same, he was informed that the same is an internal document and so it cannot be supplied. 17. In the case of State of Karnataka Vs. Shree Rameshwara Rice Mills, Thirthahalli, (1987) 2 SCC 160 a similar issue arose for consideration before the Supreme Court. That was a case where contractor had entered into an agreement with the State for construction of certain buildings. As the contractor failed to complete the work, the contracts were terminated in terms of agreement entered into by them and damage payable were assessed and sought to be recovered as arrears of land revenue, without there being any adjudication upon the question with regard to the liability of the parties. The Supreme Court in the case of Shri Rameshwara Rice Mills (supra), interpreting the clause-12 of the agreement held: Even assuming for argument's sake that the terms of clause 12 afford scope for being construed as empowering the officer of the State to decide upon the question of breach as well as assess the quantum of damages, we do not think that adjudication by the officer regarding the breach of the contract can be sustained under law because a party to the agreement cannot be an arbiter in his own cause. Interests of justice and equity require that where a party to a contract disputes the committing of any breach of conditions the adjudication should be by an independent person or body and not by the officer party to the contract. The position will, however, be different where there is no dispute or there is consensus between the contracting parties regarding the breach of conditions. In such a case the officer of the State, even though a party to the contract will be well within his rights in assessing the damages occasioned by the breach in view of the specific terms of clause 12. 18. In the case of A.K. Construction Company (supra), work of construction was awarded after completion of work, bills were submitted. The claim bills, however, were not released. 18. In the case of A.K. Construction Company (supra), work of construction was awarded after completion of work, bills were submitted. The claim bills, however, were not released. It led to dispute between the parties and the aggrieved party approached Arbitration Tribunal constituted under Madhya Pradesh Madhyastham Adhikaran Adhiniyam, 1983. Defence was taken that the Govt. dues was to be recovered and in terms of the agreement, the Govt. was entitled to recover "sums recoverable" not only under the contract in question, but also under other contracts. It was held that the Govt. could not be arbiter, Judge of its own cause and could not recover the amount unless the amount is held to be due and recoverable by way of adjudication either by the Court or by the Arbitration Tribunal. The relevant clause relating to recovery of dues from the contractor in that case was referred to and it was held that no person can be Judge of its own cause and it would be entitled to recover any sum from the contractor only when it is admitted by the contractor to be due to the Govt. or when disputed by the contractor upon adjudication by the Court or the Arbitrator, declaring the sum to be due and recoverable from the contractor. Paragraph-6 of the aforesaid decision is reproduced herein below : 6. Clause 4.3.39.1 on which Mr. Murthy relies upon is quoted herein below : 4.3.39.1 Recovery of dues from the contractor: Whenever any claim, against the contractor for the payment of a sum of money arises out of or under the contract, Govt. shall be entitled to recover such sum by appropriating in part or whole, the security deposit of the contractor and to sell any Govt. promissory notes etc. forming the whole or part of such security. In the event of the security being insufficient or if no security has been taken from the contractor, then the balance or the total, sum recoverable as the case may be shall be deducted from any sum then due or which at any time thereafter may become due to the contractor under this or any other contract with the Govt. should this sum be not sufficient to cover the full amount recoverable from the contractor then it shall be recovered from him as an arrears of land revenue. should this sum be not sufficient to cover the full amount recoverable from the contractor then it shall be recovered from him as an arrears of land revenue. It will be clear from second sentence of the aforesaid clause that in the event of the security being insufficient or if no security has been taken from the contractor, then the balance or the total sum recoverable, as the case may be, shall be deducted from any sum then due or which at any time thereafter may become due to the contractor under the instant or any other contract with the Govt. The expression 'sum recoverable' would mean any sum that is admitted by a contractor to be due to the Govt. or that is disputed by the contractor but adjudicated by the Court or the arbitrator to be due and recoverable from the contractor. This can be the only interpretation of Clause 4.3.39.1 consistent with the principle of natural justice that no person can be a Judge of his own cause. In case, it is held, as has been held by the Arbitration Tribunal that the "sum recoverable" is any amount which the Govt. or any authority of the Govt. considers to be recoverable from the contractor, then the Govt. or such authority will be a Judge of its own cause and would be entitled to recover any sum from the contractor, even though the said sum is disputed and not adjudicated to be due and recoverable from the contractor by the arbitrator or the Court. 19. It is, therefore, apparently clear that though respondents claimed certain amount to be recoverable from the petitioner, alleging that the work of the petitioner was unsatisfactory and he failed to repair the road within the time stipulated as per letter dated 6-11-2008, the petitioner took recourse to the provision contained under the arbitration clause-29 by raising a dispute before the Superintending Engineer. However, without adjudication of the petitioner's liability towards payment, alleged sum is sought to be recovered against the petitioner, and respondent-Executive Engineer has proceed to issue impugned letter dated 3-12-2010. This act on the part of the respondents-State authority can only be termed as arbitrary and unreasonable, violative of Article 14 of the Constitution of India. However, without adjudication of the petitioner's liability towards payment, alleged sum is sought to be recovered against the petitioner, and respondent-Executive Engineer has proceed to issue impugned letter dated 3-12-2010. This act on the part of the respondents-State authority can only be termed as arbitrary and unreasonable, violative of Article 14 of the Constitution of India. Moreover, respondents could not bring to the notice of this Court any law operating in the field, authorizing the respondents authority to recover the amount by stretching their hands to the due payment and deposits of the petitioner with other offices in connection with other works. Even in the agreement, no such terms have been stipulated. Present is not a case where even after adjudication, petitioner failed to deposit the amount and therefore, the respondents have proceeded to recover the amount as arrears of land revenue. 20. As an upshot of the above discussions, we have no hesitation to hold that action of the respondent - Executive Engineer in issuing impugned letter dated 3-12-2010 is arbitrary, unreasonable and violative of Article 14 of the Constitution of India. The same is therefore liable to be quashed and is accordingly quashed. However, as the petitioner has taken recourse to the remedy of adjudication against letter dated 10-12-2008 (Annexure P-9), by approaching Superintending Engineer under Clause 29 of the Agreement, at this stage, we are not inclined to comment upon the rights and obligations of the parties or the merits of the disputes between the parties or whether the petitioner is liable to pay amount demanded under letter dated 10-12-2008 (Annexure P-9). 21. We may, however, hasten to clarify that this order would not come in the way of the Superintending Engineer in passing appropriate order in accordance with the stipulation contained in the arbitration Clause-29 of the Agreement or the aggrieved party taking recourse to appropriate proceedings for arbitration as provided therein. The petition is accordingly allowed to the extent held as above. There shall be no order as to costs.