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Madhya Pradesh High Court · body

2015 DIGILAW 1083 (MP)

Tomar Construction v. State of M. P.

2015-10-09

C.V.SIRPURKAR, RAJENDRA MENON

body2015
JUDGMENT Menon, J. -- 1. As common questions of law are involved in both these petitions and as facts and relevant claims are also identical, they are being disposed of by this common order : 2. Petitioners were granted contract by the Public Works Department for the purpose of various construction work as indicated in the agreement. However, grievance of the petitioners is that in Part 3 of the contract agreement under Paragraph 26, a formula has been prescribed for the purpose of adjustment of price of the contract. It is said that one of the factors relevant for adjustment is labour payment, which is indicated as 'R' in the contract but in the formula indicated in Paragraph 26, as word 'R' is missing, it is said that the formula is incomplete and, therefore, the same should be corrected. Claiming correction of this, initially, petitioners seem to have approached this Court and it was the case of the petitioners that even though, the Chief Engineer and certain other officers have recommended for correction of the contract agreement but by the impugned order, the respondents have rejected the correction and said that there is no error in the contract. 3. According to the petitioners, there being error in not including the factor 'R' in the price adjustment formula as indicated in Paragraph 26 of the contract due to which, the petitioners are suffering loss and, therefore, the same should be corrected. Challenging the impugned order passed vide Annexure P-1, petitioners have filed these writ petitions. 4. Shri Pushpendra Yadav, learned counsel points out that the contract is a works contract entered into between the parties, the petitioners have signed the contract and now the petitioners want to rewrite the contract by including the factor 'R' as component in the price adjustment formula. By filing detailed reply, it is stated by Shri Yadav that the same is not permissible. 5. We have heard learned counsel for the parties and considered the submissions made and we find that the petitioners now by these writ petitions filed under Article 226 of the Constitution want this Court to issue a mandamus to the State Government to correct the formula prescribed, accepted and indicated in the duly executed agreement between the parties for the purpose of price adjustment formula. This prayer made by the petitioners is only on the ground that there is a mistake in the execution of the contract/agreement and the same should be corrected, as the respondents have denied to do the same. 6. A writ Court can interfere with the commercial agreement only if statutory rules or regulations are found to be violated or breached in the matter of execution of the contract or in it's implementation. In the present case, the contract in question has already been executed between the parties and it is the case of the petitioners that there is an error in the contract, which should be corrected but the respondents deny the same. However, the claim of the petitioners is not supported by any statutory rules or regulations or any provision which has force under law. 7. That being so, if a mandamus is issued, it would be a direction to the respondents to rewrite the contract in a particular manner, even though, the respondent/State Government is not willing to enter into such a contract and, therefore, such a direction cannot be given by a writ Court by issuing a mandamus. In the absence of any constitutional irregularity or rules or regulations shown to be violated, a mandamus cannot be issued against any unwilling party for changing or modifying the contract or a written commercial agreement. 8. That being beyond the purview of the Court, this writ Court cannot interfere into the matter. The petitioners may take recourse to any other remedies as may be available under law. 9. With the aforesaid, these petitions stand disposed of.