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2015 DIGILAW 1186 (MP)

Keti Constructions Company (I) Ltd. v. State of M. P.

2015-11-18

ROHIT ARYA, SHEEL NAGU

body2015
ORDER Nagu, J. -- 1. The present petition filed under Article 226 of the Constitution of India seeks quashment of the order dated 30.7.2012 Annexure P-1 and the consequential orders passed contained in Annexure P-1/A, P-1/B and P-1/C. 2. The facts in nutshell are that the petitioner company was awarded contract for construction of Allied Works of Sank-SwarnRekha Link Canal, Gwalior, which could not be completed within time, despite grant of various extensions. However, the petitioner company completed the work belatedly. Meanwhile, complaints were filed alleging that the extensions were granted in favour of the petitioner for extraneous consideration, which led to the Lokayukt issuing show cause notice to Chief Engineer of Water Resources Department. The Lokayukt also asked the Chief Engineer to show cause as to why offence be not registered against the Chief Engineer. Pursuant to the said proceedings initiated by the Lokayukt, the Water Resources Department decided to recover an amount of Rs.89.87 Lacs, which was alleged to be paid by the petitioner during the alleged illegal extensions granted for completion of work. (i) These show cause notices became the subject-matter of challenge in Writ Petition No. 1307/2009, which was finally decided by order dated 23.3.2011 vide P-23, quashing the said notices solely on the ground of the same being non-speaking. This Court while deciding Writ Petition No.1307/2009 did not go into the merit of the tenability of the claim of either sides. Liberty to pass appropriate order in terms of law after giving detailed reasons was afforded to the authorities. (ii) The respondents have now passed the impugned order by giving reasons vide Annexure P-1 dated 30.7.2012. 3. It is submitted by the learned counsel for the petitioner that the authorities have acted unlawfully by wrongly rejecting the genuine claim of the petitioner by ignoring the justified reasons assigned for completion of work in the extended period of time. 4. Admittedly, the agreement in question contains an arbitration clause which has not yet been invoked by the petitioner. The issue being raised as regards the justifiability of payment of various amounts during the period of extension of the contract granted for completion of the work are writ large with factual disputes which ought not to be gone into in writ jurisdiction, especially when an alternative efficacious remedy of arbitration is agreed to be available by both the parties. 5. 5. The learned counsel for the petitioner has placed reliance on various decisions rendered by apex Court in case of Union of India and others v. Tantia Construction Private Limited, reported in (2011)5 SCC 697 , in case of ABL International Ltd. and another v. Export Credit Guarantee Corporation of India Ltd. and another, reported in (2004)3 SCC 553 , in case of Harbanslal Shania and another v. Indian Oil Corpn Ltd. and others, reported in (2003)2 SCC 107 , M.P. State Agro Industries Development Corpn. Ltd and another v. Jahan Khan, reported in (2007)10 SCC 88 and in case of A.S. Motors Pvt. Ltd. v. Union of India and others, reported in (2013)10 SCC 114 and also the decisions rendered by High Court in case of Baijnath Singh v. State of M.P. and others, reported in 2005(3) MPLJ 540 and in case of M/s A.S. Motors Pvt. Ltd. v. Union of India, reported in 2007(III) MPJR 88 in support of his contentions. (i) As regards, the case law cited by the petitioner, in case of Union of India and others v. Tantia Construction Private Limited (supra), that availability of arbitration clause was not considered to be a bar for invocation of writ jurisdiction as the action of the Union of India and its functionaries was held to be such that it drastically amended the agreed terms and conditions and therefore the non-availability of the arbitration clause was held not to come in way of the contractor therein for invoking the writ jurisdiction. The factual position in the present case is distinct. (ii) As regards the case of ABL International Ltd. and another v. Export Credit Guarantee Corporation of India Ltd. and another (supra), it is seen that the said decision also lays down the same ratio as laid down in the case of Tantiya Construction. However, in the said case of ABL International, question of interpretation of a particular clause of the agreement was involved, which is not the case herein. (iii) Harbanslal Shania and another v. Indian Oil Corpn Ltd. and others (supra), also lays down the law in the same lines as the above said two cases and was based on the factual matrix of cancellation of kerosene oil dealership license, where the said dealership was the sole source of livelihood of the petitioner and the same was cancelled, which is not the case herein. (iv) In case of M.P. State Agro Industries Development Corpn. Ltd and another v. Jahan Khan (supra), it is noticeable that the same pertains to the field of service law where punishment of stoppage of increment was imposed in the absence of supportive rules or regulations. The fact situation is distinct. (v) As regards the case of A.S. Motors Pvt. Ltd. v. Union of India and others, reported in (2013)10 SCC 114 , it is seen that in the said case, in para 27, the apex Court has upheld the view taken by the High Court under Article 226 of the Constitution of India, declining interference on the question of reasonableness of the amount recoverable in terms of the contract in question. (vi) Now coming to the cases rendered by this Court. It is seen in the case of Baijnath Singh v. State of M.P. and others (supra) that interference was made by the Court because without adjudication of the liability, revenue recovery certificate was issued, whereas in the case of A.S. Motors Pvt. Ltd. v. Union of India and others, rendered by the Single Bench, it is noticeable that interference was made despite availability of alternative remedy. This case is further of no avail to the petitioner as it became subject matter of adjudication by the apex Court in the case of A/S Motors Pvt. Ltd. (supra), in which a finding was rendered that where disputed question of facts are involved, the writ Court ought not to decide the issue. 6. It is further contended on behalf of the petitioner that once completion certificate has been issued in favour of the petitioner after completion of the work, no penalty can be imposed. 7. After hearing learned counsel for the rival parties and on perusal of the record, we are of the considered view that on the first visit of petitioner, when Writ Petition No.1307/2009 was disposed of, the show cause notice was quashed solely on ground of the same being bereft of reasons. The authorities were given liberty to pass appropriate orders containing reasons. The respondents have now pass the impugned order which on perusal cannot be termed as non-speaking. It contains enough reasons to save it from being sacrificed at the alter of principles of natural justice . 8. The authorities were given liberty to pass appropriate orders containing reasons. The respondents have now pass the impugned order which on perusal cannot be termed as non-speaking. It contains enough reasons to save it from being sacrificed at the alter of principles of natural justice . 8. So far as the merits of the impugned decision is concerned, this Court refrains from going into the issue in view of the petitioner having not availed the alternative efficacious remedy of invoking the arbitration clause contained in para 4.3.2.9. of the agreement, which is very much available to him and which not only provides a forum for resolving disputes during the pendency of agreement, but also such disputes which arise after completion or abandonment of work. 9. In view of the above specific clause of arbitration contained in para 4.3.2.9 of the agreement for ventilation of grievances arisen even after the completion of contract, the submission of learned counsel for the petitioner that no penalty can be imposed after issuance of completion certificate fades into insignificance. 10. Consequently, there is no occasion for this Court to interfere in the order. 11. Accordingly, the present petition is dismissed. 12. The dismissal of this petition shall not come in way of the petitioner to invoke the arbitration clause in terms of the agreement in question.