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Rajasthan High Court · body

2017 DIGILAW 2474 (RAJ)

Sharma Construction Company, Through Its Proprietor Bacharaj Sharma, S/o Shri Narayan Sharma v. Water Resources Department, Rajasthan Through Its Principal Secretary

2017-11-10

M.N.BHANDARI

body2017
ORDER : M.N. BHANDARI, J. This writ petition has been filed against withdrawal of contract and imposition of penalty vide order dated 27th October, 2017. The order aforesaid was passed precisely due to default of the petitioner to start the work assigned to it. It was to commence since 2nd September, 2017 with completion by 1st March, 2018. 2. Learned counsel submits that due to serious illness of father and as water was lying in the canal, the work could not be commenced. It is also stated that information about ill health of the father and availability of the water in the canal was given to the respondents. He had assured for completion of work on or before the scheduled date. In view of the above, withdrawal of contract becomes illegal. 3. It is also submitted that termination of contract has been made in reference to Clause 2 of the agreement. It does not provide for termination but imposition of the penalty. The respondents have ignored the aforesaid while withdrawing the contract by invoking Clause 2 of the agreement. 4. I have considered the submission made by learned counsel for petitioner and perused the record. 5. I find that Clause 23 (wrongly mentioned as 21) provides for alternative mechanism for redressal of the grievance. It is before the Empowered Standing Committee. The factual dispute can be determined therein i.e. whether non-commencement of the work was justified or not. It cannot be determined by this court by recording finding of fact while exercising jurisdiction under Article 226 of the Constitution of India. No justification has been given not to approach the Empowered Standing Committee other than to refer a new tender for assignment of work. The order for withdrawal of the work was passed on 25th October, 2017 but the petitioner did not approach to the Empowered Standing Committee immediately thereupon, rather, approached this court. The Empowered Standing Committee is not considered to be arbitration but it can very well look into the factual aspect and determine as to whether the petitioner was having reasons for non-commencement of the work and otherwise also, the impugned order was passed at Bhilwara, not within the territorial jurisdiction of this court. 6. Accordingly, while dismissing the writ petition, the petitioner is given liberty to approach to the Empowered Standing Committee. 6. Accordingly, while dismissing the writ petition, the petitioner is given liberty to approach to the Empowered Standing Committee. In case, a claim/representation is made before the Empowered Standing Committee, it would consider and decide the controversy at the earliest and, if possible, within a period of two months from the date of receipt of copy of the representation.