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Madhya Pradesh High Court · body

2018 DIGILAW 575 (MP)

Gya Prashad Garg v. Managing Director, Madhya Pradesh Poorv Kshetra Vidyut Vitran Co. Ltd.

2018-07-03

HEMANT GUPTA, VIJAY KUMAR SHUKLA

body2018
ORDER 1. The challenge in the present writ petition is to the communication dated 28.3.2018 (Annexure P-1) whereby, Performance Bank Guarantee furnished by the petitioner was invoked and that the petitioner was blacklisted for a period of two years. 2. The petitioner was successful bidder for installation of 43 pumps for which 34 Letters of Intent were issued in pursuance of Tender Notice dated 8.5.2017. The Letters of Intent were issued from 28.6.2017 to 20.12.2017 on different dates. The installation of pumps was to be completed within 45 days. But the petitioner has not completed the installation of pumps within the time granted, therefore, the impugned order dated 28.3.2018 has been passed. 3. The argument of the petitioner is that a date earlier i.e. on 27.3.2018, the petitioner was given time for installation of remaining pumps till 10.4.2018; therefore, invocation of bank guarantee and blacklisting is arbitrary and runs counter to the judgment of the Supreme Court in Gorkha Security Services v. Government of NCT of Delhi, [ (2014) 9 SCC 105 ]. It has been further argued that in terms of general terms and conditions of the contract (Annexure-II), the contract was valid for a period of 12 months from the date of issuance of RCA whereas validity of the bids was 180 days from the date of bid opening. 4. We find that the argument that validity of the contract was for a period of 12 months is totally misconceived. 5. The specific terms of completion of work as per the condition is 45 days. Clause 12 of the Notice Inviting Tender reads thus : 12. Work Completion : A 45 days period would be given to contractor for completion of the assigned Pump Work from date of work order. However, in case any delay on the part of MPPKVVCL or time taken to resolve ROW disputes or time taken by EE (STC) for inspection of poles etc. the same may be considered on merit basis by Employer and necessary Time Extension will be provided to Contractor. Further, the successful Bidder can accept farmers request for execution of work for maximum upto 30 work orders at a time in a circle. the same may be considered on merit basis by Employer and necessary Time Extension will be provided to Contractor. Further, the successful Bidder can accept farmers request for execution of work for maximum upto 30 work orders at a time in a circle. It means if successful Bidder having 30 work orders in hand in a circle and any farmer submitted their request for execution of work, then successful bidder can undertake the work only after completion of any one running work order. However, the above limit may be increased or decreased by Employer at any time during execution of Contract. 6. The general terms and conditions will not prevail when there is a specific period of completion of work mentioned in the NIT. The petitioner has not produced on record the letter of intents awarding contract to him. However, in the communication dated 28.3.2018, the petitioner has been informed that he has failed to complete the work within 45 days as per Condition No. 12 (wrongly mentioned as Condition No. ‘11’ in the impugned communication) of Annexure-I, as reproduced above. Still further, it is not the case of writ petitioner in the writ petition that the work was to be completed within 12 months. We find that the petitioner has raised argument without any factual basis. 7. In respect of the argument that the petitioner has been blacklisted without giving time to him to complete the installation of pumps as communicated to him vide order dated 27.3.2018, we again do not find any merit in the said argument. 8. The work was to be completed within 45 days; therefore, the petitioner has incurred liability of invocation of the bank guarantee and consequences of not completing the work which includes blacklisting for not completing the work within time fixed. It is not the case of the petitioner that he has installed pumps within 45 days in terms of conditions of NIT. The failure of the petitioner to complete the work within the time prescribed does not entitle him to any other opportunity than what is contemplated in the agreement in question. 9. It is not the case of the petitioner that he has installed pumps within 45 days in terms of conditions of NIT. The failure of the petitioner to complete the work within the time prescribed does not entitle him to any other opportunity than what is contemplated in the agreement in question. 9. Though, it has been held in Gorkha Security Services (supra), that there cannot be any order of blacklisting without any show cause notice and compliance of the principals of natural justice, but, in the facts of the present case, the failure to install pumps within 45 days leads to violation of the agreement. The petitioner was aware of the terms of the agreement to complete works within 45 days but still he has not completed the work before the impugned order was issued on 28.3.2018. 10. A Full Bench of this Court in the case of Shri Gouri Ganesh Shri Balaji Constructions v. Executive Engineer, PWD : A.C. No. 40/2016 decided on 3.5.2018 [Published in 2018(2) JLJ 393 (FB)], has held that consequence of blacklisting is to raise a dispute before the statutory Arbitral Tribunal constituted under the M.P. Madhyastham Adhikaran Adhiniyam, 1983. Therefore, even if the order of blacklisting violates the principles of natural justice, the remedy is before the Arbitral Tribunal and not in a writ petition under Article 226 of the Constitution. 11. Learned counsel for the petitioner has referred to a single Bench decision in Writ Petition No. 11619/2018 (M/s K.D. Transport v. State of M.P.) decided on 25.6.2018 [Published in 2018(II) MPWN 107 ], wherein, the writ petitioner was blacklisted for a period of ten years. We may state that violation of principles of natural justice, by itself, will not confer any right on a contractor to avoid the blacklisting. The circumstances and the nature of the contract will determine whether the principle of natural justice has caused any prejudice to the contractor. Since the contract was to be completed within 45 days but the petitioner has taken sufficiently long period to complete the work, therefore, having given bid to complete the work within a particular period, the petitioner cannot hide behind an argument that principle of natural justice has not been complied with. Any contractor who fails to complete the work necessarily runs the risk of the consequences of non-completion of the contract. Any contractor who fails to complete the work necessarily runs the risk of the consequences of non-completion of the contract. Such time is essence of a contract and the petitioner cannot claim violation of principles of natural justice, that even though the petitioner has violated the timeline, still, the petitioner should be given notice before blacklisting of the firm. Even otherwise, the petitioner has alternative remedy against the order of blacklisting. 12. In view of the above, we do not find any merit in the present writ petition.