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2019 DIGILAW 2128 (ALL)

Aaryan Group of Guard Services v. State of U. P.

2019-09-13

JASPREET SINGH, P.K.JAISWAL

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JUDGMENT : 1. Heard Dr. V.K. Singh, learned counsel for the petitioner, Shri. Vivek Singh, learned counsel for the respondent No. 2 and Shri. Bisen, learned standing counsel for the respondent No. 1. 2. By this writ petition under Article 226 of the Constitution of India, the petitioner is praying for quashment of the order dated 31.3.2018 passed by the respondent No. 2, by which the agreement dated 4.8.2016 executed between the petitioner and the respondent No. 2 has been cancelled. 3. The brief facts of the case are that the respondent No. 2 invited tender for sanitation work on 5.7.2016 for five wards of the Nagar Palika i.e. Ward Nos. 5, 10, 15, 19 and 23. The petitioner participated in the aforesaid tender and being successful in the tender, he was awarded the said work by order dated 4.8.2016 for an amount of Rs. 26,32,680/- per month. The said agreement executed between the petitioner and the respondent No. 2 on 4.8.2016 was for a period of 20 years. On 31.3.2018, the aforesaid agreement was cancelled as the petitioner was not performing the work as per the terms of the work-order. After termination of the agreement, the petitioner made representation to the respondent No. 2 and thereafter the present writ petition has been filed. 4. Learned counsel for the petitioner has submitted that the petitioner was carrying out the work as per the terms of the agreement and no notice has been issued prior to termination of the agreement on 31.3.2018, therefore, the actions of the respondent No. 2 are contrary and prayed that the same may be quashed. 5. To support the aforesaid, learned counsel for the petitioner has drawn our attention to the decision of the Hon'ble Apex Court in the case of M/s. Surya Constructions v. The State of Uttar Pradesh and others, in Civil Appeal No. 2610 of 2019, decided on 8.3.2019, wherein the Hon'ble Apex Court considering that there is not dispute as to the amount that has to be paid to the appellant herein and therefore, allowed the appeal and directed U.P. Jal Nigam to make the necessary payment within a period of four weeks. 6. In the present writ petition from the impugned order there is an allegation that the petitioner was not carrying out of work as per the terms and conditions of the agreement. 6. In the present writ petition from the impugned order there is an allegation that the petitioner was not carrying out of work as per the terms and conditions of the agreement. Moreover, the contract in question is a private contract and it is not statutory contract as there was violation of the terms and conditions of the contract, therefore, the agreement was terminated. 7. The Hon'ble Apex Court in the case of The Silppi Constructions Contractors v. Union of India and another Etc. Etc., passed in Special Leave Petition (Civil) Nos. 13802-13805 of 2019, decided on 21.6.2019. The Hon'ble Apex Court held as under: "However, this Court in all the aforesaid decisions has cautioned time and again that Courts should exercise a lot of restraint while exercising their powers of judicial review in contractual or commercial matters. This Court is normally loathe to interfere in contractual matters unless a clear-cut case of arbitrariness or mala fides or bias or irrationality is made out. One must remember that today many public sector undertakings compete with the private industry. The contracts entered into between private parties are not subject to scrutiny under writ jurisdiction." 8. The Hon'ble Apex Court in the case of Joshi Technologies International Inc. v. Union of India, (2015) 7 SCC 728 , has also held in Para-69, which reads as under: "69. The position thus summarised in the aforesaid principles has to be understood in the context of discussion that preceded which we have pointed out above. As per this, no doubt, there is no absolute bar to the maintainability of the writ petition even in contractual matters or where there are disputed questions of fact or even when monetary claim is raised. At the same time, discretion lies with the High Court which under certain circumstances, it can refuse to exercise. It also follows that under the following circumstances, "normally", the Court would not exercise such a discretion: 69.1. The Court may not examine the issue unless the action has some public law character attached to it. 69.2. Whenever a particular mode of settlement of dispute is provided in the contract, the High Court would refuse to exercise its discretion under Article 226 of the Constitution and relegate the party to the said mode of settlement, particularly when settlement of disputes is to be resorted to through the means of arbitration. 69.3. 69.2. Whenever a particular mode of settlement of dispute is provided in the contract, the High Court would refuse to exercise its discretion under Article 226 of the Constitution and relegate the party to the said mode of settlement, particularly when settlement of disputes is to be resorted to through the means of arbitration. 69.3. If there are very serious disputed questions of fact which are of complex nature and require oral evidence for their determination. 69.4. Money claims per se particularly arising out of contractual obligations are normally not to be entertained except in exceptional circumstances." 9. If the aforesaid principles are applied considering the impugned order was passed on 31.3.2018 and this writ petition has been filed in September, 2019 almost after one and a half year. In view of the aforesaid, this Court is not inclined to entertain this writ petition and it is dismissed. The petitioner may, however, take recourse by approaching the appropriate forum to agitate its grievance.