(yooY~ IN THE.fflGHCQURTQFCHHATTISHGAIffl.AXBILASH® PETITTONER u^ A^^" >?q®t'" . ^r^^' €^>'"" y RESPONDENT$ R£cOf€34CT Cl®i^to 3PY '.^] G. 0HaspU( ^ WRIT PETITION N0. >-70 Bafna Earth Movers limited, Registration No.-48017164/2001, Registered office 30- Shoppitig Complex Nehm Naear (E) Bhilai, Distt- Durg (C.G.), through its Director Ajay Baiha s/o Slu-i P.C. Bafha , aged about 34 years , Resi. Of 5 Malviya Nagar Durg. VERSUS 1. State of Chhattishgarh , through Secretary Public Work departmental D.K.S. Bhawan Raipur(C.G.) 2. Engineer in chief P.W.D. office at 9-' civil lines Raipur (C.G.) 3. Executive Engineer (P.W.D.) ^L- Khairagarh Division Khairagarh , Distt Rajnandgaon (C.G.) 4. Supermtendent Engineer P.W.D. ^ • Durg Circle - Durg (C.G.) M&. ^- w\ ^\. WRIT PETITION UNDE.R ARTICLE 226/227 OF THE_CONTITUTIQN:_0_FINDIA '-;;- ^TPff?!^^ ^a'RI^, T^T[X}y ^..^.,ts.,..^.\?.±. ^r i »?'r. ^- '• •••^ -^S-t-;:^ '^?^tq? Ui;PRJ—FS/350- 14-1-200S On a m.ention beiiig aiade, jtlie case is taken up for heariiig. Sint. Hamida Siddique, coiiusel for thc peutk>uer. Shri Saajay S, AgrawalJ Govt, Advocate for tfae Staie /rcspondents 1 to 4. By tlie iastaD.t petition tl^d under Ai'ticle 226/227 of tlie Constitutiou of Iiidia tlie petiti^ner lias questioned the legality, propriew and correcto.ess ol] thc ordcr dated 11-12-2003 (Aiiiiexure-P/1} passed by respotident No.2 whereby tlie petltioner has beeii deba.iTed from partict|ipatmg in the teiider proces^ of 1'espondent departaieut for a p^iiod of 70 years 011 accouiit of non-coBipletion of tlie work witl^iii the stipulated time awai'ded to the petitioner. j Bricf tacts leadiag to fil4ig of this writ petition ai'e tliat rcspondents floated tcudei's f<|)r coiistn.ictiou of the road iii Khaiji'agarh Divisiou. The petiti4ner beuig the succes^ful tenderer executed ^ agreeBient. with ^esposident No.4 vide coiiti'acts beamig Nos.62/D.L./2001-200^ aiid Q1/D.L./2001-2Q02 work to tlie tuue of Rs.68 lacs aiid for r^maiiiing m'o works to tlie tune of Rs, 18 lacs. As the petitiouer c^uld not compiete the work withiri. the stipulated tmie^ he sought ^>r extension of tioie^ in one case Iwo tiines aiid iii one case for oi^e tniie, It appeai's tliat even theu the petitioner was uot able to ex^ciite tlie work aacl as adBiitted by leained couiisel for tlie petitione^, duruig fiie course ofarguments, tliat work has been undertake^ by I'espondeuts and saiae has been coxnpleted at tlie risk aiid cost of tlie petitiouer hereiii. .12/2000—50.000, -s^-^^^^ ;NP??1iW '^-^1 1»%^^.^ i ' "^"^^k WT ^ j 1 ^- However, iu flie m.eaiitime, by 41xier Allllexul'e"P/1 the petitiouer has been debarred froni pai'tici^atHig ia the tender process for a period of ti¥oyears. The maio. reply of the resgonclents is that the petitioner dicl not stert the work wifhin. fhe | stipulated tmie, The petitioner appUed for extension on 22-1-20^)3 on the ground ofbreak down of 1 machiaeiy aad difficully io. pro^urciiient of stones, Even for tlie agrccmcnt No.43/DL-Q2-Q3 am^unting to Rs.18,12,000/- work order was issued on 18-9-2002 |md ttie work was to be compieted by 31-12-2002, fhat work was |iot sterted by fte petitioner even after the expiiy oftmie period. TJIie petitioner applied for extension on 21-1-2003. Similoiiv, for| amouutiD.g to Rs»l, 10,74,OOQ/{ 2002 and period for completion 4f the work was 5 months ie, 5-7- 2002, The petitioiier taad not schedule for wliich extension w^ "ompleted the work as per work is also graiited froBi 6-7-2002 to coiiipleted by tlie petitioner, and tiie petitiouer had partly Dongergai'h Road aiid asked foij tlie agreeixient No.62/DL-G2-03 work ordcr was issiied on 5-2- 15-1-2003; eveu tlieii the petitic^ner was not able to complete the work. For Khairagarh Divisi^n-Jaiijgir Road work was uot For agreement No.61/DL-02-03 amountiiig to Rs.67,29 lacs woi|k order was issued on 6-2-2002 doue tlie work of Khaii-agaiii- extension of time for completiiig thc work of DougajrgaTh-Chicholp Road which was graiited up to 15-12-2002, but the petitioner i|dled to complete tiiat work. For the agreement No.25/DL-02-03 a|oiountmg to Rs.35,29,000/- work .--oxd.dLissss issi.x&d-on 22-7—j2flO^_^!Diii__w^i_^__t^_b^/^<?sTtl.pll6-teAlsY 2 1 -1/^ Gi.PRJ—FS/350—12/2000—50,000. -S^ ^pl^FI, R":iWI:( ^:^^SW '?i^^iii¥^;< ^^^11 ^aiNi^ ^H i^^p lir^Ni M^M-^'^ yysaBs^.y ^- 2002 (three mouths), but th.ej petttioner had not even staited the work witliiii the stipulated iii^e. Thereforc, tiie petitioner neitlier coinplcted fhe work uor sho|yu aoy iB.tercst tn. com.pleting the work. Even tiie extension w^s not applied withini the stipulated time despite several remmderej a.nd notices arid the petitioner failed to coiiiplete the work, The coAtention of tli^ petitioner Uiat he was 1 williiig to coiiiplete tlie work, ^herefore,, he appMed for extension Gl tmie i-s.fiiUv without anv ba-sisj i liave heaixi leaiiied coi4iisel for tiie pai'tles, Leaiiied counsel for thej as fai' as the Questioii of non-4 petitioner is concenied, tlie r^ the work aiid got it coiapletecl petitiouer for which tlie petiti^ this writ petition, The petiti|: whercby he has beeii debaiT^d froai participatiiig iii the futurc tender process for a period o| that ia thc mipugucd order condition has been mvoked, looking to the facte of tlie pre tlie. petitloner failed to executej Even iii b¥o cases lie hadj I petitiDner very fairly submitred th^t onipleUon of work ou the part of Uie bspoiidents had already undertakeii by a fhird agency at the cost of tlie mer nas uot made aay challenge in. psner has chalSenged Annexurc-P/1 tevo veai's, She fiirther subniitted clause-4 of tfae addidonal special On tlie piaiii readiiig of clause-4, ent case, it wa^ not attracted at all, No uotice to show cause or op^ortunity ofheailiig was givexi to the petitioner before passing tlie i4ipugned onler, On the other haad, lcabied Govt. Advocate subinitted that tlie work witlim. tlie supulated timc, not staTted the work withm the ^s^uj^ted^ti^e, ^Eveii ext€iis|ou was appUed^alter expiivof fcinie Gi; ^RJ—.FS/350--12/2000—5(1000. ^q I^FTiTfy ^ ^^ ^^:^^,,,., •^l period^ therefoxie, respondente wex'e within Uieir right to invoke provisious ofclause-4 ofadditidnal special condition, In this connection^ clau^e-4 of additional special conditiou postulates th.at 'if the contrac|:or fails to execute the agreement withm tijiie prescribed in NjII .T, or abaiidon any work after executiiig tiie agrcemeut, he s&all be deban-ed from. psjrticipatiiig j in aiiy tender for aiiy P,W,D, w^rks in Chhattisgai'li for a periocl of tovo vears froni thc date of forf^iture of his eamcst HIOUCY or froiii tiie date of tei'miiiatioii of flid contract/ Therefore, iii order to attracf the above clause coiidij:ion is to be satisfied i,e. (i) if the contractor tails to execute the 48re^lslent witliiu tmie prescribed io. NJ.T, or (ii) abaadoii aiiy con^act after executing tlie agreeiiient, As far as first condition is conc^med; that is not attiucted at aU, as agreemcnts were eutered mto i4 all tlie fbm' cases. Now, commg to the question ofabaiidon ofwor|c is coucenied, iii this case no show cause notice was issued to th^ petitioner tliat he has abandoned the work nor aiiy opportuuit|y of hearmg was given to him to ^xplam his conduct. Even fi^in thc record it appears tliat the petltioner sought exteusion ir<}>m time to time, as he could not complete the work withia the clause-3 of tlie agreeiaent respondeuts aiid work was go siiows tliat tlie work was uot ci Istipulated time tha.t i% why as per necessan' steps were takeu by completed at tlie Hsk aiid cost of the petitioner hereta, The m|.pugnccl order AnuexiiTc-P/ 1 itsctf ompleted witlim flie stipulated time as per the agreement that cajinot be teroied that the petitioner Jiereiii_Jiad^_^aD.doued fhe ^orl<< As Per TV^^^CT*?s_^lctlouaIy Gi; PRJ—FS/350-—12/2000—50,000. . 4— •ycq ^y^r^^ ^^mq^, iqi?rraw m wr I 3an/e -^ ^Nto^st^ "Abaiidon" meaii^ cl. to leai?e coio.pletely mid fiiially; forsake utterly; ~ desert, 2. to give iip; discoiitinue; witlidraw froni; to abaB-don a projcct; to abao.dQ|i hope/* If we look into fhe facte of the present case,the case oftjie respoiidents is that the petitioner herem dicl not execiite the work evers after eMeiiisioii. it is nowhere st^ted fhat he left the work cojiipletely or fixially or witlidi^Lwn from the work or gave up the work, therefore, clause-4 of Uie additbnal special condition was uot atti^cted at aU m this case. Thercfore, the decision of tlie responden|:s Amiexure-P./1 is whotly based 011 aoti-exisient gix)Utid. In view of tlie above p<|>sition, I ain of tlie opiriion tiiat me impugned order Aiuiexure-P/ wituout iQllowing pnaciple of cause aiid clause-4 which w^s mvoked was not applicable iii tlie facts ajid circumstaiices ofth4 case, In the result, fhe writ { order is qiiashed. In view of this ordel No.3040/ 2004 stsmd disposec| of, Pai'ties are entitled for c^rtified copy of this order, 11 passed by x'espondent authorities luatural justice, as also without aiiy etition is allowed and the Laipugned b M.(W.)P. No.56/2004 aiid I.A. Sd/- l..C.B^doo Judge ^, ^ifjt' PRJ^S/350~-12/2nn0--50,000, ^^'