WP(C) 4098/2007 BEFORE HON’BLE MR. JUSTICE B.K. SHARMA JUDGMENT AND ORDER (ORAL) Heard Mr. D. Das, learned counsel for the petitioner as well as Mr. B. B anerjee, learned counsel for the respondent No. 8. I have also heard Mr. S. Bani k, assisting Mr. A.K. Goswami, learned Sr. Counsel and Standing Counsel, KAAC as well as Ms. R. Chakraborty, learned State Counsel. The petitioner No. 1, a busi ness firm, represented by the petitioner No. 2 is aggrieved by the decision of t he authority to withdraw the contractual work allotted to it. 2. Pursuant to the notice inviting tender (NIT) dated 26.6.2000 (Annexure-I I) issued by the Government of Assam in the Irrigation Department, the petitione r submitted its tender. The work involved is Borjan Composite Irrigation Scheme (CONST) of Head Work and its Appurtenant works in Karbi Anglong Disitrct. The approximate value of the work is Rs. 18,07,71,921/-. The time of completion of t he work was three working seasons from the date of issue of the formal work orde r. 3. The petitioner was offered the contract by Annexure-IV letter dated 25.9 .2000 with the direction to deposit earnest money of Rs. 42,64,603/- and to sign the tender agreement. The petitioner accepted the offer by Annexure-V communica tion dated 10.1.2000 and deposited the earnest money etc. and executed the agree ment. By Annexure-VI letter dated 30.11.2000, the petitioner, upon its acceptanc e of the contract was directed to start the work within 7 days from the date of issuance of the work order. It was indicated that upon its failure to do so, the contract agreement would be rescinded and the earnest money would be forfeited. Schedule of items of work and rates etc. were also enclosed. It was made clear that the work allotted must be completed in all respect within the fixed time sc hedule. The petitioner was also directed to submit the work programme as per tim e schedule. 4. Throughout the writ petition, the petitioner has stated about the contra ctual obligation of the respondents. It has been stated that due to not making a vailable the advance payment, the progress of the work suffered. It has also bee n stated that since necessary approval towards undertaking the work was conveyed at a much later stage, the petitioner was not responsible for non-completion of the work within the time schedule. Various other factors, such as activities of the militants, Bandh calls by various organization etc. has also been indicated to be responsible for slow progress of the work. In this connection, the petiti oner has annexed certain documents. 5. By Annexure-XIII letter dated 4.11.2005 issued by the Assistant Executiv e Engineer, the petitioner was requested to gear up the works so that the physic al progress could be achieved in time. This letter was followed by Annexure-15 l etter dated 19.8.2006 addressed to the petitioner by the Executive Engineer, Kar bi Anglong Division (Irrigation) expressing displeasure to the petitioner on its failure to make progress in the work. It was also indicated that the labour str ength of the petitioner was very poor and that certain machineries remained un-o perable. The petitioner was also informed that the Site Agent did not pay attent ion for repairing the machineries and that quantity of collected materials was v ery scanty comparing the volume of the works. The petitioner was requested to ge ar up the works. 6. The petitioner by its Annexure-XVI letter dated 20.3.2007 expressed its difficulties in making progress in the work due to the factors mentioned in the letter. The petitioner also requested to release some payment on early date. Thi s letter was written in reference to the letter No. KADI/MI/16/653 dated 15.3.20 07. By yet another letter dated 18.6.2007 (Annexure-XVIII), the petitioner infor med the Executive Engineer that it has carried out substantial volume of the wor k and that it was suffering from fund crunch due to non-release of advance payme nt. In the letter, the petitioner acknowledged receipt of Rs. 4,89,99,997/-. 7. Again by Annexure-XX letter dated 5.7.32007, the petitioner requested th e Additional Chief Engineer, in reference to his letter dated 12.6.2007 for maki ng further payment. In this letter various factors towards slow progress of the work were indicated. Thereafter by the impugned letter dated 12.7.2007, issued b y the Additional Chief Engineer and addressed to the petitioner, the decision of the authority to withdraw the work allotted to the petitioner as per terms and agreement of contract was conveyed. The petitioner was requested to attend the w ork site within 7 days for taking final measurement of the work executed by it s o far to finalize the incomplete final bill. It was indicated that in case of fa ilure to attend the site, exparte measurement would be taken and the same would be final. 8. The respondent No. 8 has filed affidavit-in-opposition denying the conte ntions raised in the writ petition. He has also questioned the maintainability o f the writ petition. Upon a reference to the clauses in the contract agreement, it is the stand of the respondent No. 8 that the writ petitioners were aware tha t if the department failed to supply cement/steel for some reasons or other, the burden would be on the contractor to procure the same for completion of the wor k. It has been stated that the petitioners have been paid substantial amount and inspipte of that they have stopped the work. It has been indicated that for ear ly completion of the work atleast 150/200 labourers are required every day, but the petitioners engaged only 10/12 labourers. 9. In the affidavit, the respondent No. 8 has stated that even after 7 year s of awarding the contract, the petitioner could achieved only 20% of the work u pto 3.1.2004 as against the stipulated target date, which is 15.5.2003. It has b een stated that the petitioner the never applied for extension of time to comple te the work. In the affidavit, the respondents have disclosed the fact that fres h tender has been issued on 2.8.2007 fixing the last date as 31.8.2007. The resp ondents have rebutted the claim of the petitioner in the following manner: 8. That with regard to the statements made in paragraphs 8 and 9 of the writ pe tition the deponent states that the petitioners were aware of their obligation t o complete the project within the time stipulated as agreed by the parties. The petitioners were paid substantial amount on 18.3.2006 and 4.5.2006 and even ther eafter they have stopped the work. The work in question requires 150-200 labours every day to complete the work whereas they had engaged only 10-12 labourers wh ich can be attributed to the department for non-completion of the project within the time stipulated. The question of ethnic violence cannot be a ground for non -completion of the project since the ethnic clash was for a period of one month in the year 2005 therefore the facts pleaded fails and no interferes is required in the facts and circumstances of the case. 9. That with regard to the statements made in paragraphs 10 and 11 of the writ p etition the deponent states that the facts averred has no firm foundation becaus e during the relevant years the irrigation Department had successfully executed 47 Nos. of centrally sponsored minor irrigation schemes without any law and orde r problem and the facts as averred would reveal that to cover up their own lapse s these averments have been made which the Hon’ble Court may not like to adjudic ate upon these averments. The deponent further states that the government of India had sanctioned the sche me vide order dated 28.10.2005 and even after two working season was elapsed. Th e petitioners were aware that the payment is assured the petitioners would have progressed the work upto 66% which is not the case in hand and therefore the con tract had to rescind and no grievance can be made against the impugned order dat ed 12.7.2007 in the facts and circumstances of the case. 10. That with regard to the statements made in paragraphs 12, 13, 14 and 15 of the writ petition the deponent states that the joint measurement in regard to progress of the work executed by the petitioners would go to slow only 24% for which an amount of Rs. 490.00 lakhs had been paid and the remaining balance of R s. 27.00 lakhs is yet to be paid. The deponent further states that the department had received only Rs. 720.00 lak hs from the State Government till date which is allotted against three other com ponents as well as for Headwork also. The other three components of work were no t allotted to the petitioners. However, the Government of India has released the 2nd installment of fund recently amounting to Rs. 1018.00 lakhs which is yet to be released to the project authority by the State Government. The department ha s yet to submit the proposal to the Government for release of the fund due to pr esent status of the execution of Headwork. The petitioners having failed to exec ute the balance work within the stipulated period in spite of several notices th e technical advisory committee has no other option but to rescind the contract a nd hence no prejudice has been caused to the petitioners. The letter under refer ence dated 30.8.2007 relates to joint measure of the work which has been done in presence of parties. The value of works executed as per Joint measurement stand s to Rs. 517.00 lakhs out of which Rs. 490.00 lakhs has been paid to the petitio ners and the same has been akcnoledged by the petitioners. 11. That with regard to the statements made in paragraphs 17 and 18 of the writ petition the deponent states that the petitioners having failed to execute the w ork in spite of several notices in writing the Government has to complete the ba lance work for the greater interest of the public, more particularly the interes t of tribal community. Considering the upliftment of the poor tribal community, the Union of India has also given priority in sanctioning the scheme and the sai d benefit has been misused by the petitioners resulting in invocation of clause 3 (e) of the tender agreement which reads as follows; The decision to rescind the contract will absolutely rests on the Government . Therefore once the contract has been rescinded in the public interest, no writ w ould lay seeking setting aside the impugned order in the facts and circumstances of the case. 10. In the affidavit, the respondents have annexed the letters addressed the petitioner from time to time for early completion of the work. The letters have been annexed to rebut the contention of the petitioners that they were regularl y not informed of any slow progress being made. The letters have been annexed as Annexure-A series, which includes the letter dated 15.3.2007 at page 20 of the affidavit. This letter is specifically mentioned in view of the stand of the pet itioner in Misc. Case No.3395/2007 filed on 5.9.2007 claiming that the same is a n afterthought. This Misc. case has been filed seeking amendment to the writ pet ition to incorporate the facts revealed from the affidavit-in-opposition, which according to the petitioners, they were unaware of. 11. In the above context, the statements made in paragraphs - II, III and 17 A of the Misc. Case are quoted below: II. That the petitioners humbly states that when the respondent No. 8 had served the affidavit-in-opposition to the petitioners, then only the petitioners had c ome to know that the respondent authorities have initiated a fresh process and a Notice Inviting Tender has been initiated on 02/08/2007 fixing 31/08/2007 as th e last date for submission of Tender. Furthermore, the respondent No. 8 had alle ged that a final Termination Notice was issued to the petitioners on 15/03/2007, on which the petitioners stoutly denies the veracity of the said Termination No tice as the impugned termination Notice has now been averred as a mere after tho ught by the respondent authorities. III. That the petitioners humbly states that certain new developments of the Fre sh Notice Inviting Tender dated 02/08/07 being initiated by the respondent No. 8 and the so-called final Termination Notice issued to the petitioners on 15/03/2 007 warrants a strong rebuttal from the petitioners which could not be incorpora ted in the submissions and the prayer portions of the Writ Petition (C) No. 4098 of 2007 by the petitioners. 17. A That the petitioners humbly states and submits that with regard to the iss ue of notice of termination being served upon the petitioners, the petitioners w ould like to clearly amplify the fact that the ’so-called’ final notice dated 15 .03.2007 is not in sync with the principles of administrative fairplay as the ti me period between the final notice and the Withdrawal letter dated 12.07.2007 is nearly four months in which period the petitioners made a lot of representation s to the respondent authorities without even evoking a response in an official m anner from the respondent authorities. In fact the termination was resorted to b y the respondent authorities only to avoid making payments of the petitioner’s b ill lawfully owed and payable to him when they realized that the measurement boo k which was prepared in the Office chamber of respondent No. 8 did not tally wit h the actual scenario prevailing at the site. Furthermore, the purported notice of termination does not even have a authenticated signature of the signatory, in scribed therein which further cast a doubt over the genuineness of the same. 12. From the above averments coupled with the submissions made by Mr. D. Das , learned counsel for the petitioners, it is the stand of the petitioners that t he letter dated 15.3.2007 was never issued to the petitioners and the same is an afterthought. The petitioners have even questioned the signature in the letter dated 15.3.2007. 13. In view of the above stand of the of the petitioners Mr. B. Banerjee, le arned counsel representing the respondent No. 8 was requested to produce the rec ords, which he has produced. Contrary to the stand of the petitioners that they were not served with the letter dated 15.3.2007, the records have revealed that they not only acknowledged the same but also furnished reply by their letter dat ed 20.3.2007, copy of which has been annexed to the writ petition as Annexure-XV I. However, apart from the aforesaid stand in Misc. Case No. 3395/2007 coupled w ith the oral argument of the learned counsel for the petitioner, in the writ pet ition also there is no mention of the letter dated 15.3.2007. 14. The above aspect of the matter apart from leading to the irresistible co nclusion that there is suppression of material facts with the sole purpose of mi sleading the Court, which the petitioner has succeeded by way of getting an inte rim order, has a significant bearing. By the said letter dated 15.3.2007 of the Executive Engineer, the petitioners were asked to take proper action in time. It was also intimated that upon failure to do so, the matter would be referred to the higher authority for completion of the work through other agencies at the ow n risk and cost of the petitioners. This vital document has been withdrawn from the Court in moving the writ petition. Not only that, the petitioners have even questioned the very existence of the same with the signature therein describing the same to be an afterthought unmindful of the fact that the petitioners duly r esponded to the same by submitting their Annexure-XVI reply dated 20.3.2007 with out any such allegation. Although, the letter dated 20.3.2007 has been annexed t o the writ petition, but there is no statement relating to the notice dated 15.3 .2007 and the same has been projected as if the petitioners wrote the same of th eir own. 15. The records produced by Mr. B. Banerjee, learned counsel for the respond ent No. 8 have revealed that the petitioners were issued with umpteen number of letters asking them to complete the project early, to which the petitioners also responded. Way back on 25.6.2006, the petitioners were intimated that the respo ndents were not satisfied with the progress of overall works. It was pointed out that the Department was not satisfied with the manpower and machineries engaged . Such displeasure was conveyed by letters dated 31.8.2006, 11.9.2006 etc. The p etitioners also responded to the letter dated 31.8.2006 by stating that the matt er had been sorted out and the progress in the work would be expedited. 16. The above letters were followed by further letters dated 15.11.2006, 30. 11.2006 etc. intimating the petitioners about virtual no progress of the work in absence of sufficient numbers of manpower and machineries. In fact the entire r ecords are full of such letters, which the petitioners have not highlighted in t he writ petition for obvious reason. On these scores alone, the writ petition is liable to be dismissed. However, I have examined the matter on merit as well. 17. Much have been said about approval of the work and non-furnishing of req uired fund, unmindful of the fact that irrespective of the formal approval, the petitioners were to start the work within 7 days from the date of issue of the w ork order as indicated in Annexure-6 letter dated 30.11.2000. The work was to be completed within 3 working seasons, which is long over. As regards the plea of non-furnishing of fund same is not at all tenable. Clause 28 of the agreement st ates that no escalation will be allowed in any item of work on account of any in crease in the cost of leaving index or price index of material upto 3 working se asons. Further as noted above, the petitioners have been paid substantial amount s on 18.3.2006 and 4.5.2006, but even thereafter they virtually stopped the work . In paragraph 10 of the affidavit, the respondents have stated about the measur ement of the work done in presence of the parties. The value of the works execut ed as per joint measurement stands at Rs. 517 lakhs, out of which Rs. 490 lakhs has already been paid to the petitioners. Even if, the date of formal approval o f the work is taken into account then also two working seasons are already over and now the third season is at the threshold. 18. Mr. Banerjee, learned counsel for the respondent No. 8 has referred to t he decision of the Apex Court reported in AIR 2003 3823 (National Highway Author ity of India Vs. M/s Ganga Enterprises). He has also referred to the decision of the this Court reported in 2006 (4) GLT 441 (AIA Enterprise Vs. Gauhati Metropo litan Development Authority). In both the decisions it has been held that in a claim arising out of breach of contract being a contractual dispute, writ petiti on would not be maintainable, In the later decision it has been held by this Cou rt that in case of cancellation of contract, remedy, if any, would be by way of identifying the loss and definitely not by revival of the contract. Apart from t he above, the contract agreement itself provides for resolution of disputes thro ugh arbitration. 19. For all the aforesaid reasons, I do not find any merit in the writ petit ion and consequently it is dismissed. Interim order passed earlier stands vacate d. 20. Writ petition is dismissed. There shall be no order as to costs.