c"^\ :'^i 1 .^J!/^ '^^-•^-^!^. HIGH COURT OF CHHATTISGARH AT BILASPUR ^^5/ Writ Petition (0 No.1087 of 2010 PETITIONER: Barbrik Project Limited Versus RESPONDENTS: State of Chhattisgarh and others QRDER FOR CONSIDERATIOr l-1 ^ HON'BLE SHRI R.N. CHANDRAKAR, J ^ o^Y^-* Q Sd/- J U DG E OL^-10-2010 Sd/- R.N. Chandrakar Judge POST FOR ORDER ON S" OCTOBER, 2010 Sd/- Dbirendra Mishar Judge T^: HIGH COURT OF CHHATTISGARH AT BILASPUR Writ Petition (C) No.1087 of 2010 PETITIONER: Barbrik Project Limited (Incorporated underthe Indian Companies Act 1956) through its Director, Shri Rajesh Kumar Agrawal, S/o P.R. Agrawal, aged about 46 years, registered office at Nehru Park Road, Surajpur - 497 229 (Chhattisgarh) Versus RESPONDENTS: •M. 4. State of Chhattisgarh, through Principal Secretary, Panchayat and Rural Development Department, Government of Chhattisgarh, DKS Bhawan, Secretariat, Raipur Chief Executive Officer, Chhattisgarh Rural Road Development Agency, Vikas Bhawan,Civil Lines,Raipur Chief Engineer, Chhattisgarh Rural Road Development Agency, Vikas Bhawan, Civil Lines, Raipur M.L. Haldkar, Chief Engineer, Chhattisgarh Rural Road Development Agency, Vikas Bhawan, Civil Lines, Raipur Present: Shri Ankit Pandey, counsel for the petitioner. Shri Yashwant Singh Thakur, Deputy Advocate General for the State. Division Bench: Hon'ble Shri Dhirendra Mishra & Hon'ble Shri R.N. Chandrakar, JJ. ORDER (Passed on ^ftOctober, 2010) The following order ofthe Court was passed by Dhirendra Mishra, J. 1. The petitioner has filed the instant petition and prayed for quashing of the order dated 6th February, 2010 (Annexure-P/1) whereby the petitioner's registration as a contractorin S-5 category in the Chhattisgarh Rural Road <:-) Development Agency (hereinafter referred to as 'the CGRRDA') has been cancelled. 2. Briefly stated, the petitioner's case is that M/s Bajrang Lal Agrawal, a partnership firm, was registered as S-5 contractor with the respondent CGRRDA since 2000. With the passage of time the business of the firm grew. Considering the same, almost all the partners of the firm decided for external expansion by incorporating a company limited by shares in the name and style of M/s Barbrik Project Limited in the year 2008 and accordingly, the petitioner was incorporated in the year 2008 and the certificate of incorporation was issued by the Registrar of Companies on 7th April, 2008 and the Company commenced the business w.e.f. 2 May, 2008. 3. The petitioner vide its resolution dated 2 May, 2008 took over the entire business of M/s Bajrang Lal Agrawal as a going concern (Annexure-P/6) and an agreement was entered into between M/s Bajrang Lal Agrawal and the petitioner company vide Annexure-P/7. By virtue of the agreement, the petitioner succeeded the business of M/s Bajrang Lal Agrawal atong with its assets and liabilities. M/s Bajrang Lal Agrawal firm was dissolved w.e.f.2 May, 2008 vide deed of dissolutiondated 2nd may, 2008 (Annexure-P/9) and the same was communicated to the Assistant Registrar, Firms and Organizations on 12th July, 2008 (Annexure-P/10). 4. CGRRDA as also other Government departments allowed the petitioner's application for registration as contractor in their department and issued registration certificate. The petitioner was duly registered as S-5 contractor with CGRRDA (Annexure-P/15), however, respondent No.4 issued show cause notice (Annexure-P/16) to M/s Bajrang Lal Agrawal on 7-8-2009 -7'1>. / /'. —^. /';::-^ 'i ;:5il' ^ ^ ^;. "^-^ '^^^^ contemplating cancellation of the registration of the petitioner for merging with the petitioner's company without permission from the CGRRDA. The petitioner replied to the above show cause notice vide Annexure-P/17 dated 18th August, 2009. The petitioner was again served with a notice dated 14th October, 2009 calling upon him to show cause as to why his registration as S-5 category contractor should not be cancelled, which was replied vide Annexure-P/19. However, after issuing another notice dated 11-11-2009, CGRRDA, respondent No.2, cancelled the registration vide impugned order ofAnnexure-P/1. 5. Shri Ankit Pandey, learned counsel appearing on behalf of the petitioner, submitted that the petitioner's registration as S-5 contractor has been erroneously cancelled on the ground that it did not have experience of its own for claiming registration with the CGRRDA and the registration is claimed on the basis of experience of Director or partner of the petitioner's company whereas, the petitioner applied for registration on the basis of its own experience, as the petitioner vide its resolution dated 2nd May, 2008 has taken over the business of the firm as a going concern and the registration certificate was granted to the petitioner by respondent No.3 by accepting merger of M/s Bajrang Lal Agrawal with the petitioner with atl the contracts and the work in hand vide Annexure-P/15. From the note sheets of the respondents, which have been filed by the petitioner along with his rejoinder as Annexure-P/23, it would be evident that the respondents after considering that M/s Bajrang Lal Agrawal has merged in the petitioner company recommended for registration as S-5 category contractor and the same has been accepted by the Chief Engineer of the CGRRDA and the registration certificate of S-5 contractor has been issued. From the document of ./ Annexure-P/15, it would be evident that his registration CQuld be down- graded, cancelled or suspended only as per clauses 2.097, 2.100, 2.101 & 2.102 ofthe Works Department Manual, 1983. 6. On the other hand, Shri Yashwant Singh Thakur, learned Deputy Advocate General for the State would submit that M/s Bajrang Lal Agrawal was registered as S-5 category contractor with RES whereas CGRRDA came into existence on 1-2-2003and the rules regarding registration of contractor with CGRRDA came into force w.e.f. 27-1-2006. Even otherwise, M/s Bajrang Lal Agrawal entered into agreement with the petitioner company without seeking permission from the authorities of the CGRRDA. The petitioner has averred in the petition that M/s Bajrang Lal Agrawal has merged with the petitioner and the same stands dissolved w.e.f. 2 May, 2008 (Anneure-P/9). However, the predecessor firm is still carrying on the construction work out of total works awarded to M/s Bajrang Lal Agrawal. 166 works were awarded to the said firm, 136 roads have been completed but the work of40 roads is still going on. The firm has further agreed to maintain those roads for a further period of 5 years. If the firm has received payment for their works from the answering respondents, it makes the documents filed by the petitioner suspicious. CGRRDA in the meeting of its Executive Committee hetd on 27- 1-2006 prescribed the procedure for registration of the contractors of CGRRDA (Annexure-P/22). As per the document of Annexure-P/22 for registration of S-5 category contractor, the contractor should have work experience in his own name and the experience of the Director/Partner of the Company/Firm could not be considered as experience of the company. 7. We have heard learned counsel forthe parties. ^./ 8. Indisputably, after incorporation of the petitioner company and after agreement with M/s Bajrang Lal Agrawal, the petitioner applied for registration with the respondents along with necessary deposits. His application was duly processed by the respondents, as would be evident from the document of Annexure-P/23. The petitioner claimed registration as S-5 category contractor on the ground that M/s Bajrang Lal Agrawal has merged in the company, showing the work experience of predecessor company as its own, the same was duly accepted and the registration certificate of Annexure-P/15 was issued. The above fact has not been controverted by the respondents. 9. From perusal of the documents of Annexure-P/15, it is clear that the registration could be down-graded/cancelled/suspended as per clauses 2.097, 2.100, 2.101 and 2.102 of the Works Department Manual, 1983, (Para-1). It is not the case of the respondents that the certificate of registration has been cancelled for breach of any of the above clauses. Even otherwise, after examining the above provisions, we find that the same does not provide for cancellation of the contract on the grounds on which the registration of the petitioner has been cancelled. 10. On due consideration of the documents annexed with the petition and further considering that the respondents after accepting the contention of the petitioner that M/s Bajrang Lal Agrawal has merged with the petitioner and treating the experience of predecessor as the experience of the petitioner, registered the petitioner as contractor of S-5 category, we are of the opinion that the respondent No.4 was not justified in canceling the registration certificate by referring to the order of Annexure-P/22 which was very much in iT~'~ Barve ^-" ^\- force even at the time when the certificate of registration was issued to the petitioner by respondent No.4. 11. In the result, the writ petition is allowed and the impugned order dated 6-2- 2010 (Annexure-P/1) passed by respondent No.4 is quashed. Sd/- Dhirendra Mishar Judge Sd/- R.N. Chandrakar Judge