c. ^ ^ 3N_mT;HQN'BIS HIGH COURT'OF CHAT'ns3ARH AT CTlAS'UR. .t?o3. ./o,. .^ a^a e e » feaittesaNlgSff y •:•'"• e'H.'a.oner s /' &K.S"B.tra, s/o Shrl N. D. Mtra, agefi 44 years» r/o A-I '% dyut Nagar; 3JP.G ( C. G. ). ^ Vergas. Re^onden-bs iy (1) Indira Gandhi KrisM. "Asvrevi.dhyslnya /• r^ Ibrough - 'B.ce Chancellor; Raipur (c.G.). •^'li?A'''^-2) Hr- A-s- plaha' ^" ^^°' -<<- .' .^' ^". -^ Sup eri.ntffs d^it, Phygl.cal Pla.nt, aidirs Gandhl Krishi Visi-E'vidysln.ys Raipur (C.G.). ^" (ttl-c pe-cl-a.on under Article, 22f^2^?'/o^ jAe_ CpnstA^yfi.oE Q£ Ihdia. • .^ S.K. Mitra - Versus - Indira Gandhi Krislii Vishwavidyalaya & one aaother *k Sd/- L.C.BHADOO rf HIGH COURT OF JUDICATURE ATBILASPUR, CHHATTISGARH Writ Petitioa No. 1309 of 2004 S.K. Mitra - Versus - ladira Gaudhi Krishi Vishwavidyalaya & one aaother Present:- Mr. T.K. Tiwari, Advocate: Mr. Prashant Mishra, Sr. Advocate With Shri H.S. Patel, Advocate: For the petitioner. For ti.ie respondents ORDER (Passed oii</A.th Febraan', 2005) L.C. BHADOO. J. 1. By fhis writ petiti.cn luider Article 226/227 offhe Constitution of India fhe petitioner has questioned the propriety and correctaess of fhe order dated 29.4.2004 (Aiuiexure P-4) passed by respondent No.2 whereby the contract avvarded to tiie petitioner toy fh.e respoudents relating to the construction works at different places was temimated. 2. Brief facts leadiag to filing of fhis writ petition are that fhe petitioner is a Class A-3 civil contractor aiid is entiUed to take iip fhe work valued upto Rs.l Crore. Respondent No.2 issued a NIT iaviting tender froia fhe eUgible contractors relatmg to the construction works at different places. In response to fh.at, tlie petition.er subnutted tender, after scrutiny sarae was accepted IV Page 2 of 10 '^ aad a contract agreeinent was entered between the petitioner and the respondents. The petitloner has also deposited fhe security amount of Rs. 10 Lac. The petitioner's case is fhat he executed fhe work to the tune of Rs.75 Lac, payinent was also m.ade to linn fi-om. time to tune and about 92% of work was coinpleted by the petitioner. The petitioner coinpleted fhe work of adniinistrative of&ce of Veteriaary College, Anjora and same was iaaugurated by the then. Chief Minister offhe State. However, aa aiiioiuit ofRs.3 Lac was withheld by the respondents aiid on accouiit of want of fand, as the paynient was not inade to the petitioner, he was not able to coiiiplete fhe reiuauiuig construction works. To fhis effect, the petitioner had niade several representations (Annexure P-2), but respondent No.2 started deiuaiiding illegal gratification from. fhe petitioner, which he deiiied aad niade a coniplaint before fhe State Economical Offence Investigation Bureau, Raipur, copy of which is Aiuiexure P-3. On fhe coinplain.t of the petitioner an enquiry was started and ultim.ately, wifh a m.alice respondent No.2 vide impugned oider dated 29.4.2004 terminated the contract. Therefore, the petitioner has prayed that the impugned order dated 29.4.2004 (Annexure P-4) be quashed beiag illegal and unjust. i. Retum. has been filed on behalf of the respondents in which it has been categoricaUy inentioned that it is denied that the petitioner executed 92% ofwork, fhe chart preparcd to show the perceatage of work done by the petitioner (Annexure R-l) iviU deinonstrate that ffae petitioner has not at all cared to execute fhe work witli siiicerity, devotion & within. stipulated tiine aiid he failed to perform. his contractual obligation. It is denied that payinent of '^ Page 3 of 10 Rs.3 Lac has been wifhheld due to want of fund, ia fact, tlie CoinptroUer of Accounts of respondent University upoa review of the construction work undertaken by the petitioner was pleased to direct vide its letter dated 1.9.2003 (Annexure R-2) to fhe effect that no payment should be m.ade to ftie petitioner, but upto fh.at tune paynieat of Rs. 15 Lac was already niade to the petitioner as an advance, even then. the petitioner failed to show the sufScient progress ia fbe construction works. It has further been nientioned ia fhe reti.im that fhe construction work inainly related to research related constt-uction of aiiimal house, inuslirooias ;rowin.g house, seed storage ete. These works were ofeiaergent nature because fhe students undertakiag studies tu the respondeut-University were faciug acute probleins of proper research facUities which was of parainount unportaiice for a research student, however, because of caUous aad negligeni attitude of fhe petitioner the research work of the University has also suffered adversely. The fact of deraaad of Ulegal grati&cation has been denied aad it has been nientioned that the petitioner failed to coiuply wifh the tenns & conditions of fhe contract agreeiueat and to ftilfiU his contractual obUgations inspite of waming given to him. Therefore, the petition of the pedtioner is liable to be disinissed vvifh costs. 4. Leamed counsel for the petitioner ai^ued fhat infact the petitioner executed fhe work and amount of Rs.3 Lac was wifhheld by the respondents wifhout aay valid rcasou aad on accouat of which fhe petitioner could not coniplete the work, for which fhe petitioner sent several letters dated 28.11.2003, 13.12.2003 & 22.3.2004 to rcspondent No.2 mentioning tlie ^ Page4ofl0 petitioner's dtfficulties, even then fhe payiaent was not inade. Therefore, for no fault on fhe part of the petitioner the contract was canceUed vide impugned oider. Counsel further ai'gued fhat as per Clause-3 of the contract agreenient before canceUation of fh.e petitioner s contract respondent was required to give 30 days notice, whereas no notice was givea to the petitioner. Therefore, on this count the impugned order is arbitraiy aad passed wifhout foUowing the procedure ofprinciple ofnatiiraljustice. 5. On the other haad, leamed Senior Coiuisel Shri Mishra argued that no payinent of the petitioner was wifhheld, however on iuspection when fhe Vice ChanceUor of the respondent Uiiiversity found Uiat the petitioiier has not conipleted the work withui stipulated tune, he du-ected fb.e CoiuptroUer of Accounts that fhe paynient of fhe petitioner be stopped as fhe work was iiot beins done at fhe required speed, which is evident froin AiLnexnre R-2, when the petitioner faUed to execute £hework ia stipulated thne, a notice dated 28.7.2003 was issued to the petitioner in which he was asked that iaspite of direction given to fhe petitioner orally as weU as in writing he is not completing fhe work ki tiie stipulated tune aud on accoujut of non-coinpletion of work fhe respondents University is si.iffering finaucial loss aad faciag inconvenience. Petitioner was further mformed that on iaspection fhe work was not found completed which shows the indiEferent attitude of the petitiouer and his iaterest ia completion. of the work, fherefore, he was directed to complete the work imaiediately and appear before respondent No.2 withia three days, faUiag wliich ftie work wiU allocated to some ofher competent ageacy at fhe cost and risk of the petitioner aad for which the petitioner wiU be responsible. As Page 5 of 10 such, after giving this notice and also letter-dated 15.9.2003, when fhe petitioner failed to execute the work in time, fhen aad then only vide iinpugned order the contract awarded to fhe petitioner was canceUed. Leamed Senior Counsel fui-flier argued that as fhe petitioaer fafled to perfoi-Eti his contractual obUgation, fherefore, ttie contract of ftie petitioner was caacelled in accordance wifh fhe terms 8s conditions of tlie contract agreeinent. The petitioner is not entitled to seek aiiy relief froia this HonTale Court, as fhe dispute relates to contractual niatters, which is ia. fhe realm ofpnvate law. 6. Having heard leamed counsel for the petitioner and leamed Sr. Counsel for the respondents, perused ftie relevant records. 7. It is an adiaitted position that after acceptance of the tender of the petitioner a conta-act agreeinent (Annexure R-4) was entered between fhe petitioner & the respondents and perusal of agreeinent shows tih.at aS. the twelve works shown ia Aniiexure R-l werc given to fhe petitioner to be executed within stipulated time, but flie petitioner failed to coraplete work within the stipulated time, which is evident froin. perusal of Annexure R-l, which was prepared on 28.7.2003 by fhen the tiine period of the contract was alreadv over. It is also evident from. Aiuiexure R-1 fhat fhe boys hostel at Durg was constructed only 37%, seed store building, Ja^dalpur was constructed 19%, Special repair of Entoniology Departruent was constnicted 9%, Extension of dairy shed construction 11%, siuaU aaimal hoiise constructed 36% aiid ofher works were also executed upto ftie extent of 42%, 25%, 54%, 34%, 52% aud 66%. Out oftotalworks, only consta-uction of Item No.12 was completed, fherefore, most of v?orks were Page 6 of 10 uicoiaplete even after the expir)r of period of contract. It is evident froiu Annexure R-2 fhat on 1.9.2003 fhe CoinptroUer ofAccounts of fhe respondent Univei-sity sent a letter to respondeat No. 1 to the effect that the work progress report was produced before the Vice-chanceUor of the Universitv and according to which the work was not com.pleted by fhe petitioner, fherefore, it was ordered that if aay payinent is due to fhe respondents fhat inay be stopped. It appears that Rs.3 Lac was stopped on accoiuit of said letter of CoiuptroUer of Accounts, therefore, ftie contention of fhe petitioner fhat even after coinpletion of the work payirient was not inade is not sustaiuable. It is also evident froin the letter-dated 28.7.2003 fhat ftie petitioner was asked orally as weU as in writing to coinplete fhe work withia stipulated time, but he failed to coiuplete fhe work wifhin stipulated time and on account of fhat fhe respondents University suffered finaiicial loss. By fhe said letter fhe petitioner was also asked to coiaplete the work iminediately, appear before respondent No.2 wifhia flu-ee days and to explain fhe situation, failLng which tlie petitioner was iufomied fhat fhe work wUl be got executed frQin ottier com.petent agency at the risk and cost of the petitiouer aad for which fhe petitioner will be responsible. Even thereafter, on 15.9.2003 again fhe petitioner was asked to coinplete the work aad iDibnn. respondents wifhin three days about the progress report of fhe coiupletion of the work, faUing which it was uifonned that the action witl be itiitiated in accordaace wifh contract agreeinent. When the petitioner failed to execute the work according to Aiuiexurc R-l, even after issuance ofnotice dated 28.7.2003 aiid letter dated 15.9.2003, fhea the iuipugned orderwas passed. 7^ Page 7 of 10 8. In fhe circuinstances, the petitioner was not entitted to put fhe blame 011 fhe shoulders of respondents, he himself was responsible for not coxapleting fh.e work wifhin stipulated tirue taspite of written conuautucatioa aa.d waniing given to him.. In view of fhe above facts, Uie arguiaents of leamed counsel for the petitioner fhat 30 days notice was not given to Tiim is wifhout aiiy force, for the reason fbat notice was ah-eady given to the petitioner on 28.7.2003 aad thereafter, on 15.9.2003 for his failure to execute fhe work ia stipulated tinie and fhereafter, only invokiag the provisions ofsub-clause (c) ofClaiise 3 ofagreeiaent impugned order was passed. Moreover, ia this case as per Clause-2 of the contract agreeiaent tlie ttme was the essence of fhe contract and fh.e petitioner was required to stncUy obsenre the contiact conditions aad to com-mence the work. The petition.er was also required to inauitain the schedule tiU tlie coiapletion of the contract work, which he fafled to niaiutaui. Therefore, ia. this case no prmciple of natural justice has been violated, niore over, in fhe contractual luatters pardes are entideci to iavoke agreeiuent clause aad where agreeinent is there tliea the priuciple of n.atui-al justice caruiotbe invoked. 9. Now coming to the question of raaintauiabilit}' of fhis writ petition, the Hon'ble Apex Court ia fhe matter of M/s Itodhateistiaa Affarwal aad others V. State of Bihar and others reported in AIR 1977 SC 1496 m Paragraph 25 held that " the limitations imposed by rules of natural jitstice cannot operate upon powers which are govemed by the terms of an agreenient exdusively. The only question which normally arises in such cases is luhether the action oomplcdned of is or is not in consonance luith Page 8 of 10 the terms of Ihe agreement and the question of ihe distinction between an administrative and quasi-judicial dedsion can only anse in the exerdse ofpowers under stafutory provisions. Rules of natural justice are attached to the performance of certain functions regulated by statutes or rules made thereunder involving decision affecting right of parties. Wlien a contract is sought to be terminated by the Officers of the Stccte, purporting fo act under the terms of an agreement between parties, such action is not takenin purported exerdse of a statutory power at att." In fhe present case the Baatter relates to contractual agreement between fhe parties, therefore, the principle of natural caanot be iiivoked ia this case. Even otherwise, fhis petition is iiot m.aia.taiuable aad ftie petitioner is not entifled to iavoke extra-ordinar}' jurisdiction of this Court under Ardcle 226 of the Constitution of India, as Uus xaatter relates to the confractual obligation, only in the case of statutoiy contracts where fhe State or its instrunientalities failed to observe fhe statutory provisions or principle of aatural justice aad on the facts the action of State of its uistruinentalities is found to be arbitrary, unfair aiid uxireasonable fhen aad tfaen fhe extra-orduiary jurisdiction under Article 226 of fhe Constitution of ludia caa be invoked and for this, I am. fortified iu niy view by the decision of ftie Hon'ble Apex Court in fhe m.atter of Barelly Development Authoritv aad another Vs. Aiai Pal Slngti and others reported ia (19891 2Supreme Court Cases 116 whereia tfae Hon'ble Apex Court has lield fhat "when State or 'other authority' iuMi.in ihe Tneaning of Article 12 enters into ordinai-y contrad, wilh privccte persons, pccrties are govemed by the temis o/ fhe contract and aggrieved party not entitled to seek redress under Page 9 of 10 Artide 226 for breach ofcontract1'. Smular view was takea by tlie Hon'ble Apex Court ia £he matter of State of Biiiar aad othea's Vs. Jaia Plastics aad Chemicals Ltd. reported in (2202) 1 Supreme Court Cases 216. In this case the Hon'ble Apex Court has held that seriously disputed questions arising out ofbreach of confract are required to be investigated mid detennined on the basis of the evidence led in a dvil suit In the inatter of Food Corporatioa of India and others V Jaggaaaatfa Dutta aad others reported ia AIR 1993 Suprenie Court 1494, State of U.P., and others V. Bridge & Roof Company (ludia) Ltd., reported in (1996) 6 Supreme Court Cases 22, Kera2a State Electricity Board and aaother V. Kuriea E Kalathil and others reported in (2000) 6 Supreme Court Cases 293 aiid Natioaal Highways Authority of ladia V Gaaga Eaterprises and aaother reported ia (2003) 7 Supreme Court Cases 410, the Hon'ble Apex Court has held fhat: "....fhe contract between the parties is a coutract in fhe reaka of private law. It is not a statutory contract. It is govemed by fhe provisions of tlie Contract Act or, m.ay be, also by certaiu provisions ofthe Sale ofGoods Act. Any dispute relatmg to inteipretation of the temis aad conditions of such a contract cannot be agitated aad could not have been agitated, ia a writ petition aad fhe disputes arising from. such activities must be settled accordiag to prmciples of law of contract and held tbat writ petition is not niauitauiable". 10. Leamed coLinsel for tlie petitioner reUed upon fhe judginent reported ia AIR 2002 Madras Pafie 95 between M/s Concrete Products aad Coastructioa Co. and another Vs Union oOadm aad others. In. that case it was held fhat "in case of breach of ( 1 ^^p PagelOoflO ,.'• - <• contract the right of the State Govemment to assessee damages would aiise only if the breadi of oonditions is admitted or if no tssue is majde of it. Where the breach is not admitted, unkss ihe daim is established through a Court of law, no amount can be recovered'. On facts the Madras High Court has held fhat "leamed Solidtor General of India, constituted a High Power ComTnittee to go into, enquire and deterrmne the irregularities said to have been committed by the petitioners and since such enquiry had been, for the reasons not explained, delegated to the Zonal Level Sub-cximrmttee, who themselves are ad.mittedly parties to the agreements and the ZonaJ Level Sub-committee is sub-ordinate io the Rcdlway Board, who directed to hold any enquiry against the petitioners, the scane is liable to be held as arbitrary and discrirmnaiory, aftracting Article 1't of the Constitution of India". Sidularly, celebrated judgment cited by leamed counsel for the petitioner in the matter of Tata Cellular Vs. Uaioa of India reported iu AIR 1996 SC 11 is also not appUcable iu the present case and same is no help to the petitioner on the facts of fhe present case. 11. In. view of the above, the petition of fhe petitioner is uot inauitauiable under Article 226 offhe Constitution oflndia on. fhe ;rounds ruentioned above as weU as beiag a contractual niatter. Accordiagly, fhe petition is dismissed. No order as to cost^. Sd/- L-C.BHAD6o Judge Roshan/-