THE HONOURABLE SRI JUSTICE N.V. RAMANA WRIT PETITION Nos.11988 & 12010 of 2006 COMMON ORDER: These two writ petitions are filed questioning the action of the second respondent-Executive Engineer (R&B), R&B Circle, Kakinada in forfeiting the Earnest Money Deposit (EMD) amounts. It is the case of the petitioner he is a Class II Contractor undertaking the works in the Departments of R&B, Panchayat Raj and Municipal Corporation of Rajahmundry. He was the lowest tenderer for the works, namely, construction of C.C drain along Rajahmundry- Kesavaram Road (via) Punyakshetram from 0.000 to 3.137 Km and construction of C.C drain in Byepass road from 0.000 to 1.495 Km respectively of Rajahmundry Municipal Limits. Accordingly, he entered into agreements for completion of the said works vide C.R.Nos.74/2005-2006 and 75/2005-2006, dated 02.08.2005 with the first respondent-Superintendent Engineer (R&B), R&B Circle, Kakinada and deposited Rs.83,700/- and Rs.84,740/- towards EMD. According to the terms of the said agreements, he has to complete the works within three months. It is stated that he had also paid Rs.15,000/- for each work towards insurance. It is also stated that several people have made encroachments by constructing pucca and temporary structures in the sites where drains have to be laid. Therefore, he made representations to the respondents to take steps to remove the encroachments and hand over the sites to him to commence the work. The second respondent addressed a letter dated 20.10.2005 to the Commissioner, Municipal Corporation, Rajahmundry for removal of the encroachments. Thereafter, also the petitioner made several representations to the respondents to remove the encroachments in order to execute the works. Though the second respondent has extended the time to complete the works by addressing letters to him dated 31.03.2006 and 21.04.2006, no action has been taken to remove the encroachments. The grievance of the petitioner is that the second respondent by orders dated 30.05.2006 forfeited the EMDs stating that the work has not commenced so far in respect of Agreement vide C.R.No.74/2005- 06 and the balance work was not resumed in respect of Agreement vide C.R.No.75/2005-06. The second respondent filed counter-affidavits stating that by telegram dated 31.03.2006 the petitioner was requested to commence the work in respect of Agreement vide C.R.No.74/2005-06 and to resume the balance work in respect of Agreement vide C.R.No.75/2005-06, as time was extended upto 31.05.2006 as per clause 24.09 of agreements; that it was informed to the petitioner that it was not possible to close the agreements as per his request and extension of time will be sanctioned suitable as per the conditions of the agreements; that by letters dated 21.04.2006 and 08.05.2006 the petitioner was requested to show substantial progress of work, otherwise necessary action will be taken; that the petitioner has not made any efforts to commence the work and deliberately not collected any material at site; that though final notice was issued to the petitioner, there was no response from him, and therefore, the works were determined under Clause 60(a) of P.S. to A.P.S.S duly forfeiting the EMDs. He denied the contention of the petitioner that the encroachments are not cleared, and stated that most of the site is clear for execution of the works. Having heard the learned counsel on either side and having gone through the entire material available on record, I am of the opinion that there is a dispute as to whether who is responsible for delay in the works, and the same has to be decided by the trial court, after adducing evidence by both the parties, but this Court cannot adjudicate the same under Article 226 of the Constitution of India. In the circumstances, the writ petitions are dismissed. However, the petitioner is at liberty to approach the competent civil Court to get the relief as sought for in the writ petition. There shall be no order as to costs. N.V. RAMANA, J Date: 29.06.2010 va