HI6H COURT OF CHHATTIS6ARH /\T BILASPUR NVISIONBENCH: HON. MR. DHIRENDRA MISHRA. &HON. MR. R.N. CHANbRAKAR, JJ W.P. [dNo.5642 OF2009 PETITIONER M/s Jai Mata Di Constructions '".''• Vs RESPONDENTS State of Chhattisgarh & others ORDER_FOR CONSI&ERATION Sd/- Dhirendra Mishra Judge HON'BLE SHRI JUSTICER.N^ CWANDRAKAR a^c^S Sd/- R-N.Chandrakar - Judge POST FOR OR&ER ON -?^ /03/2010 ob^^;^° jud§e ^lK i^l *, HIGH COURT OF CHHATTTSeARH AT BILASPUR OIVISION BENCH: HON. MR. DHIRENbRA MISHRA. & HON. MR. R.N. CHAN&RAKAR. JJ W.P. [c] No.5642 OF 2009 PETITIONER Vs RESPONDENTS ^ .- M/s Jai Mata Di Constructions, A-5 6ovt. Contractor, Kachiya Bhawan, Kedarpur, Ambikapur, through:'Partner Kunti 6upta, W/o Rajkumar 6upta, Aged about 57 years, R/o Kachiya Bhawan, Kedarpur, Ambikapur, District Surguja (C£) 1 Present; Mr. Manoj Paranjpe, Advocate Mr. U.N.S. Deo, Advocate State of Chhattisgarh- Through Secretary, Public Works Department, &.K.S. Bhawan, Raipur, District Raipur (C&) The Engineer-in-Chief (NH), Public Works Department, 6ovt. of Chhattisgarh, Bairron Bazar, Nalhar Chowk, Raipur, District Raipur. Chief Engineer, Public Works Department, Bilaspur, Range Bilaspur, bistrict Bilaspur (C6) &ovt. of India, through: Secretary, Ministry of Shipping, Road, Transport <& Highways (Department of Road, Transport & Highways) New Delhi. Executive Ehgineer, Public Works Department (B/R), Division No.2, Ambikapur, Ramanujganj, District Surguja (C6) Executive Engineer, Public*'Works Department, Di.vision Jashpur, District Jashpur (C6) Superintending Engineer, Public Works Department, Jashpur, District Jashpur (C6) For- the petitioner. For the respondents. Page 2 of 8 O R 0 E R (Passedon-2£..3.2010) bhirendra Mishra, J J»K 1. By this petition under Article 226 of the Constitution of *; India, the petitioner has prayed for following reliefs: i. That, this Hon'ble Court may kindly be pleased to issuea writ of certiorari quashing the impugnedorder passed by the Secretary dated 30.07.02009 (Annex.P-1), order passed by the Executive Engineer dated 29.08.2009 (Annex.P-2) and the order dated 10.9.2009 (Annex.P-3). ii. That, this Hon'ble Court may kindly be pleased to call for the entire records from the possession of the respondents in respect of the caseof the petitioner. iii. That, this Hon'ble Court may kindly be pleased to grant any other relief (s), which isdeemed fit and proper in the afor-esaid facts and circumstarices of the case and the respondents may kindly be directed to consider the caseof the petitioner with regard to the cancellation of contract in.viewof clause 14 of the agreement. •, 2. Briefly stated, grievance of the petitioner, as projected in the petition, is that the petitioner isaregistered A-5 Cldss Civil Contr'actor. She entered into an agreement with the respondents on 9.9.2006 for the work of 'Widening ajidB.T. Work on Jashpur-Asta-Kusmi-Samari road' valued dt Rs.1191.17 Lacs. The wor1< order was issued by the respondent No.5 vide Annexure P-6 on 12.9.2006 and the time allowed for carrying out the work was 18 months including rainy season from the dateof issue of work order. The petitioner made several representations to the ^fK Page 3 of 8 respondent authorities and brought to their knowledge that according to the specification of road and bridge works of the Indian Road Congress, bituminization work cannot be carried out on the road under the agreement. The Chief Engineer-vide his memo of Annexure P-12 dated 21.4.2009 addpessed to the Engineer-in-Chief stated thgt according to specification of Clause 508.1 of Ministryof Road Transport & Highways (for short 'MORT&H') construction of Semi Dense Bitumen Concrete (for short 'S&BC') consist of construction in a single layer or multiple layer of SbBC of a previously prepared bituminous bound surface. A single layer shall be 25 mm to 100 mm in thickness. l-fouvever,under the agreement in question the SDBC is to be done over granular sub-base, whereas, 20 mm premix carpet is not appropriate as per design. He also forwarcled estimate for administrative approval. However, vide Annexur'e P-14 the Chief Engineer was directed that under the CRF Suidelines no revision of estimate is allowed. The Engineer-in-Chief vide his memo dated 5.1.2009 (Annexure P-16) directed the Chief Engineer to complete the construction work as per directions of MORT&H by providing 20mm pre-mix carpet and seal coat in placeof SDBC. The Engineer-in-Chief further permitted vide Annexure P-17 to cancel the contract under Clause 14 of the agreement. The Executive Engineer as also the Superintendmg Engineer recommended to cancel the contrdct under Clause 14 of the agreement uvithout imposition of damages and the matter was forwarded to the State ©overnmentfor perm'rssionas tenderwas accepted by the Government. However, the State Sovernment vide impugned order dated30.7.2009 (Annexure P-1) accorded permission of 20 mm pre-mix carpet over WBM surface clearly mentioning therein that the contractor uvas bound to *.l *, . ; Page4of8 complete the work as per agreement. After the order of Annexure P-1, the Executive Engineer videits memrf'dated 29.8.2009 (Annexure P-2) directed the petitioner to commence the work forthwith after applying for extension of time and complete the work by 20mm pre-mix carpet over WBM surface as per design, failing which the agrgement shall be rescinded as per Clause 3C of the contract agreement. 3. Mr. Paranjpe, learned counsel for the petitioner submits that from perusal of various memos addressed by the site engineers as also engineers responsible for supervision i.e. the Chief Engineer <& the Superintending Engineer, it is manifestly clear that there was mistake in design and the same was not in accordance uvith the specification of MORT&H. They categorically opined to make provision of bitumen macadam, which was omitted at the time of administrativesanction. Revised estimate was forwarded forsanction, howeyer ignoring the considered opinions of the engineers, the State Sovernment vide impugned order of Annexure P-linsisted upon the construction of road by directly providing 20mm pre-mix car-peting over WBM surface as per design. Thereafter the petitioner was served with the notice of Annexur-e P-2 by respondent No.5 callin.g upon to commence the work and complete the same as directed by the fiovernment vide Annexure P-1, failing which rescindingof contract under ClauseSC is contemplated. The action of the State in passing the impugned order of Annexure P-1 and issuance of notice (Annexure P-2) in pursuance of Annexure P-1 is arbitrary, illegal, unreasonable, malafide and violative of Article 14 of the Constitution of India. Despite express recQmmendation by the authprities to cancel the contractunder Clause 14 of the agrtement Ea» ^gfz I. Page 5 of 8 without imposition of damages, invocation of Clause 3C for rescinding the contract is illegal, arbitrary and amounts to colorable exercise of powers. Relying upon the judgment in the matter of Nobel Resources Ltd. Vs. State of Orissa & another reported in 2006 AIR SCW 5408, it was argued that the writ petition cannot be dismissed in the contractual matters only on the ground that disputed question of facts are involved or an alterative remedy is available to the petitioner. Whepe the action of the 6overnment or its agencies is arbitrary or actuated with favouritsm ahd where the Court-is of the opinion thatpublic law element is involved, judicial review is permissible. 4. On the other hand, learned counsel for the respondents would argue that as per provisions of the agreement, the work was to be completed within a period of 18 months including rainy season. Widening was to be done by firstly providing sub-base of murum of 20 cm thick in the following manner:- i. Sub base murum 20 cms in thickn^ss was to be layed ii. Above the said sub-base grading II (WBM) two coats were to be done, each coat being 0.75 cms in thickness. iii. Above this grading-III, one coat of 0.75cms was tobe done; ^ iv. Over this 5DBC (Semi dense Bitumen Concrete] of 25 mm thicknesswas to be done /jayed. However, the petitioner cQmpleted the work up to Grading- III that too not in the manner as detailed above and not within the scheduled time period. The petitioner was not keen tQ complete the SDBC work considering the financial iiftplications as the rate of tar had gone up and tried to avoid ^K. Page 6 of 8 the work by resorting to specification of Indian Road Congress which provides that SDBC is awearing course and need not be done over granular sub-base/WBM. Referring to Clause 28 of the agreement, it wasargued that there is a complete mechanism provided under Clause 28 for resolution of dispute arising out of the contract agreement through arbitration and where any party is not satisfied with the final decision of the Chief Engineer, he can file a petition for resolving the dispute through arbitration tribunal. 5. We have heard learned counsel for the parties. We have perused the pleadings of the respective parties cuid the documents available on record. 6. The petitioner after entering into the agreement and completing the work of WBM raised a dispute that work of bituminization provided under the agreement is not in accordance with the provisions of MORT&H in this regard and requested for a decision or in the alternative to finalize the contract under Clause-14 of the agreement without damages. It appears that initially the ^upervising authorities including the Engineer-in-Chief, Public Works bepartment endorsed the views of the contractor, prepared revised estimate and sent it for approval to the Chief Engineer, MORT&H, New Delhi, however, the respondent No.4 vide its memo dated 15.12.2008 (Annexure P-14) apprised th6 Chief Engineer, National Highway, Public Works Department, Raipur that under the CRF Suidelines no revision of estimate is allowed and it was suggested to consider change in specification of bituminous wearing course to 20mm fire-mix carpet with seal coat over the granular base within the approved cost. The Public Works Department of the State (^bvernment also vide its proposalof Annexure P-1 further Page7of8 permitted laying of 20 mm pre-mix carpet over WBM surface as per design and it has been further observed that the contractor is bound to undertake the above work within the agreemented value. 7. 5o far as the argument advanced by learned counsel for the petitioner that recommendations of the departmental Engineers that the work under the agreement is not feasible in view of the specification of the Indian Road Congress and Clause 508.1 of the MORT&H was overruled by the State authorities without assigning any reason is concerned, we are of the opinion that conflictingviews of the EngineerStpf the Public Works Department and Engineers of the MORT&H cannot be adjudicated in a writ petition. 8. It is no longer res integra that normally writ is not the remedy for enforcing contractual obligations and p^etition under Article 226 is not the proper- proceeding for adjudicating such disputes. When an alternative and equally efficacious remedy is available, the petitioner should pursue that remedy. While entertaining the objection as to the maintainability of the writ petition under Article 226 of the f Constitution, the fact to be borne in mind is that whether the State or its instrumentality acts in arbitrary manner. When the State or its instr'umentality acts contrary to public good and public interest, unfair'ly, unjusrly and unreasonably, in its contractual obligation, then Article 14 of the Constitution comes into play and the High Court having regard to the facts of the case has a discretion to entertainor not to entertain a writ petition. . 9. In the instant case, as uve have already observed that entire case of the petitioner is based on the action o,f the State in not accepting recommendations of the Engineers involved in thie work and directing the petitioner to complete the work ^K Page 8 of 8 as per provisions of the agreement, the nature of d,ispute raised by the petitioner involves adjudication of conflicting expert opinions and the same cannot be gone into in a writ proceedings as evidence of the experts would be necessary tosettle this dispute. 10. For the aforesaid reasons, we decline to enter'tain this writ petition reserving liberty to the petitioner to avail appropriate remedy available under the agreement in accordance with law. 11. No order as to costs. Sd/- DhirendraMishra Judge Sd/- R.N. Chandrakar Judge Roshan/- ^s^