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TMI Blog2015 (12) TMI 1728X X X X Extracts X X X X X X X X Extracts X X X X ..... (iv-a) That, the respondents be directed to make regular, uninterrupted payment as against work performed by the petitioner without any legal or administrative hurdle, in future." Initially, the relief extending further six months period from 31.12.2015 to complete the entire work was not made in clause (ii) of aforesaid relief clause and prayer of aforesaid clause 7(iv-a) was also not made at the initial stage. The same were inserted in petition subsequently by way of amendment. 2. The facts giving rise to this petition, in short, are that the petitioner-Company (registered under the Companies Act, 1956) working as a contractor, in response of NIT of respondent No. 2 dated 8.7.2010 (Annexure P-2), published on 9.7.2010 for construction of tunnel of lump sum basis for RD 73160M to RD 75845M (2.685 km) on Harsi High Level Canal under Sindh Project Phase II has submitted its tender for such work, on which after accepting its tender under the contract, the petitioner was granted contract work of the aforesaid tunnel for an amount of Rs. 31,19,52,310/- by work order dated 10.10.2011 (Annexure P-3). As per terms of NIT and the contract, the petitioner-Company has submitted bank guara ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e respondent No. 2, the petitioner was confident that it would be allowed to complete the work upto the extended time period i.e. 31.12.2015 but suddenly bolt from blue, on 21.9.2015 the petitioner was served with a show cause notice (Annexure P-10) issued by the respondent No. 2 thereby the petitioner was threatened in carrying out the excavation work of tunnel from RD 74110M to RD74184M, with information that the same would be given to some other agency on the cost and risk of the petitioner. Such notice was given to the petitioner although in the shape of show cause notice but in fact it was merely an eye-wash and the language of such notice makes it an order because the respondent has pre-concluded and assumed that the petitioner would not be able to complete the construction work till 31.12.2015. By way of amendment, the petitioner further pleaded that the respondents already granted extension of time till 31.12.2015 for completion of work in question and the petitioner will complete the tunnel to open and operate with construction upto 1 meter each side wall, so that water may flow and canal may start its functioning and for rest of the work the petitioner requires six months ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rayer of the petitioner is also opposed on the ground, stating that the petition being filed against the show cause notice, is not sustainable because the show cause notice does not give rise to any cause of action to the petitioner to file this petition, especially when the petitioner has a remedy for redressal its dispute in response of show cause notice before the authority. The petition being filed by the Director without authorization by the Board of Directors of the Company, is also not maintainable. It is also stated that the detailed terms of the contract dated 10.10.2011 are having the binding effect over the petitioner and according to clause 70.5 of the General Conditions of Contract, the petitioner has an alternative efficacious remedy of arbitration. So, in such premises, this petition is also not entertainable. In further averments, it is stated that even after extension of time for four times to complete the work to the petitioner i.e. upto 31.12.2015, in view of revised milestones submitted by the petitioner annexed with the reply, according to which the petitioner itself undertakes to complete the work of Rs. 3,119.52 lacs, however, till date it is not able to achi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he matter of Executive Engineer, Bihar State Housing Board v. Ramesh Kumar Singh and others, reported in (1996)1 SCC 327, prayed to quash the impugned show cause notice Annexure P-10 as the same has been issued arbitrarily and without following the principle of natural justice. He has also advanced the argument for appropriate direction under sub-clauses of (74) and (75) of the Contact to extend further six months period from 31.12.2015 to complete the remaining work of excavation and the construction of inside of the wall (diameter) of the tunnel, with a further prayer to give direction to the respondents to make the regular payment of the remaining bills without any hurdle and hindrance. 8. On the other hand, responding the aforesaid argument, Shri Arvind Dudawat, the Additional Advocate General, after taking us through the response as well as the additional reply along with annexed documents, by justifying the impugned show cause notice Annexure P-10, has argued that the impugned petition being filed at the initial stage of show-cause notice, for want of cause of action could not be entertained. In continuation, he said that in any case, by way of terms of contract the petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Thereafter, the work was started and time to time, the period to complete the contractual work on sufficient cause was extended as many as four times and lastly, the period of completion of excavation work was extended upto 31.12.2015 as stated by the respondent No. 2 in its letter dated 10.9.2015 (Annexure P-9) sent to his senior authority Superintending Engineer. 12. It is also apparent that the respondent No. 2 by aforesaid letter (Annexure P-9) informed to the senior authority that the petitioner is ready and willing to carry out the remaining excavation/digging work of the canal and performing the work regularly but speed of the work is slow and subsequent to such correspondence, in presence of the representative of the petitioner or its Director, no inspection of the site was carried out arid only after 11 days contrary to the aforesaid communication, the reasons best-known to the authorities of the respondent No. 2 and its superior officials with intention to carry out the remaining contractual work of excavation and construction of such canal through some other agency in very arbitrary manner and contrary to the principle of natural justice, the impugned show-cause notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -10) being issued contrary to the principle of natural justice and without application of mind in arbitrary manner, is not sustainable and deserves to be set aside. 14. So far as the arguments of Additional Advocate General that in view of availability of alternative forum of arbitration as per the contract this petition is not entertainable under Article 226 of the Constitution of India is concerned, we are of the considered view that in spite of availability of alternative forum of arbitration for redressal of dispute, if the show cause notice itself was issued contrary to law and the principles of natural justice, with preplanned and arbitrary manner to rescind the contract of the petitioner, then by entertaining the petition under Article 226 of the Constitution of India such show cause notice and its proceedings could be quashed by the Court in the light of the principle laid down by the apex Court in the matter of Siemens Ltd. (supra), in which it was held as under: "Although ordinarily a writ Court may not exercise its discretionary jurisdiction in entertaining a writ petition questioning a notice to show cause unless the same inter alia appears to have been without jurisd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on business with the Government." 15. Besides the aforesaid, in the matter of Tantia Construction Private Limited (supra), the apex Court has held as under regarding the maintainability of writ petition: "Even on the question of maintainability of the writ petition on account of the arbitration clause included in the agreement between the parties, it is now well established that an alternative remedy is not an absolute bar to the innovation of the writ jurisdiction of the High Court or the Supreme Court and that without exhausting such alternative remedy, a writ petition would not be maintainable. The constitutional powers vested in the High Court or the Supreme Court cannot be fettered by any alternative remedy available to the authorities. Injustice, whenever and wherever it takes place, has to be struck down as an anathema to the rule of law and the provisions of the Constitution. Notwithstanding the provisions relating to the arbitration clause contained in the agreement, the High Court was fully within its competence to entertain and dispose of the writ petition filed on behalf of the respondent-Company." 16. Having perused the aforesaid legal position, in the available fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e notice although it appears from the record that the prayer of the petitioner for extending the further period of six months from 31.12.2015 to complete the work was pending before the authority of respondent No. 2. In such premises, the impugned show-cause notice Annexure P-10 deserves to be and is hereby quashed. 18. It is also apparent from the papers placed on the record that even after filing this petition under the authority of interim order of this Court the remaining excavation/digging work of tunnel was/is being carried out by the petitioner but payment of running bills was not made within time to the petitioner to meet the necessary expenses to pay the wages to the labourers and to maintain the deployed machinery and in such premises, it could be said that due to late payment or non-payment of running bills of the petitioner within time it could not manage the requisite infrastructure to carry out the work. In such premises, we direct the authorities to make the regular payment of running bills to the petitioner within time in accordance with the procedure without any hurdle or hindrance to carry out the remaining work within the prescribed and extended period. 19. In ..... X X X X Extracts X X X X X X X X Extracts X X X X
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