TMI Blog2015 (12) TMI 1728X X X X Extracts X X X X X X X X Extracts X X X X ..... bourers 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. In the available scenario, it is apparent that due to non-cooperation of the respondents- authorities till some extent and unnecessary process of the show cause notice Annexure P-10 issued contrary to the Departmental communication Annexure P-9 and on account of non-making the payment of the running bills regularly within time, the petitioner could not complete the work of contract within time. It also appears that the excavation work of tunnel is almost near to be completed. The same may be completed within some period and on such reasons, the petitioner appears to be entitled for extension of the period of further six months under the relevant clauses and terms of the contract. Such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ₹ 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 guarantee of ₹ 1 crore of Punjab and Sindh Bank, P.Y. Road, Indore through letter dated 10.10.2011 (Annexure P-4) and thereafter, again submitted bank guarantee of ₹ 1 crore in the month of August to carry out the contractual work, copies of such bank guarantee are also annexed collectively with the petition as Annexure P-5. In order to perform the contract, the petitioner deployed its staffs and machinery, like dumper and excavator etc. at the site for starting the contractual work, but the drawing and designs being under approval, were not given to the petitioner within time, on which the petitioner requested the respondent No. 1 through letter dated 3.11.2011 (Annexure P-6) to approve the drawing and designs as early as possi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 additional time after 31.12.2015 to complete the entire construction work of contract, as was decided in the meeting dated 24.8.2015 between the petitioner and Chief Engineer of the respondents. Besides the other grounds, the impugned show-cause notice Annexure P-10 was also challenged by the petitioner, stating that the same has not been issued in speaking manner by mentioning all relevant facts and annexing photo copies of reference/letter mentioned in the same. In the lack of such information and copy of the referred documents, such show cause notice could not be treated to be a valid notice in the eye of law, specially in that circumstance, when after inspection of the site. the respondent No. 2 vide letter dated 10.9. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 ₹ 3,119.52 lacs, however, till date it is not able to achieve the same and completed only work to the tune of ₹ 1,627.87 lacs only as on 10.9.2015 meaning thereby, till date the petitioner has completed 51% of the total work awarded to it. Thus, it is evident that the petitioner persistently remained failed in achieving the milestones as such the petitioner is unable to complete the work upto 31.12.2015. In support of the contention, the revised milestones scheduled, is also annexed with the petition as Annexure R-1. 5. We would like to mention here that initially, the petition was filed by the petitioner stating the State of Madhya Pradesh through Chief Engineer, Water Resources Department, Office of Chief Engineer Rajghat Canal Project, Datia as respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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 petitioner has a remedy for redressal of its dispute in response of the aforesaid show cause notice before the authorities and besides this, the petitioner is also having an alternative remedy for redressal of its dispute through arbitration. Thus, the petition is not entertainable. In support of his contention, he has also placed his reliance on the decisions of the apex Court in the matter of Union of India and others v. Tantia Construction Private Limited, reported in (2011)5 SCC 697; in the matter of Special Director and another v. Mohd. Ghulam Ghouse and another, reported in (2004)3 SCC 440 and in the matter of Ulagappa and others v. Divisional Commissioner, Mysore and others, reported in (2001) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spondence, 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 (Annexure P-10) in non-speaking manner without considering the prayer for extension of further time, was issued. In spite of making efforts, we could not gather any material circumstance from the record and the arguments of the Additional Advocate General that what was the necessity to issue show cause notice to the petitioner within short period of near about ten-eleven days from the date of sending the communication by the respondent No. 2 to his superior official the Superintending Engineer/respondent No. 1. In any case, the show cause notice being issued before expiry of the extended period upto 31.12.2015 to complete the excavation work, could not be deemed to be bona fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 jurisdiction, but the question herein has to be considered from a different angle viz. when a notice is issued with premeditation, a writ petition would be maintainable. In such an event, even if the Court directs the statutory authority to hear the matter afresh, ordinarily such hearing would not yield any fruitful purpose. It is evident in the instance case that the respondent has clearly made up its mind. It explicitly said so both in the counter-affidavit as also in its purported show cause notice. Apart from the aforesaid, our view is also fortified by the principle laid down by the apex Court in the matter of M/s. Michigan Rubber (India) Limited (supra), whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 factual scenario of the case at hand as stated by the petitioner in the petition and also reflected from the circumstances of the case that when the application prayer of the petitioner for extension of period to complete the contractual work was pending for consideration before the authorities of the respondents and after carrying out the inspection of the site, the respondent No. 2 had prepared the departmental communication on 10.9.2015 and sent to the Superintending Engineer in which the progress report of work was reported with the averments that more than 51% work has been completed and the petitioner-Contractor is still doing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the available scenario, it is apparent that due to non-cooperation of the respondents- authorities till some extent and unnecessary process of the show cause notice Annexure P-10 issued contrary to the Departmental communication Annexure P-9 and on account of non-making the payment of the running bills regularly within time, the petitioner could not complete the work of contract within time. It also appears that the excavation work of tunnel is almost near to be completed. The same may be completed within some period and on such reasons, the petitioner appears to be entitled for extension of the period of further six mo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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