JAI MATA DI CONSTRUCTIONS Vs. STATE OF CHHATISGARH

JUDGEMENT

(1.) By this petition under Article 226 of the Constitution of India, the petitioner has prayed for following reliefs :

(2.) Briefly stated, grievance of the petitioner, as projected in the petition, is that the petitioner is a registered A-5 Class Civil Contractor. She entered into an agreement with the respondents on 9-9-2006 for the work of 'Widening and B.T. Work on Jashpur-Asta-Kusmi-Samari road' valued at Rs. 1191.17 Lacs. The work 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 date of issue of work order. The petitioner made several representations to the 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 addressed to the Engineer-in-Chief stated that according to specification of Clause 508.1 of Ministry of Road Transport & Highways (for short 'MORT & H') construction of Semi Dense Bitumen Concrete (for short 'SDBC') consist of construction in a single layer or multiple layer of SDBC of a previously prepared bituminous bound surface. A single layer shall be 25 mm to 100 mm in thickness. However, 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 forwarded estimate for administrative approval. However, vide Annexure P-14 the Chief Engineer was directed that under the CRF Guidelines no revision of estimate is allowed. The Engineer-in-Chief vide is 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 20 mm pre-mix carpet and seal coat in place of 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 Superintending Engineer recommended to cancel the contract under Clause 14 of the agreement without imposition of damages and the matter was forwarded to the State Government for permission as tender was accepted by the Government. However, the State Government vide impugned order dated 30-7-2009 (Annexure P-1) accorded permission of 20 mm pre-mix carpet over WBM surface clearly mentioning therein that the contractor was bound to complete the work as per agreement. After the order of Annexure P-1, the Executive Engineer vide its memo 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 20 mm pre-mix carpet over WBM surface as per design, failing which the agreement 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 and the Superintending Engineer, it is manifestly clear that there was mistake in design and the same was not in accordance with the specification of MORT & H. They categorically opined to make provision of bitumen macadam, which was omitted at the time of administrative sanction. Revised estimate was forwarded for sanction, however, ignoring the considered opinions of the engineers, the State Government vide impugned order of Annexure P-1 insisted upon the construction of road by directly providing 20 mm pre-mix carpeting over WBM surface as per design. Thereafter the petitioner was served with the notice of Annexure P-2 by respondent No. 5 calling upon to commence the work and complete the same as directed by the Government vide Annexure P-1, failing which rescinding of contract under Clause 3C 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, mala fide and violative of Article 14 of the Constitution of India. Despite express recommendation by the authorities to cancel the contract under Clause 14 of the agreement 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 Nobe Resources Ltd. v. State of Orissa, reported in 2006 AIR SCW 5408: (AIR 2007 SC 119); 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. Where the action of the Government or its agencies is arbitrary or actuated with favoritism and where the Court is of the opinion that public law element 'is involved, judicial review is permissible.