A LOHIRAJAN Vs. DIVISIONAL ENGINEER HIGHWAYS TIRUVALLUR DIVISION

JUDGEMENT

(1.) PETITIONER seeks a writ of certiorarified mandamus, to quash the order of the 1st Respondent issuing Show Cause Notice in Proce.No.1/2005/A6 dated 30.07.2007 and consequently direct the Respondents herein to foreclose the contract under Section 109-04 of Preliminary Specifications on Roads and Bridges and refund the amounts deposited by the PETITIONER along with interest.

(2.) BRIEF facts which led to the filing of the writ petition are as follows: (i) The Petitioner is a Class I registered contractor of the Highways Department. An agreement was entered on 20.02.2006 between the Petitioner and the 2nd Respondent for the work of widening to four lanes and strengthening of Singaperumal Koil - Sriperumbudur - Thiruvellore - Red Hills Road - measuring 8 kms at a cost of Rs.11.76 crores. (ii) The Petitioner challenges the legality of the Show Cause Notice dated 30.07.2007, calling upon the Petitioner as to why EMD sum of Rs.6,17,500/- and another Rs.23,07,800/- of FSD in the form of Bank guarantee should not be forfeited. The Petitioner has averred that the agreement contemplated completion of work within a period of 12 months from the day of handing over of the site. However it is the case of the Petitioner that the site is not free till today and that there exist avenue trees, electric posts, telegraphic posts, encroachments, telephone cable, Panchayat house service, water connection to houses on both sides etc., on the site that have not been removed by obtaining proper permission from various Government Authorities. This was the duty on the part of the Respondents that they failed to perform. The allegation is that it is hardly possible to perform the contract in the light of the fact that so many utilities and structures have to be removed. (iii) 1st Respondent in these circumstances, wanted to determine that the contract ought to be forfeited thus depriving the Petitioner of the amounts already stated. Further case of Petitioner is that the right course of action for the Departments under clause 109-04 of PS to SSRB is to foreclose the contract when the Department is not in a position to hand over the site as contemplated. Aggrieved by the said Show Cause Notice for forfeiting the amounts paid by him, the Petitioner seeks for a certiorarified mandamus for quashing the order in question and a direction to the effect that the contract may be foreclosed in accordance with the law applicable.

(3.) DRAWING attention to various communications, learned counsel for the Petitioner Mr. S. Srinivasan, has contended that work was to commence from the date of handing over of the site and the site was not all handed over free from encroachments and other obstacles. The learned counsel further contended that inspite of repeated correspondence the Department have not chosen to remove the trees, etc., It was further urged that because clear site was not handed over to the Petitioner, the Petitioner could not complete the work and therefore the Show Cause Notice issued is unreasonable and arbitrary. It was also argued that extension of time would show that there were genuine difficulties in completing the work.