IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF JANUARY 2019 BEFORE THE HON’BLE MR. JUSTICE ALOK ARADHE WRIT PETITION NOs.48479-482 OF 2018 (GM-TEN) BETWEEN:
M/S. SRI. KRISHNA SHELTERS PVT. LTD., NO.59, SRI. KRISHNA SUDHA WEST ANJANEYA TEMPLE STREET OPP. TO BASAVANAGUDI MAIN ROAD GANDHI BAZAAR BENGALURU 560004.
BY ITS MANAGING DIRECTOR K A RAGHAVENDRA. … PETITIONER (By Mr. M. SIVAPPA, SR. COUNSEL A/W Ms. P.C. SUNITHA, ADVS., FOR Mr. ANIL KUMAR S, ADV.,) AND:
1. UNION OF INDIA CENTRAL PUBLIC WORKS DEPARTMENT KENDRIYA SADANA KORAMANGALA BENGALURU 560034 REP. BY ITS CHIEF ENGINEER (SOUTH ZONE III).
2. GOVERNMENT OF INDIA CENTRAL PUBLIC WORKS DEPARTMENT MYSURU CENTRAL DIVISION NIRMAN BHAVAN T. NARASIPURA ROAD SIDDARATHA NAGAR MYUSURU 570011.
REP. BY ITS EXECUTIVE ENGINEER.
… RESPONDENTS (By Ms. ANUPAMA HEGDE, ADV., FOR C/R1 & FOR R2) - - -
THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE E-TENDER ISSUED IN RESPONDENT’S OFFICIAL WEBSITE CALLED FOR BALANCE WORK OF THE M.S. BUILDING FOR CENTRE OF EXECELLENCE IN ONE BLOCK OF G+3 FLOORS WITH BASEMENT FLOOR AT ALL INDIA INSTITUTE OF SPEECH AND HEARING [AIISH] NAIMSHAM CAMPUS, MYSURU SIGNED BY R-2 UNDER ANNEXURE-H2 DTD:23.10.2018 WITHOUT DATES IN RESPECTS OF ANNEXURE-H, H1 AND H3 ISSUED AS E-TENDER ON OFFICIAL WEBSITE OF RESPONDENT UNDER ANNEXURE-H, H1, H2, H3 & ETC.
THESE WRIT PETITIONS COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Mr.M.Sivappa learned Senior counsel along with Smt.P.C.Sunitha learned for the petitioner.
Smt. Anupama Hegde, learned counsel for the caveator/respondent No.1.
2. The writ petitions are admitted for hearing.
With consent of the parties, the same are heard finally.
3. In these petitions under Articles 226 & 227 of the Constitution of India, the petitioner inter alia seeks quashment of e-tender issued by respondents for completion of remaining work of M.S.Building for center of excellence at All India Institute of Speech & Hearing the petitioner also seeks quashment of the communication dated 12.09.2018, by which respondents have invoked Clause 4 of the agreement entered into between the parties to take possession of the material and to carry out the remaining work at the risk and cost of petitioner. The petitioner also seeks a writ of mandamus, commanding the respondents to allow the petitioner to complete the remaining work awarded to the petitioner and to make payment of the pending bills to the petitioner.
4. Facts giving rise to the filing of the petitions briefly stated are that respondent No.2 issued a notice inviting tender dated 04.11.2015 for construction of multistoried building a center of Excellency in all India Institute of Speech and Hearing, Mysuru. The estimated cost of the contract was Rs.50,39,50,499/- The petitioner submitted the tender in response to the aforesaid notice and his tender was accepted and an agreement was executed. The petitioner was required to commence the work on 21.03.2015 and to complete the same up to 19.09.2017. On the request of the petitioner, the date of completion of the work was extended from time to time up to May 2018. However, the petitioner could not complete the work even within the extended period of contract. A show cause notice dated 07.08.2018 was issued to the petitioner under Clause 14 of the agreement. The petitioner filed a reply. The Executive Engineer of respondent No.1 by impugned order dated 12.09.2018, in exercise of powers under Clause 14 of the agreement directed that the possession of the material shall be taken and the incomplete work shall be carried out at the risk of the petitioner. Being aggrieved, the petitioner has approached this Court.
5. Learned Senior Counsel for the petitioner submitted that petitioner has completed 97% of the work and on 26.07.2018, the Chief Engineer had visited the site and had agreed to make payment of pending bills of the petitioner. It is submitted that in case the payment of pending bills is made to the petitioner, he shall complete the balance work within a period of three months. It is argued that the petitioner has no alternative remedy in the fact situation of the case and even in the NIT issued by the respondents, the scheduled time for completion of the work is four months. It is also submitted that time is not the essence of contract. In this connection, reference has been made to a decision of the Supreme Court in ‘M/S HIND CONSTRUCTION CONTRACTORS VS. STATE OF MAHARASHTRA’, AIR 1979 SC 720 and a decision of the Supreme Court in ‘M/S RAM BARAI SINGH AND CO. VS. STATE OF BIHAR AND OTHERS’, passed in SLP(C) No.8101/2011. On the other hand, learned counsel for the respondents has invited the attention of this Court to Clauses 3, 14 and 25 of the general conditions of the contact for Central Public Works Department and has submitted that the petitioner has an alternative efficacious remedy under Clause 25 of the general conditions of the contract. It is pointed out that despite repeated opportunities being granted, the petitioner has failed to complete the work allotted to him within the prescribed time limit and the entire amount due to the petitioner has been paid and the respondents are ready and willing to carry out joint measurement to measure the work carried out by the petitioner. It is also submitted that Writ Petition cannot be entertained in the fact situation of the case as the same involves disputed questions of fact.
6. I have considered the submissions made by learned counsel for the parties and have perused the record. Clause 3 of the General conditions of the contract enumerates the circumstances when the contract can be determined. Clause 25 of the General conditions of the contract deals with settlements of disputes and arbitration. The relevant extract of clause 25 reads as under:
“Clause 25: Except where otherwise provided in the contract, all questions and disputes relating to the meaning of the specifications, design, drawings and instructions herein before mentioned and as to the quality of workmanship or materials used on the work or as to any other question, claim, right, matter or thing whatsoever in any way arising out of or relating to the contract, designs, drawings, specifications, estimates, instructions, orders or these conditions or otherwise concerning the works or the execution or failure to execute the same whether arising during the progress of the work or after the cancellation, termination, completion or abandonment thereof shall be dealt with as mentioned hereinafter:
(i) If the contractor considers any work demanded of him to be outside the requirements of the contract, or disputes any drawings, record or decision given in writing by the Engineer-in-Charge on any matter in connection with or arising out of the contract or carrying out of the work, to be unacceptable, he shall promptly within 15 days request the Superintending Engineer in writing for written instruction or decision. Thereupon, the Superintending Engineer shall give his written instructions or decision within a period of one month from the receipt of the contractor’s letter.
instructions or decision in writing within the aforesaid period or if the contractor is dissatisfied with the instructions or decision of the Superintending Engineer, the contractor may, within 15 days of the receipt of Superintending Engineer, the contractor may, within 15 days of the receipt of Superintending Engineer’s, appeal to the Chief Engineer who shall afford an opportunity to the contractor to be heard, if the latter so desires, and to offer evidence in support of his appeal. The Chief Engineer shall give his decision within 30days of receipt of contractor’s appeal. If the contractor is dissatisfied with the decision of the Chief Engineer, the contractor may within 30 days from the receipt of the Chief Engineer decision, appeal before the Dispute Redressal Committee (DRC) along with a list of disputes with amounts claimed in respect of each such dispute and giving reference to the rejection of his disputes by the Chief Engineer. The Dispute Redressal Committee (DRC) shall give his decision within a period of 90 days from the receipt of Contractor’s appeal. The constitution of Dispute Redressal Committee (DRC) shall be as indicated in Schedule ‘F’. If the Dispute Redressal Committee (DRC) fails to give his decision within the aforesaid period or any party is dissatisfied with the decision of Dispute Redressal Committee (DRC), then either party may within a period of 30 days from the receipt of the decision of Dispute Redressal Committee (DRC), give notice to the Chief Engineer for appointment of arbitrator on prescribed proforma as per Appendix XV, failing which the said decision shall be final binding and conclusive and not referable to adjudication by the arbitrator.
It is a term of contract that each party invoking arbitration must exhaust the aforesaid mechanism of settlement of claims/disputes prior to invoking arbitration.
(ii) Except where the decision has become final, binding and conclusive in terms of Sub Para (i) above, disputes or difference shall be referred for adjudication through arbitration by a sole arbitrator appointed by the Chief Engineer, CPWD, in charge of the work or if there be no Chief Engineer, the Additional Director General of the concerned region of CPWD or if there be no Additional Director General, the Director General, CPWD. If the arbitrator so appointed is unable or unwilling to act or resigns his appointment or vacates his office due to any reasons whatsoever, another sole arbitrator shall be appointed in the manner aforesaid. Such personal shall be entitled to proceed with the reference from the stage at which it was left by his predecessor.“ 7. Thus from perusal of the relevant extract of Clause 25, it is evident that if the contractor considers any work demanded of him to be outside the scope of the contract or any question arises with regard to claim, right, matter or thing whatsoever in any way arising out of or relating to the contract designs, drawings, specifications, estimates, instructions, orders or execution or failure to execute the work whether arising during the progress of the work or after the cancellation, termination, completion or abundant of the work, can approach the Superintending Engineer. In case, superintendent engineer fails to give his decision in writing within 15 days or if the Contractor is dissatisfied with the decision, he may file an appeal to the Chief Engineer. The Chief Engineer is required to decide the appeal within 30 days. The matter can further be raised before the Dispute Redressal Committee who shall give a decision within a period of 90 days and on receipt of the decision of the Dispute Redressal Committee, a notice can be given to the Chief Engineer for appointment of the Arbitrator. Thus, Clause 25 of the agreement provides in detail the mechanism for resolution of the dispute between the parties.
8. The issues involved in the petitions are whether or not the petitioner was allotted extra work and whether or not he could complete the work allotted to him within the time limit prescribed by the respondents, which was extended up to May 2018 and to what an extent the petitioner has completed the work as well as the fact that whether or not the amount due to the petitioner under the contract has been paid or not are disputed questions of fact, which cannot be adjudicated in this Writ Petition. The petitioner has no statutory right to complete the remaining work. Therefore, the writ of mandamus cannot be issued. The action has been initiated by the respondents against the petitioner under the terms and conditions of the contract to approach the forums provided therein for redressal of his grievance. Therefore, no case for interference in exercise of powers under Article 226 of the Constitution of India, which otherwise discretionary in nature is made out . [See: ‘ABL INTERNATIONAL LTD., AND ANOTHER VS. EXPORT CREDIT GUARANTEE CORPORATION OF INDIA LTD. AND OTHERS’, (2004) 3 SCC 553]. Besides that, it is pertinent to mention that a writ of mandamus cannot be issued for directing protection in respect of the property status or a right ,which is yet to be adjudicated and where such an adjudication can be done in a properly instituted suit. [See: ’P.R.MURALIDHARAN AND OTHERS VS. SWAMI DHARMANANDA THEERTHA PADAR AND OTHERS’, (2006) 4 SCC 501] 9. So far as reliance placed by Learned Senior Counsel for the petitioner in the case of HIND CONSTRUCTION CONTRACTOR supra is concerned, suffice it to say, that contractor after decision of the contract had filed a suit on the original side of the Bombay High Court. In the aforesaid proceedings, the evidence was adduced and a decree was passed on 09.09.1968, against which an appeal was preferred before the appellate side of the Bombay High Court and eventually, the matter was dealt with by the Supreme Court Therefore, the aforesaid decision has no application to the fact situation of the case. Similarly, in M/S RAM BARAI SINGH supra a Two Judge Bench of the Supreme Court held that alternative remedy and an Arbitration Clause in the agreement ipso facto would not render a Writ Petition to be not maintainable. In the aforesaid case, the learned Single Judge had decided the Writ Petition on merits and the respondents in the Writ Petition did not object to entertaining the Writ Petition by the learned Single Judge, on the ground of availability of the alternative remedy. The aforesaid objection was taken before the Division Bench in an appeal. In the aforesaid context, the observations were made in paragraph 12 of the order. Therefore, the aforesaid decision is also of no assistance to the petitioners in the fact situation of the case.
10. However, in the peculiar facts of the case, since the petitioner has expressed his willingness to complete the work within a period of three months, I deem it appropriate to dispose of the Writ Petitions with a direction that in case the petitioner submits a representation to the competent authority of Central Public Works Department within a period of one week from the date of receipt of the certified copy of the order passed today, the aforesaid authority shall decide the representation by a speaking order within a period of one week therefrom. Accordingly, petitions are disposed of.
Sd/- JUDGE SS