Amit Chaudhary vs State Of U.P. And Others
2014 Latest Caselaw 68 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

(Reserved)
 
Civil Misc.Writ Petition No. 33642 of 2012.
 
Amit Chaudhary vs. State of U.P. & others
 

 
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Hon'ble Tarun Agarwala, J.

Hon'ble Rajan Roy, J.

(Per - Rajan Roy, J.)

Delivered on 24.03.2014

By means of this petition, the petitioner has challenged an order dated 29th May, 2012 passed by the Municipal Commissioner, Nagar Nigam, Aligarh, whereby he has been blacklisted and an amount of Rs. 1,35,302/- deposited by him as security money, has been forfeited.

It appears that tenders were invited by the Nagar Nigam, Aligarh for construction of a road (interlocking) and a drain by the side of the road in a particular locality, in response to which, the petitioner along with others, submitted the tender. The tender of the petitioner was accepted and an agreement was entered into between the petitioner and the Nagar Nigam on 26.07.2011, in pursuance whereof a security deposit of about Rs. 1,36,000/- was made by the petitioner.

According to the petitioner, he started the work on 26.07.2011 itself but on account of certain objections being raised by the residents of the locality, who wanted that the construction of road and the drain be made at a higher level as compared to the specifications approved by the concerned engineers, the work had to be stopped on 16.09.2011. The concerned Junior Engineer submitted a report to the high ups on 24.09.2011 (Annexure 4 to the writ petition), which has not been denied by the respondents in their counter affidavit, while replying paragraph 10 of the writ petition. The petitioner also made several representations dated 19th September, 20th September, 21st September, 24th September, 30th September, 7th October & 19th October, 2011 apprising concerned officials about the hardships being faced by him due to objections of the local residents and resultant stoppage of work, but in stead of taking any remedial measure, a notice dated 3rd November, 2011 was issued to the petitioner by the Assistant Engineer to finish the job, failing which, action was to be taken against him. The said notice was replied by the petitioner on 5th November, 2011 stating therein that at no point of time any oral or written direction was given to him to complete the work as per the revised specifications or to construct the road and drain at higher level and that in any case, such orders were required to be given in writing. Thereafter the petitioner was served with a letter dated 19.10.2011, whereby a request was made to complete the job as per the new specifications/revised estimates and to construct the road & drain at a higher level. The submission of the petitioner in this regard is that this letter is ante-dated and had been prepared only after petitioner's reply dated 05.11.2011 was given in response to the notice dated 03.11.2011. The petitioner has annexed photostat copy of the envelop as Annexure 7 to the writ petition to show that the letter allegedly dated 19.10.2011 was posted on 05.11.2011. Prior to it, the petitioner never received any order in writing asking him to do the work as per the revised estimates/specifications.

However, an order was passed on 24.01.2012 blacklisting the petitioner and another order on 27.01.2012 forfeiting the security deposited by him in respect of the aforesaid job, which, needless to say, was not completed by him for the reasons mentioned above. Both these orders were challenged by the petitioner by means of Writ Petition No. 11301 of 2012 and were stayed by this Court on 29.02.2012. Ultimately, the writ petition was disposed of on 29.03.2012 setting aside both these orders with a direction to the officers concerned to pass a fresh order in accordance with law after giving opportunity of hearing to the petitioner in pursuance whereof, the impugned order dated 29.05.2012 has been passed.

Learned counsel for the petitioner contended that once an agreement was entered into between the petitioner and the Nagar Nigam, to do a particular job as per a particular specification approved by the concerned officials, the same can not be altered unilaterally by the Nagar Nigam to the detriment of the petitioner. He further contended that the reports submitted by the Junior Engineer dated 24.09.2011 and 02.12.2011,are sufficient to establish the serious objections raised by the residents of the locality in doing the work as per the earlier specifications and there was difficulty in completing the work as per the specifications unilaterally revised and also for want of any verbal or written direction to do so. The petitioner repeatedly represented and informed the higher authorities about the aforesaid situation, but no action was taken. He also contended that the earlier orders dated 24.01.2012 & 27.01.2012, lost their efficacy having been set aside under the aforesaid judgement of this Court dated 29.03.2012 passed in Writ Petition No. 11301 of 2012, the subsequent order dated 29.05.2012, which is impugned in this writ petition, is also unsustainable for the reasons stated above.

Although the matter was taken up in the revised list, no one appeared on behalf of the respondents no. 2 to 5. We have perused the counter affidavit filed on their behalf. Learned Standing Counsel supported the order impugned. The stand of the respondents in the counter affidavit is that the petitioner did the work for not more than 2 days and no instruction was given by them to stop the work. The dispute with local residents was resolved and as required by them the directions were given to the petitioner to raise the level of the road as well as drain. The petitioner at his own stopped the work as he felt that due to low rate quoted by him, he may suffer a huge loss. No additional quantity of material was required to be used for the purpose of raising level of road and drain. No additional work was supposed to be done by the petitioner. Reliance has been placed on clause 3 of the agreement, which mentions that the work is to be undertaken as per the directions of the concerned authorities. Oral as well as written directions were given to the petitioner to raise the level of the road and the drain on 03.11.2011 and 17.12.2011, but the petitioner did not respond to the same. The petitioner did not do any work after 16.09.2011. In paragraph 18 of the counter affidavit reliance has also been placed on the letter dated 19.10.2011, stating therein that it was posted on 05.11.2011.

Having heard learned counsel for the petitioner and learned Standing Counsel as well as upon perusal of the record including the counter affidavit filed on behalf of the respondents no. 2 to 5, we find that after the requisite agreement was entered into between the petitioner and the Nagar Nigam, objections were raised by the local residents, who wanted the work to be done as per a particular specification, different from the approved one. This fact is evident from the report dated 24.09.2011 (Annexure 4 to the writ petition), which clearly points out the difficulty in construction of the road as per the specification approved and also the difficulty relating to the drainage of the water even otherwise. The report dated 24.09.2011 has not been denied though some other report dated 21.10.2011 has been denied, which is not on record. Further, there is another report of the Junior Engineer dated 02.12.2011 addressed to the Chief Engineer, which also points out the difficulty with regard to the construction in question considering the topography and location of the area.

Further, the order impugned itself points out towards the fact that the earlier specifications, according to which, the petitioner was required to construct the road and drain, were different, consequently, they were revised coping with the demands of the local residents, allegedly, on 19.10.2011. Even the estimates for the job were revised and the petitioner was accordingly asked to complete the job as per the revised estimates. In paragraph 18 of the counter affidavit it has been stated that the letter dated 19.10.2011 was issued to the petitioner to enter into a fresh agreement as per the revised estimate, which was posted on 05.11.2011, after the father of the petitioner refused to accept it by hand. Thereafter it has been stated that since the petitioner failed to come forward to sign the fresh agreement, he was never asked to do the work as per the revised estimate.

On a perusal of the agreement entered into between the petitioner and the Nagar Nigam, it is revealed that under clause 3 thereof, the petitioner was required to do the job as per the specifications/ norms/ directions of the engineers/ officers of the Nagar Nigam and to complete the same by 23rd October, 2011. Undisputedly, an estimate of the job to be done was prepared and the specifications of the job were also mentioned therein. It is not disputed that the petitioner started the work but it had to be stopped on 16.09.2011 for the reasons mentioned above, which was beyond the control of the petitioner as also of the respondents. Moreover, admittedly the estimate was revised and the job was required to be completed as per the revised specifications. As per clause 12 of the agreement, unless and until there were written orders, the petitioner had to work as per the approved estimate/specifications/maps etc. and for the additional work, the payment had to be made as per clause 7 thereof. It is also not disputed that no written direction was issued to the petitioner prior to letter dated 19.10.2011. The petitioner's submission is that no such written or oral direction was issued to him earlier and it was only when in response to the notice dated 03.11.2011 he submitted his reply dated 05.11.2011, that a letter allegedly dated 19.10.2011, was served upon him on that very date i.e. 05.11.2011. Prior to receipt of this letter, no such direction, oral or written, was received by him. This aspect can be viewed from another angle also. Had the letter dated 19.10.2011 been issued prior to 03.11.2011, the notice dated 03.11.2011 would not have asked the petitioner to complete the work as per the quantity mentioned in the tender and as per the agreement entered into with him. Further, there is no reference of the letter dated 19.10.2011 in the notice dated 03.11.2011, which was highly unlikely, if the said letter had already been issued. The petitioner has annexed photostat copy of the envelop showing that the alleged letter dated 19.10.2011 was sent to him by post on 05.11.2011. In view of above, the preparation of the letter dated 19.10.2011 on the said date appears to be highly improbable.

In totality of the facts and circumstances of the case discussed above, we are of the considered opinion that in so far as the blacklisting of the petitioner is concerned, the same is not justified because as a necessary consequence thereof, the petitioner will stand restrained from undertaking any work with the Nagar Nigam for all times to come. However, as far as the forfeiture of the security money deposited by the petitioner is concerned, since the job for which the same was deposited, has been partly done and has not been completed, any adjudication in that regard would involve highly disputed questions of fact and would require to take evidence which would not be feasible under Article 226 of the Constitution, hence, we refrain from expressing any opinion in respect of forfeiture of the security money.

In the result, the writ petition succeeds and is partly allowed. The impugned order dated 29.05.2012 is quashed, only to the extent it relates to the blacklisting of the petitioner. It will be open for the petitioner to avail the remedy, if any, available to him under arbitration clause or under any other provision of law, with regard to forfeiture of his security money.

No order is passed as to cost.

Dated:24.03.2014.

Kst/

(Rajan Roy, J.) (Tarun Agarwala, J.)