Dineshchandra R. Agrawal ... vs The State Of Madhya Pradesh
2022 Latest Caselaw 5976 MP

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                                                   W.P. No. 2372/2022




  HIGH COURT OF MADHYA PRADESH: BENCH INDORE
   BEFORE HON'BLE SHRI JUSTICE VIVEK RUSIA &
  HON'BLE SHRI JUSTICE AMAR NATH (KESHARWANI)

                ON THE 23rd OF APRIL, 2022

              WRIT PETITION No. 2372 of 2022

  Between:-
  DINESHCHANDRA R. AGRAWAL INFRACON P. LTD
  THROUGH ASST. PROJECT MANAGER VISHNUBHAI
  TEJRAMBHAI RAVAL S/O SHRI TEJRAMBHAI RAVAL ,
  AGED ABOUT 36 YEARS, OCCUPATION: PRIVATE
  EMPLOYEMENT 401, THE GRAND MALL IN FRONT OF SBI
  ZONAL OFFICE S.M. ROAD AMBAWADI (GUJARAT)
                                     .....PETITIONER

  AND

  THE STATE OF MADHYA PRADESH PRINCIPAL
1
  SECRETARY VALLABH BHAWAN BHOPAL (MADHYA
.
  PRADESH)
2 CHIEF ENGINEER PUBLIC WORKS DEPARTMENT UJJAIN
. ZONE UJJAIN (MADHYA PRADESH)
3 ENGINEER IN CHIEF PUBLIC WORKS DEPARTMENT
. BHOPAL (MADHYA PRADESH)
4 EXECUTIVE ENGINEER PUBLIC WORKS DEPARTMENT
. UJJAIN DIVISION UJJAIN (MADHYA PRADESH)
5 SUPERINTENDING            ENGINEER          PUBLIC        WORKS
. DEPARTMENT UJJAIN CIRCLE (MADHYA PRADESH)
6 EXECUTIVE ENGINEER PUBLIC WORKS DEPARTMENT
. DEWAS DIVISION DEWAS (MADHYA PRADESH)
7 M/S SURE ELECTRICALS PLOT NO. 29, V.M. TOWER, ZONE
. I, M.P. NAGAR (MADHYA PRADESH)
                                                .....RESPONDENTS
      Shri Abhinav Dhanodkar learned counsel for the petitioner.
      Shri Bhaskar Agrawal learned Govt. Advocate for
      respondents/State.
      Shri Rohit Sharma learned counsel for respondent No.7.
      With the consent of learned counsel for the parties, heard
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                                                         W.P. No. 2372/2022




finally.
                              ORDER

Per Vivek Rusia, J :

The petitioner has filed the present petition being aggrieved by tender notice dated 25.6.2021 issued by Chief Engineer, M.P. Public Works Department, Ujjain for utility shifting and underground 33 KV/11KV and LT Line Cables from the statue of Indira Gandhi to Bhopal Chouraha and from the Court (Vikas Nagar) to the statue of Indira Gandhi in Dewas, Ujjain Division.

Case of the petitioner

2. The petitioner is a company incorporated under the Companies Act engaged in the business of construction and infrastructure. Respondent No.2 issued a Notice Inviting Tender (NIT) dated 24.5.2021 for the construction of a 6-lane road from Maksi Bypass Chouraha to Bhopal Chouraha and other ancillary works. Petitioner's bid dated 1.7.2021 was accepted for the aforesaid work being the lowest bidder and the Letter of Acceptance (LOA) dated 5.10.2021 was issued. The petitioner has started the above work after the issuance of LOA, followed EPC agreement dated 18.10.2021 executed under the terms and conditions set forth in the agreement. As per Article 9 of the terms & conditions agreement, the petitioner was required to do other related work like shifting electricity lines, water pipes, gas pipelines and telephone cables to an appropriate location or alignment.

3. According to the petitioner despite there being the aforesaid Article in the terms and conditions agreement, respondent No.2 has issued the impugned NIT for utility shifting work related to the construction of the same highway and now LOA has also been issued in favour of respondent No.7. The petitioner is relying on a Statement

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W.P. No. 2372/2022

of Purpose (SOP) issued by the Government of India for utility shifting work for the development of national highways and according to which it shall be the duty of the contractor to undertake shifting of any utility including electricity lines, water pipes and telephone cables to an appropriate location or alignment if such utility or obstruction adversely affecting the execution of works or maintenance of the project Highway in accordance with the agreement, the cost of shifting of such utilities indicated in Schedule B is payable to the contractor as per Schedule H. According to the petitioner, instead of giving this shifting work to them despite there being Article 9.2 in the terms and conditions agreement, respondent no.2 has issued the NIT and awarded the contract in favour of respondent No.7. The petitioner has submitted representations on 30.9.2021 and 17.12.2021 against the impugned NIT, but nothing has been done, hence the present petition before this Court.

4. Learned counsel for the petitioner submits that as per Article 9.2 of the terms and conditions agreement, any shifting of utilities if obstructing in the execution of the work or maintenance shall be undertaken by the contractor i.e. the present petitioner. Hence, any deviation from the conditions of the agreement by respondents would jeopardize the interests of the petitioner. It is further submitted by the learned counsel that when the petitioner is ready to do the utility work then there is no need to issue a fresh NIT and award the contract to respondent no.7. In support of his contention, he has placed reliance on the judgment of the Apex Court in the case of U.P. Power Transmission Corporation Ltd. V/s. CG Power and Industrial Solutions Ltd. : (2021) 6 SCC 15 in which it has been held that even there is an arbitration clause, that does not debar the court from

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W.P. No. 2372/2022

entertaining the writ petition where the writ petitioner is seeking enforcement of a fundamental right, secondly there is the failure of principles of natural justice, and thirdly where the impugned order or proceedings are absolutely without jurisdiction. Reply of respondent No.7

5. After notice, respondent No.7 has filed the reply by submitting that the LOA has been issued on 27.12.2021 and performance security of Rs.20,30,775 and additional performance security of Rs.3,31,693/- have been deposited and thereafter respondent No.7 has commenced the work by deploying manpower and machinery, etc. The payment of the first running bill against the work of Rs.19,25,167/- has been made to the answering respondent. It is further submitted that the dispute between the petitioner and respondents No. 2 to 6 is being a works contract, hence the petitioner has the remedy to approach the M.P. Madhyastham Adhikaran, Bhopal if the petitioner has suffered any financial loss. It is also submitted that the petitioner ought to have approached this Court immediately after the issuance of NIT dated 25.6.2021. If the petitioner is having any grievance in respect of loss of work by the issuance of impugned NIT and awarding of a contract to respondent No.7, the petitioner may take recourse under the law. The nature of work awarded to respondent No.7 is altogether different i.e. shifting of 33 KV/11 KV Line which is not a part of the contract of the petitioner. He, therefore, prays that the petition be dismissed. Learned Government Advocate has supported the action of the respondents.

Heard the learned counsel for the parties

6. The petitioner has been awarded the contract of the construction of 6-Lane road from Maksi Bypass Chourahan to Bhopal Chouraha

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W.P. No. 2372/2022

and an agreement to that effect has been executed on 18.10.2021. Article 9 of the terms and conditions agreement relates to the shifting of utilities and trees by the contractor. As per Article 9.2 the contractor shall, in accordance with applicable laws and with the assistance of the authority, undertake the work of shifting any utility including electric lines, water pipes, gas pipelines and telephone cables to an appropriate location or alignment, if such utility or obstruction adversely affects the execution of works or maintenance of the project. As per Article 6, utility work only includes shifting of electricity lines, water pipes, gas pipelines and telephone cables which are underground. Respondents No.2 to 6 have issued the NIT for shifting of 33 KV/11 KV lines which are not part of the contract of the petitioner and does not include in the utility shifting work, which is also clarified in Schedule B-1 which is reproduced below ;

''(Schedule B-1)

1. The shifting of utilities, if required during the implementation shall be carried out by the Contractor. The cost of the same shall be borne by the Contractor. The details of utilities shifting, that may be encountered during construction are as follows :

        i.     Underground pipe Line shifting.
        ii.    Underground Sewage Line Shifting/Providing sewage
               Chamber as per the site requirement.

Iii. Underground Electric Cable/Telephone Cables etc. iv. Any other existing utility.

v. Transplantation of existing trees/shifting/felling/trimming etc. as per site requirement.

vi. Gas pipe line shifting, if any."

7. It is also clear from the aforesaid Schedule B-1 which gives details of utilities shifting to be carried out by the contractor and all are either underground pipelines, electricity lines, telephone cables, or gas pipelines. The transplantation of the trees is a separate category

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W.P. No. 2372/2022

and the same is not the work given to respondent No.7. the work given to the petitioner is different from the utility work given to respondent No. 7. Therefore, there is no substance in this writ petition challenging the impugned NIT. The petition is, therefore, liable to be dismissed.

Accordingly, this petition is dismissed.

         [ VIVEK RUSIA ]           [AMAR NATH (KESHARWANI)]
             JUDGE.                        JUDGE.
Alok/-

Digitally signed by ALOK GARGAV
Date: 2022.04.30 10:42:30 +05'30'