Madhya Pradesh High Court
Ravi And Aditya Overseas Llp ... vs The State Of Madhya Pradesh on 12 October, 2022
Author: Vivek Rusia
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W.P. No. 22851/2022
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
&
HON'BLE SHRI JUSTICE AMAR NATH (KESHARWANI)
ON THE 12th OF OCTOBER, 2022
WRIT PETITION No. 22851 of 2022
BETWEEN:-
RAVI AND ADITYA OVERSEAS LLP THROUGH ITS CONSTITUTED
ATTORNEY RAVI SHUKLA S/O LATE SHRI VISHWANATH
SHUKLA, AGED ABOUT 52 YEARS, OCCUPATION: BUSINESS 6,
RAJASWA COLONY, UJJAIN (MADHYA PRADESH)
.....PETITIONER
(SHRI VIVEK TANKHA, SENIOR ADVOCATE WITH SHRI AJAY
MISHRA, ADVOCATE FOR THE PETITIONER.)
AND
THE STATE OF MADHYA PRADESH PRINCIPAL SECRETARY/
CHAIRMAN MADHYA PRADESH INDUSTRIES DEVELOPMENT
1.
CORPORATION. VU LTD. UJJAIN INDUSTRIES DEPARTMENT
MINISTRY VALLABH BHAWAN BHOPAL (MADHYA PRADESH)
MANAGING DIRECTOR VIKRAM UDHYOGPURI LTD. MADHYA
2. PRADESH INDUSTRIES DEVELOPMENT CORPORATION, SEDMAP
BHAWAN, 16-A, ARERA HILLS BHOPAL (MADHYA PRADESH)
EXECUTIVE ENGINEER VIKRAM UDHYOGPURI LTD HAVING ITS
OFFICE AT NEW PLOT NO. 152, ADMINISTRATIVE BUILDING,
3.
KARCHA ROAD, VILLAGE NARWAR, TEH. AND DISTT. UJJAIN
(MADHYA PRADESH)
DMIC VIKRAM UDHYOGPURI LTD. HAVING ITS OFFICE AT NEW
PLOT NO. 152, ADMINISTRATIVE BUILDING, KARCHA ROAD,
4.
VILLAGE NARWAR, TEH. AND DISTT. UJJAIN (MADHYA
PRADESH)
.....RESPONDENTS
(SHRI ADITYA GARG, LEARNED GOVT. ADVOCATE FOR
RESPONDENTS/STATE.)
(MS. BHAKTI VYAS, LEARNED COUNSEL FOR RESPONDENT NO.4
ON CAVEAT.)
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W.P. No. 22851/2022
This petition coming on for hearing on admission this day, JUSTICE
VIVEK RUSIA passed the following:
ORDER
The petitioner has filed the present petition against order dated
6.9.2022 passed by respondent No.4 whereby the contract has been
terminated.
Facts of the case, in brief, are as under :
1) The petitioner is a Limited Liability Partnership Firm registered
under provisions of the Indian Partnership Act, having its registered
office at 6, Rajaswa Colony, Ujjain. Respondent No.1 issued Tender
No. 45(B) for the construction of a cement concrete road, water
distribution network, storm water drain, sewer collection network, gas
trench, ICT trench, effluent collection network, 33 KV power line and
street light at Industrial Area, NICDC, Vikram Udyogpuri Ltd., Ujjain
at Karcha Road, Village Narwar, Ujjain. In pursuant to the aforesaid
tender, M/s.Gopal Enterprises participated in the tender process which
was accepted by respondent No.1. Accordingly, the bank guarantee
was submitted and the work order dated 24.11.2021 was issued in the
name of M/s. Gopal Enterprises. Although the tender was submitted
by M/s. Gopal Enterprises and the work order was issued to the said
firm, but the work was started by the present petitioner i.e. Ravi @
Aditya Overseas LLP and all the correspondence were made by the
present petitioner with the respondents in respect of the said work.
2) According to the petitioner a show-cause notice dated 14.7.2022
was served as to why the contract be not terminated on account of
non-compliance of the terms and conditions of the contract agreement.
The petitioner submitted the reply and the objection to the said show-
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W.P. No. 22851/2022
cause notice. The petitioner also demanded the documents as well as
the contract agreement from the respondents. The petitioner submitted
an application to the competent authority i.e. Executive Engineer for
resolution of the dispute under Clause 12 - Dispute Resolution System
under the Contract Agreement No.1/2021-22 on 21.7.2022. The
petitioner also submitted an application before the appellate authority
i.e. Managing Director seeking transfer of the application seeking
resolution of the dispute before the impartial competent authority or in
alternate, before the appellate authority itself . Being aggrieved by the
aforesaid show cause notice, the petitioner submitted a representation
before the Secretary/Chairman of respondent No.1. According to the
petitioner, without deciding the said application, the Executive
Engineer has terminated the contract under Clause 26 of the contract
agreement vide order dated 6.9.2022. Hence the present petition
before this Court.
3) Shri Vivek Tankha, learned senior counsel appearing for the
petitioner, submits that the petitioner is not assailing the impugned
termination of the contract on merit as the petitioner is having remedy
to raise the dispute before the appellate authority and thereafter
before the M.P. Madhyastham Adhikaran Bhopal as it is a matter of
works contract. The grievance of the petitioner is that once an
application seeking transfer of the proceeding of dispute resolution
was filed before the appellate authority, then the Executive Engineer
ought not to have passed the order of termination of the contract,
hence the matter is liable to be remanded back to the appellate
authority to decide the transfer application and to pass a fresh order by
another Executive Engineer under clause 26.
4) Respondents are on caveat , and have also filed the reply in
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W.P. No. 22851/2022
advance raising an objection about the maintainability of the writ
petition for want of remedy by way of Clause 12 of the contract
agreement i.e. Dispute Resolution System. Respondents have also
raised an objection that the petitioner i.e. Ravi @ Aditya Overseas
LLP has no locus to file the present petition to challenge the order of
termination as no work order was issued in his favour.
5) Ms. Bhakti Vyas, learned counsel appearing for respondents has
placed reliance on the judgments passed by Division Bench of this
High Court in W.P. Nos. 1824/2022 (M/s. Kamlesh Mishra, Registered
Govt. Contractor V/s. State of M.P. & others) and 24484/2018
(Gannon Dunkerley & Co. Ltd. V/s. Indore Smart City Development
Ltd.) whereby this Court has declined to entertain the writ petitions for
want of remedy available under the contract agreement as well as
under the provisions of M.P. Madhyastham Adhikaran Adhiniyam.
After having heard the learned counsel for the parties, we have
perused the material available on record.
6) The petitioner and M/s. Gopal Enterprises were served with the
show-cause notice by the Executive Engineer of the respondents who
is a competent authority under the contract. The petitioner has raised a
dispute before the competent authority i.e. Executive Engineer in
terms of Clause 12 - Dispute Resolution System on 21.7.2022 and
simultaneously sent an application by way of Registered Post to the
appellate authority seeking transfer of the proceedings to another
impartial competent authority. Such an application is not tenable as
there is no such provision in the contract agreement for the transfer of
the proceedings initiated under Clause 12 of the contract agreement
executed between M/s Gopal Enterprises or the petitioner and the
respondents. The Executive Engineer is the competent authority to
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W.P. No. 22851/2022
take an action and the Managing Director is the appellate authority
under the contract agreement. The petitioner or M/s. Gopal Enterprises
has agreed with the authority of the Executive Engineer to be a
competent authority under Clause 12 of the contract agreement.
Therefore, the proceedings initiated by the competent authority are not
liable to be transferred to the appellate authority. Now, the order of
termination of the contract has been passed against the petitioner and
the petitioner is having remedy to approach before the Managing
Director and thereafter before the M.P. Madhyastham Adhikran as
held in the aforesaid two cases by this Court and the co-ordinate
Bench of this Court. We have no reason to deviate and take a different
view in this matter. All the ground raised in this Writ Petition and all
the objections taken by the respondents are liable to be raised before
the appropriate forum. We are not inclined to give any opinion on the
merit of the case at this stage.
With the aforesaid, this petition is dismissed.
[ VIVEK RUSIA ] [AMAR NATH (KESHARWANI)]
JUDGE. JUDGE.
Alok/-
Digitally signed by ALOK GARGAV
Date: 2022.10.14 18:54:12 +05'30'
