Madhya Pradesh High Court
M/S Ankita Construction Through ... vs The State Of Madhya Pradesh on 22 May, 2024
Author: Sushrut Arvind Dharmadhikari
Bench: Sushrut Arvind Dharmadhikari
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE SUSHRUT ARVIND DHARMADHIKARI
&
HON'BLE SHRI JUSTICE GAJENDRA SINGH
ON THE 22 nd OF MAY, 2024
WRIT PETITION No. 13992 of 2024
BETWEEN:-
M/S ANKITA CONSTRUCTION THROUGH AUTHORISED
SIGNATORY HARISH CHANDRA S/O GOVERDHAN DAS
AHUJA, AGED 62 YEARS, OCCUPATION: BUSINESS, R/O
22, SAWARIYA COLONY, NIMBAHERA, CHITTORGARH
RAJASTHAN (RAJASTHAN)
.....PETITIONER
(SHRI HARISH JOSHI, COUNSEL FOR THE PETITIONER).
AND
1. THE STATE OF MADHYA PRADESH THROUGH
PRINCIPAL SECRETARY PANCHAYAT AND RURAL
DEVELOPMENT DEPARTMENT, VALLABH
BHAWAN, BHOPAL (MADHYA PRADESH)
2. THE CHIEF EXECUTIVE OFFICER, M.P. RURAL
ROAD DEVELOPMENT AUTHORITY WING-2, 5TH
FLOOR, PARYAVAAS BHAWAN, BHOPAL
(MADHYA PRADESH)
3. THE GENERAL MANAGER, M.P. ROAD
DEVELOPMENT AUTHORITY IMPLEMENTATION
UNIT (PIU) MANDSAUR (MADHYA PRADESH)
.....RESPONDENTS
(SHRI BHAVISHYA SHARMA, COUNSEL FOR THE RESPONDENTS).
This petition coming on for admission this day, Justice Sushrut Arvind
Dharmadhikari passed the following:
ORDER
Heard on the question of admission and interim relief.
In this petition under Article 226 of the Constitution of India, petitioner
has assailed the order dated 19.03.2024 and letter dated 24.04.2024 (Annexure
P/8) issued by respondent No.3 whereby petitioner has been directed to deposit
an amount of Rs. 29,82,545/- on account of submission of private bills of
bitumen not issued by the government refineries.
2. The brief facts of the case are that the petitioner is a proprietorship
firm involved in civil construction and maintenance. After being successful in
the bid, petitioner was allotted the tender and issued a letter of acceptance dated
17.02.2020 for construction and routine maintenance of rural road Sitamau
Motipura Rupni under the Pradhan Mantri Gram Sadak Yojna in Mandsaur
District. The construction was completed and after satisfaction by the
respondents, petitioner submitted the final payment bill voucher along with
receipt of bitumen bills. Respondent No. 3 issued show cause notice dated
14.07.2022 and 30.11.2023 for calling original bills of bitumen to which the
petitioner submitted reply on 04.12.2023. However, without considering the
reply and the documents filed by the petitioner, respondent No.3 issued the
impugned communication dated 19.03.2024 and 24.04.2024 raising demand of
Rs. 29,82,545/- against the petitioner in gross violation of the principles of
natural justice. Hence, this petition.
3 . Learned counsel for the petitioner submits that the road constructed
and maintained with the usage of said bitumen have been recorded in the
measurement book and taken into consideration and being approved while
drawing the final bill of the petitioner for the work. As per Clause 4 Condition
of Contract of the Standard Bidding Document, Condition No. 4.6B prescribes
for price adjustment providing for grant of any variation in the cost of bitumen
or steel on theoretical consumption. Further, the respondents have raised
objection on the ground of purchase of bitumen from private refinery and that
the bills have not been submitted by the petitioner. It is not the case of the
respondents that the bitumen is of inferior or lesser quality. The conduct of the
respondents in firstly permitting the petitioner to lay the bitumen and thereafter
issuing order for recovery on the basis of audit objection is not permissible on
the touchstone of Doctrine of Promissory Estoppel. Further, as per the
contractual terms, no consequence is provided for non purchase of bitumen
from the government refineries. No other efficacious remedy is available to the
petitioner at this stage other than to approach this Court against the impugned
action of the respondents. Hence, on these grounds, the writ petition deserves
to be entertained.
4. In support of his contentions, learned counsel for the petitioner has
relied on the judgment of the Apex Court in case of State of Karnatak vs.
Shree Rameshwara Rice Mills, (1987) 2 SCC 160 wherein it is held that
adjudication of concerning the contract violation by either of those privy to the
contract cannot be legal. This is because allowing a party to the agreement to
serve as the arbiter in their own case contradicts the fundamental principle of
nemo debetesse judex in propria causa meaning one should not be a judge in
their own cause. Learned counsel has also placed reliance on the Full Bench
judgment of this Court in case of B.B.Verma vs. State of M.P., 2007 (4)
MPLJ 610 upheld by the Apex Court in Tulsi Narayan Garg vs. M.P.Road
Development Authority, 2019 SCC OnLine SC 1158.
5 . Per contra, learned counsel appearing for the respondents opposed
the prayer and submitted that the petitioners have an alternate and efficacious
remedy available under Clauses 24 and 25 of the tender document/Conditions
of Contract. Hence, this petition is liable to be dismissed being not
maintainable.
6. Heard learned counsel for the parties. Perused the record.
7. The Clause 24 and 25 'General Conditions of Contract' of the tender
document/Contract reads as under:
''24. Dispute Redressal System
2 4 . 1 If any dispute or difference of any kind what-so-ever shall
arise in connection with or arising out of this Contract or the
execution of Works or maintenance of the Works there under,
whether before its commencement or during the progress of Works
or after the termination, abandonment or breach of Contract, it
shall, in the first instance, be referred for settlement to the
competent authority with 45 days or arising of the dispute or
difference, described along with their powers in the Contract date,
above the rank of the Engineer. The competent authority shall,
within a period of sixty days after being requested in writing by the
Contractor to do so, convey his decision to the Contractor. Such
decision in respect of every matter so referred shall, subject to
review as hereinafter provided, be final and binding upon the
Contractor. In case the Works is already in progress, the
Contractor shall proceed with the execution of the Works, including
maintenance thereof, pending receipt of the decision of the
competent authority as aforesaid, with all due diligence.''
25. Arbitration
2 5 . 1 Either party will have the right to appeal, against the
decision of the competent authority, nominated under Clause 24, to
the Madhya Pradesh Arbitration Tribunal constituted under the
Madhya Pradesh Madhyastham Adhiniyam, 1983 provided the
amount of claim is more than Rs. 50,000/-.''
8. As per the aforesaid Clause, there is a proper dispute redressal
system constituted by the State for resolution of any dispute between the
parties. It is apparent from the record that the petitioner, without approaching
the competent authority has filed this writ petition.
9. The Apex Court in the case of Hindustan Coca Cola Beverage
Private Ltd vs. Union of India and others reported in (2014) 15 SCC 44,
in which it is held that:- "when the statute provides for statutory appeal, the said
remedy is to be availed by the litigating parties". In Hameed Kunju vs. Nizam
(2017) 8 SCC 611, the Apex Court held that any petition under Article 227 of
Constitution of India should be dismissed in limine where there is statutory
provision of appeal. In another case Ansal Housing and Construction
Limited vs. State of Uttar Pradesh and others (2016) 13 SCC 305, it is
held that when there statutory appeal is provided, then the said remedy has to
be availed.
10. Taking into consideration the aforesaid pronouncement of law, this
petition is not maintainable in view of the fact that Clause 24 and 25 of the
Contract stipulates for a dispute redressal system, therefore, if it all there is any
dispute between the parties, the petitioner is very well entitled to avail remedy
under the said dispute redressal system.
11. Accordingly, the petition stands dismissed. However, petitioner
would be at liberty to avail remedy in accordance with law, if so advised.
(S. A. DHARMADHIKARI) (GAJENDRA SINGH)
JUDGE JUDGE
vidya
