Manipur High Court
Envision Construction And ... vs The State Of Manipur on 10 January, 2023
CHONGNUNKI Digitally signed by
CHONGNUNKIM GANGTE
M GANGTE Date: 2023.01.10 14:36:46
+05'30'
IN THE HIGH COURT OF MANIPUR
AT IMPHAL
WP(C) No. 378 of 2022 with WP(C) No. 379 of 2022 with
WP(C) No. 380 of 2022 with WP(C) No. 381 of 2022 with
WP(C) No. 382 of 2022
Envision Construction and Suppliers, represented by its
Proprietor, Shri Kapani Athilu Khrasi, aged about 39 years,
s/o Shri Th. Kapani Athilu Khrasi, resident of Makhan
Khullen, P.O Maram Bazar, P.S Mao, Senapati District,
Manipur - 795015
....Petitioner
-Versus-
1. The State of Manipur, represented through the Addl. Chief
Secretary (Tribal Affairs & Hills), Government of Manipur,
Old Secretariat, Babupara, P.O & P.S. Imphal, Imphal
West District, Manipur - 795001
2. The Director (Tribal Affairs & Hills), Government of
Manipur, Old Secretariat, Babupara, P.O & P.S.Imphal,
Imphal West District, Manipur-795001
3. The Executive Engineer-II (Tribal Affairs & Hills),
Government of Manipur, Babupara, P.O & P.S.Imphal,
Imphal West District, Manipur-795001
4. The Executive Engineer-I (Tribal Affairs & Hills),
Government of Manipur, Babupara, P.O & P.S.Imphal,
Imphal West District, Manipur-795001
.. Respondents
WP(C)No. 378 of 2022 & Ors Page 1
BEFORE
HON'BLE MR. JUSTICE AHANTHEM BIMOL SINGH
For the Petitioner :: Dr. R.K Deepak, Advocate,
For the Respondents:: Mr. A. Vashum, Govt. Advocate
Dates of hearing :: 10-10-2022
Date of judgment/ :: 10-01-2023
Order
JUDGMENT AND ORDER
Heard Dr. R.K Deepak, learned counsel appearing
for the petitioner and Mr. A. Vashum, learned GA appearing for
the respondents.
[2] The present five writ petitions had been filed with the
prayer, inter alia, for quashing and setting aside the impugned
orders dated 26-04-2022, which cancelled the work orders dated
12-06-2020 issued in favor of the petitioner, as well as for
quashing and setting aside the fresh NITs dated 11-05-2022 and
also for directing the respondents to allow the petitioner to
commence the contract work by re-scheduling the date of
commencement of the work.
As the facts and issues involved in the five writ
petitions are the same, all the writ petitions were heard jointly and
being disposed of by this common judgment and order.
[3] The petitioner is a registered first class contractor in
the department of Tribal Affairs & Hills, Government of Manipur.
WP(C)No. 378 of 2022 & Ors Page 2
The case of the petitioner is that with a view to enhance
infrastructure development in the hills district of Manipur, the
State Cabinet took a decision in its meeting held on 12-10-2019
to adopt restricted tender for the contract work of infrastructure
development of 3 (three) Eklavya Model Residential School
(EMRS) at Moreh, Tamenglong & Gamnom, Sapermaina.
Pursuant to the said Cabinet decision, the Under Secretary
(Tribal Affairs & Hills), Government of Manipur sent a proposal to
the Director, Tribal Affairs & Hills, Govt. of Manipur to adopt
restricted tender in respect of the contract works for infrastructure
development for the said three EMRS where estimated cost of
each work is less than 1.5 crore, vide letter dated 25-10-2019.
After obtaining the approval of the Government, the Executive
Engineer, Tribal Affairs & Hills, Government of Manipur issued
three separate notices bearing numbers 2, 3 & 4, all dated 10-02-
2020 inviting restricted sealed tender from intending approved
and eligible registered contractors of the department for
execution of the works mentioned in the said NITs.
[4] The petitioner submitted bids in respect of 5 (five)
works and having found to be the lowest bidder and having
fulfilled all the terms and conditions of the tender, the petitioner
was awarded the following works by issuing five separate work
orders all dated 12-06-2020 issued by the Executive Engineer-II,
Tribal Affairs & Hills, Manipur :-
(a) Eklavya Model Residential School, Tamenglong :
(i) Rigid pavement and shingling of road and
construction of retaining wall;
(b) Eklavya Model Residential School, Moreh, Tengnoupal:
WP(C)No. 378 of 2022 & Ors Page 3
(i) Water supply and sanitary installation for staff
quarters Block-A & B;
(ii) Internal electrification for science and staff
quarters Block-A & B;
(c) Eklavya Model Residential School, Gamnom,
Sapermaina:
(i) Water supply and sanitary installation for
Hostel Block-A and Block-B
(ii) Internal electrification for Hostel Building
Block-A & B and Science Block.
As per the said work orders, the time allowed for
executing the work was given as 12 (twelve) months and the
following terms and conditions were also given:-
Terms and Condition
1. You are requested to attend the office of the
undersigned to complete the Agreement and
other formalities within 7 days from the issue of
the letter.
2. The date of start of the work is reckoned from
18.06.2020 i.e, seven days from the date of issue
work order to commence the work shown in the
scheduled.
3. Your attention is drawn to clause 1 of the contract
hereby time allowed for carrying out the work as
entered in the tender shall be strictly observed by
you. The progress work be mentioned
corresponding to the time given time of
WP(C)No. 378 of 2022 & Ors Page 4
completion. If 50% of the work is not executed
within the given time of completion of the work, it
is the sufficient ground of cancellation of the
work.
4. The undersigned is not liable for any payment for
work (s) done/executed completed after the
stipulated time.
5. The work should be carried out as per the
specification and estimates enclosed herewith
and failure of which this office is not responsible
for payment.
6. You are to contact the Assistant Engineer in-
charge of the work immediately and obtain the
necessary technical guidance and selection of
works site etc. before the commencement of the
work.
7. No materials shall be issued by the department.
8. Constructions should be strictly based to the
speculation as per Design & Drawing of the
Department.
[5] After the issuance of the NIT dated 10-02-2020 and
before issuing the work orders dated 12-06-2020, the
Government of India imposed total lockdown in the whole country
due to the pandemic of Covid-19 from the later part of March,
2020. Even after partial lifting of the total lockdown imposed by
the Government of India, the State Government continued to
impose total lockdown in the whole state to contain the pandemic
of Covid-19 and to safeguard the health and lives of the citizens.
WP(C)No. 378 of 2022 & Ors Page 5
It is also the case of the petitioner that the premises of all the
three EMRSs' at Tamenglong, Sapermaina and Moreh were
utilized as quarantine centers from the month of May, 2020 as
per the orders of the concerned District Magistrate and only after
the issuance of the order dated 02-11-2021, the Government
stopped utilizing the said three school premises as quarantine
centers for covid patients. According to the petitioner, during the
period from the month of May, 2020 till the month of November,
2020, the premises of the said three schools were utilized by the
Government as quarantine centers/containment zone and
because of the strict restriction imposed by the Government,
movement in and around the premises of the said three schools
were strictly prohibited. Due to the aforesaid situation prevailing
in the state of Manipur, the petitioner could not start execution of
the work within the period stipulated under the terms and
conditions No. 2 of the work order dated 12-06-2020. It is also the
case of the petitioner that in view of the nature of the works
awarded to him, he could not start executing the works unless
and until construction of the building for staff quarters, Science
Blocks, Hostel Blocks etc., which were awarded to other
contractors are completed.
[6] The petitioner verbally requested the Executive
Engineer - II, Tribal Affairs & Hills, Government of Manipur, for
giving necessary technical guidance and selection of work site so
as to enable him to start the work and complete the same on time.
Instead of providing necessary technical guidance and selection
of work site as requested by the petitioner, the Executive
Engineer - II, Tribal Affairs & Hills, Government of Manipur
issued an order dated 01-12-2020 cancelling all the work orders
WP(C)No. 378 of 2022 & Ors Page 6
issued in favor of the petitioner on the ground that the petitioner
failed to start executing the work within the time stipulated under
clause (2) of the terms and conditions of the work orders.
[7] After issuance of the cancellation order dated 01-12-
2020, the Executive Engineer - II, Tribal Affairs & Hills,
Government of Manipur, issued an NIT dated 07-12-2020 in
respect of the same works earlier awarded to the petitioner.
Having been aggrieved, the petitioner assailed the cancellation
order dated 01-12-2020 and NIT dated 07-12-2020 by filing a writ
petition being WP(C) No. 146 of 2021 before this Court. In the
said writ petition, this Court passed an interim order on 25-02-
2021 directing that the process of tender in respect of the
impugned NIT shall remain suspended. During the pendency of
the said writ petition, the Executive Engineer - II, Tribal Affairs &
Hills, Government of Manipur issued an order dated 17-03-2021
cancelling the earlier NITs dated 10-02-2020 as well as the
subsequent NIT dated 07-12-2020. Subsequently, the Executive
Engineer-II issued an order dated 22-03-2021 revoking the first
cancellation order dated 01-12-2020 as well as another order
dated 01-12-2021 reviving/restoring the earlier NIT dated 10-02-
2020.
[8] In view of the revocation of the first cancellation
order and restoration of the earlier NITs dated 10-02-2020, this
Court disposed of the pending writ petition by passing an order
dated 10-12-2021. In the said order, this Court directed the State
respondents to re-schedule the time period that has been
prescribed in the work order dated 12-06-2020. The petitioner
communicated the orders passed by this Court to the Executive
Engineer - II, Tribal Affairs & Hills, Government of Manipur, by
WP(C)No. 378 of 2022 & Ors Page 7
submitting a representation dated 12-01-2022 and also
requested to allow the petitioner to commence the works and to
extend the time period for completion of the work.
[9] Instead of allowing the petitioner to commence work
by re-scheduling the time period prescribed in the work order, the
Executive Engineer - II, Tribal Affairs & Hills, Government of
Manipur issued an order dated 29-12-2021 cancelling, for the
second time all the earlier work orders issued in favor of the
petitioner. Thereafter, the Executive Engineer - II, Tribal Affairs
& Hills, Government of Manipur issued another three NITs all
dated 13-01-2022 in respect of the same work awarded earlier to
the petitioner and without cancelling the first NITs dated 10-02-
2020. Having been aggrieved, the petitioner challenge the said
cancellation order dated 29-12-2021 as well as the new NITs
dated 13-01-2022 by filing WP(C) No. 63 of 2022 before this
Court. In the said writ petition, this Court passed an interim order
on 27-01-2022 directing that the impugned NITs shall remain
suspended. Subsequently, the Executive Engineer - II, Tribal
Affairs & Hills, Government of Manipur, issued two orders dated
04-03-2022 and 09-03-2022 cancelling the impugned NITs as
well as the impugned cancellation order dated 29-12-2021. In
view of the said two orders, all the writ petitions filed by the writ
petitioner challenging the said NITs and the impugned
cancellation order were closed as infructuous.
[10] The State Government filed a batch of writ appeals
challenging the common orders dated 06-12-2021, 08-12-2021
and 10-12-2021 passed by the learned Single Judge in the batch
of writ petitions directing the state authorities to re-schedule the
time period that was prescribed in the work order issued in favor
WP(C)No. 378 of 2022 & Ors Page 8
of the petitioner. All the writ appeals were disposed of by a
common order dated 28-03-2022 passed in Writ Appeal No. 6 of
2022 and other analogous writ appeals by setting aside the
direction given by the learned Single Judge to re-schedule the
time period for execution of the work pursuant to the work order
issued in June, 2020. The Appellate Court further directed the
authorities to consider the reply submitted by the petitioner in
response to the show cause notice dated 14-01-2021 by giving
an opportunity of personal hearing and thereafter, to decide each
case as to whether there was any willful delay or negligence on
the part of the contractor concerned warranting punitive action.
The Appellate Court further observed that in the event, no such
lapse is found to be attributable to the contractor concerned, the
authorities shall re-schedule the time period for the execution of
works.
[11] In purported compliance with the direction of this
Court, the authorities issued a show cause notice dated 04-04-
2022 directing the petitioner to submit in writing on or before 16-
04-2022 as to why he could not execute the works awarded to
him within the period stipulated under clause (2) of the terms and
conditions of the work order. In response to the said show cause
notice, the petitioner submitted his reply in writing on 13-04-2022
explaining in detail the reasons for the inability to commence the
works. Subsequently, the Additional Chief Secretary (TA & Hills),
Government of Manipur, issued an order dated 26-04-2022
cancelling all the work orders dated 12-06-2022 awarded to the
petitioner and also directing to issue fresh tenders and fresh work
orders. Thereafter, the Executive Engineer - II, Tribal Affairs &
Hills, Government of Manipur issue three fresh NITs all dated 11-
WP(C)No. 378 of 2022 & Ors Page 9
05-2022 in respect of the works earlier awarded to the petitioner.
Having been aggrieved, the petitioner filed the present writ
petitions assailing the said cancellation order dated 26-04-2022
and the NIT dated 11-05-2022 for redressing his grievances. In
the present writ petitions, this Court passed interim order dated
24-05-2022 directing that no further steps should be taken up
pursuant to the impugned NIT dated 11-05-2022 without leave of
this Court.
[12] Learned counsel appearing for the petitioner
submitted that before issuance of impugned order dated 26-04-
2022, the work orders awarded to the petitioner were cancelled
by the authorities on two earlier occasions. At the first instance of
cancellation, the reason given by the authorities was for non-
commencement of the execution of work as per clause (2) of the
terms and conditions of the work order. Subsequently, the
authorities revoked the cancellation order suo moto by issuing
another order, which clearly indicated that the reason for
cancellation of the work order was unjustified. At the time of
issuing the second cancellation order, no reason whatsoever was
given by the authorities for cancelling the said work orders. Later
on, the second cancellation order was again revoked by the
authorities suo moto, thereby clearly indicating that there was no
justifiable reason for cancelling the work orders awarded to the
petitioner. For the third time, the authorities again cancelled the
work orders awarded to the petitioner by issuing the impugned
orders dated 26-04-2022. The only reason given by the
authorities for such cancellation is for breach of clause (2) of the
terms and conditions of the work orders dated 12-06-2020.
WP(C)No. 378 of 2022 & Ors Page 10
[13] Learned counsel for the petitioner submitted that
under clause (2) of the terms and conditions of the work order,
there is no term and condition for cancellation of the work orders
if the contractor breach any of the conditions mentioned therein.
Only under clause (3) of the said terms and conditions, it is
provided that if 50% of the work is not executed within the given
time of completion of the work, it will be sufficient ground for
cancellation of the work. Learned counsel further submitted that
as the authorities cancelled the work orders dated 12-06-2020
awarded to the petitioner on 01-12-2020 well before the expiry of
the given period for execution of the work, there was no reason
whatsoever for cancelling the work orders awarded to the
petitioner. Learned counsel accordingly submitted that the
authorities have acted arbitrarily and unreasonably in issuing the
impugned order and such action deserved interference from this
Court by quashing and setting aside the impugned order dated
26-04-2022.
[14] Learned counsel also submitted that as there was no
justifiable reason for cancellation of the work orders awarded to
the petitioner and as the authorities have not yet cancelled the
earlier NIT dated 10-02-2020, there was no reason for issuing the
impugned NITs dated 11-05-2022 and that the authorities have
issued the impugned NIT without application of mind and
accordingly, the impugned NITs are also liable to be quashed and
set aside.
[15] It is also submitted that in spite of the best intention
and effort on the part of the petitioner, work at the allotted sites
could not be started because of the prevailing situation in the
State due to the pandemic of Covid-19. After the award of the
WP(C)No. 378 of 2022 & Ors Page 11
work order, the petitioner was unable to commence the work
because of several restrictions in entering the work site as the
premises of the three EMRS were declared as containment zone.
It has also been submitted that there was also acute shortage of
labour as the labour force was unwilling to work under the
prevailing Covid-19 situation and that the Government SOP
issued in connection with the Covid-19 pandemic prohibits labour
force to work in groups. The learned counsel for the petitioner
vehemently submitted that in view of the nature of works awarded
to the petitioner, it was not possible for the petitioner to start the
work unless and until the construction of the building for staff
quarters, science blocks, hostel blocks etc., are completed by the
other contractors. It has also been submitted that if the authorities
gave a little co-operation, the petitioner could have completed the
work within the stipulated time.
[16] Learned counsel also submitted that, the authorities
ignored the request of the petitioner to provide technical guidance
and selection of work site etc., which are required to be followed
as per the terms and conditions of the work order before
commencing the work and that without specifically identifying the
work site, without providing the specific task to be done and
without providing the technical guidance as to how the task are
to be performed, it was not feasible and practicable for the
petitioner to execute the work. It is also submitted that the work
orders awarded to the petitioner have been cancelled without
giving any valid and justifiable reason and by ignoring the reply
to the show cause notice as well as the reasons/explanations
given therein. Accordingly, the action of the authorities in
cancelling the work orders are arbitrary, bias, unlawful and illegal.
WP(C)No. 378 of 2022 & Ors Page 12
Learned counsel also submitted that the authorities made an
unreasonable allegation against the petitioner in the impugned
order that the petitioner failed to start execution of the work
despite lapse of more than 18 (eighteen) months. In this regard,
learned counsel for the petitioner submitted that the reason for
non-commencement of the execution of work was due to non-
cooperation of the on the part of the officials of the department in
giving technical guidance and selection of work site as well as the
impossibility of commencing the work during the pandemic of
Covid-19 as well as the nature of work to be executed by the
petitioner and that the authorities never consider these valid
reasons at the time of issuing the impugned order.
[17] Mr. A. Vashum, learned G.A. appearing for the
respondents, submitted that the petitioner was awarded the
contract works for infrastructure development of EMRS at
Tamenglong, Gamnom, Sapermeina and Moreh by issuing work
the orders dated 12.06.2020. As per the terms and conditions of
the contract work, the petitioner was to attend the office of the
respondents to complete the agreement and other formalities
within 7 (seven) days from the date of the issue of the work order.
Secondly, the petitioner was to start execution of the work from
18.06.2020, i.e., 7 (seven) days after the date of issue of the work
order. Thirdly, if the petitioner does not execute 50 percent of the
work within the time allocated for completion of the work, it is
sufficient ground for cancellation of the work order. Fourthly, as
soon as the work order was issued, the petitioner was to contact
the Assistant Engineer In-charge of the work immediately and
obtain a necessary technical guidance and selection of work site
etc. before the commencement of the work.
WP(C)No. 378 of 2022 & Ors Page 13
[18] The learned G.A. further submitted that in spite of
obtaining the work order dated 12.06.2020, the petitioner never
contacted the Assistant Engineer In-charge of the work and also
did not complete the agreement and other formalities as
stipulated in the terms and conditions of the contract work. It has
also been stated that since the petitioner did not contact the
Assistant Engineer In-charge of the work and since the petitioner
did not commence the work within the stipulated time, the
authorities cancelled the work order on 01.12.2020 in terms and
conditions under clause (1), (2), (3) & (6) of the terms and
conditions of the work order.
[19] The learned G.A. submitted that the Division Bench
of this Court disposed of the batch of writ appeals filed by the
State Government by common order dated 28.03.2022 by setting
aside the direction given by the learned Single Judge to re-
schedule the time period for execution of the work. While
disposing of the said batch of writ appeals, the Division Bench
also directed the authorities to consider the reply submitted by
the petitioner in response to the show cause notice dated
14.01.2021 by giving an opportunity of personal hearing and
thereafter to decide each individual case as to whether there was
any willful delay or negligence on the part of the contractor
warranting punitive action. It has been submitted that in
compliance with the order passed by the learned Division Bench,
the authorities heard the petitioner in person and also considered
the reply submitted by him in response to the show cause notice
dated 04.04.2022 and passed the impugned order dated
26.04.2022 thereby cancelling the work orders awarded to the
petitioner.
WP(C)No. 378 of 2022 & Ors Page 14
[20] The learned G.A. also submitted that the authorities
issued similar work orders to different contractors for executing
the work of water harvesting and solar pumps installation in the
same 3 (three) schools, i.e., EMRS at Tamenglong, Gamnom,
Sapermeina and Moreh, Tengnoupal during the same period of
Covid pandemic. It has also been submitted that the other
contractors successfully executed the said works within the
prescribed period for completion of the works, whereas the
petitioner failed to execute the works awarded to him. It has also
been submitted that if the other contractors can execute the work
during the period of Covid Pandemic, the petitioner cannot take
the plea that he cannot execute the work awarded to him because
of the pandemic of Covid - 19, which shows that the petitioner
does not want to execute the work.
[21] The learned G.A. vehemently submitted that the
claim of the petitioner that the authorities did not provide
necessary technical guidance and selection of work site etc.
despite his request is unacceptable because the petitioner
requested the concerned Executive Engineer for providing such
technical support and selection of work site only after a gap of
more than 5 (five) months and accordingly, the authorities cannot
accede to the request made by the petitioner. It has lastly been
submitted by the learned G.A. that the authorities have not
committed any illegality or irregularity in issuing the impugned
orders and accordingly, the present writ petitions are liable to be
dismissed as being devoid of merit.
[22] I have heard the submissions of the learned counsel
appearing for the parties at length and also carefully examined
the materials available on record.
WP(C)No. 378 of 2022 & Ors Page 15
It is an undisputed fact that the work orders dated
12.06.2020 issued in favour of the petitioner were earlier
cancelled twice by the authorities. The first cancelation order was
issued on 01.12.21020, just hardly after about 6 (six) months from
the date of issue of the work order only on the ground that the
petitioner failed to start execution of the work within the period
stipulated under clause (2) of the terms and conditions of the
work order. The second cancellation order was issued on
29.12.2021 without assigning any reason whatsoever. The
authorities subsequently revoked both the cancellation orders
suo moto, thereby indicating that the authorities did not find any
justifiable reasons for cancelling the said work orders. For the
third time, the authorities again cancelled the work orders issued
in favour of the petitioner by issuing the impugned order dated
26.04.2022. The reason for the cancellation was that the
petitioner failed to start execution of the works despite the lapse
of more than 18 months and the petitioner had breached the
conditions under Clause (2) of the terms and conditions of the
work orders. The authorities were also of the viewed that the
reasons given by the petitioner in his written reply to the show
cause for not starting the work has no relevancy
[23] On careful examination of the terms and conditions
provided under the work orders, this Court is of the considered
view that Clause (2) does not provide that the starting date of the
work is the essence of the contract and that failure to strict
adherence thereto would attract cancellation of the contract. It is
only under Clause (3) where there is condition for cancellation of
the work, if 50 percent of the work is not executed within the
allotted time of 12 months. In the present case, the cancellation
WP(C)No. 378 of 2022 & Ors Page 16
of the work orders was not for breach of the condition under
Clause (3) of the terms and conditions of the work orders.
Accordingly, this Court is of the considered view that the grounds
given by the authorities for cancellation of the works are
unreasonable, arbitrary and ultra vires the terms and conditions
provided under the work orders.
[24] In the present case before issuance of the first
cancellation order dated 01.12.2020, the petitioner requested the
concerned authorities of the government for providing necessary
technical guidance and selection of work site for starting the
contract works, however, instead of providing the necessary
technical guidance and selection of work site, the authorities, in
a most arbitrary manner issued the first cancellation order. In fact
till today, the constructions of the buildings of Staff quarters,
Science Block, Hostel Blocks etc., have not yet started by the
other contractors, hence, it will be impssible for the petitioner to
start the work of water supply and sanitary installation, internal
electrification, etc., in the buildings which are yet to be
constructed and the authorities have not also provided the
necessary technical guidance and selection of work site to enable
the petitioner to start execution of works despite the repeated
request made by the petitioner. In view of this factual aspects,
this Court is constrained to hold that the authorities have acted
unreasonably and arbitrarily in accusing the petitioner that he
failed to start execution of the work despite lapses of more than
18 months, when the fault lies with the authorities.
[25] The sequence of events starting from issuance of
the first cancellation order leading to the cancellation of the work
WP(C)No. 378 of 2022 & Ors Page 17
orders for the third time on the same invalid and unreasonable
ground and subsequent issuance of the fresh NIT indicates that
the authorities do not want the petitioner to execute the work at
any cost. The work orders which have been lawfully awarded to
the petitioner after fulfilling all the legal norms and requirements
cannot be cancelled at the whims and fancies of the authorities.
There should be a reasonable justification for the cancellation
and absence of any reasonable justification will render the official
action unlawful and illegal.
[26] Only in the counter affidavit filed by the respondents,
a new ground had been introduced by the respondents for
cancelling the work orders awarded to the petitioner. It had been
stated by the respondents in their counter affidavit that the
authorities issued similar work orders to other contractors for
executing the work of Water Harvesting and Solar Pumps
Installation in the same 3 (three) EMRS at Tamenglong,
Sapermeina and Tengnoupal during the same period of
pandemic of Covid - 19 and that the other contractors
successfully executed the said works within the prescribed period
for completion of the works, whereas the petitioner failed to
execute the work awarded to him. It has also been stated that if
the other contractors can execute the work during the period of
Covid pandemic, the petitioner cannot take the plea that he could
not execute the work awarded to him because of the pandemic
of Covid - 19, which shows that the petitioner does not want to
execute the works. These new grounds were never mentioned by
the authorities in the impugned order dated 26.04.2022.
In my considered view, the validity of the impugned
order must be judged on the basis of the reasons mentioned
WP(C)No. 378 of 2022 & Ors Page 18
therein and the new grounds introduced by the respondents in
their counter affidavit cannot be entertained while judging the
validity of the impugned order. In this regard, we can gainfully rely
to the principle of law laid down by a constitution bench of 5 (five)
Judges of the Hon'ble Apex Court in the case of Mohinder Singh
Gill & Anr. Vs. The Chief Election Commissioner, New Delhi
& Ors. reported in (1978) 1 SCC 405 wherein it is laid down as
under:-
"8. The second equally relevant matter is that when a statutory
functionary makes an order based on certain grounds, its validity must
be judged by the reasons so mentioned and cannot be supplemented
by fresh reasons in the shape of affidavit or otherwise. Otherwise, an
order bad in the beginning may, by the time it comes to Court on
account of a challenge, get validated by additional grounds later
brought out. We may here draw attention to the observations of Bose,
J. In Gordhandas Bhanji:
Public orders, publicly made, in exercise of a statutory
authority cannot be construed in the light of explanations
subsequently given by the officer making the order of what he meant,
or of what was in his mind, or what he intended to do. Public orders
made by public authorities are meant to have public effect and are
intended to affect the actings and conduct of those to whom they are
addressed and must be construed objectively with reference to the
language used in the order itself.
Orders are not like old wine becoming better as they grow
older."
[27] For the findings and reasons given hereinabove, the
present writ petitions are allowed by quashing the impugned
order dated 26.04.2022 and the impugned NITs dated
11.05.2022. The respondents are further directed to allow the
petitioner to execute the works awarded to him under the work
WP(C)No. 378 of 2022 & Ors Page 19
orders dated 12.06.2020 by rescheduling the time period for
execution of such works as expeditiously as possible.
With the aforesaid directions, the present writ
petitions are disposed of. Parties are to bear their own cost.
JUDGE
Kim
WP(C)No. 378 of 2022 & Ors Page 20
