WPMB/22/2023
2023 Latest Caselaw 1363 UK

      IN THE HIGH COURT OF UTTARAKHAND
                  AT NAINITAL

         THE HON'BLE THE CHIEF JUSTICE SRI VIPIN SANGHI
                                 AND
              THE HON'BLE SRI JUSTICE RAKESH THAPLIYAL




              WRIT PETITION (M/B) NO. 22 OF 2023



                             17TH MAY, 2023


Between:


Suresh Tomar                                 ......         Petitioner


and


State of Uttarakhand & another              ......         Respondents



Counsel for the petitioner       :   Mr. Kushagra     Bansal,   learned
                                     counsel

Counsel for the respondents      :   Mr. B.S. Parihar, learned Standing
                                     Counsel for the State / respondent
                                     No. 1



The Court made the following:


JUDGMENT: (per Hon'ble The Chief Justice Sri Vipin Sanghi)



             The petitioner has preferred the present writ

petition to assail the order dated 02.03.2023, passed by

respondent No. 1. The petitioner also seeks a direction

to the respondent authorities to terminate the contract

of respondent No. 2 under clause 52 of the General
                            2




Conditions of Contract, in respect of the tender bearing

No.    51/UT-03-97(1)/XVIII/CE-URRDA/19-20,          dated

12.07.2019, under the name and style of "Tapovan-

Reengi to Subhai (Bhavisyabadri) M/s Stage-1".


2)         The petitioner claims that the respondent No.

2 engaged the petitioner as a sub-contractor in respect

of the aforesaid contract, allegedly in breach of the

terms and conditions of the contract entered into

between respondent No. 1 and respondent No. 2.           It

appears that disputes have arisen between the petitioner

and respondent No. 2-contractor. The petitioner earlier

preferred a writ petition, being WPMS No. 2635 of 2022,

which was disposed of by this Court on 05.12.2022. The

said petition had also been preferred claiming the same

relief, i.e., that the contract of respondent No. 2, as

contractor, be terminated under clause 52 of the General

Conditions of Contract.


3)         We disposed of the said petition by observing

as follows :


           "The petitioner claims to be a sub-contractor of
      respondent No. 2 in relation to a contract awarded by
      respondent No. 1 to respondent No. 2 under the
      Pradhan Manti Gramin Sadak Yojna.
                              3




          It appears that the petitioner and respondent No.
     2 entered into a sub-contract, in respect of which
     disputes   have   arisen    regarding   payments.          The
     petitioner has represented to respondent No. 1 that
     respondent No. 2 has breached clause 7 of the general
     conditions of contract, which lays down stipulations
     with regard to sub-contracting the works by the
     contractor.

          Those representations have not been decided. In
     this background the petitioner has preferred this writ-
     petition for the reliefs as set out hereinabove.

          We are not inclined to entertain the writ-petition
     to consider the relief sought by the petitioner, as
     disputed   questions   of   facts   would   require   to    be
     adjudicated.

          The petitioner can approach the Civil Court, in
     case the petitioner is so advised.

          At the same time, since the petitioner has made
     representation to respondent No. 1 alleging breach of
     contract by respondent No. 2 - the contractor, we
     dispose of this petition with a direction to respondent
     No. 1 to examine the representation made by the
     petitioner and dispose of the same with speaking order
     within four weeks."


4)        Thus, it would be seen, that this Court was not

inclined to entertain the writ petition to consider the

reliefs sought by the petitioner, as disputed questions of

facts were raised, which require adjudication. We left it

open to the petitioner to approach the civil court to press
                             4




his reliefs. We also directed respondent No. 1 to decide

the representation of the petitioner.      By the impugned

order, the said representation has been considered, and

rejected. The respondent No. 1 has taken the stand that

the alleged sub-contract entered into between the

petitioner and respondent No. 2 was without their

consent, and they have no concern with the same. They

have stated that only respondent No. 2 shall be held

responsible for the work under the contract.               The

rejection of the said representation is now assailed

before us.


5)           We   have   heard   learned   counsel   for   the

petitioner.


6)           In our view, no direction as sought by the

petitioner can be issued by us in these proceedings. The

petitioner has brought to notice of respondent No. 1, the

alleged breach of the terms and conditions of the

contract.     It is for the respondent No. 1 to decide -

whether, or not, to condone the said breach, and waive

the alleged breach. This Court cannot issue direction to

respondent No. 1 to mandatorily terminate the contract.

It could be that despite the respondent No. 2 being in

breach of the terms and conditions of the contract, i.e.,
                            5




clause 7 and clause 52, the respondent No. 1 may

decide not to terminate the contract in public interest.


7)         We, therefore, do not find any merit in this

petition. The same is, accordingly, dismissed.



                                      ________________
                                      VIPIN SANGHI, C.J.



                                   ________________
                                  RAKESH THAPLIYAL, J.

Dt: 17th MAY, 2023 Negi