High Court · 2013
Case Details
Acts & Sections
Cited in this judgment
Legal Reasoning
r earlier issued to the petitioner, but terminated by the impugned order. Mr. Goswami, learned counsel for the petitioner has submitted that there being g ross violation of principles of natural justice and the respondents having acted arbitrarily, the Writ Court exercising its power of judicial review under Artic le 226 of the Constitution of India should interfere with the impugned order wit h the direction to the respondents to allow the petitioner to complete the work by granting necessary extension. On being pointed out that there is inbuilt clau se in the GCC providing for alternative remedy, he submits that irrespective of the said alternative remedy, there is not bar of writ jurisdiction when the resp ondents have acted arbitrarily and without any jurisdiction. In this connection, he has placed reliance on the three decisions of the Apex Court reported in (20 12) 2 SCC 1 (Allied Motors Ltd. Vs. Bharat Petroleum Corp. Ltd.); (2003) 2 SCC 1 07 (Harbanslal Sahnia Vs. Indian Oil Corpn Ltd.) and (1998) 8 SCC 1 (Whirlpool C orporation Vs. Registrar of Trade Marks, Mumbai). In all the cases, the Apex Cou t has held that in case of violation of principles of natural justice and acting in a clandestine, arbitrary and illegal manner, Writ Court can interfere with s uch action. There is no quarrel with the said proposition so well established in the matter of scope and jurisdiction of the Writ Court.
Decision
In the counter affidavit filed by the respondents, a preliminary objection has b een raised regarding maintainability of the writ petition. Referring to Clause-2 4.1 of the GCC, it has been stated that since there is inbuilt provision in the GCC, in case of any dispute, the petitioner should invoke the said remedy instea d of invoking writ jurisdiction. The said affidavit further states that although the work was to be completed within 24 months, but the petitioner could execute only 30% of the work even after granting extension by 6 months. Accordingly, in voking Clause-59 of the GCC terminated the contract. In paragraph-5 of the counter affidavit, it has been stated that even after term ination of the contract, the petitioner approached the respondent No. 4 on sever al occasions requesting to allow him to complete the works. He had also assured the respondents to complete the work if a last chance was given to him. Pursuant thereto the matter was discussed with the Chief Engineer and as per the decisio n arrived at, the petitioner was given 15 days more time to complete certain spe cified works, which he failed to execute. Emphasizing the need for early complet ion of the work as the same is under the particular scheme of the Government of India, the respondents have contended that there being failure on the part of th e petitioner to execute the work and even to make any progress, which can be sai d to be reasonable, the respondents left with no option than to terminate the co ntract. Clause-24 of the GCC provides for alternative dispute resolution in case of any dispute by and between the parties. Clause-25 provides procedure thereof . The contract can be terminated as provided for under Clause-59 of the GCC, whi ch provides termination of contract on the specific ground mentioned therein, on e of which, delay in executing of works and stoppage of work for 28 days. Apart from the fact that the writ petition has raised disputed questions of fact , there being alternative remedy as provided for in the terms and conditions of the contract. Needless to say that this Court exercising its writ jurisdiction u nder Article 226 of the Constitution of India will be slow to interfere with the impugned decision as a rules of prudent, Writ Court will be reluctant to exerci se its jurisdiction when there is forum for dispute resolving, which can go into disputed questions of fact. It is only in case of absolute arbitrary, malafide and colourable exercise of power etc., Writ Court can exercise its jurisdiction. However, appreciating the materials on record, I do not consider it to be a cas e falling in the said category. Accordingly, the writ petition is dismissed. Int erim order passed on 24.5.2013 stands vacated.