WP/17811/2006 of A.V.Satyanarayana Vs The State of AP., rep.by its Secretary, RANDB Department on 28 December 2006

ORAL ORDER:

This writ petition is filed seeking a declaration that thetermination orders dated 16.5.2006 passed by the 3[rd] respondent wasarbitrary and illegal. The petitioner also seeks a further declaration thatthe alleged inaction on the part of the 2[nd] respondent in treating therepresentation of the petitioner dated 24.5.206 is arbitrary and illegal. The facts, in brief, are as under:

In response to the tender notification dated 24.7.2005 issued bythe 2[nd] respondent inviting tenders from Class-I contractors to executethe work of improvement to the Nagar Kurnool-Gopalpet viaThudukurthy road to be executed in a period of nine months, thepetitioner had participated and he was declared as the successfulbidder. Accordingly, an agreement was executed on 19.8.2005 and byletter dated 19.8.2005 the petitioner was directed to contact the 3[rd]respondent for commencement of the work. The 3[rd] respondenthanded over the site for execution of the work on 25.8.2005. Thus,according to the petitioner, the stipulated period of nine months shouldexpire on 24.5.2006. The petitioner claims that in spite of variousproblems faced by him including labour shortage, he could executemore than ½ of the work. While so, a notice, dated 29.4.2006 wasreceived from the 3[rd] respondent calling upon the petitioner to explainthe reasons for the delay. The petitioner explained the reasons andrequested to recommend for extension of the time. However, the 3[rd]respondent passed the impugned order terminating the contract inexercise of the power under Clause 60(a) P.S. to APSS on 16.5.2006. Aggrieved by the same, the petitioner made a representation dated16.5.2006 requesting the 2[nd] respondent to revoke the order oftermination which the 2[nd] respondent failed to consider. Hence, this writ petition.

I have heard the learned counsel for both the parties andperused the material on record.

The learned counsel for the petitioner contended that whereasthe stipulated period of 9 months would expire on 24.5.2006, muchprior to that order of termination was issued on 16.5.2006, which isarbitrary and illegal. It is also contended that the respondents are notjustified in not considering the petitioner’s request for extension oftime, keeping in view the adverse circumstances being faced by thepetitioner. It is contended that the power under 60 (a) can be invokedonly when the conditions are violated without sufficient cause.

In the counter-affidavit filed by the 3[rd] respondent, it is explainedthat the period of nine months for execution of the work commencedfrom the date of entering into the agreement which included rainyseason and thus the work has to be completed by 18.5.2006, but not24.5.2006 as claimed by the petitioner. It is further stated that thepetitioner failed to maintain the rate of progress in spite of the repeatedrequests to accelerate the progress of work and to complete the samein all respects within the time prescribed under the agreement.Ultimately, a final notice dated 29.4.2006 was issued directing thepetitioner to explain the reasons for the delay along with documentaryevidence within seven days, but the petitioner neither completed thework nor complied with the instructions to submit explanation forextension of time. In the circumstances, the impugned order wasrightly issued.

At the outset, it is to be noted that the matter involves severaldisputed questions of fact, which cannot be enquired into and decidedby this Court in a writ proceeding. Admittedly, the impugned order oftermination was preceded by a notice dated 11.5.2006. That apart,Clause 60(a) of P.S. to A.P.S.S. makes it clear that the time is theessence of the contract and at any time the Executive Engineer canterminate the contract, if he is of the opinion that the contractor isdelaying the execution of the work, as per the Tabular Statement. The

Facts

fact that the work could not be completed within the time is not indispute. In the circumstances, the impugned action of the respondentscannot be held to be arbitrary or illegal and the interference by thisCourt under Article 226 of the Constitution of India is unwarranted.

Accordingly, the writ petition is dismissed. No costs.

However, this shall not preclude the petitioner to work outappropriate remedy as available under law, if so advised.

28[th] December, 2006.Kgr.

____________

(G. ROHINI, J.)

THE HON’BLE Ms. JUSTICE G. ROHINI

WRIT PETITION No.17811 OF 2006

Between:

28.12.2006

A.V. Satyanarayana. .. Petitioner.

And

The State of A.P., represented by its Secretary, R & B Department, Secretariat, Hyderabad and Others. .. Respondents.