WP/39474/2012 of M/s Tirumala Constructions Vs The Government of Andhra Pradesh rep. by Agriculture AND on 30 December 2022

ORDER :

This petition is filed under Article 226 of the Constitution of India for the following relief:- “…to issue an order or direction or Writ more particularly one in the nature of writ of Mandamus or any other appropriate declaring the impugned proceedings No ECT/1029/Akiveedu/2011-12/camp at Vja Dated 23.8.2012 terminating the contract between the petitioner and the 2nd respondent in respect of construction of 2000 Mts Godown in Market Yard Akiveedu for contract value of Rs.93,10,939/- @ (-)2.00% less and order forfeiting the deposits if any lodged on the work as illegal arbitrary violative and contrary to the principles of natural justice and consequently direct the respondents to release the deposits made by the complaint in pursuance of the contract agreement and pass such other order or ”orders…….

2. Brief facts of the case are that the 2[nd] respondent called for tenders in respect of the works i.e., construction of 2000 MTs Godown in Market Yard Akiveedu, under AMC, Akiveedu of West Godavari District. The estimated contract value is Rs.93,10,939/- and the time stipulated for completion of work is six months. Then the petitioners quoted tender for a less of 2.00% of the estimated contract value and the same is confirmed in their favour. Thereafter, the petitioners entered into an agreement dated 17.02.2012 with the 2[nd] respondent. Along with that agreement, the petitioners have made earnest money deposit @ 2 ½% i.e., for Rs.2,33,000/- and paid at the time of making application vide bank guarantee No.25/2011-12 on 8.2.2012 in State Bank of Hyderabad. After completion of the agreement process the work order was issued in favour of the petitioners. But the required approved drawings and designs for the work were not supplied. In the meanwhile, as there was non-availability of sand in the open market the authorities also took a lenient view in supply of the approved drawings and designs. Having brought the existing difficulty to the notice of the respondent authorities, as there are several works for us to be proceeded with other contract works and keeping in view of the necessity of the sand for proceeding with the works, the petitioners preferred WP No.13384 of 2012 before this Court and the same was allowed and directed the District Collectors of East and West Godavari Districts to supply the required sand within a period of two weeks from 3.5.2012. However they did not do so. Then vexed with the conduct of the respondent authorities the petitioners addressed a letter dated 19.7.2012 to the 2[nd] respondent requested to cancel the agreement and for refund. But without taking into consideration the latches on their part, the 2[nd] respondent issued the impugned orders dated 23.08.2012 forfeiting the EMD deposits of the petitioner with the respondent authorities. Immediately the petitioners made request to the 2[nd] respondent to release their EMD deposits. But so far the 2[nd] respondent did not choose to do so. Hence, the present writ petition has been filed.

3. Counter affidavit has been filed by the respondents No.1 to 3 denying all the allegations made in the petition and contended that the contract was determinate by the S.E (AM) Hyderabad on 23.08.2012 due to non-commencement of the work even after agreement period lapsed by 16.8.2012 as per Clause 60(a) of APSS, duly forfeiting the deposits, since there is clear breach of contract by the Contractor himself. However, any authority higher in rank the Executive Engineer may, in his absolute direction, waive or modify any penalty or forfeiture imposed by the EE, under

the provisions of the clause. It is further stated that neither contractor nor agent have approached for taking over the site or structural drawings, as such records are also available at Sub-Division office. However, the contractor himself are well aware that he has to procure the drawings and designs uses the provisions of over Hands and contractor’s profit of 14% adopted in the estimate itself. No latches from department side. Hence the claim of the petitioner to release deposits was rejected as per agreement conditions. It is stated that the parties to the agreement are bound by the conditions set forth in (APSS) and the Superintending Engineer (SE) has rightly passed the order of forfeiture as per the conditions of the contract. Further, the present writ petition is not maintainable in matters relating to contractual disputes and therefore, prayed to dismiss the writ petition.

4. Counter affidavit has been filed by the 5[th]

respondent while reiterating the averments in the counter filed by the respondents No.1 to 3 and denying all the allegations made in the petition.

5. Heard Sri Srinivasa Rao Pappu, learned counsel appearing for the petitioner and learned Government Pleader for Agriculture, Sri B. Prakasam, learned Senior Standing Counsel for AMC and Sri N. Prakasam, learned counsel appearing for the respondents.

6. During hearing, learned counsel for the petitioner while reiterating the averments made in the petition contended that there are absolutely no latches on the part of the petitioner in not proceeding with the construction works as per the agreement. The authorities having entered into agreement are supposed to supply the approved drawings and designs well within time. But they have not supplied. For the latches on the part of the respondent authorities in non-supply of approved drawings and designs, they cannot make the petitioner liable and thereby they cannot throw the entire liability against the petitioner. He further submits that as there was unexpected scarcity and non-availability of sand in the market without which no construction work can be taken up. Though the petitioner made all attempts, they could not get the same and the respondent authorities made the petitioner liable and forfeited the EMD deposits which is contrary to the principles of natural justice. Therefore, learned counsel sought for a direction as stated supra.

7. On the other hand, learned Government Pleader while denying all the allegations made in the petition contended that the required approved drawings and designs for the work was with the respondents and the duty on the part of the petitioner to collect said approved drawings and designs for the work, as state wise all works for construction of 2000 MTs godowns are in the same drawings and designs. It is also stated that in lump sum contracts, the duty on the part of the contractor/the petitioner would have to prepare drawings and designs for the work and later they would have to obtain approval from the respondents. Through approved drawings and designs for the work were available with the respondents, the petitioner did not take any steps to get the same and to start the work as early as possible the petitioner had bluntly shifted their burden to the shoulders of the respondents by saying false allegations, as they did not intimate through notice demanding the respondents to supply approved drawings and designs for

the work. Hence the plea taken by the petitioner pertaining to non supply of approved drawings and designs for the work is a concocted story for the maintainability of the writ petition.

8. As seen from the impugned proceedings dated 23.08.2012, it clearly mentioned that as per the agreement the work should have been completed 100% of agreement value by 16.3.2012 but you have not even grounded and completed the work in all respects till to date, even though the agreement period has already been lapsed.

9. It is to be noted that as per clause 60(a) of Preliminary Specification (PS) to Andhra Pradesh Detailed Standard Specifications (APDSS):

To clause 60 (a) of P.S., the following shall be added namely:- “However, any authority higher in rank than the Executive Engineer may, in his absolute discretion, waive or modify any penalty of forfeiture imposed by the Executive Engineer, under the provisions of this clause”.

10. On hearing the submissions made by both the learned counsels and upon perusing the entire material available on record, this Court observed that as there are several works pending to the petitioner and keeping in view of the necessity of the sand for proceeding with the works, they preferred WP No.13384 of 2012 before this Court and the same was disposed of directing the respondents to consider the representation of the petitioner for allotment of required sand. However, the respondents have not taken any steps. Moreover, having been vexed with the conduct of the respondents, the petitioner addressed a letter to the 2[nd]respondent on 19.07.2012 expressing their inability to proceed with the work due to non-availability of sand in the market and requested to cancel the agreement and for refund of EMD deposits. However, the respondents have issued the impugned order, which is highly illegal.

11. Having regard to the facts and circumstances of the case, this Court is of the considered view that while declaring the impugned proceedings in No.EC-T/1029/Akiveedu/2011-12/camp at Vja, dated 2308.2012 issued by the 2[nd]respondent as illegal, directing the respondents to release the deposits made by the petitioner in pursuance of the contract agreement.

12. With the above observation, the Writ Petition is disposed of. There shall be no order as to costs.

As a sequel, all the pending miscellaneous applications shall stand closed.

Date : -12-2022 Gvl

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DR. K. MANMADHA RAO, J.

Gvl

HON’BLE DR. JUSTICE K. MANMADHA RAO

WRIT PETITION No.39474 of 2021

Date : .12.2022