{"id":244020,"date":"2010-02-26T00:00:00","date_gmt":"2010-02-25T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/w-p-md-no-13743-of-2009-vs-government-of-tamil-nadu-on-26-february-2010"},"modified":"2018-04-05T12:57:08","modified_gmt":"2018-04-05T07:27:08","slug":"w-p-md-no-13743-of-2009-vs-government-of-tamil-nadu-on-26-february-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/w-p-md-no-13743-of-2009-vs-government-of-tamil-nadu-on-26-february-2010","title":{"rendered":"W.P.(Md).No.13743 Of 2009 vs Government Of Tamil Nadu on 26 February, 2010"},"content":{"rendered":"
Madras High Court<\/div>\n
W.P.(Md).No.13743 Of 2009 vs Government Of Tamil Nadu on 26 February, 2010<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDATED: 26\/02\/2010\n\nCORAM\nTHE HONOUABLE MR.JUSTICE S.RAJESWARAN\n\nWrit Petition(MD)No.13743 of 2009\nWrit Petition(MD)No.13744 of 2009\nWrit Petition(MD)No.13745 of 2009\nWrit Petition(MD)No.13746 of 2009\nWrit Petition(MD)No.13747 of 2009\nWrit Petition(MD)No.13748 of 2009\nWrit Petition(MD)No. 14287 of 2009\nWrit Petition(MD)No. 14199 of 2009\n&\nM.P.(MD).Nos.1,1,1,1,1,1,1,1,2,2,2,2,2 and 2 of 2009 &\nM.P.(MD).Nos.1,1,1 and 1 of 2010\n1. W.P.(MD).No.13743 of 2009\n\nK.Bharathi\t\t\t. . Petitioner\n\nVs.\n\n1.Government of Tamil Nadu\n  Rep. By its Secretary\n  Rural Development and Panchayat Raj Department\n  Tsunami District Implementation Unit,\n  Chennai-600 001.\n\n2.The Project Director,\n  Project Director Office,\n  Tsunami Project Implementation Unit,\n  Clive Battery,\n  Nos.4 & 4A, Rajaji Salai,\n  Chennai-600 001.\n\n3.The District Collector\/Chairman,\n  Tsunami District Implementation Unit,\n  Kanyakumari District.\n\n4.The Project Co-ordinator,\n  Tsunami District Implementation Unit,\n  Kanyakumari District.\n\n5.The Executive Engineer,\n  Rural Development,\n  DRDA, Kanyakumari District\t. . Respondents<\/pre>\n
\tPetition filed under Article 226 of the Constitution of India praying to
\nissue a writ of Certiorari calling for the records pertaining to the impugned
\norder in D.O\/683-1\/2008, dated 04.12.2009 on the file of the District
\nCollector\/Chairman, Tsunami Project Implementation Unit Kanyakumari District,
\nthe third respondent herein and quash the same.\n<\/p>\n
!For Petitioner … Mr.S.D.Ramalingam
\n^For Respondents… Mrs.S.Chellammal
\n\t\t    Additional Advocate General
\n\t\t    for Mr.K.Balasubramaniyan
\n\t\t    Addl. Govt. Pleader<\/p>\n
2.W.P.(MD).No.13744 of 2009<\/p>\n
A.Muthiruvakkal\t\t\t. . Petitioner<\/p>\n
\t\t\tVs.\n<\/p>\n
1.Government of Tamil Nadu
\n  Rep. By its Secretary
\n  Rural Development and Panchayat Raj Department
\n  Tsunami District Implementation Unit,
\n  Chennai-600 001.\n<\/p>\n
2.The Project Director,
\n  Project Director Office,
\n  Tsunami Project Implementation Unit,
\n  Clive Battery,
\n  Nos.4 & 4A, Rajaji Salai,
\n  Chennai-600 001.\n<\/p>\n
3.The District Collector\/Chairman,
\n  Tsunami District Implementation Unit,
\n  Tirunelveli District.\n<\/p>\n
4.The Project Co-ordinator,
\n  Tsunami District Implementation Unit,
\n  Tirunelveli District.\n<\/p>\n
5.The Executive Engineer,
\n  Rural Development,
\n  DRDA, Tirunelveli District.   .. Respondents<\/p>\n
Petition filed under Article 226 of the Constitution of India praying to issue a
\nwrit of Certiorari calling for the records pertaining to the impugned order in
\nT1\/259\/2007, dated 27.11.2009 on the file of the District Collector\/Chairman,
\nTsunami Project Implementation Unit Tirunelveli District, the third respondent
\nherein and quash the same.\n<\/p>\n
For Petitioner … Mr.S.D.Ramalingam
\nFor Respondents… Mrs.S.Chellammal
\n\t\t    Additional Advocate General
\n\t\t    for Mr.K.Balasubramaniyan
\n\t\t    Addl. Govt. Pleader<\/p>\n
3.W.P.(MD).No.13745 of 2009<\/p>\n
K.Bharathi\t\t\t.. Petitioner<\/p>\n
Vs.\n<\/p>\n
1.Government of Tamil Nadu
\n  Rep. By its Secretary
\n  Rural Development and Panchayat Raj Department
\n  Tsunami District Implementation Unit,
\n  Chennai-600 001.\n<\/p>\n
2.The Project Director,
\n  Project Director Office,
\n  Tsunami Project Implementation Unit,
\n  Clive Battery,
\n  Nos.4 & 4A, Rajaji Salai,
\n  Chennai-600 001.\n<\/p>\n
3.The District Collector\/Chairman,
\n  Tsunami District Implementation Unit,
\n  Kanyakumari District.\n<\/p>\n
4.The Project Co-ordinator,
\n  Tsunami District Implementation Unit,
\n  Kanyakumari District.\n<\/p>\n
5.The Executive Engineer,
\n  Rural Development,
\n  DRDA, Kanyakumari District.  .. Respondents<\/p>\n
\tPetition filed under Article 226 of the Constitution of India praying to
\nissue a writ of Certiorari calling for the records pertaining to the impugned
\norder in D.O\/683-3\/2008, dated 04.12.2009 on the file of the District
\nCollector\/Chairman, Tsunami Project Implementation Unit Kanyakumari District,
\nthe third respondent herein and quash the same.\n<\/p>\n
For Petitioner … Mr.S.D.Ramalingam
\nFor Respondents… Mrs.S.Chellammal
\n\t\t   Additional Advocate General
\n \t\t   for Mr.K.Balasubramaniyan
\n\t\t   Addl. Govt. Pleader<\/p>\n
4.W.P.(MD).No.13746 of 2009<\/p>\n
K.Bharathi\t\t\t.. Petitioner<\/p>\n
Vs.\n<\/p>\n
1.Government of Tamil Nadu
\n  Rep. By its Secretary
\n  Rural Development and Panchayat Raj Department
\n  Tsunami District Implementation Unit,
\n  Chennai-600 001.\n<\/p>\n
2.The Project Director,
\n  Project Director Office,
\n  Tsunami Project Implementation Unit,
\n  Clive Battery,
\n  Nos.4 & 4A, Rajaji Salai,
\n  Chennai-600 001.\n<\/p>\n
3.The District Collector\/Chairman,
\n  Tsunami District Implementation Unit,
\n  Kanyakumari District.\n<\/p>\n
4.The Project Co-ordinator,
\n  Tsunami District Implementation Unit,
\n  Kanyakumari District.\n<\/p>\n
5.The Executive Engineer,
\n  Rural Development,
\n  DRDA, Kanyakumari District. \t.. Respondents<\/p>\n
\tPetition filed under Article 226 of the Constitution of India praying to
\nissue a writ of Certiorari calling for the records pertaining to the impugned
\norder in D.O\/683-5\/2008, dated 04.12.2009 on the file of the District
\nCollector\/Chairman, Tsunami Project Implementation Unit Kanyakumari District,
\nthe third respondent herein and quash the same.\n<\/p>\n
For Petitioner … Mr.S.D.Ramalingam
\nFor Respondents… Mrs.S.Chellammal
\n\t\t   Additional Advocate General
\n\t\t   for Mr.K.Balasubramaniyan
\n\t\t   Addl. Govt. Pleader<\/p>\n
5.W.P.(MD).No.13747 of 2009<\/p>\n
K.Bharathi\t\t\t.. Petitioner<\/p>\n
Vs.\n<\/p>\n
1.Government of Tamil Nadu
\n  Rep. By its Secretary
\n  Rural Development and Panchayat Raj Department
\n  Tsunami District Implementation Unit,
\n  Chennai-600 001.\n<\/p>\n
2.The Project Director,
\n  Project Director Office,
\n  Tsunami Project Implementation Unit,
\n  Clive Battery,
\n  Nos.4 & 4A, Rajaji Salai,
\n  Chennai-600 001.\n<\/p>\n
3.The District Collector\/Chairman,
\n  Tsunami District Implementation Unit,
\n  Kanyakumari District.\n<\/p>\n
4.The Project Co-ordinator,
\n  Tsunami District Implementation Unit,
\n  Kanyakumari District.\n<\/p>\n
5.The Executive Engineer,
\n  Rural Development,
\n  DRDA, Kanyakumari District. \t.. Respondents<\/p>\n
\tPetition filed under Article 226 of the Constitution of India praying to
\nissue a writ of Certiorari calling for the records pertaining to the impugned
\norder in D.O\/683-6\/2008, dated 04.12.2009 on the file of the District
\nCollector\/Chairman, Tsunami Project Implementation Unit Kanyakumari District,
\nthe third respondent herein and quash the same.\n<\/p>\n
For Petitioner … Mr.S.D.Ramalingam
\nFor Respondents… Mrs.S.Chellammal
\n\t\t   Additional Advocate General
\n \t\t   for Mr.K.Balasubramaniyan
\n\t\t   Addl. Govt. Pleader<\/p>\n
6. W.P(MD).No.13748 of 2009<\/p>\n
A.Muthiruvakkal\t\t\t.. Petitioner<\/p>\n
Vs.\n<\/p>\n
1.Government of Tamil Nadu
\n  Rep. By its Secretary
\n  Rural Development and Panchayat Raj Department
\n  Tsunami District Implementation Unit,
\n  Chennai-600 001.\n<\/p>\n
2.The Project Director,
\n  Project Director Office,
\n  Tsunami Project Implementation Unit,
\n  Clive Battery,
\n  Nos.4 & 4A, Rajaji Salai,
\n  Chennai-600 001.\n<\/p>\n
3.The District Collector\/Chairman,
\n  Tsunami District Implementation Unit,
\n  Tirunelveli District.\n<\/p>\n
4.The Project Co-ordinator,
\n  Tsunami District Implementation Unit,
\n  Tirunelveli District.\n<\/p>\n
5.The Executive Engineer,
\n  Rural Development,
\n  DRDA, Tirunelveli District.   .. Respondents<\/p>\n
\tPetition filed under Article 226 of the Constitution of India praying to
\nissue a writ of Certiorari calling for the records pertaining to the impugned
\norder in T1\/264\/2007, dated 27.11.2009 on the file of the District
\nCollector\/Chairman, Tsunami Project Implementation Unit Tirunelveli District,
\nthe third respondent herein and quash the same.\n<\/p>\n
For Petitioner … Mr.S.D.Ramalingam
\nFor Respondents… Mrs.S.Chellammal
\n\t           Additional Advocate General
\n \t\t   for Mr.K.Balasubramaniyan
\n \t\t   Addl. Govt. Pleader<\/p>\n
7.W.P.(MD).No.14287 of 2009<\/p>\n
T.Thanapandian\t\t. . Petitioner<\/p>\n
Vs.\n<\/p>\n
1.Government of Tamil Nadu
\n  Rep. By its Secretary,
\n  Revenue Administration, Disaster Management
\n    and Mitigation Department,
\n  Secretariat,
\n  Fort St. George,
\n  Chennai-600 009.\n<\/p>\n
2.The District Collector\/Chairman,
\n  Tsunami District Implementation Unit,
\n  Tirunelveli District.\t. . Respondents<\/p>\n
\tPetition filed under Article 226 of the Constitution of India praying to
\nissue a writ of Certiorari to call for the records relating to the impugned
\ncancellation order of the second respondent made in T1\/262\/2007, dated
\n27.11.2009 and quash the same as illegal and unsustainable.\n<\/p>\n
For Petitioner…  Mr.ARL.Sundereshan
\n\t\t   Senior Counsel for
\n\t\t   Mr.T.Senthil kumar
\nRespondents   …  Mrs.S.Chellammal
\n\t\t   Additional Advocate General
\n \t\t   for Mr.K.Balasubramaniyan
\n\t\t   Addl. Govt. Pleader<\/p>\n
8.W.P.(MD).No.14199 of 2009<\/p>\n
T.Thanapandian\t\t. . Petitioner<\/p>\n
Vs.\n<\/p>\n
1.Government of Tamil Nadu
\n  Rep. By its Secretary,
\n  Revenue Administration, Disaster Management
\n    and Mitigation Department,
\n  Secretariat,
\n  Fort St. George,
\n  Chennai-600 009.\n<\/p>\n
2.The District Collector\/Chairman,
\n  Tsunami District Implementation Unit,
\n  Tirunelveli District.\t. . Respondents<\/p>\n
\tPetition filed under Article 226 of the Constitution of India praying to
\nissue a writ of Certiorari to call for the records relating to the impugned
\ncancellation order of the second respondent made in T1\/2592\/2007, dated
\n27.11.2009 and quash the same as illegal and unsustainable.\n<\/p>\n
For Petitioner… Mr.ARL.Sundereshan
\n\t          Senior Counsel for
\n\t\t  Mr.T.Senthil kumar
\nRespondents   … Mrs.S.Chellammal
\n\t\t  Addl. Advocate General for
\n\t\t  Mr.K.Balasubramaniyan
\n\t\t  Addl. Govt. Pleader<\/p>\n
:COMMON ORDER<\/p>\n
\tW.P(MD).No.13743 of 2009 is filed for a writ of Certiorari calling for the
\nrecords pertaining to the impugned order in D.O\/683-1\/2008, dated 04.12.2009 on
\nthe file of the District Collector\/Chairman, Tsunami Project Implementation Unit
\nKanyakumari District, the third respondent herein and quash the same.\n<\/p>\n
\t2. W.P.(MD).No.13744 of 2009 is filed for a writ of Certiorari calling for
\nthe records pertaining to the impugned order in T1\/259\/2007, dated 27.11.2009 on
\nthe file of the District Collector\/Chairman, Tsunami Project Implementation Unit
\nTirunelveli District, the third respondent herein and quash the same.\n<\/p>\n
\t3. W.P.(MD).No.13745 of 2009 Petition filed under Article 226 of the
\nConstitution of India praying to issue a writ of Certiorari calling for the
\nrecords pertaining to the impugned order in D.O\/683-3\/2008, dated 04.12.2009 on
\nthe file of the District Collector\/Chairman, Tsunami Project Implementation Unit
\nKanyakumari District, the third respondent herein and quash the same.\n<\/p>\n
\t4. W.P.(MD).No.13746 of 2009 is filed for a writ of Certiorari calling for
\nthe records pertaining to the impugned order in D.O\/683-5\/2008, dated 04.12.2009
\non the file of the District Collector\/Chairman, Tsunami Project Implementation
\nUnit Kanyakumari District, the third respondent herein and quash the same.\n<\/p>\n
\t5. W.P(MD).No.13747 of 2009 is filed for Petition filed under Article 226
\nof the Constitution of India praying to issue a writ of Certiorari calling for
\nthe records pertaining to the impugned order in D.O\/683-6\/2008, dated 04.12.2009
\non the file of the District Collector\/Chairman, Tsunami Project Implementation
\nUnit Kanyakumari District, the third respondent herein and quash the same.\n<\/p>\n
\t6. W.P.(MD).No.13748 of 2009 is filed for a writ of Certiorari calling for
\nthe records pertaining to the impugned order in T1\/264\/2007, dated 27.11.2009 on
\nthe file of the District Collector\/Chairman, Tsunami Project Implementation Unit
\nTirunelveli District, the third respondent herein and quash the same.\n<\/p>\n
\t7. W.P.(MD).No.14287 of 2009 is filed for a writ of Certiorari to call for
\nthe records relating to the impugned cancellation order of the second respondent
\nmade in T1\/262\/2007, dated 27.11.2009 and quash the same as illegal and
\nunsustainable.\n<\/p>\n
\t8. W.P.(MD).No.14199 of 2009 is filed for a writ of Certiorari to call for
\nthe records relating to the impugned cancellation order of the second respondent
\nmade in T1\/2592\/2007, dated 27.11.2009 and quash the same as illegal and
\nunsustainable.\n<\/p>\n
\t9 Admittedly, the issue involved and the relief sought for in all these
\nwrit petitions are one and the same. Hence a common order is being passed.\n<\/p>\n
\t10  The order impugned in all these writ petitions is termination of
\ncontract.\n<\/p>\n
\t11  For the sake of convenience, I am referring to the facts as narrated
\nin W.P.No.14199 of 2009.\n<\/p>\n
\t12 The case of the petitioner in this writ petition is as follows:
\nThe petitioner is a Civil engineering Contractor doing Government works. Tender
\nwas invited by the Government for construction of 216 houses under Rajiv Gandhi
\nRehabilitation Package for Tsunami affected areas viz., Georgia Nagar,
\nThoppuvilai, Kooduthalai, Anna Nagar and Keela Ulvari habitation in kuttam and
\nKaraisuthu Uvari Panchayat of Tirunelveli District.  Since the petitioner’s bid
\nwas lowest the same was accepted and contract was awarded to the petitioner for
\na sum of Rs.5,29,75,974\/- and an agreement was also entered into between the
\npetitioner and the respondents on 26.12.2007.  The petitioner was finally
\ndirected to construct 189 houses.  The entire construction site was handed over
\nto the petitioner on 26.12.2007 and some of the sites were handed over only
\n27.01.2008. Even though the agreement period was from 26.12.2007 to 25.09.2008
\ndue to practical difficulties of reaching the work sites without any roads and
\nnon availability of construction materials as promised by the respondents and
\ndelay in handing over the sites by the respondents, the construction work could
\nnot be started and completed as per the  schedule.  However, the contract period
\nwas extended from time to time by the respondents by order dated 14.10.2008,
\n28.01.2009 and 01.04.2009.  Major portion of the work was completed till
\nSeptember 2009 and only a portion was left unfinished.  Totally, 1837 houses
\nunder 10 packages were to be constructed by various contractors like that of the
\npetitioner herein. But till date, none of the contractors under any package were
\nable to complete the project as per the schedule due to delay in handing over
\nthe work sites by the beneficiary, non availability of construction materials
\nand labourers, other related problems put forth by the beneficiary and the delay
\nin sanctioning the bills by the officials soon.  In fact, the delay on the part
\nof the respondents was also recorded in the minutes of the meeting held on
\n01.03.2008. In fact the sand was also not supplied for the construction by the
\nP.W.D. and the contractor had to bring sand from quarries situated 150 KM away
\nfor Rs.8000\/- and Rs.5000\/- was paid for transportation alone.  Even the Junior
\nEngineer who was posted in the site was not able to make entries with regard to
\nday to day progress in the measurement book. Sanctioning of the bills were also
\ndelayed unnecessarily causing prejudice to the petitioner.\n<\/p>\n
\t13 While so, on 03.09.2009 the petitioner was informed by the respondent
\nto apply for extension of time to extend the contract period.  Accordingly, the
\npetitioner sought for extension of time till 30.12.2009 and the same was under
\nconsideration.  At that time, the petitioner received a notice from the
\nrespondents on 25.09.2009 stating that the work progress shown was very slow and
\nthe contractor had to increase his work force and materials to complete the
\nwork.  Time was also given to the petitioner to show substantial progress.  It
\nwas also informed to the petitioner in the notice dated 25.9.2009 that if the
\nworks were not carried out at the desired speed, the agreement would be
\nterminated with the forfeiture of E.M.D. and the department would take action to
\ncomplete the balance work at the petitioner’s risk and cost. The petitioner
\nprayed for extension of time upto 31.12.2009 and the respondents advised the
\npetitioner to complete the work and further stated that extension of time sought
\nfor would be granted.\n<\/p>\n
\t14  On 23.11.2009 a notice from the Project Co-ordinator, Tsunami
\nImplementation Unit, Thirunelveli District was issued pointing out certain
\ndefects in the construction and the same was directed to be rectified.  This
\nwould make it clear that there  was deemed extension of contract upto 31.12.2009
\nby the respondent.  While so, the impugned order has been passed on 27.11.2009
\ncancelling the agreement and terminating contract with forfeiture of security
\ndeposit.  According to the petitioner the cancellation order is illegal and
\nunsustainable in law and hence the present writ petitions have been filed for
\nthe aforesaid relief.\n<\/p>\n
\t15  This Court on 6.01.2010 granted an interim order of stay in M.P.No.1
\nof 2009.\n<\/p>\n
\t16  The second respondent viz., the District Collector, Tirunelvei
\nDistrict has filed a counter affidavit along with a petition to vacate the order
\nof stay granted by this court on 06.01.2010.\n<\/p>\n
\t17  The case of the second respondent is as follows:
\nAt the outset, it is submitted that the petitioner has not approached this court
\nwith clean hands as he has committed criminal misconduct in executing a bank
\nguarantee of Rs.9,72,000\/- by forging the bank documents and the signature of
\nthe bank officials and submitted the same to the second respondent. In
\nTirunelveli District, re-construction of 1831 number of houses were undertaken
\nin 10 packages.  In response to the tender notification, the petitioner applied
\nand became the successful bidder for construction of 216 number of houses. As
\nper the agreement, the completion period is nine months commencing from
\n26.12.2007 to 25.09.2008.  But the work progress was very slow.  Therefore the
\nfirst notice vide Programme Coordinator in letter No.T3\/2\/2008 dated 16.04.2008
\nwas issued to the petitioner with an instruction to improve the work and show
\nprogress. But the petitioner has not shown any progress.  Even after receipt of
\ntwo letters sent by the respondent to show substantial progress, the petitioner
\ndid not do the needful.  Even during August 2009, the progress of work was
\n48.26% only.  The petitioner in turn represented through his letter dated
\n7.10.2008, 30.11.2008 and 24.03.2009,  expressing his difficulties in completing
\nthe work in time and prayed for extension of time.  Accordingly, the second
\nrespondent extended the time on three occasions, namely, 26.09,2008 to
\n31.12.2008, 01.01.2009 to 31.03.2009 and 01.04.2009 to 31.08.2009.  In fact, the
\npetitioner sought for extension of time upto 30.12.2009.  Therefore a final
\nnotice was issued on 25.09.2009 to the petitioner to which the petitioner
\nreplied that the work would be completed by December 2009.  But the said request
\nwas not acceded to by the respondents. Thus, the petitioner completed only
\n48.26% of work alone even after giving three extension of time upto 31.08.2009.
\nTherefore, the tender was rightly cancelled and there is no infirmity nor
\nillegality in the order passed by the respondent cancelling the work, which is
\nimpugned in the writ petition.  There is no loss to the petitioner on account of
\nthe cancellation, since all the payments for the works executed have already
\nbeen paid.  Hence they prayed for dismissal of the writ petition.\n<\/p>\n
\t18 In other writ petitions, interim order of stay was granted on
\n21.12.2009 and the respondents have filed a counter together with the vacate
\nstay petitions also.\n<\/p>\n
\t19. I have heard the learned Senior Counsel for the petitioners and the
\nlearned Additional Advocate General for the respondents. I have also gone
\nthrough the documents available on record including the counter affidavits
\nfiled.\n<\/p>\n
\t20. In all the writ petitions, the question that arises for consideration
\nis whether the impugned order of termination in each of the writ petition is
\nsustainable or not.\n<\/p>\n
\t21.  The learned Additional Advocate General  raised a preliminary
\nobjection that the writ petitions are not maintainable under Article 226 of the
\nConstitution of India as the dispute is in the realm of contract and even as per
\nthe agreement entered into between the parties the dispute is to be resolved
\neither by resorting to arbitration or approaching the competent civil court.  In
\nsupport of her submission, the learned Additional Advocate General relied on the
\nfollowing judgments.\n<\/p>\n
1  Judgment reported in MANU\/TN\/0442\/2002 (S.N.Ramasamy Raju Vs the State of
\nTamilnadu, Rep. By  the Secretary to Govt., Highways (Rural Development) Dept.,
\nChennai and others)
\n2  1993 SUPP (3) SCC 635 (Food Corporation of India and others Vs Jagannath
\nDutta and others)
\n3  (2005)6 SCC 138 (Master Marine Services (P) Ltd. Vs Metcalfe & Hodgkinson (P)
\nLtd. and another)
\n4  A.I.R. 2006 SC 198 (Orissa Agro Industries Corporation Ltd. and others Vs
\nBharati Industries and others)
\n5  (2007)1 SCC 477 (Rajasthan Housing Board and another Vs G.S.Investments and
\nanother)
\n6  (2008)8  SCC 172 (Pimri Chinchwad Municipal Corporation and others Vs Gayatri
\nConstruction Company and another)<\/p>\n
\t22  Since the preliminary objection was raised with regard to the
\nmaintainability of the writ petitions, let me consider the question of
\nmaintainability first.\n<\/p>\n
\t23 Admittedly, the writ petitioner in W.P.No.14199 of 2009 entered into a
\ncontract with the respondents on 26.12.2007 and the contract price was
\nRs.5,29,75,974\/-.  As per the final contract 189 houses had to be built up by
\nthe petitioner under Rajiv Gandhi Rehabilitation Package for Tsunami affected
\nareas of Tirunelveli district.\n<\/p>\n
\t24 Even according to the petitioner the work could not be progressed due
\nto various omissions and commissions of the respondent and therefore extension
\nof time was granted on various dates viz., 14.10.2008, 28.01.2009 and
\n01.04.2009.  While so, in September 2009, the petitioner was informed by the
\nrespondents to apply for further extension of time to extend the contract
\nperiod.  The petitioner thus sought for extension of time upto 31.12.2009.
\nAccording to the petitioner by letter dated 25.09.2009, he was informed that a
\nfurther extension of 21 days was granted from the date of receipt of the letter.
\nNot satisfied with the time granted, he sought for time till 31.12.2009 as
\napplied by him.  On 23.11.2009, he received a notice from the Project Co-
\nordinator, Tsunami Implementation Unit, Tirunelveli District stating that some
\nof the wooden doors shutters are sub-standard and the same has to be rectified
\nwithin five days.  When he was taking steps to attend to that work, the impugned
\norder of termination was passed.  It is not in dispute that the parties are
\ngoverned by the terms of the agreement entered into between them and clause 6 of
\nthe schedule ‘C’ is very relevant for the purpose of deciding the issue involved
\nin this case.\n<\/p>\n
\tSchedule ‘C’:-\n<\/p>\n
“6. ARBITRATION CLAUSE:\n<\/p>\n
In case any dispute or difference between the parties to the contract either
\nduring the progress or after the completion of the works or after determination,
\nabandonment or breach of the contract or as to any other matter or thing arising
\nthere under except as to the matters left to the sole discretion of the
\nExecutive Engineers under clause 18, 20,25-3, 27-1, 34, 35 and 37 of the general
\ncondition of the contractor as to the withholding by the Executive Engineer or
\nthe payment of any bill to which the contractor may claim to be entitled.”\n<\/p>\n
\t26  Clause 8 of the schedule ‘C’ is also very relevant as only under this
\nclause the contract was terminated by the respondents.\n<\/p>\n
\t“Schedule C:-\n<\/p>\n
“8 EXECUTION OF WORK:\n<\/p>\n
If at any time the Collector shall be of the opinion that the contractor is
\ndelaying commencement of the work or violating any of the progress of work as
\ndefined by the tabular statement rate of progress in the article of agreement,
\nthe Collector shall so advice the contractor in writing and at the same time
\ndemand compliance.  If the contractor neglects to comply with such demand within
\nseven days after the receipt of such notice it shall be at any time thereafter
\nbe lawful for the Collector to determine the contract which determination shall
\ncarry with the forfeiture of the security deposit and the total of the amount
\nwithheld from the final bill together with value of such works as may have been
\nexecuted and not paid for such proportion of such total sums as shall be
\nassessed by the Collector.”\n<\/p>\n
\t27  Clause 3 of Schedule ‘C’ is also very relevant as arguments were
\nadvanced by the learned Senior counsel for the petitioner by contending that
\nthis Act could not be invoked at all as proposed in the impugned order.
\n\t“Schedule ‘C’:-\n<\/p>\n
“3 REVENUE RECOVERY ACT:\n<\/p>\n
\tWhenever any amount has to be paid by the contractor in lieu of
\ndetermination of the contract by virtue of clause 57(4) any amount that may be
\ndue or may become due from the contractor under the presence and the contractor
\nis not responding to the demands for the payment of said amount, then the
\nGovernment shall be entitled to recover the said amount under the provision of
\nthe Revenue Recovery Act.\n<\/p>\n
\tIn the event of the work being transferred to any other office, Executive
\nEngineer\/Assistant Executive Engineer who is having jurisdiction over the work
\nshall be competent to exercise all the powers and privilages reserved in favour
\nof the Government.”\n<\/p>\n
\t28 In view of the above clauses and also in view of the settled law that
\nin a contractual matter, High court should sparingly exercised its jurisdiction
\nunder Article 226 of the Constitution of India, I have no hesitation in holding
\nthat these writ petitions are not maintainable.\n<\/p>\n
\t29  Further, according to the writ petitioner, it is the respondents who
\nare responsible for the delay and therefore time should have been extended
\nfurther instead of arbitrarily terminating the contract.  This was seriously
\ndisputed by the respondents by pointing out the accused finger at the petitioner
\nin view of the disputed fact like who is at fault for the delay, whether further
\nextension ought to have been granted and further whether the petitioner is put
\nto irreparable loss have to be decided only in a competent civil court by
\nletting in evidence. Hence all these writ petitions are liable to be dismissed
\nas not maintainable.\n<\/p>\n
\t30 But the learned Senior counsel appearing for the petitioner submitted
\nthat atleast that portion of the impugned order wherein the second respondent
\nstated that excess cost involved would be recovered through Revenue Recovery act
\nshould be set aside. According to him, the respondents cannot  resort to
\nprovisions of the Revenue Recovery act for recovering the excess cost.\n<\/p>\n
\t31  The learned Senior counsel very much relied on the following three
\njudgments.\n<\/p>\n
1  1988 L.W. 383 (P.A.Aliyar Saheb and 288 others Vs Independent Dy. Tahsildar,
\nPallipattu, Chengalpattu and others)
\n2  1990(II) M.L.J. 25 (The National Engineering Co. Ltd., Madras Vs The
\nTahsildar, Fort Tondiarpet Taluk, Madras and others)
\n3  An unreported judgment dated 15.07.2009 in W.P.No.13298 of 2009 (N.V. Babu Vs
\nThe Divisional Engineer (H), NABARD Rural Roads, Chengalput and another)<\/p>\n
\t32  I am unable to accept these submissions also of the learned Senior
\ncounsel.\n<\/p>\n
\t33 In 1988(II) L.W. 383 (cited supra), the learned Judge of this court has
\nheld as follows:\n<\/p>\n
\t“43. Therefore, in my opinion, the result of the above decisions is that
\nin a case where the amount is recoverable only as “sum due to the State
\nGovernment” failing within the scope of S.52 of the Revenue Recovery Act and
\nwhere a person from whom the said amount is sought to be recovered disputes
\neither the existence of his liability or the extent of his liability, before
\nresort to the provisions of the Revenue Recovery Act can be had, there must be
\nan enquiry by the State in which the alleged defaulter is entitled to
\nparticipate and wherein the basis of the liability as well as the amount claimed
\nby the State must be d\\made known to the alleged defaulter who is given an
\nopportunity to place all the materials and circumstances which, in his opinion,
\ngo to exclude or eliminate his liability itself or to reduce the liability and a
\ndetermination based on such enquiry should be arrived at with reference to the
\nexistence or the extent of the liability of the defaulter.  That is exactly what
\nRama Prasada Rao, J. Himself meant is made clear by two of his subsequent
\njudgments.\n<\/p>\n
\t46. Having regard to the above decisions of Ramaprasada Rao, J., himself,
\nI am clearly of the opinion that the learned Judge did not intend to lay down
\nanything other than what I have already indicated above. I may also point out
\nthat the determination and adjudication which I contemplate as a preliminary to
\ninvocation of the provisions of the Revenue Recovery act cannot take the place
\nof an adjudication or determination in a Court of law which can be had either
\nby the State itself filing a suit in a Civil Court instead of having recourse to
\nthe provisions of the Revenue Recovery Act or by the citizen himself instituting
\na suit to question the action of the State under the provisions of the Revenue
\nRecovery Act.  The determination and adjudication contemplated by me above is
\nmore or less in the nature of preliminary ascertainment of the existence or
\nextent of the liability of a citizen, as a condition precedent to invocation
\nprovisions of the Revenue Recovery Act.  To hold that such a determination and
\nadjudication should be a substitute for an adjudication and determination by a
\nregularly constituted civil court will be to take away the right of an aggrieved
\ncitizen to question the action of the State under the Act in a Civil Court.
\nEqually to insist that the State should venture upon such adjudication and
\ndetermination as if it were in the nature of a regular trial in a civil Court
\nwill tend to defeat the very object of the Revenue Recovery Act and set at
\nnaught the provisions of the said Act.\n<\/p>\n
\t65. Consequently, all these writ petitions are allowed.  In each one of
\nthem, there will be a direction to the respondents not to proceed with the
\nrecovery of the amounts alleged to be due from the petitioners under the
\nprovisions of the Revenue Recovery Act, 1864, without first holding an enquiry,
\nafter communicating to the petitioners concerned the particulars of the amount
\nclaimed from them and how the same is arrived at and giving them an opportunity
\nto place all the materials in their possession to substantiate their case, if
\nthey dispute either their liability or the extent of their liability and
\nconsidering the materials so placed and ascertaining the amount due from them on
\nthe basis of such enquiry.  There will be no order as to costs.”\n<\/p>\n
\t34  Similarly, in 1990 (II) M.L.J. 25 (cited supra), the learned Single
\nJudge of this court has held that there must be a concluded contract and a
\nwritten agreement. In the absence of consensus between the department and the
\nparty as regard to the value of shortages, the Government cannot invoke the
\nprovisions of the Revenue Recovery Act.  He further added that there must be
\nconsensus AD IDEM between the State and the defaulter as regards nature and the
\nquantum of default if the State intends to set the provisions of the Revenue
\nRecovery Act into motion for recovery of such arrears found and payable by the
\ndefaulters.  Therefore, the learned Judge in the conclusion held that there must
\nbe an enquiry by the State in which the alleged defaulter is entitled to
\nparticipate and wherein the basis of the liability as well as the amount claimed
\nby the State must be made known to the alleged defaulter.\n<\/p>\n
\t35  From the above, it is very clear that when a person from whom amounts
\nare sought to be recovered disputes either existence of his liability or extent
\nof his liability before resorting to the provisions of the Revenue Recovery Act.
\nThere must be an enquiry by the State in which defaulter is entitled to
\nparticipate and place all the materials. Revenue Recovery Act could not be
\ninvoked if there is no mention about the Act in the agreement but the same could
\nbe invoked if there is a clause in the agreement stipulating the recovery of the
\nexcess amount through Revenue Recovery Act. But the learned Judges held that any
\nsuch invocation of the provisions of the Revenue Recovery Act could not be made
\nunilaterally and the amount should be determined only after an enquiry is
\nconducted and after giving an opportunity to the other side\/defaulter.
\nTherefore, it cannot be said that the Revenue Recovery Act could not be invoked
\nat all as clause 3 of the schedule ‘C’ of the agreement enables the respondents
\nto invoke the Revenue Recovery Act.\n<\/p>\n
\t36  The learned Senior counsel relying on an unreported judgment of the
\nlearned Single Judge dated 15.7.2009 made in W.P.No.13298 of 2009 (cited supra),
\nsubmitted that a similar order could be passed in this case also.\n<\/p>\n
\t37  I am unable to accept this submission also.\n<\/p>\n
\t38  In the unreported judgment (cited supra), after terminating the
\ncontract an amount was arrived at and the contractor was asked to pay the sum or
\nelse to face Revenue Recovery proceedings.  Only in that context, the learned
\nJudge set aside the demand and remanded the matter back to the respondents with
\na direction to pass orders after providing reasonable opportunity and also to
\nfurnish particulars as to how the amount was arrived at.\n<\/p>\n
\t39  That stage is not at all arrived at in this case.  What is stated in
\nthe impugned order is that the balance work would be got executed by other
\nagency at the petitioner’s\/Contractor’s risk and cost and the excess cost
\ninvolved will be recovered from the petitioner through Revenue Recovery Act as
\nper clause 3 of the agreement.\n<\/p>\n
\t40  Therefore, only when the amount is arrived at, the question of
\nrecovering the sum under the Revenue Recovery Act would arise.  At this stage,
\nthe petitioner cannot speculate that the respondents would not follow the
\nprinciples of natural justice before seeking to recover the amount under Revenue
\nRecovery Act.  It is a trite law that the writ petition cannot be maintained on
\nmere apprehension and suspicion and this court also cannot pass orders in this
\nregard.\n<\/p>\n
\t41  Therefore, in view of the aforesaid reasons, all the writ petitions
\nare dismissed.  No costs. Consequently, all the connected miscellaneous
\npetitions are also dismissed.  Miscellaneous petitions filed to vacate the order
\nof interim order stand allowed.\n<\/p>\n
JIKR\/
\nTo\n<\/p>\n
1.Government of Tamil Nadu
\n  Rep. By its Secretary
\n  Rural Development and Panchayat Raj Department
\n  Tsunami District Implementation Unit,
\n  Chennai-600 001.\n<\/p>\n
2.The Project Director,
\n  Project Director Office,
\n  Tsunami Project Implementation Unit,
\n  Clive Battery,
\n  Nos.4 & 4A, Rajaji Salai,
\n  Chennai-600 001.\n<\/p>\n
3.The District Collector\/Chairman,
\n  Tsunami District Implementation Unit,
\n  Tirunelveli District.\n<\/p>\n
4.The Project Co-ordinator,
\n  Tsunami District Implementation Unit,
\n  Tirunelveli District.\n<\/p>\n
5.The Executive Engineer,
\n  Rural Development,
\n  DRDA, Tirunelveli District.\n<\/p>\n
6.The District Collector\/Chairman,
\n  Tsunami District Implementation Unit,
\n  Kanyakumari District.\n<\/p>\n
7.The Project Co-ordinator,
\n  Tsunami District Implementation Unit,
\n  Kanyakumari District.\n<\/p>\n
8.The Executive Engineer,
\n  Rural Development,
\n  DRDA, Kanyakumari District.\n<\/p>\n
9.Government of Tamil Nadu
\n  Rep. By its Secretary,
\n  Revenue Administration, Disaster Management
\n    and Mitigation Department,
\n  Secretariat,
\n  Fort St. George,
\n  Chennai-600 009.<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court W.P.(Md).No.13743 Of 2009 vs Government Of Tamil Nadu on 26 February, 2010 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 26\/02\/2010 CORAM THE HONOUABLE MR.JUSTICE S.RAJESWARAN Writ Petition(MD)No.13743 of 2009 Writ Petition(MD)No.13744 of 2009 Writ Petition(MD)No.13745 of 2009 Writ Petition(MD)No.13746 of 2009 Writ Petition(MD)No.13747 of 2009 Writ Petition(MD)No.13748 of 2009 Writ […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-244020","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nW.P.(Md).No.13743 Of 2009 vs Government Of Tamil Nadu on 26 February, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/w-p-md-no-13743-of-2009-vs-government-of-tamil-nadu-on-26-february-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"W.P.(Md).No.13743 Of 2009 vs Government Of Tamil Nadu on 26 February, 2010 - 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