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2021 Supreme(Bom) 330
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Ujjal Bhuyan, Madhav J. Jamdar, JJ.
Shinde Developers Private Limited - Petitioner
Versus
State of Maharashtra and ors. - Respondents
Writ Petition No.6840 of 2014
Decided On : 07-09-2021
For the Petitioner:Mr.Akhilesh Jaiswal i/by Mr.Ranjit V. Sangle, Advocates
For the Respondent: Mr.S.L.Babar, AGP
Point of Law : General Conditions of Contract and as per clause 21(c) of the Contract Data to the General Conditions of Contract, which stipulates that the maximum limit of liquidated damages for delay in completion of work should be 10% of the initial contract price.
Headnote:
Constitution of India - Articles 226 or 227 - Imposed penalty of 10% of the contractual amount - Termination of the contract without permission, the quality of the executed work post termination - Petitioner is a private limited company incorporated under the Companies Act, 1956. It is engaged in the business of construction and maintenance of infrastructure and roads in the State of Maharashtra - Payment of liquidated damages is dealt with in clause 44. Sub-clause (1) thereof says that the contractor shall pay liquidated damages to the employer at the rate per week or part thereof as stated in the contract data for the period that the completion date is later than the intended completion date
Finding of the Court : Petitioner had participated in the proceedings of the Standing Empowered Committee by nominating its non-official technical member and by its representative making submissions on behalf of the petitioner. Court do not find that any objection was raised by the petitioner's representative to the hearing of the dispute by the Standing Empowered Committee at the first instance instead of by the competent authority. That apart, as per prayer clauses (b) and (c) petitioner has rather sought for a direction to respondent No.1 for constitution of a new Standing Empowered Committee and for remanding the matter to the new Standing Empowered Committee for a fresh decision and not before the competent authority. That being the position, this argument of the petitioner does not hold good and is hereby rejected - decision of the Standing Empowered Committee is just and reasonable and calls for no interference. Together with the initial findings recorded by us regarding the defect in filing the petition i.e. under what provision of law it has been filed and for non-joinder of necessary party i.e. Standing Empowered Committee, no case for entertaining the writ petition has been made out.
Result : Appeal dismissed
JUDGMENT :
UJJAL BHUYAN, J.
Heard Mr.Akhilesh Jaiswal, learned counsel for the petitioner; and Mr.S.L.Babar, learned AGP for the respondents.
2. By this petition petitioner seeks to challenge the order dated 5th December, 2013 passed by the Standing Empowered Committee and further seeks a direction to the respondents, more particularly to the State of Maharashtra, to constitute a new Standing Empowered Committee to adjudicate the dispute between the petitioner and the respondents without being influenced by the order dated 5th December, 2013.
3. It may be mentioned that by the order dated 5th December, 2013 the Standing Empowered Committee while cancelling the order passed by the Superintending Engineer terminating the contract given to the petitioner, however imposed penalty of 10% of the contractual amount. Besides petitioner would not be paid any amount on account of price escalation and/or difference in cost. The impugned order further says that as the petitioner had continued with the contractual works and completed the same even after termination of the contract without permission, the quality of the executed work post termination would be ascertained and if found satisfactory then only final payment would be made to the petitioner.
4. Before proceeding further we would like to mention at the very outset that the present writ petition is liable to be dismissed on two counts. Firstly, there is no mention in the entire body of the petition under what provision of law the petition has been filed. It is another matter that registry has registered the petition as a writ petition but we find that there is no mention either in the cause title or anywhere in the petition that it has been filed under Articles 226 or 227 of the Constitution of India. Secondly, equally important is the fact that though the petitioner has challenged legality and validity of the order dated 5th December, 2013 passed by the Standing Empowered Committee, the Standing Empowered Committee has not been arrayed as a respondent in the petition. While it is stated that respondent No.4 i.e. Shri S.S.Sandhu, I.A.S., Chief Executive Officer of Maharashtra Gramin Raste Vikas Sanstha and Principal Secretary to the Government of Maharashtra in the Rural Development and Irrigation Departments acted as the Chairman of the Standing Empowered Committee but the fact remains that the Standing Empowered Committee as an entity is not a party to the present proceeding. On these two counts itself the writ petition is liable to be dismissed. However, as we have heard learned counsel for the parties, we would proceed ahead to decide the petition on the basis of the materials on record.
5. Petitioner is a private limited company incorporated under the Companies Act, 1956. It is engaged in the business of construction and maintenance of infrastructure and roads in the State of Maharashtra.
6. Respondent No.3 issued notice inviting tender on 2nd January, 2008 for the following works:-
“Upgradation/construction of road MDR-42 to Tekpol Road by ST and BT and CD works and their maintenance, Taluka Velhe, District Pune.”
7. Petitioner submitted its bid pursuant to the said notice inviting tender on 6th February, 2008. By order dated 23rd June, 2008, the contract was awarded to the petitioner. Initially, the completion period was for 18 months. However, for various reasons the construction period had to be extended. First extension was upto 22nd June, 2010; second extension was upto 31st May, 2011 and the third extension was upto 30th April, 2012. According to the petitioner, the work site is situated in remote and isolated place; that apart heavy and extended rainfall further delayed the construction. Additionally, the local farmers also protested against the work and obstructed the construction activities on the ground that execution of the work would destroy their crops standing on the agricultural fields. Because of shifting of alignment of road at several locations, new hurdles were enc
