Mukundakam Sharma, C.J.

CM No. 3268/2008

1. By this application the appellant prays for condensation of delay in filing the appeal. There is a delay of two days in the filing the appeal. On going through the application we find that the appellant has been able to make out a case of sufficient cause for condensation of delay. Accordingly, we allow the application and the delay in filing the appeal is condoned. The appeal is taken on record.

The application stands disposed of.

LPA No. 108/2008

1. This order shall dispose of the appeal which is filed by the appellant challenging legality of the order dated 9th January, 2008 passed by the learned Single Judge dismissing the writ petition filed by the appellant.

2. The writ petition was filed by the appellant being aggrieved by the order of the respondents dated 13th August, 2007, whereby the appellant was restrained/ debarred from participating in the tender process of the MCD for a period of two years on account of non-execution of the work of de-silting, which was allotted to the appellant under work orders dated 13th June, 2007 and 14th June, 2007. The learned Single Judge heard the counsel for the parties and after going through the records found that the appellant was called upon to start work and to complete the same within 25 days, but that he did not do so on the pretext that he would need at least two months time to complete the work. The learned Single Judge however did not accept the aforesaid plea taken up by the appellant and on perusal of the original records observed that the appellant was called upon to start work and complete the same within 25 days. Even a show cause notice dated 20th June, 2007 was issued and the appellant-contractor was also called for personal hearing, which was held on 29th June, 2007, at which stage the appellant-contractor was warned that the work in question is of urgent nature and work should be immediately started to avoid disciplinary action against the appellant-contractor. The learned Single Judge held that the since the appellant-contractor did not start work, there was no merit in the writ petition, which was dismissed, giving an opportunity however to the appellant to invoke the arbitration clause in accordance with law.

3. Being aggrieved by the aforesaid findings recorded by the learned Single Judge, the present appeal is filed on which we have heard the learned Counsel appearing for the parties and have also gone through the records.

4. Our attention was drawn to the Short Tender Notice dated 30th May, 2007 wherein it was mentioned that the time for completion of the work was two months. The respondent has taken up a stand that in the meantime a corrigendum was issued on 1st June, 2007, wherein it was specifically stipulated that time for completion of the work under the Short Tender Notice dated 30th May, 2007 would be 25 days from the date of issue of the work order. The said corrigendum is reproduced below for reference:

Due to time bound work the time of completion of Short Notice NIT No. EE-XXX/TC/2007-08/4 dated 30.5.07 due on 04.06.07 shall be 25 days from the date of issue of work order.

5. The appellant on the other hand has taken up a plea that he was never intimated about the aforesaid corrigendum and was not made aware of any change in the stipulation in the Short Tender Notice before issuance of and receipt of separate work orders dated 13th June, 2007 and 14th June, 2007. In the said work orders which were issued to the appellant, it was specifically mentioned that the appellant was to complete the aforesaid work within 25 days. The plea which was taken up before the learned Single Judge was that the said work orders were contrary to the terms of the Short Tender Notice as the time for completion of work was unilaterally reduced by the MCD from two months to 25 days.

6. In the light of the aforesaid submissions of the learned Counsel for the parties, we have also perused the original records. In the Shor