Disputes relating to non-statutory contracts cannot be agitated under Article 226 of the Constitution of India.

The petitioner is a Registered Contractor with the Tamil Nadu Public Works Department. The petitioner has filed the above writ petition challenging the order passed by the second respondent dated 19.01.2009, by which the contract awarded in favour of the petitioner was determined, and for a further direction to direct the respondents to extend the time for completion of work, which was subject matter of the contract.

2. The facts leading to the writ petition are as follows:

(i) The first respondent invited tenders for the construction of Groyne at Yenayputhandurai Village in Kanyakumari District. The petitioner was the successful bidder in the said contract and the estimated value of the contract was Rs.350.00 Lakhs and the contract after negotiation was accepted by the Tender Award Committee by proceedings dated 12.04.2009 in favour of the petitioner, who had offered to complete the work with the approximate value of Rs.3,53,45,998/-.

(ii) An agreement was entered into between the first respondent and the petitioner on 11.05.2007 and under the terms and conditions of the agreement, the petitioner was required to commence the work on or before 01.06.2007. According to the petitioner the site itself was handed over only on 01.09.2007 and as per the period stipulated under the contract namely 12 months, the work ought to have been completed on or before 31.08.2008.

(iii) It is the case of the petitioner that upto July 2008 they have completed 143 meters of the said work out of the total length of 169 meters. Due to tidal waves in the sea between 23.07.2008 and 25.07.2008, substantial portion of the work completed by the petitioner was washed away and the machinery worth about Rs.45,00,000/- was also drawn into the sea and could not be retrieved.

(iv) Under the terms and conditions of the agreement, the petitioner was required to take an Insurance Policy to cover all risks and the Policy was to stand in the joint name of the petitioner and the second respondent. The petitioner after having suffered damage, submitted a claim before the Insurance Company and in response to the said claim, the Insurance Company by reply dated 19.01.2009 had informed the petitioner that the quantum of loss could be assessed only on completion of the repairs / reinstatement of the damaged part of the Groyne under construction and the petitioner was advised to go through the policy conditions and more particularly condition No.5 of the general condition of the contract, which states that the liability of the Company under the insurance policy in respect of any item sustaining damage shall seize, if the said item if not repaired without delay. Thus quoting this provision, the petitioner was advised to complete the reinstatement of the damaged portion and furnish the required details to the Surveyor as it has been already informed to the petitioner.

(V) Simultaneously, the first respondent by proceedings dated 19.01.2009 determined the petitioners contract and also stated that in respect of the balance work to be completed, the same shall be at the risk and cost of the petitioner in terms of clause Nos.57.3 and 57.4 of the general conditions of the contract, which deals with the delay in commencement of progress or neglect of work or suspension of work by the contractor forfeiture of earnest money, security deposit and withheld amount. The said order dated 19.01.2009 is impugned in the present writ petition.

3. Petitioners Contentions:

Mr.K.Srinivasan, the learned counsel appearing for the petitioner assailed the correctness of the impugned order by raising the following contentions.

(a) That the impugned order has been passed without considering the terms and conditions of the contract and the same is contrary to law. Firstly, the learned counsel would contend that the total length of the work to be completed is 169 meters out of which, as on July 2008, the petitioner had completed 143 meters and there was only a balance of 26 meters and