The authority to terminate a contract and the discretion of the contracting party to decide whether to condone a breach.

JUDGMENT :

Vipin Sanghi, J.

The petitioner has preferred the present writ petition to assail the order dated 02.03.2023, passed by respondent No. 1. The petitioner also seeks a direction to the respondent authorities to terminate the contract of respondent No. 2 under clause 52 of the General Conditions of Contract, in respect of the tender bearing No. 51/UT-03-97(1)/XVIII/CE-URRDA/19-20, dated 12.07.2019, under the name and style of “Tapovan- Reengi to Subhai (Bhavisyabadri) M/s Stage-1”.

2. The petitioner claims that the respondent No. 2 engaged the petitioner as a sub-contractor in respect of the aforesaid contract, allegedly in breach of the terms and conditions of the contract entered into between respondent No. 1 and respondent No. 2. It appears that disputes have arisen between the petitioner and respondent No. 2-contractor. The petitioner earlier preferred a writ petition, being WPMS No. 2635 of 2022, which was disposed of by this Court on 05.12.2022. The said petition had also been preferred claiming the same relief, i.e., that the contract of respondent No. 2, as contractor, be terminated under clause 52 of the General Conditions of Contract.

3. We disposed of the said petition by observing as follows :

“The petitioner claims to be a sub-contractor of respondent No. 2 in relation to a contract awarded by respondent No. 1 to respondent No. 2 under the Pradhan Manti Gramin Sadak Yojna.

It appears that the petitioner and respondent No.2 entered into a sub-contract, in respect of which disputes have arisen regarding payments. The petitioner has represented to respondent No. 1 that respondent No. 2 has breached clause 7 of the general conditions of contract, which lays down stipulations with regard to sub-contracting the works by the contractor.

Those representations have not been decided. In this background the petitioner has preferred this writ- petition for the reliefs as set out hereinabove.

We are not inclined to entertain the writ-petition to consider the relief sought by the petitioner, as disputed questions of facts would require to be adjudicated.

The petitioner can approach the Civil Court, in case the petitioner is so advised.

At the same time, since the petitioner has made representation to respondent No. 1 alleging breach of contract by respondent No. 2 – the contractor, we dispose of this petition with a direction to respondent No. 1 to examine the representation made by the petitioner and dispose of the same with speaking order within four weeks.”

4. Thus, it would be seen, that this Court was not inclined to entertain the writ petition to consider the reliefs sought by the petitioner, as disputed questions of facts were raised, which require adjudication. We left it open to the petitioner to approach the civil court to press his reliefs. We also directed respondent No. 1 to decide the representation of the petitioner. By the impugned order, the said representation has been considered, and rejected. The respondent No. 1 has taken the stand that the alleged sub-contract entered into between the petitioner and respondent No. 2 was without their consent, and they have no concern with the same. They have stated that only respondent No. 2 shall be held responsible for the work under the contract. The rejection of the said representation is now assailed before us.

5. We have heard learned counsel for the petitioner.

6. In our view, no direction as sought by the petitioner can be issued by us in these proceedings. The petitioner has brought to notice of respondent No. 1, the alleged breach of the terms and conditions of the contract. It is for the respondent No. 1 to decide – whether, or not, to condone the said breach, and waive the alleged breach. This Court cannot issue direction to respondent No. 1 to mandatorily terminate the contract. It could be that despite the respondent No. 2 being in breach of the terms and conditions of the contract, i.e., clause 7 and clause 52, the respondent No. 1 may decide not to terminate the