Unilateral modification of contract terms is impermissible without mutual consent.

1. Shri Ambar Pare, learned counsel for the petitioner.
Shri P. Bhargava, learned Dy. A. G. for the respondents - State.
They are heard.
In both these writ petitions, the petitioners' - contractor are challenging the order dated 28.03.2014 (Annexure - P / 9) and order dated 28.03.2014 (Annexure - P / 7) of the respondent No.2 whereby, respondent No.2 directed for stoppage of centages charges on the ground that the contract in question is having value of more than Rs.2.00 crores and the final authority is the Revenue Commissioner, Indore Division, Indore and, therefore, he has imposed the condition which can be treated to be part in parcel of the finalization of the tender, which are binding to the petitioner.

2. Brief facts of the case are that on 14.05.2013, Notice Inviting Tender (NIT) was published for execution for rural electrification work. The petitioner being the successful bidder, his tender was accepted and thereafter, authority of respondent No.3 issued a letter (Annexure - P / 2) dated 03.07.2013 and 03.08.2013 directing the petitioner to carry out work within a period of three months, as his tender was accepted 19.25% above Schedule of Rates (SOR).

3. Clause 11 of Annexure - P / 2 is relevant, which reads as under:
(Editers Note: Vernacular Matter Omitted)

4. It is not in dispute that the said tender was accepted by the Committee of District Electric Works Decision, Barwani and, thereafter, on 04.09.2013, the petitioner executed an agreement for execution of the work. After due completion of work enumerated under Annexure - P / 2, from time to time, the respondent No.3 has instructed the petitioner for execution of additional / further works. On 05.09.2013, again respondent No.3 directed the petitioner to execute the additional work, which has also been duly executed by the petitioner.

5. In furtherance, again upon completion of work under Annexure - P / 4, on 28.09.2013 and 30.09.2013, the respondent No.3 instructed the petitioner for further more execution of work. Upon successful execution of work by the petitioner, the Executive Engineer of M.P. K. V. V. Co. Ltd., Sendhwa has certified the successful completion and has recommended for the payments to the petitioner vide Annexure - P / 6. After receipt of payment, the respondent No.2 has issued a letter dated 28.03.2014 to the respondent No.5 whereby, it has been mentioned that respondent No.2 is granting the financial sanction for the works tendered, but subject to non - payment of "centages charges" etc. and, if paid earlier, same shall be recovered. It is this action by which the petitioner is aggrieved and are challenging in both the writ petitions.

6. Learned counsel for the petitioner has drawn our attention to Clause 11 of Annexure - P / 4 dated 05.09.2013 and Annexure - P / dated 28.09.2013 & 30.09.2013, which reads as under : - Clause 11 of Annexure - P / 4 dated 05.09.2013 :
(Editers Note: Vernacular Matter Omitted)
Clause 11 of Annexure - P / 5 dated 28.09.2013 & 30.09.2013 :
(Editers Note: Vernacular Matter Omitted)

7. It is submitted that the impugned order is bad in law being passed without following the principle of nature justice. He further submits that once the benefit in shape of "centages charges" is conferred under the terms of the contract, then the centages charges which have already been paid are not gained wrongfully by the petitioner nor he by passing the impugned order changed the agreed terms and conditions of the agreement unilaterally and submits that both the writ petitions be allowed and the impugned orders be quashed.

8. In reply, Shri P. Bhargava, learned Dy. A. G.