Sunrise Agro Projects vs. Uoi.Th.Consumer Affairs

HIGH COURT OF JAMMU AND KASHMIR AT JAMMU

OWP No.1593/2015, MP Nos.1/2016 & 1/2015

Date of order: 23.11.2017

Hon'ble Mr. Justice Alok Aradhe, Judge Appearing counsel:

With consent of the learned counsel for the parties, the matter is heard finally.

• 2**.** In this writ petition, the petitioner inter alia seeks a writ of certiorari for quashing the impugned order dated 01.01.2014 by which contract allotted to the petitioner for construction of 7500 MT Godown under PEG 2008 Scheme at Poonch has been cancelled and the Bank Guarantee/ Security Deposit has been forfeited. The petitioner also seeks a writ of mandamus commanding the respondents to extend the period of construction of 7500 MT Godown under PEG 2008 Scheme at Poonch and allow the petitioner to construct the Godown. The petitioner also seeks a writ of mandamus commanding the respondents to allow the petitioner to construct the Godown at the new location and consider the petitioner's case on the similar lines and on the analogy of one Manmohan Singh of Jammu Centre and Sheikh Suppliers and Contractors decided on 41st Meeting held in High Level Committee on 17.12.2014. In order to appreciate the petitioner's grievance, few facts need mention which are stated infra.
• 3. The petitioner is a partnership firm. The respondent-Food Corporation of India invited tender for construction of FCI Godown in various places in Jammu and Kashmir region. The petitioner applied for construction of Godown at Poonch of 7500 MT Capacity. The petitioner's tender was

approved and the contract was allotted to him. The stipulated time of completion of the contract was 12 months from the date of issuance of acceptance letter. The petitioner was informed that it will have to complete the construction of Godown within 12 months including 120 days time granted for production of documents of the land acquired and in case the conditions mentioned in the Communication dated 31.10.2012 including completion of the construction work is not complied with, the contract awarded to the petitioner shall be liable to be cancelled. It is the case of the petitioner that on account of circumstances, the petitioner was unable to construct the Godown within the stipulated time. It is the case of the petitioner that similarly situated persons, namely, Manmohan Singh and Sheikh Suppliers and Contractors were permitted to construct the Godown at the alternative site and the petitioner who is similarly situated should also be given similar treatment. However, by an order dated 01.01.2014, the contract of the petitioner was rescinded and the Bank guarantee was forfeited. In the aforesaid factual background, the petitioner has approached this Court.

• 4. Learned counsel for the petitioner submitted that action of the respondents in rescinding the contract is arbitrary and it ought to have appreciated that the petitioner was entitled to refund of the security amount and in any case he should have been permitted to raise construction of Godown at an alternate site, as has been done in the case of Manmohan Singh.
• 5. On the other hand, learned Sr. Counsel has submitted that similarly situated person, namely, Sheikh Suppliers and Contractors had filed OWP No.10/2014 which was dismissed by the learned Single Judge vide order dated 30.06.2016 and the aforesaid order was upheld by the Division Bench in LPAOW No.165/2016. It is further submitted that right of a person to construct the Godown at alternate place has already been adjudicated by Division Bench of this Court and the appeal preferred by the respondent-Corporation has been allowed.
• 6. I have considered the submissions made by learned counsel for the parties and have perused the record. It is pertinent to mention here that a Bench of this Court by an order dated 25.05.2017 had directed the petitioner to file affidavit indicating details of civil suit filed against the petitioner in the Court of Munsiff Distrcit Mobile Magistrate Poonch which disabled him to complete the construction work within the stipulated period. However, till today the aforesaid affidavit has not been filed on behalf of the petitioner. The question whether or not the petitioner was able to complete the construction work within stipulated time is question of fact which cannot be adjudicated in a writ petition under Section 103 of the Constitution of State of Jammu and Kashmir. It is well settled in law that this Court in the absence of any arbitrariness on the part of the respondents cannot not interfere in a contractual dispute between the parties. In the instant case, the petitioner has no legal enforceable right to construct the Godown at the alternate site. It is pertinent to mention here that the writ petition filed by similarly situated person namely Sheikh Suppliers and Contractors has been dismissed. The contract of the petitioner has been terminated in accordance with terms and conditions of the contract as the petitioner has failed to complete the construction within the stipulated time. Therefore, the action of the respondents in rescinding the contract by no stretch of imagination can be set to be arbitrary or irrational. Therefore, no case for interference in exercise of power under Article 226 of the Constitution of India read with Section 103 of the State Constitution is made out. However, the petitioner would be at liberty to take recourse to such remedy as may be available to him under law.
• 7. With the aforesaid direction, the petition stands disposed of along with connected MP.

(Alok Aradhe) Judge

Jammu 23.11.2017 Raj Kumar