Saturday 28 October 2017

Ganga Sagar Singh, aged about 38 years, S/o Late Shri M. Singh, R/o Karampur, Saidpur, District Gajipur, Uttar Pradesh



BEFORE THE ARBITRATION TRIBUNAL, MADHYA PRADESH
REFERENCE PETITION NO.          2014

In the matter of Arbitration between

Ganga Sagar Singh, aged about 38
years, S/o Late Shri M. Singh,
R/o Karampur, Saidpur,
District Gajipur, Uttar Pradesh   __________Petitioner
Versus
1.     Madhya Pradesh Rural Road
Development Authority through
its Chief Executive Officer,
Khand 2, 5th floor, Parayawas
Bhawan, Arera Hills, Bhopal, M.P.
2.     General Manager, Madhya Pradesh
Rural Road Development Authority,
Project implementation Unit,
Rewa – 2, District Rewa, M.P.       _____Respondents
REFERENCE PETITION UNDER SECTION 7 OF THE MADHYA PRADESH MADHYASTHAM ADHIKARAN ADHINIYAM, 1983
1.           The Petitioner is a Government Contractor and as such registered as A-3 class Contractor with the Public Works department (PWD). The Petitioner undertakes various kinds of construction contracts as well as works contracts for construction and allied works and entered into contract with the respondents above named on 19-10-2006.
2.           The contract provided Construction/Upgradation and maintenance of Rural Roads under Pradhan Mantri Gram Sadak Yojna at District Rewa.
3.           The following differences have arisen between the parties.
3.1       Respondent No. 2 had floated NIT dated 28-08-2006 published in daily newspaper “Dainik Bhaskar”. The aforesaid tender was comprised of 48 works on different terms and conditions. Petitioner being an eligible and competent Contractor, applied for the aforesaid Tender and quoted his rate for the work of package No. MP 3261 PIU Rewa-II, which was placed at serial No. 32 in the NIT dated 28-08-2006. The total estimated Cost of the said work was around 448.13 lacs and the work was to be completed within 12 months including rainy season.
3.2       Pursuant to the rate offered by the petitioner, respondent No. 2 found the rate quoted by the petitioner most appropriate and lowest. Therefore finally respondent no. 2 informed the petitioner to complete the other formalities and on 19-10-2006 petitioner was awarded the work of construction of road vide package No. M.P. 3261 PIU - District Rewa under the Pradhan Mantri Sadak Yojna.
3.3       The petitioner started the work with utmost sincerity and devotion and completed 4.9 kms road out of total 20.9 kms road well within the time and petitioner was hoping to complete the entire contract work within the prescribed period but due to hurdles created by the local residents and politicians in the execution of the work the same was not completed within time and period for completing the Contract has been extended and till December 2008 petitioner executed the work to the tune of Rs. 3.45 crores and the moment he started the work near village Chagghat the local residents and politicians again raised objections and made an issue and did not allowed the petitioner to work at site and started committing theft of petitioner’s construction equipments, machinery and apparatus at site and also removing the material lying on the site.
3.4       Petitioner, thereafter, immediately informed the entire matter and made reports to the superior authorities as well as the police authorities and requested to take prompt action over the complaint preferred by the petitioner. Respondents also forwarded the report to the concern police station, but no action had been taken on the reports of the petitioner.
3.5       Due to the slow progress in execution of work for the aforesaid reasons, respondent No. 2 issued a Notice to the petitioner for termination of the Contract under clause 52 of the agreement. Petitioner immediately applied for the reference under clause 24 and thereafter being satisfied with the submissions of petitioner, the period for completing the Contract was further extended till 31-12-2009.
3.6       Petitioner thereafter once again tried to start with the remaining work and employed men, power and machine but the local politics was dominating therefore on 16-12-2009 petitioner’s Manager was attacked by the local residents on the instance of local politicians having ill will with petitioner and the matter was referred to the Police authorities and an offence has been registered against the accused persons under section 324/34 of the Indian Penal Code.

3.7       As no action has been initiated by the police authorities for protection of petitioner and his staff for execution of the work contract, petitioner approach this Hon’ble Court while filing the Writ Petition under Article 226 of the Constitution of India registered as Writ Petition No.13565/2009 and the Hon’ble Court was kind enough to passed an order dated 18-01-2010 directing the police authorities and respondents to provide security to the petitioner to get the work executed.

3.8       As petitioner failed to complete the work within the extended period therefore have further sought an extension of the period for completing the work but respondents having the pressure of local politicians did not considered the difficulties of petitioner and cancelled the contract on 30-09-2010 invoking powers alleged to have been given under clause 52 of the Contract. Petitioner having come to know about the cancellation and immediately approached the authorities and contended and submitted all its difficulties and prayed for revival of the contract but the same too was not considered and rejected however petitioner was not informed about the order dated 30-11-2010 even though petitioner have been approaching respondents till 08-02-2013 & 22-08-2013 and vide letter dated 01-11-2013 petitioner have been provided a hearing date on 12-11-2013 for consideration on all the objections raised under clause 24 of the tender agreement but he was not heard on that date.
3.9       On 06-08-2014 petitioner approached the respondents that what is the progress about the hearing of his representation under clause 24 of the tender contract than he came to know that on 16-01-2014 petitioner’s representation has been dismissed however respondents have asked the petitioner to apply for the Review of the Order dated 16-01-2014.
3.10   Respondents have since passed an order dated 30-11-2010 without any adjudication and have rejected the representation on 16-01-2014 without adjudication and without opportunity of hearing and have issued the letter of recovery dated 28-06-2014. Petitioner even requested to make a joint inspection for taking the measurement of the work and material at site for the correct assessment and measurement of the work but respondents did not considered the said prayer.
3.11   Petitioner have though filed an application before respondents to recall its order but was advised to assail the matter of recovery before the Hon’ble High Court.
3.12   Petitioner therefore preferred a Writ Petition under Article 226 of the Constitution of India against the most arbitrary and illegal exercise of powers by respondents in terminating the contract awarded to petitioner registered as W.P. No. 12511/2014, which came up for hearing on 03-09-2014 and the Hon’ble High Court was kind enough to disposed of the petition with directions. Relevant extract of the Order is as under :
Shri Girish Shrivastava, learned counsel for the petitioner.
Shri Vipin Mishra, lerarned counsel for the respondents.
The dispute involved in this writ petition pertains to recovery of an amount from the petitioner in the matter of default in connection with construction of road on a different package from the present contract. The question as to whether a default committed with regard to a work executed in a different package and the right of respondents to recover the amount from a different contract or package has already been considered and decided by this Court in the case of this Court in W.P. No. 13403/12 (M/S Anand Traders vs. State of M.P. and others) and connected matter decided on 09-10-2012.
In view of the above, this petition is allowed to the extent that respondents are restrained from recovering the amount from the present contract in connection with any other package or work executed by the petitioner. The amount liable to be paid for the present contract should be paid to the petitioner under the terms and conditions of the agreement and other procedure contemplated therein and the amount, if any, due from any other contract or package cannot be recovered from the current contract.
In the above terms, the present petition stands disposed of.
C.C. as per Rules.
3.12  Petitioner has not been heard before passing the Order dated 16-01-2014 and no notice  have been served to the petitioner for hearing before the Order dated 16-01-2014 and he only came to know about the said order on 06-08-2014. Hence this petition on the following grounds:
GROUNDS URGED
3.13   Because petitioner was always ready and willing to perform remaining work of the tender.
3.14   Because respondents failed to provide the clear site for the execution of the work and failed to provide the protection inspite of the direction by the Hon’ble High Court.
3.15   Because the respondents have extended the period for completing the remaining work due to genuine and bonafide grievance of petitioner that he is not being allowed to work at site due to local objections of the residents.
3.16   Because petitioner had already 3/4th of the total work allotted to him and is entitled to recover around Rs. 1.3 crores from respondents as per the measurement of respondents itself.
3.17   Because respondents have illegally terminated the contract.
3.18   Because petitioner has not been provided an opportunity of hearing and without any adjudication, the recovery letter has been issued threatening to confiscate the security of petitioner from other works.
3.19   Because respondents have illegally confiscated the Bank guarantee and EMD amounting to Rs. 44,00,000/-.
3.20   Because petitioner has not been informed about the hearing of its representation under clause 24 of the tender and after lapse of sufficient time when petitioner enquired he was informed that his contention has been rejected long back.
3.21   Because petitioner immediately after coming to know about the rejection of his representation applied for the review of the order on 06-08-2014.
3.22   Because respondents are trying to take coercive steps in order to avoid the legal legitimate claim of petitioner amounting to Rs. 1.3 crores pending against respondents.

4.           The following documents are relied upon is attached herewith.
4.1       Copy of Tender Document is Annexure P-1.
4.2       Copies of complaints are collectively filed as Annexure P-2.
4.3       Copy of Order dated 29-07-2009 extending period upto 31-12-2009 is filed herewith as Annexure P-3.
4.4       Copy of FIR is filed herewith as Annexure P-4.
4.5       Copy of order dated 18-01-2010 is filed herewith as Annexure P-5.
4.6       Copy of letter dated 08-02-2013 is filed herewith as Annexure P-6 & Copy of Letter dated 29-11-2012 is filed herewith as Annexure P-7; copy of letter dated 22-08-2013 is filed herewith as Annexure P-8 & copy of Letter dated 01-11-2013 is filed herewith as Annexure P-9.
4.7       Copy of letter dated 06-08-2014 is filed herewith as Annexure P-10 &Copy of Order dated 16-01-2014 is filed herewith as Annexure P-11.
4.8       Copy of Order dated 03-09-2014 passed in W.P. No. 12511/2014 is filed as Annexure P-12.
5.           The valuation for the purposes of Court fees Rs. 448.13 lacs and the amount of Court fees affixed.
6.           That petitioner hereby prays that –
6.1       The difference arising between the parties be settled and an award of Rs. 1,30,00,000/- alongwith interest at the rate of 12% per annum in favour of the petitioner may be issued.
6.2       Any other relief which the Tribunal considers fit and necessary may also be granted; and
6.3       The cost of the petition may be allowed.
Bhopal
Dated       Advocate for Petitioner                      Petitioner
VERIFICATION
I, Ganga Sagar Singh, aged about 38 years, S/o Late Shri M. Singh,R/o Karampur, Saidpur, District Gajipur, Uttar Pradesh presently at Bhopal do hereby sign and verify on ……. Day of September, 2014 that the contents of Para 1 to end of the petition are true to my personal knowledge and belief.
                                                                        Petitioner


BEFORE THE ARBITRATION TRIBUNAL, MADHYA PRADESH
REFERENCE PETITION NO.          2014

In the matter of Arbitration between

Ganga Sagar Singh                           __________Petitioner
Versus
Madhya Pradesh Rural Road
Development Authority & Another       ______Respondents
AFFIDAVIT
I, Ganga Sagar Singh, aged about 38 years, S/o Late Shri M. Singh, R/o Karampur, Saidpur, District Gajipur, Uttar Pradesh  presently at Bhopal do hereby state on oath as under :
1.           I’m the petitioner in the instant Reference Petition.
2.           That the contents of the petition from Para 1 to end are true to my personal knowledge and belief.
Bhopal
Dated                                                               Deponent
VERIFICATION
I, Ganga Sagar Singh, the above named deponent do hereby sign and verify on …… day of September, 2014 that the contents of Para 1 & 2 aforesaid of affidavit are true to my personal knowledge and belief.

                                                                        Deponent

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