Format No. 7
(Chapter X, Rule 23)
IN
THE HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT AT JABALPUR.
WRIT PETITION NO. OF 2017 (O)
PETITIONER : MANALI
CONSTRUCTION
Through Its Partner Mr. Mukesh Jain, Aged about _ Years, S/o Mr. Yogesh Chand
Jain, Occupation – Partnership firm enged in construction, Mahaveer Market ,
Gour Murti , District – Sagar (Madhya Pradesh)
Versus
RESPONDENTS
:1. THE STATE
OF MADHYA PRADESH Through The Principal Secretary Department Of Water Resources
, Vallabh Bhawan , Bhopal, (Madhya Pradesh).
2. Engineer
In Chief Water Resources Department, Narmada Bhawan, Bhopal , (Madhya Pradesh).
3. Chief
Engineer Wainganga Basin, Water Resources Department, Warapathar Seoni, (Madhya Pradesh).
4.
Superintending Engineer, Water Resources Department, Circle Jabalpur, (Madhya Pradesh).
5. Executive
Engineer Hiran, Water Resources Division, Pachpedhi, Jabalpur, (Madhya Pradesh).
(Writ Petition under Article 226 of
the Constitution of India).
Claim in Petition Valued At Rs.14,26,031/-
1. Particulars of the Cause/ Order
against which the petition is submitted:
(1) Date of Order /
Notification/ Circular / Policy/ Decision Etc. : NIL
(2)
Passed in (Case Or File Number)
: NIL
(3)
Passed by (Name and Designation
of the Court, Authority, Tribunal Etc.) : NIL
(4)
Subject – matter in brief:
By preferring this petition under Article 226 of the Constitution of India
invoking the extraordinary writ jurisdiction of this Hon’ble High Court by
calling in question the legality, validity, propriety and correctness of the action
in not releasing the final bill. From pillar to post petitioner, being the Law
abiding national, knocked every door for the redressal of his grievances but at
the end petitioner surrenders himself before this Hon’ble High Court to seek
justice as litigation is the last resort when governments completely disregard
the rule of law. The impugned action is bad in Law. The impugned action of the respondent
authorities is arbitrary, malafide, capricious, colourable exercise of power
and voilative of principal of natural justice.
2. A declaration that no proceeding
on the same subject matter has been previously instituted in any Court,
Authority or Tribunal, if instituted, the Status or result thereof, along with
copy of the Order:
Petitioner
declares that no proceeding on the same subject matter has been previously
instituted in any Court, Authority or Tribunal.
3. Details of the remedied
exhausted :
The
petitioner declares that he has availed all statutory and other remedies.
4. Delay, if any, in filing the
petition and explanation therefor
It is
most humbly and respectfully submitted that there is no delay in filing of the
instant writ petition.
5. Facts of the
Case :
1.
Petitioner is a
partenership firm engaed in construction work and its partern Mr. Mukesh Jain
is a A-5 class contractor and entitled for the all the benefit and fundamental
rights as enshrined in Part III of the Constitution of India. Respondents are
the instrumentality of state within the meaning of Article 12 of the
Constitution of India and therefore amenable to the writ jurisdiction of this
Hon’ble High Court.
2. That,
the respondents invited Tender for balance work of Hardua Tank Project, Block
Majhauli, Distt. Jabalpur for Earthen bund from R.D. 0 M. to 390 M. including
Nalla closure work, Excavation of approach and Spill channel, Boulder toe,
Filter, Seepage drain, Puddle trench and its filling construction of sluice at
RD 330 M., 1.5 M. Fall, Filter blanket, Boulder toe, Seepage drain, Filter
below boulder toe, Pitching, Chipping and Turfing etc. and construction of canal
system and its structure.
3. That,
on 23.12.08 the said Tender was open in favour of the petitioner firm and
accordingly Agreement No. 9 DL of 2008-09 was executed between the parties. For
which, Work-order was issued on 24.02.09 of Rs. 69,06,854.82/- to complete the
same within a period of six months i/c rainy season it comes 23.08.09, copy of
which is marked as Annexure P-1.
4. That,
Layout of the said project was provided to the petitioner firm on 01.01.10 i.e.
after more than ten months. The petitioner started the work on the same day and
within three months completed 40 to 50% work of Rs. 30.00 lacs, but payment was
made only of Rs. 5.00 lacs. The petitioner by letter dt. 13.04.10 requested the
respondent no. 5 to extend a further period of six months to complete the same,
copy of letter dt. 13.04.10 is marked as Annexure
P-2.
5. That,
by letter dt. 30.03.11 the respondent no. 5 directed to the petitioner to do
Nalla Closure work within a period of one month, copy of which is marked as Annexure P-3.
6. That,
on 26.04.12 the respondent no. 4 made inspection over the aforesaid project of
Hardua Tank and found that petitioner completed 98% work, which is amounting to
Rs. 67.18 lacs, copy of which is marked as Annexure
P-4. The respondent no. 4 further advised to clay blanket work as it
was not assigned in present contract of the petitioner, therefore directed to
the concerning SDO to make case of additional item within a week. For which,
the petitioner also consented to do additional items at the rate of 3.7% below
of U.C.S.R. of the agreement of 2007 by letter dt. 17.05.12, copy of which is
marked as Annexure P-5 and
work period was extended up to 31.05.12 by the respondent no. 3.
7. That,
since the petitioner completed the said work on 20.03.12 total amounting to Rs.
67,18,662/-. Therefore, final measurement was taken by the concerning
Sub-Engineer and thereafter, the concerning SDO submitted the ninth and final
bill on 27.03.12 amounting of Rs. 6,74,351/-. But, the respondents wrongly paid
a meagre amount of Rs. 03 lacs. Therefore, on 12.06.12 the petitioner requested
to the respondent no. 5 to release final payment, copy of representation dt.
12.06.12 is marked as Annexure P-6.
8. But,
nothing was done by the respondents, therefore, petitioner made repeated
representations to respondent no. 5 on various dates i.e. 20.06.12, 09.07.12,
16.08.12, 20.09.12, 06.11.12 & 24.01.13, copies of which are cumulatively
marked as Annexure P-7.
9. That,
the respondent no. 5 was wrongly withholding said final payment for last more
than one year and instead to pay the same, arbitrarily issued show cause notice
dt. 08.02.13 on the ground of delay, after completion of the said work on
20.03.12 i.e. after almost one year, whereby threaten to the petitioner to take
action under the clause 4.3.3.3 of the said agreement. Copy of show cause
notice dt. 08.02.13 is marked as Annexure
P-8.
10.
That, the petitioner firm
promptly explained the cause through letter dt. 18.02.13 and replied in
detailed that work order was issued on 24.02.09, but layout was provided on
01.01.10 i.e. after more than ten months, while stipulated period was six
months. More so, the respondents closed the said work from 21.05.10 til
22.01.11, thus total period of delay attributable to the department is 18
months. Even though, petitioner completed the work on 20.03.12, which is
evident from the final measurement taken on 20.03.12 in the Measurement Book
and final bill submitted on 08.06.12. Coy of explanation dt. 18.02.13 is marked
as Annexure P-9.
11.
That, all of sudden on
18.04.13 the respondent no. 5 wrongly terminated the said agreement under the
clause 4.3.3.3 by saying that work was not completed within stipulated period
of six months without considering the explanation and by deliberately ignoring
this fact that layout was provided after a long delay of 10 months. Copy of
order dt. 18.04.13 is marked as Annexure
P-10.
P-10.
12.
Immediately thereupon, the
petitioner firm preferred appeal on 25.04.13 against the aforesaid order dt.
18.04.13 under clause 4.3.29.1 before the respondent no. 4, copy of which is
marked as Annexure P-11.
13.
That, again on 27.06.13 the
respondent no. 3 issued another show cause notice to the petitioner to black
list him on the fake ground of incomplete work, even without deciding the said
appeal, copy of which is marked as Annexure
P-12. Though, the petitioner replied to the said show cause notice on
03.07.13 with relevant documents, copy of which Is marked as Annexure P-13. Though, the
respondent no. 3 never told to petitioner that which work is incomplete,
despite repeated request and representations of the petitioner firm.
14.
That, the respondent no. 3
without considering the reply compelling circumstances of the petitioner
arbitrarily and illegally issued the order dt. 29.07.13, whereby black listed the
petitioner firm, copy of which is marked as Annexure P-14.
15.
That, again on 07.08.13 the
petitioner firm represented before the respondent no. 2 against the said order
dt. 29.07.13 by explaining the same. Copy of representation dt. 07.08.13 is
marked as Annexure P-15.
16.
It would not be out of
place to mention here that the respondents paid only an amount of Rs.
63,44,311/- out of Rs. 67,18,662/- to petitioner till date, and amount of Rs.
3,74,351/- + Security deposit Rs. 3,17,216/- + Misc. Deposit Rs. 4,03,000/- +
Unbalance deposit Rs. 2,59,464/- + Earnest money Rs. 72,000/-, thus total
amount of Rs. 14,26,031/- still withheld with the respondents, without any
justification. Hence this petition on following
grounds amongst the others
6. Grounds urged :
A. That,
the impugned actions are vitiated as the respondent no. 5 issued the Work-order
on 24.02.09 with a condition to complete the same within a period of six months
(including rainy season), while, Layout was provided on 01.01.10 i.e. after
more than ten months. Though, the petitioner started the work on the same day
and within three months completed 40 to 50% work of Rs. 30.00 lacs, but payment
was made only of Rs. 5.00 lacs. The petitioner by letter dt. 13.04.10 requested
the respondent no. 5 to extend a further period of six months to complete the
same. But, respondents did not respond.
B. That,
the impugned actions are further vitiated as the respondent no. 4 made
inspection on 26.04.12 over the aforesaid project of Hardua Tank and found that
petitioner completed 98% work, which is amounting to Rs. 67.18 lacs out of Rs.
69.07 lacs. The respondents closed the said work for a period from 21.05.10
till 22.01.11, thus total period of delay attributable to the department is 18
months. Even though, petitioner completed the work on 20.03.12, which is
evident from the final measurement taken on 20.03.12 in the Measurement Book
and final bill submitted on 08.06.12. Once final measurements had been taken in
MB and thereafter, final bill was submitted, then, how it could be said by the
respondent that work is incomplete and more so, after one year how show cause
notice is justified. While, petitioner requested repeatedly before the
respondents to release the final payment.
C. That,
the impugned actions are further vitiated as the respondents cannot withhold
the final bill. Because, no work was measured up by the respondents against the
petitioner, which was executed out of his hand by another contractor. Thus the
respondents wrongly and arbitrarily applied the said clause in this case with
malafide intention.
D. That,
the impugned actions are further vitiated as the respondents has not considered
the letter dt. 17.05.12, whereby petitioner consented to do additional items at
the rate of 3.7% below to CCR of the agreement of 2007, if any is proposed.
E. That,
the impugned actions are further vitiated as the respondents acted beyond its
authority and in arbitrary and mala fide manner, only to intentionally cause
financial loss and to damage market value and reputation of the petitioner
firm.
7. Relief Prayed for :
(a)
That the
Hon’ble High court shall be pleased to call for the entire original record of lis for its kind perusal.
(b)
That the
Hon’ble High Court shall be pleased to issue suitable writ or direction to the
respondent authorities to relase the final bill of total
amount of Rs. 14,26,031/- and make the necessary payment
for the work done by the petitioner.
(c) That the Hon’ble High Court shall be pleased to issue suitable
writ or direction to the respondent authorities to take suitable action against
the erring officials for illegally holding the final bill of total
amount of Rs. 14,26,031/- .
(d) Cost of this petition be also awarded in favour of the
petitioner.
Any other relief deemed fit and proper
looking to the facts and circumstances of the case may also be granted.
8. Interim Order / Writ, if prayed
for :
In view of the facts and circumstance of the case during pendency
of instant writ petition the operation, impact and effect of the impugned action
withholding of release of final bill of total amount of Rs.
14,26,031/-, may kindly be kept in abeyance, in the
larger interest of justice.
9.
Documents relied on but not in possession of the petitioner :
All the
relevant material and original records in relation to subject matter in dispute
is lying with respondent authorities which my kindly be requisitioned by the
Hon’ble High Court for its kind perusal.
10.
Caveat
:
That, no notice of
lodging a caveat by the opposite party is received.
PLACE : JABALPUR
DATED: ADVOCATE FOR THE PETITIONER
IN THE HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT AT JABALPUR
WRIT PETITION NO. OF 2017 (O)
PETITIONER : MANALI
CONSTRUCTION
Versus
RESPONDENTS
: THE STATE OF MADHYA PRADESH
AFFIDAVIT
I, Mukesh Jain, aged about __Years, S/o Mr.
Yogesh Chand Jain Partenr – Manali construction, Mahaveer Market , Gour Murti ,
District – Sagar (Madhya Pradesh) do hereby state on oath as under :
1.
That I am partner of the
Petitioner firm in the above mentioned writ petition and am fully conversant
with the facts deposed to in the Writ Petition.
2.
That the contents of paragraphs 1 to 10 of the accompanying writ petition
are true to my personal knowledge and the contents of paragraphs are based on
legal advice, which I believe to be true. No material has been concealed and no
part is false.
3.
That the Annexure No(s). P-1 to P-11 to the accompanying writ petition
are true copies of the originals and I have compared the said Annexures with
their respective originals and certify them to be true copies thereof.
PLACE
: JABALPUR
DATED
: DEPONENT
VERIFICATION
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