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
