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TMI Blog2017 (8) TMI 1602X X X X Extracts X X X X X X X X Extracts X X X X ..... itioner without due and prior adjudication by the competent authority, the impugned notices are liable to be quashed. The notices issued by the Superintending Engineer and the Engineer-in-Chief dated 20-8- 2015 and 4-8-2015, respectively, are arbitrary, unreasonable and violative of Article 14 of the Constitution of India, the same are therefore, liable to be quashed - Petition disposed off. - Writ Petition (C) No.817 of 2016 - - - Dated:- 2-8-2017 - Shri Sanjay K. Agrawal, J. For Petitioner: Mr. Apoorva Tripathi, Advocate. For State/Respondents: Mr. Shashank Thakur, Govt. Advocate. ORDER Shri Sanjay K. Agrawal, 1. The petitioner seeks to challenge the order of recovery passed by the respondent authorities of the State Government seeking to recover ₹ 323.076 lakhs from the petitioner on the ground that the petitioner has failed to execute the work awarded to it within the time stipulated and, therefore, it is liable to pay the amount in dispute. W.P.(C)No.817/2016 2. This writ petition has been filed by the petitioner with the following facts: - 2.1) The petitioner is A-5 Class Contractor registered with the respondent Department and p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tendered and the State without any adjudication of the sum due against the petitioner cannot issue the impugned notice which is unsustainable and bad in law. Initially work has not been re- tendered, after change of some conditions of the tender, it has been re-tendered, ultimately. Strongly, he placed reliance upon a Division Bench decision of this Court in the matter of M/s. Macadum Makers v. State of Chhattisgarh and others (AIR 2012 Chhattisgarh 123) to buttress his submission. 4. Mr. Shashank Thakur, learned State Counsel, would submit that the petitioner is a rank defaulter in executing the work and important work like construction/repair of canal could not even satisfactorily be completed by the petitioner despite of cooperation being extended by the respondent authorities which led to termination of his contract in accordance with clause 4.3.2 (A) read with clause 4.3.38.1.. Notice for recovery of subject amount has been issued against the petitioner which is absolutely unjustified in the facts of the present case. Therefore, the writ petition as framed and filed deserves to be dismissed. 5. I have heard learned counsel for the parties considered the rival submission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication should be by an independent person or body and not by the other party to the contract. The position will, however, be different where there is no dispute or there is consensus between the contracting parties regarding the breach of conditions. In such a case the officer of the State, even though a party to the contract will be well within his rights in assessing the damages occasioned by the breach in view of the specific terms of clause 12. 9. A Division Bench of this Court in the matter of A.K. Construction Company v. The State of M.P. (2005 (4) M.P.H.T. 15 CG) where work of construction was awarded after completion of work, bills were submitted and the claim bills, however, were not released which led to dispute between the parties and the aggrieved party approached Arbitration Tribunal constituted under the Chhattisgarh Madhyastham Adhikaran Adhiniyam, 1983. Defence of the State Government was that the Government dues were to be recovered and in terms of the agreement, the Government was entitled to recover sums recoverable not only under the contract in question, but also under other contracts. The Division Bench speaking through A.K. Patnaik, CJ (as then His Lor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d letter dated 03.12.2010. This act on the part of the respondents- State authority can only be termed as arbitrary and unreasonable, violative of Article 14 of the Constitution of India. Moreover, respondents could not bring to the notice of this Court any law operation in the field, authorizing the respondents authority to recover the amount by stretching their hands to the due payment and deposits of the petitioner with other offices in connection with other works. Even in the agreement, no such terms have been stipulated. Present is not a case where even after adjudication, petitioner failed to deposit the amount and, therefore, the respondents have proceeded to recover the amount as arrears of land revenue. 11. In the matter of Bharat Sanchar Nigam Ltd. and another v. Motorola India Pvt. Ltd. (AIR 2009 SC 357), the Supreme Court has followed the principle of law laid down in Shri Rameshwara Rice Mills Thirthahalli's case (supra) holding that a party cannot be a judge in his own cause. 12. In the matter of J.G. Engineers Pvt. Ltd. v. Union of India and another (2011) 5 SCC 758), the Supreme Court has relied upon Shri Rameshwara Rice Mills Thirthahalli's case (sup ..... X X X X Extracts X X X X X X X X Extracts X X X X
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