Decided on March 29,2019

Niraj Cement Strucurals Ltd Appellant
UNION OF INDIA Respondents


NOBIN SINGH,J. - (1.) Heard Shri H.S. Paonam, learned Senior Advocate appearing for the petitioner; Shri S. Suresh, learned ASG appearing for the respondent Nos.1 and 2 and Shri Abir Phukan, learned counsel appearing for the respondent Nos. 3 and 4.
(2.) By the instant writ petition, the petitioner has prayed for issuing a writ of certiorari or any other appropriate writ to quash and set aside the letters dated 21.12.2018 and 24.12.2018 and also to direct the respondent No.1 to cause investigation into the practical viability of the DPR prepared by respondent No.3 for execution of the project.
(3.) Facts and circumstances of the case as narrated in the writ petition, are that the Union of India issued a Notification 03.04.2017 inviting tenders from eligible contractors for construction of 69 bridges, along with approach roads, on the Tamu-Kyigone-Kalewa road section, from Km. 149.700 to Trilateral Highway, in Myanmar. After the bids were opened, an agreement dated 08.11.2017 was entered into between the Ministry of External Affairs represented by its Joint Secretary (DPA-III) and M/S NCSL- MTDC JV(M/S Niraj Cement Structurals Ltd. in JV with M/s Manipur Tribal Development Corporation Ltd) through its authorized signatories. A letter of acceptance was issued to the petitioner on 16.10.2018 for a contract price of Rs.293,93,55,588/- (Rupees two hundred ninety three crores ninety three lakhs fifty-five thousand five hundred eighty eight only). 3.1 After entering into the contract, the petitioner came to know that there were many variations in the data furnished in tender documents like in the reference pillars of the bridge, HFL, sub soil conditions, survey alignment details and sub soil investigations because of which the petitioner could not proceed with the work and accordingly, the petitioner approached the Authority Engineer who was informed about the discrepancy in the topographic survey done for Bridge No.1 using the newly established GPS pillars near the bridge and the coordinates of centre line co-ordinates provided to the petitioner vide its letter 21.05.2018. A request was also made by the petitioner for initiating process for data collection of HFL making on all the bridges jointly with IRCON and MOC team and also for plan profile survey of all major bridges so that alignment design work can be started vide e-mail dated 21.08.2018. 3.2 Overlooking the discrepancies, the authority Engineer served a show cause notice upon the petitioner as to why an action should not be taken up against it in terms of the contract including the termination of contract within 7 (seven) days with a condition that upon failure to receive any satisfactory reply from the petitioner, it would recommend to the authority concerned for termination of contract vide letter dated 02.11.2018. The petitioner submitted its reply on 23.11.2018 stating that a considerable progress in all aspects had been made as committed on 25.06.2018 at a joint meeting and requested to the Authority Engineer to visit the side and make their assessment. Without considering the reply, a notice of 15 days was served upon the petitioner vide letter dated 26.11.2018 for termination of the contracts on the alleged failure to comply with the notices to satisfactorily commence the work with adequate progress being shown thereof. The petitioner submitted its reply dated 11.12.2018 stating the events and circumstances for the delay which are not attributable to it. 3.3 To the utter shock and surprise of the petitioner, the respondents approached Punjab National Bank to encash two bank guarantees for transferring the amount in the account of the Ministry of External Affairs through RTGS vide its letter dated 21.12.2018. Since the request was made without enclosing the document relating to termination of contract, the bank officials requested for a copy of the termination letter and accordingly, the respondents furnished a copy of termination letter dated 24-12-2019 before the same was communicated to the petitioner. Being aggrieved by the said two letters dated 21.12.2018 and 24.12.2018, the instant writ petition has filed by the petitioner. ;

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