ARUN SPAN ARCHITECT & CONSULTANT PVT. LTD. Vs. STATE OF M.P. & ORS.

JUDGEMENT

(1.) ORDER 1. The petitioner has filed the present writ petition challenging the order passed by the respondent No.2 Chief Municipal Officer, Jaora whereby cancelling the allotted tender work to the petitioner without awarding any opportunity of hearing to the petitioner.

(2.) The petitioner is a private limited company and is engaged in business of architect work and consultancy work in the government projects since year 2005. The respondent no.2 has published a notice inviting tender for some construction work. The petitioner being a bidder has submitted his bid for the said tender. The petitioner was declared as successful in the said tender process accordingly he was informed about this fact by the respondent no.2 on 12.06.2017 and a bid was expected at the value of Rs.8,59,000/-. The petitioner thereafter, completed other formality which are required for the issuance of the work order. Thereafter, the respondent no.2 vide order dated 14.06.2017 has issued a work order in favour of the petitioner through e-mail correspondence. The petitioner submits that on receiving the work order the equally consultancy and preparations of the Detail Project Report (DPR) as the work was so allotted to the petitioner so the tender was initiated by the team of the petitioner company. Thereafter, various correspondences has been made between the petitioner as well by the respondent no.2 in respect of the said tender. The petitioner has submitted the Detailed Project Report (DPR), however, the Chief Medical Officer dated 14.03.2018 again pointed out the fact that the DPR was full of irregularities and the DPR needs to be modified at the petitioner's end and threatens to revocation of the tender contract. Thereafter, a meeting was held between the petitioner's representatives along with the Chief Engineers of the Nagar Parishad however, no modification was pointed out by the Chief Engineer. The necessary corrections, modifications in the DPR has not been made by the petitioner, therefore the Chief Medical Officer, Jaora has issued an order in the form of a letter dated 18.05.2018 cancelling the tender and revoking the contract in light of the Clause no.6 in Annexure P-12 tender document stating that the petitioner is not complying with the directions issued by the Chief Engineer. The petitioner submits that the DPR was prepared and submitted to MPP Jaora on 01.08.2017 and the same was approved by the respondent no.4 and was submitted to the office of Executive Engineer, Ujjain. Therefore, the petitioner had issued a bill dated 01-0-2017 for 20% amount of total fees but Nagar Parishad Jaora has not paid the amount till now in respect of the petitioner's remainder dated 23.01.2018 and 21.02.2018 and Nagar Parishad Jaora has not given any reason for non payment of the above bill. As the amount has not been paid to the petitioner therefore, the petitioner has filed the present writ petition.

(3.) The respondent has filed reply and in the said reply the respondent has taken preliminary objection stating that the respondent no.2 invited the tender for selection of consultant in a project for prevention of pollution and beautification of Piliya Khal, Jaora. Under such contract, the contractor has to conduct a survey thereafter, prepare design, drawing, estimation and preparation of tender documents as well as necessary assistance during the progress of work. Meaning thereby, by virtue of the tender the service contract has been executed. Such service contract is a work contract as per amendment (published in the Gazzatte on 17.01.2017) made by legislature under Section 2(i) of Madhya Pradesh Madhyastham Abhikaran Adhiniyam, 1983. In view of the said amended definition under the adhiniyam it is clear that work contract or any dispute arises out of the work contract has to be referred before the Madhyastham Abhikaran constituted under Madhyastham Abhikaran Adhiniyam,1983 and therefore, this Hon'ble Court has no jurisdiction to interfere in the present petition and petition deserves to be dismissed. The Full Bench of this Court in the matter of VIVA HIGHWAYS LTD. V/S MPRDC AIR 2017 MP 103 (FB) and held that aggrieved party at works contract may refers its dispute in writing to the Tribunal irrespective of facts whether exist any agreement between parties which contain arbitration or not. The respondent has also relied on the judgment passed by the Apex Court in the matter of MPRRDA V/S L.G.CHOUDHARY reported in 2018 SCC ONLINE 407 and Full Bench of this Court in matter of GOURIE GANESH V/S EXECUTIVE ENGINEER PWD AC 40/16 ORDER DATED 03.05.2018 reported in 2018 Volume-III MPLJ 163.