N.N.MATHUR, J. - (1.) THIS special appeal is directed against the order of the learned Single Judge dated 3.7.1991 dismissing the writ petition in limine and relegating the petitioner to the remedy of suit being a contractual matter.
(2.) THE brief facts giving rise to the instant special appeal are that the respondent Superintending Engineer, Circle -1. P.W.D., Jodhpur invited tenders inter alia for the improvement of horizontal profile, widening and, strengthening to Jodhpur -Pokaran Road Km. 102/0 to 123/0 by tender notice dated 3.6.1989. The petitioner who is registered as 'A' class Contractor, gave tender for the work and quoted his rate at 41.42% above the 'G' Schedule of rates. The tender was opened on 19.7.1989. None of the tender was accepted and 2.11.1989 was fixed for negotiation. During negotiation, the petitioner quoted his rate at 36.99% above the 'G' Schedule rates. However, the rate did not carry through. The petitioner quoted fresh rate at 32% above the 'G' Schedule rates with specific condition of giving 24 months for the completion of work and the another for escalation of price. The negotiations were not finalised. The second respondent Chief Engineer (Roads -II) sent a telegram dated 29.12.1989 informing the petitioner to extend the validity of offer for further period of one month. The said telegram dated 29.12.1989 is placed on the record as Annexure -5. There wee some more communications between the parties. Suffices it to say, that petitioner extended the validity of tender upto 31.3.1990 under communication dated 1.3.1990. The say of the petitioner is that he did not receive any communication accepting the validity period as extended upto 31.3.1990. Thus, the case of the petitioner is that offer given by him lapsed automatically with the afflux of time. It is further averred that the petitioner received a letter dated 10.4.1990 which was delivered to him on 7.7.1990 whereby, he was asked to attend the office of Executive Engineer and sign the agreement within a period of one week. Reference is also made to letters dated 27.6.1990 and 8.10.1990. Ultimately by letter dated 16.1.1991 the respondent No. 2 Chief Engineer inflicted a penalty, as interim compensation at the rate of 1% on the tendered amount of work under Clause 2 of the contract agreement for not maintaining the prorata progress of the work as per the terms and conditions of the contract agreement despite notice. Further the Chief Engineer by order dated 27.3.1991 issued a show cause notice asking the petitioner to take immediate steps to start the work and complete the same within the stipulated period failing which the amount of compensation shall not be recovered from his and action shall to be taken against him under Clauses 2 and 3 of the contract agreement. The petitioner had challenged the said notice by way of petition under Article 226 of the Constitution of India before this Court. The learned Single Judge by order dated 3.7.1991 dismissed the writ petition in limine.
(3.) THE Division Bench of this Court while admitting the special appeal by order dated 10.1.1992 stayed the operation of the order dated 13.12.1991 (Annexure -S/1). During the pendency of appeal, the respondents filed a reply supported by the affidavit of S.M. Bohra, Executive Engineer and Technical Assistant, P.W.D. Circle -III, Jodhpur with respect to the acceptance of the tender within the validity period i.e. upto 31.3.1990. It is averred that the same was accepted within the stipulated period by telegram (Annex. R -3) dated 31.3.1990. Said telegram has been placed on record which reads as follows: Your negotiated tender Jodhpur -Prokran Road KM 102 to 123 sanctioned at 32 per cent above (.) Content Executive Engineer concerned to start work immediately (.) By communication dated 10.4.1990 the Executive Engineer again called upon the petitioner to sign the agreement. The notice was sent by the registered post but it was received back on 21.5.1990 with the endorsement that the party does not reside at the place of address. It was also averred that Shri K.C. Mathur, Junior Engineer, P.W.D. was also sent for personal delivery of the communication but the contractor was not available. Some more correspondences have been on the record to show that offer given by the petitioner was accepted but the petitioner did not start the work and completed the same within the stipulated period. ;