- (1.) This petition has been filed challenging the order dated 11-10-2011 issued by Senior Regional Manager, Rajasthan State Industrial Development and Investment Corporation Ltd. (herein after RIICO) Kota, whereby the petitioner FIRM has been informed that it having failed to undertake repair work of various roads in Indraprastha Industrial area which were its obligation under contract dated 24-1-2007, RIICO had decided to have the obligation of the petitioner firm under the said contract executed at its cost from other contractor/s and would proceed to adjust the amount expanded on such repair of roads from the security amount of petitioner.
(2.) The facts of the case are that the petitioner firm is AA class registered contractor, and the work for strengthening of road by paver finish at Indraprastha Industrial Area Kota was awarded to it vide order dated 24-1-2007 with the date of commencement being 7-2-2007, and the date of completion being 6-11-2007.
(3.) According to petitioner firm soon after the award, the petitioner took up the work under the contract in real earnest with the intention to adhere to his contractual obligations during the entire contractual period of five years. The petitioner however alleges that owing to inadequate crust thickness of existing roads covered under its contract and constant plying of heavy traffic, the existing surface was inadequate and further weakened and worn out. It has been submitted that further due to stagnant pools of water on either sides of the roads under the contract in issue, the roads were reduced to a state where no amount of patch work as required under the contract could be successful. It is submitted that all patch work done had became unstuck in the short periods of time. Counsel for the petitioner has submitted that thus the patch work under the contract was impossible without strengthening the existing crust which strengthening of the crust was not a part of the contract of petitioner firm. It has been pointed out to emphasise the submission as to the impossibility of execution of the contract that in terms of contract the petitioner was bound only to improve the riding surface by laying 75 mm thickness of spray grout patching etc., as per various items incorporated in G schedule and nothing more. Counsel for the petitioner submitted that RIICO had itself proceeded to do the work of strengthening by increasing the crust thickness of the Hariyali to Dhakaniay railway station road (road No.5), and road No.1 Instrumentation Ltd. factory to Dhakaniya, which according to petitioner was indicative of irrationality of RIICO in asking the petitioner to do patch work on roads under its contract without similar strengthening. Counsel for the petitioner submits that all the aforesaid facts were brought to the notice of respondent RIICO through various letters and it was pointed out by the petitioner that no liability could be fastened upon the petitioner firm for alleged breach of contract unless the crust thickness of the existing surface was improved, and yet all communications have been of no avail. It has been submitted that the respondent RIICO is using its dominant position in requiring the petitioner to do the work under the contract dated 24-1-2007 in impossible conditions. It has been submitted that in the aforesaid facts of the case, the contract dated 24-1-2007 is rendered void in terms of Section 56 of the Contract Act, and the proposed action of respondent RIICO under letter dated 11-10-2011 is illegal, arbitrary and liable to be set aside. Learned counsel for the petitioner has also submitted and argued that the weakness of the crust of the existing surface can be got ascertained by this court through the appointment of a Committee of experts of civil Engineers independent of respondent RIICO.;