1 2025:CGHC:40041-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WPC No. 3732 of 2024 M/s Abhinav Construction Through Its Partner Abhinav Soni, House No. 206 Power Heights Korba, District Korba, C.G. 495677 --- Petitioner(s) versus 1 - State Of Chhattisgarh Through Secretary Department Of Urban Administration And Development, Indrawati Bhawan Atal Nagar, Raipur, C.G. 2 - Municipal Corporation, Korba Through Its Commissioner, Saket Bhawan, ITI Chowk Korba, Chhattisgarh. 3 - Pratishtha Mamgain Commissioner Municipal Corporation Korba, District Korba Chhattisgarh. --- Respondent(s) WPC No. 3735 of 2024 M/s Abhinav Construction Through Its Partner Abhinav Soni, House No. 206 Power Heights Korba, District Korba, Chhattisgarh 495677 ---Petitioner(s) Versus 1 - State Of Chhattisgarh Through Secretary Department Of Urban Administration And Development, Indrawati Bhawan, Atal Nagar, Raipur, Chhattisgarh 2 2 - Municipal Corporation Korba, Through Its Commissioner, Saket Bhawan, ITI Chowk Korba, Chhattisgarh 3 - Pratishtha Mamgain Commissioner Municipal Corporation Korba, District Korba Chhattisgarh --- Respondent(s) WPC No. 3738 of 2024 M/s Abhinav Construction Through Its Partner Abhinav Soni, House No. 206, Power Heights Korba, District - Korba (C.G.) 495667. ---Petitioner(s) Versus 1 - State Of Chhattisgarh Through - Secretary, Department Of Urban Administration And Development, Indrawati Bhawan, Atal Nagar, Raipur (C.G.) 2 - Municipal Corporation, Korba Through Its Commissioner, Saket Bhawan, ITI Chowk, Korba (C.G.) 3 - Pratishtha Mamgain, Commissioner Municipal Corporation Korba, District Korba (C.G.) --- Respondent(s) WPC No. 3781 of 2024 M/s Abhinav Construction Through Its Partner Abhinav Soni, House No. 206 Power Heights Korba, District Korba Chhattisgarh. 495677 ---Petitioner(s) Versus 1 - State Of Chhattisgarh Through Secretary Department Of Urban Administration And Development, Indrawati Bhawan Atal Nagar Raipur Chhattisgarh. 2 - Municipal Corporation Korba Through Its Commissioner, Saket Bhawan, ITI Chowk Korba Chhattisgarh. 3 3 - Pratishtha Mamgain, Commissioner Municipal Corporation Korba, District Korba, Chhattisgarh --- Respondent(s) For Petitioner(s) : Mr. H.S.Ahluwalia, Advocate. For Respondent(s) : Mr. S.S.Baghel, Deputy Government Advocate. For Respondent No. 2 : Mr. P. Acharya, Advocate. For Respondent No. 3 : Dr. Sudeep Agrawal, Advocate. Hon’ble Mr. Ramesh Sinha, Chief Justice Hon’ble Mr. Bibhu Datta Guru, Judge Order on Board Per Ramesh Sinha, Chief Justice 08/08/2025 1 Heard Mr. H.S.Ahluwalia, learned counsel for the petitioner(s), Mr. S.S.Baghel, learned Deputy Government Advocate for the State/ respondent No. 1, Mr. P.Acharya, learned counsel for the respondent No. 2/Municipal Corporation and Dr. Sudeep Agrawal, learned counsel for the respondent No. 3. 2 Since the parties, facts and issues involved in these petitions are common, they are being considered and decided by this common order and WPC No. 3732/2024 is taken as the lead case. 3 The petitioner {in WPC No. 3732/2024}, by way of this petition under Article 226 of the Constitution of India, has prayed for the following relief(s): “10.1) That the Hon'ble Court may kindly be pleased to issue a writ of appropriate nature quashing the impugned antedated notice 11.07.2024 received by hand on 15.07.2024 in the interest of justice. 10.2) That the Hon'ble Court may kindly be pleased to issue direction to the respondent authorities to release the amount of performance guarantee withheld by the Municipal Corporation illegally, in the interest of Justice. 4 10.3) Any other relief which this Hon'ble Court deems Fit and proper may also kindly be granted to the petitioner, in the interest of justice. 10.4) Cost of the petition may also be granted to the petitioner. 10.5) That this Hon'ble Court may be pleased to pass an appropriate writ quashing the antedated impugned order 16.07.24 in the interest of the justice. 10.6) That, this Hon'ble Court may call for the entire records, of the dispatch registers as well as measurement books, maintained by the respondent and in the physical custody of the respondent municipal corporation. 10.7) That, this Hon'ble Court may pass an appropriate writ, initiating the enquiry against the Respondent Municipal Commissioner who have overreached the judicial majesty of the Hon'ble Court and has passed an antedated impugned order. 10.8) That, this Hon'ble Court may initiate contempt proceedings against the Respondent No 3, who have overreached the judicial majesty of the Hon'ble Court and has caused the hindrance to the justice.” 4 Identical reliefs have been prayed in other petitions viz. WPC No. 3735/2024, 3738/2024 and WPC No. 3781/2024, also. 5 The facts, in brief, the petitioner is a partnership firm, engaged in the business of the construction work. The petitioner firm was awarded with the work of BT Renewal of Road from CSEB Chowk to Sunaliya Bridge vide Letter of Intent (for short, the LoI) dated 05.01.2021 for Rs.1,24,99,534/- and as per the terms of LoI, the time period allowed to the petitioner firm for the completion of said work was four months including monsoon season. As per the LoI, the performance guarantee period was fixed as 3 years, to be counted from date of completion of work. The work was successfully completed by the petitioner on 26.03.2021 within the stipulated time frame, and against the said work, the firm has received an amount of Rs 1,24,78,400/- on account of payment of the running bills. After the completion of work on 26.03.2021, the respondent Municipal Corporation has, vide letter dated 08.08.2023 5 asked the petitioner firm to carry out the repairs and maintenance work. In response to the same the petitioner firm have written letter dated 18.08.2023 to Municipal Corporation stating, therein very categorically that the petitioner firm have shown the inability to do work because of the monsoon season with the undertaking to do the same after the end of monsoon season at own risk and cost. In the state of Chhattisgarh, and as per terms and conditions of the agreement, the monsoon period starts from 15th June and remains till 15th October, during this period as per the clauses of respondent Municipal Corporation own agreement no work takes place. Knowing very well about this fact the Municipal Corporation while ignoring the specified monsoon period, has issued another letter dated 27.09.2023, reiterating the same facts as of letter dated 08.08.2023. The petitioner immediately after the completion of monsoon period, started the repair work on 29.10.2023 which is evident from the photographs taken at that particular time showing the latitude and longitude of the place. The said repair work was carried out under the guidance of Sub-Engineer, Mr. Somnath Dehere, and in the presence of time keeper. After the completion of the period of the performance guarantee on 25.03.2024, the petitioner firm has written a letter dated 31.05.2024 as well as 05.07.24 to the Municipal Corporation for the release of the amount of performance guarantee to the tune of Rs.6,23,920/-. In response to the same, the Municipal Corporation, to utter shock of the petitioner firm, has served notice dated 08.07.2024 which was received by hand by the petitioner firm’s authorized signatory on 10.07.2024, asking, the petitioner firm to carry out the repair work as the petitioner firm, has failed to carry out the same in compliance of earlier letters written by the Corporation. The said allegation levelled by the Municipal Corporation was vehemently denied by the petitioner firm, 6 by filing the detailed reply dated 11.07.2024 which was served to the respondent/Corporation on 12.07.2024, annexing the photographs of the repair and maintenance carried out. 6 Mr. H.S.Ahluwalia, learned counsel for the petitioner submits that the respondent/Corporation without going through the contents of the reply dated 11.07.2024 filed by the petitioner firm with predetermined mind, has issued impugned antedated letter 11.07.2024 received to the petitioner firm on 15.07.2024 asking the petitioner firm to carry out the repair work within three days, failing which the performance guarantee amount lying with the Corporation would be forfeited. The impugned antedated letter 11.07.2024, is bad and illegal for the reason that, the Commissioner Municipal Corporation, without adhering to the terms and condition of the Contract has show caused the petitioner to carry out the work of repair and maintenance, knowingly very well that, the performance period of the work already stand expired on 25.03.2024, and issuing fresh notice for carrying out the repair work, amount to asking the petitioner firm for re-doing of the entire work, without any amount, which itself is overreaching the terms and condition of the contract, and is illegal. Clause 4 of the ‘Special Conditions of the Contract’ provides for the ‘Performance Guarantee’, by virtue of which the time period of 12 was provided, however, the respondent Corporation unilaterally by issuing the LoI, has increased the terms of performance guarantee from 12 months to three years to be counted from the actual date of completion, this unilateral change in terms and condition of the contract condition is bad and illegal. The petitioner firm, who was not in bargaining position, has accepted the said terms, and has waited for three years for the completion of the performance period. As per clause 4 of the Special Condition, the respondent-Corporation 7 during the performance period only, was eligible to issue the show cause notice, pointing out the defect, and also pointing out that, since the work is under performance period, therefore, the contractor is required to carry out the repair work, meaning thereby, the condition precedent, for the issuance of the notice, under this clause, is that, the work must be under the performance period. The notice dated 05.07.2024 issued by the respondent Corporation, it appears that the respondent Corporation is alleging the petitioner that it has not carried out the repair work during the performance period. However, by perusal of the impugned antedated notice dated 11.07.2024, it appears that, the respondent Corporation has changed their earlier stand and has stated that, since the repair work was not carried out completely, therefore, the amount of performance guarantee lying with the Corporation will be forfeited by invoking Clause 15, and with the said amount the repair and maintenance work would be carried out by the respondent Corporation. Both the notice dated 05.07.2024 as well as 11.07.2024 issued by the respondent corporation are self contradictory to each other, in one notice it was stated by the respondent that no repair work was carried out, and in once notice it was stated that repair work was carried out but not up to the satisfaction of the authorities, this itself goes to show that the entire exercise was carried out only to harass the petitioner. 7 Mr. Ahluwalia further submits that as per Clause 15, which has been mentioned in the letter by the respondent Corporation, is not at all applicable in the present case, as the Clause 15 talks about the action to be contemplated prior to release of Security Deposit, however, in the present case, the Security Deposit was released way back, and the present case relates to the release of the amount of the performance guarantee, thus the invocation of the same for the present case is bad 8 and illegal. The Corporation, has sat tight over the letter dated 31.05.2024 issued by the petitioner firm for the release of the amount of the performance guarantee, however, when the letter dated 05.07.2024 was served to the Corporation, the Corporation adopted the vengeance against the petitioner firm, in order to hold illegally the amount of performance guarantee, and therefore with predetermination of mind, of withholding the performance guarantee, has issued the impugned antedated notice 11.07.2024 received on 15.07.2024. The outstanding amount had been Illegally retained and in spite of several reminders the said amount have not been released. The antedated notice was received on 15.07.2024 and in the notice it was stated that, within 3 days of the receipt of the notice, the petitioner has to start the work, failing which, the amount lying in the form of Performance Guarantee will be forfeited. As the period of three days was to come to an end on 18.07.2024, the petitioner informed the respondent Corporation, about the filing of the present petitions along with the token no, and asked the Municipal Corporation not to take any action as the subject matter being subjudice. However, all of a sudden on 22.07.2024, the Corporation has passed an antedated impugned letter 16.07.2024, informing the petitioner about the forfeiture of the security amount lying with them. 8 Mr. Ahluwalia next submits that the respondent-Commissioner Municipal Corporation Korba, only to overreach the judicial majesty of the Hon'ble Court, knowingly very well about the grounds taken by the petitioner, in the writ petition, and also after acknowledging the fact about the pendency of the writ petition before, this Hon'ble Court has passed an antedated impugned order 16.07.2024 forfeiting the amount lying with the them, so that the purpose of filing petition became futile, and the petition becomes infructuous. The reason for stating the impugned order 9 dated 16.07.2024 is antedated is that till 18.07.2024, there was no order passed against the petitioner, as it is evident from the fact that, when the petitioner has intimated the Respondent Corporation about the filing of writ petition on 16.07.2024, through written communication by physically handing over the letter, the respondent Corporation ought to have served the order 16.07.2024, to the petitioner on 18.07.2024 itself when the petitioner was present there, but it was not served because no order was passed till that time. Till now, the respondent Corporation, follows the practice of serving the notices through physical mode, by delivering on hand, and for the first time, for this antedated order, the respondent has followed the method of delivering the order through speed post, by posting it for the delivery on 22.07.2024 itself i.e. the date of passing the order. If the order is actually passed by the respondent Corporation on 16.07.24, then what is the reason for despatch of the same, after 6 days, i.e. 22.07.2024, this itself speaks a lot, and substantiate the averments raised by the petitioner. The impugned antedated order 16.07.2024, is only being passed by the respondent Municipal Corporation, to overreach the judicial power of the Hon'ble Court, and to curtail the legal remedy available to the petitioner, which in itself amounts to Contempt of Court. Hence, these petitions deserve to be allowed. 9 On the other hand, Mr. S.S.Baghel, learned counsel for the State/respondent No. 1 submits that the dispute projected in the writ petition and before this Court is purely a contractual dispute and that too, between the petitioner and the respondent No. 2-Corporation. 10 Mr. P. Acharya, learned counsel for the respondent No. 2 submits that the NIT was issued for renewal of Road from ITI chowk to CSEB chowk, Korba by on their official website whereby petitioner firm participated in the said NIT and was found to be successful bidder. The construction 10 was done by the petitioner firm within time prescribed in LIT letter dated 31.12.2020 issued by the respondent No. 2 and the running bill of the amount of Rs.96,44,500/- has been already been given to the petitioner firm and around Rs.4,82,225/- was kept as performance bank guarantee which has to be given by the respondent-Corporation to the petitioner firm after completion of contract period as mentioned in the NIT if no damages occurred in the contractual period. However, the construction was so bad that within a spam of one year the defects occurred in the road from ITI Chowk to CSEB Chowk, it was thereafter notice was issued to petitioner firm by the respondent-Corporation on 16.09.2022 and in reply to that petitioner firm has said that the damages which has been occurred in renewal of road between ITI Chowk to CSEB Chowk, Korba has been cured. It is further pertinent to mention the fact the said defects which has been cured by the petitioner firm was not done properly which was so prominent that it has been came to public domain as per the newspaper publish date on 08.08.2023 due to which respondent-Corporation has to issue notice on 07.08.2023, 27.09.2023, 31.10.2023 and on 30.01.2024, it needless to mention the fact at this juncture that the entire notice were served to the petitioner firm in contractual period as per the NIT and LIT issued by the answering respondent. In reply to the said notices, the petitioner firm has accepted their damages has been came out and further they will cure the damages after the rainy season vide letter dated 18.08.2023, no damages have been cured out by the petitioner firm. Again notices were issued on 27.09.2023 to the petitioner firm but unfortunately no reply has been given by the petitioner firm. The respondent-Corporation has issued the notice cum reminder on 27.09.2023 stating that the monsoon season was over and that the petitioner should cure out the damages as 11 per the agreement. The respondent-Corporation again issued letter to the petitioner on 08.07.2024 which was replied arrogantly by the petitioner stating that since the contract period was already over, he was not liable to do the same. The contract issued by the respondent- Corporation to the petitioner was for construction for road renewal between the ITI Chowk to CSEB Chowk, Korba under the Government Scheme funded by the Government and further it is public money which cannot be allowed to go waste. So far as the allegation of arbitrary encashment of performance guarantee is concerned, the respondent- Corporation has only done their action as per their LIT dated 31.12.2020 and NIT dated 16.12.2020 in which there was specific clause in Form A Nagar Palik Nigam Nagar Palika Parishad / Nagar Panchayat Public Works Department in the said Clause 15 specifically states that if at any time before the security deposit is refunded to the contractor, it shall appear to be Commissioner/CMO or his subordinate in charge of the work, that any work has been executed with unsound, imperfect or unskillful workmanship or with material of inferior quality or that any material or article provided by him for the execution of the work are unsound, or of quality inferior to that contracted for, or are otherwise not in accordance with the contract, it shall be lawful for the commissioner to intimate this fact in writing to the contractor and then notwithstanding the fact that the work, materials or articles complained of may have inadvertently passed, certified and paid for contractor shall be bound forthwith to rectify or remove the reconstruct the work so specified in whole or in part, as the case may be require, or if so required, shall remove the materials or articles so specified and provide other proper and suitable materials or article at his own proper charge and cost, and in the event of failing to do so with in a period to be specified by the 12 Commissioner/CMO in the written intimation aforesaid, the contractor shall be liable to pay the compensation at the rate of one percent on the amount of contract to put the tender everyday not exceeding 10 days, during which the failure so, continues and in the case of any such failure the Commissioner/CMO may rectify or remove and, re-execute the work or remove and replace the material or articles complained of as the case may be at the risk and expenses in all respect of the contractor. Clause 4 Performance Guarantee of Annexure G Special Condition of NIT sub clause (ii) specifically states that the contractor shall have to carry out "rectification" of defects noticed, caused due to any reason at his own cost within such reasonable period mention in the such communication notice from the Commissioner/CMO/ Officer Engineer in charge to him. Sub Clause (iii) Failure of the contractor to rectify the defects properly in the given period it shall be open for the Commissioner/CMO/in charge to get the defects to rectified either department or through other agencies (without calling any tender/quotation)and recover the actual cost plus 15% of such cost from the contractor from any sum, in any form, available to department or can be recovered Arrears of Land Revenue. 11 Mr. Acharya submits that the said above conditions are binding upon both the petitioner as well as respondent-Corporation as there is agreement between them and following the said clauses only, respondent-Corporation has given several notices to the petitioner firm in a contractual period and when petitioner firm has failed to rectify the defects pointed out by the in charge engineer the action has been taken by the answering respondent. The allegation made by the petitioner firm in the instant writ petition that the performance guarantee have been encashed by the respondent-Corporation is without jurisdiction is wholly misconceived and baseless. From perusal of clause 28 of the terms and 13 conditions of the NIT, it is evident that there is a mechanism of arbitration for resolving the dispute which the petitioner has not taken recourse to and as such, this petition deserves to be dismissed. 12 Dr. Sudeep Agrawal, learned counsel for the respondent No. 3 submits that the present writ petition in its present form is not maintainable in the eyes of law as the respondent No. 3 was only discharging her official functions without any mala fide / ulterior motives, hence, the writ petition deserves to be dismissed on the ground of mis-joinder of parties. It is further submitted that the present petition arises out of contractual matter and as per the conditions of contract, both the parties have mutually agreed to resolve their dispute by way of Arbitration as mentioned in Clause 28 of the aforesaid conditions of contract, therefore without resorting to specific mechanism as provided in the terms and conditions of contract, the petitioner has directly approached this Hon'ble Court. The Hon'ble Supreme Court, in catena of judgments have held that when the parties have efficacious alternative statutory remedy available to them, the writ petition is not maintainable. It is a matter either for arbitration as provided by the contract or for the civil court, as the case may be. In the present writ petition, the petitioner has raised several disputed question of facts which can only be adjudicated by means of evidence hence on this ground also, the writ petition deserves to be dismissed. Whether the obligation entrusted upon the contractor to complete the work of BT renewal of road for a particular area has been done completely or not is a factual consideration which requires proper appreciation of evidence to be led by both the parties therefore the writ is not the proper forum to adjudicate upon the factual issues which are disputed by both the sides. More so, specific pleadings have been made by the petitioner stating that the impugned letter dated 16.07.2024 is an 14 antedated notice and is a fabricated notice is also a disputed fact which can only be adjudicated by leading evidence. Thus the writ petition involves serious disputed question of facts and on this count alone the writ petition deserves to be dismissed summarily. The Hon'ble Supreme Court in several judgments have held that since writ jurisdiction under Article 226 is discretionary in nature, Courts should refrain from entertaining a writ petition which involves adjudication of disputed questions of fact and analysis of evidence of witnesses. If a serious disputed question of fact is involved arising out of a contract qua contract, ordinarily a writ petition would not be entertained. The petitioner firm- M/s Abhinav Construction is managed by Mr. Abhinav Soni who happens to be the son of Mr. Shyam Sundar Soni, Speaker of the Municipal Corporation, Korba therefore, in order to exert undue pressure upon her, she has been made party in the instant writ petition. Hence, this petition deserves to be dismissed. 13 It is lastly submitted by Mr. Acharya and Dr. Agrawal that after encashing the performance guarantee, the respondent-Corporation has got the repairs of the road done by another firm and as such, this petition has become infructuous. 14 We have heard learned counsel for the parties, perused the pleadings and documents appended thereto. 15 From perusal of the pleadings and submissions advanced by both the parties, it is evident that pursuant to the NIT floated by the respondent No. 2, the petitioner firm was awarded some construction work by the respondent No. 2 and now there is dispute with respect to the maintenance work and the period of maintenance and in the meantime, the respondent-Corporation appears to have encashed the performance 15 guarantee without providing sufficient opportunity to the petitioner to show cause. 16 In the present case, the petitioner was issued notice on 11.07.2024 wherein the petitioner has been directed to complete the repair works within a period of three days failing which the same would be done by the respondent-Corporation after confiscating the amount of performance guarantee as provided under Clause 15 of the Contract. The receiving on the said communication itself shows the date and time to be 15.07.2024 at 12:45 p.m. Thereafter, an order has been issued, which though is dated 16.07.2024 (Annexure P/12) but from the postal track record, it is evident that the same was despatched by the respondent-Corporation only on 22.07.2024 which means that the letter was prepared only on 22.07.2024 and not on 16.07.2024. Admittedly, the letter dated 11.07.2024 was received by the petitioner on 15.07.2024 at 12:45 p.m., then three days time would mean upto 18.07.2024, however, it appears that an antedated order dated 16.07.2024 has been issued on 22.07.2024 by the respondent- Corporation. In the meantime, the petitioner, by way of his letter dated 18.07.2024 had informed the respondent-Corporation that it had filed a petition challenging the action of the respondent-Corporation, which was duly received by the respondent Corporation as it bears the seal of the Corporation. Hence, it is apparent that the respondent-Corporation has tried to frustrate the petition and no proper opportunity of hearing has been afforded to the petitioner. 17 This Court does not wish to go into the merits of the case, however, this Court can very well scrutinize as to whether before the impugned order was passed by the respondent-Corporation which involves civil 16 consequences, rules of natural justice has been followed or not and in the present case, it appears to be missing. 18 As such, the notices dated 11.07.2024 and the order dated 16.07.2024 issued by the respondent No. 2-Corporation are quashed. However, liberty is reserved to the respondent-Corporation to issue fresh notices to the petitioner affording reasonable time to to file response to the same and thereafter, pass appropriate orders afresh within a period of two weeks from the date of receipt of the response of the petitioner, if so advised. 19 Resultantly, all these petitions stand allowed. Sd/- Sd/- (Bibhu Datta Guru) (Ramesh Sinha) JUDGE CHIEF JUSTICE Amit AMIT KUMAR DUBEY Digitally signed by AMIT KUMAR DUBEY Date: 2025.08.12 19:15:03 +0530