1 2025:CGHC:48922-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WPC No. 4942 of 2025 M/s Vakratunda Constructions Through Its Proprietor Sunil Kumar Tiwari Having Office At Zone-1 Street4b, 38 New Adarsh Nagar, District- Durg (C.G.) ... Petitioner versus 1 - The State of Chhattisgarh Through The Secretary, Public Works Department Government Of Chhattisgarh Mahanadi Bhawan, Nava Raipur Atal Nagar, Chhattisgarh 492002 2 - The Engineer In Chief Public Works Department Nirmaan Bhawan, North Block Sector19, Nawa Raipur, Atal Nagar, District- Raipur Chhattisgarh. 3 - The Chief Engineer Public Works Department, Baster Zone Chhattisgarh, 4 - The Superintending Engineer Public Works Department Kanker Circle Kanker, Chhattisgarh. 5 - The Executive Engineer Public Works Department (B And R) Kanker Division Kanker. 6 - The Sub Divisional Officer Public Works Department (Bandr) Sub Division Narharpur, District- Kanker Chhattisgarh. --- Respondents For Petitioner : Mr. Shalvik Tiwari , Advocate For Respondents/State: Mr. Sangharsh Pandey, G.A. AMARDEEP CHOUBEY Digitally signed by AMARDEEP CHOUBEY Date: 2025.09.25 11:04:40 +0530 2 Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Bibhu Datta Guru, Judge Judgment on Board Per Bibhu Datta Guru, Judge 24.09.2025 1. By the present writ petition, the petitioner has prayed for following reliefs:- “10.1. Issue an appropriate writ, order or direction in the nature of certiorari quashing and setting aside the order dated 26/04/2025 (Annexure P/11) passed by Respondent No. 5 whereby the contract of the Petitioner was illegally terminated; 10.2. Issue a writ of mandamus or any other appropriate writ, order or direction directing the Respondents to revoke the cancellation of the contract Agreement No. 16/DL/2023-24 and to allow the Petitioner to complete the remaining work under the original Work Order dated 06/07/2023 (Annexure P/2); 10.3. In the alternative, direct the Respondents to conduct final measurement of the work completed by the Petitioner as agreed by Respondent no. 5 vide letter dated 26/04/2025 (Annexure P/11), prepare the final bill, and release all dues payable to the Petitioner without levying any penalty: 10.4. Quash the email dated 17/07/2025 (Annexure P/14) and email dated 22/07/2025 (Annexure P/15) to the extent they cancel the tender and forfeit the Earnest Money Deposit (EMD) amount of 2,26,500/- ₹ and direct refund of the said amount to the Petitioner; 10.5. Award costs of the petition to the Petitioner; and 10.6. Pass such other or further order(s) as may be 3 deemed just, fit and proper in the facts and circumstances of the case, in the interest of justice.” 2. (I) Learned counsel for the petitioner submits that the petitioner was issued the contract for construction of Government College Building at Narharpur, Block Narpur, district Kanker with a schedule of 15 months i.e. from 06.07.2023 to 04.11.2024. Subsequently, petitioner’s contract was extended by Superintending Engineer, PWD (respondent No. 4) from 06.10.2024 to 30.05.2025, despite the said fact the contract was terminated by the Executive Engineer, PWD (respondent No. 4) on 26.04.2025, i.e. during existence of the extended contract period. (II) Learned counsel submits that the schedule of work failed to mention the presence of rocky terrain and requirement of rock anchoring by steel rods. This amounts to suppression of material facts by the department and constitutes a breach of obligation to provide accurate site conditions. The respondents delayed in providing site layout (issued only on 15/11/2023), which consumed a significant part of the contractual period. Delay attributable to the respondents cannot be a ground for penal action against the petitioner. (III) Learned counsel further submits that the respondents directed rock anchoring with steel rods which was not part of the original contract. Any such deviation must be supported by revised work orders ог supplementary agreements, failing which 4 the petitioner cannot be held responsible for resultant delays. The petitioner has already invested significant material, manpower and machinery which remains unaccounted due to the refusal to conduct measurement. Unless protected, irreparable loss will be caused. 3. (A) Learned counsel for the respondents would submit that, during excavation at some part of the construction site (in 21 columns out of 214 columns), the rock was found which was broken and foundation of 21 columns was made. As per the contract, the contractor (present petitioner company) has to make arrangements for construction materials and water for construction, it is not the responsibility of the Department. To reach the work site, a concrete road constructed by Nagar Panchayat Narharpur exists, which is used for material transportation and no additional road is required. Anchoring of steel with concrete in the foundations of 11 columns was carried out as per the actual requirements at the site, the drawings are not required for this. The layout and drawing design were provided to the contractor (present petitioner company) by the Department on 05.10.2023 and on 21.09.2023. (B) He submits that due to the contractor (present petitioner company) not making commensurate progress in the work of construction of the aforesaid Government College Building at Narharpur, a show cause notice was issued by the EE, PWD, Kanker vide letter dated 22.01.2025. In reply whereof, the 5 contractor (present petitioner company) responded to the said show cause notice on 05.02.2025 submitting a work plan to complete the work by 30.05.2025, but due to the contractor not making satisfactory/proportional progress as per the given work plan, another show cause notice was issued to the contractor by the letter dated 21.04.2025. Earlier, on 24.01.2024, a show cause notice was issued to the petitioner contractor by the SDO for not making commensurate progress in the work. Thereafter, again a notice was issued by the SDO on 29.05.2024 to the petitioner contractor for proportionate progress in the work. A notice was issued by the EE, PWD, Kanker to the petitioner contractor on 06.06.2024 as the work had not been completed upto the plinth level of the building even after 70% of the time had elapsed. Thereafter, a show cause notice was issued by the SDO, PWD on 19.07.2024 as the plinth work of the building had not been completed even after 80% of the contract period. Due to extremely slow progress of work, the EE, PWD, Kanker vide its letter dated 22.01.2025, issued a notice to the petitioner contractor seeking clarification alongwith action plan within seven days. Thereafter, the SDO, PWD issued a notice to the petitioner contractor on 03.04.2025 for extremely slow progress of the work and slow progress even after the extension of time. Thereafter, vide letter dated 21-04-2025, the EE, PWD, Kanker, issued show cause notice to the petitioner under Clause 3 (i) and 3 (ii) (a) to (d) of the contract due to slow progress of the 6 work. Accordingly, total 8 show cause notices were issued to the petitioner contractor, yet he did not make commensurate progress in the work. Therefore, the work was cancelled as per the provision contained in Clause 3 (ii) (a) of the Appendix 2.13. (C) Leaned counsel submits that on the basis of the work plan submitted by the contractor, the SE, PWD letter dated 05.12.2024 granted extension to the contractor till 30.05.2025, reserving the right to recover compensation under Clause 2 of the contract. The contractor had not given any provision for stoppage of work in the work plan submitted by him. Despite that, the contractor stopped the work which is a fundamental breach of contract, accordingly, as per the provisions contained in Clause 3 (ii) (a) of the Appendix 2.13 of the contract, the work has been cancelled by the EE, PWD, Kanker vide Annexure P/11. Due to failure to execute the work as per the provisions of the work plan and contract, the contract was cancelled by the order dated 26.04.2025 vide Annexure P/11, however, the contractor suspended the work for approximately four weeks due to the Holi Festival, therefore the work was cancelled as per Clause 3 (ii) (a) of the Appendix 2.13. After cancellation of contract, EMD amount of Rs. 2,26,500/- was forfeited on 22.07.2025 due to cancellation of contract. The Clause 2 of Appendix 2.13 provides that, the contractor is required to complete 30 percent of the total work within 50 percent of the contracted period (8 months) whereas, the present petitioner 7 contractor has completed approximately 10.26 percent of the work only within the contracted period (15 months). The petitioner contractor was to complete the remaining 90% of the work, as per the plan within the time extension approved by the SE, PWD in clause 2 of the contract until 30.05.2025, however, the contractor completed only 10.54 percent of the work, accordingly the contract was terminated by the order Annexure P/11. (D) According to Clause 3 (ii) of the Special Condition of NIT in Appendix 2.10, the contractor is required to submit a work plan in the first week of each month, if the work plan fails, a new work plan must be submitted in the first week of the following month, stating the reason for the failure. Failure to submit the work plan for four consecutive months is considered a fundamental breach of contract. The contractor has failed to submit the work plan as stated above. The petitioner contractor submitted the work plan only once and he failed to perform the work as per his own submitted work plan. Thus, there is no infirmity or illegality in the impugned order Annexure P/11, issued by the authority concerned. (E) After considering all the aspects and by affording sufficient opportunities of being heard to the petitioner, the impugned order terminating the work allotted to the petitioner has been passed strictly in accordance with law and the terms and conditions of the work agreement/contract. 8 4. We have heard learned counsel for the parties and perused the pleadings and documents. 5. The present issue relates to tender for construction of Government College Building at Narharpur, Block Narharpur, District Uttar Bastar Kanker with the time schedule of 15 months. The work order contains an arbitration clause, which categorically provides that all question and dispute relating to the meaning of the specification, designs, drawings and instruction herein before mentioned as to thing whatsoever in any way arising out of or relating to the contract designs, drawings, specification, estimate, concerning the works, or the execution or failure to execute the same, whether arising during the progress of the work, or a after the abandonment there of shall be referred to the Superintending Engineer for his decision, within a period of 30 (thirty) days of such an occurrence. 6. For the sake of convenience, it would be appropriate to quote arbitration clause of the tender document. It reads thus : Clause 28: Except as otherwise provided in this contract all question and dispute relating to the meaning of the specification, designs, drawings and instruction herein before mentioned as to thing whatsoever in any way arising out of or relating to the contract designs, drawings, specification, estimate, concerning the works, or the execution or failure to 9 execute the same, whether arising during the progress of the work, or a after the abandonment there of shall be referred to the Superintending Engineer for his decision, within a period of 30 (thirty) days of such an occurrence (s). There upon the Superintending Engineer shall give his written instructions and/or decisions, after hearing the contractor and Executive Engineer within a period of 15 (fifteen) days of such request. This period can be extended by mutual consent of parties. Upon receipt of written instructions or decisions, of Superintending Engineer the parties shall promptly proceed without delay to comply such instructions or decisions. If the Superintending Engineer fails to give his instruction or decisions in writing within a period of 15 (fifteen) days or mutually agreed time after being requested and/or, if the party (es) is/are aggrieved against the decision of the Superintending Engineer, the aggrieved party may within 30 days prefer an appeal to the Chief Engineer, who shall afford an opportunity to the parties of being heard and to offer evidence in support of his appeal. The, Chief Engineer will give his decision within 30 (thirty) days, or such, mutually agreed period. If any party is not satisfied with the decision of the 10 Chief Engineer he can file the petition for resolving the dispute through arbitration in the arbitration tribunal. A reference to Arbitration Tribunal shall be no ground for not continuing the work on the part of the Contractor. Payment as per original terms and condition of the agreement shall be continued by the Executive Engineer in accordance with clause 8 above." 7. In view of the arbitration Clause 28 embedded in the contract, which provides a comprehensive and statutorily recognized dispute resolution, this Court is of the considered view that the petitioner has an effective, adequate, and efficacious alternative remedy available. The mere allegation that the impugned order is a non-speaking one does not, in itself, justify bypassing the agreed contractual and statutory forum, particularly when the dispute pertains to contractual obligations and administrative decisions under a tender process. 8. It is a well-settled principle of law that when a remedy is available, writ jurisdiction under Article 226 of the Constitution should not ordinarily be exercised. 9. The Supreme Court in the matter of State of H.P. and Others v Gujarat Ambuja Cement Limited & Another reported in (2005) 6 SCC 499 held that normally the High Court should not 11 interfere if there is an adequate efficacious alternate remedy. 10. The Supreme Court in Assistant Commissioner (CT) LTU, Kakinada v. Glaxo Smith Kline Consumer Health Care Ltd., (2020) 19 SCC 172, reiterated that writ jurisdiction should not be invoked when a statutory forum is available and has not been availed. 11. In light of the above facts and settled legal position, this Court finds no ground to entertain the writ petition. Accordingly, the writ petition is dismissed as not maintainable, with liberty to the petitioner to avail the remedy available under Clause 28 of the contract, if so advised. SD/- SD/- (Bibhu Datta Guru) (Ramesh Sinha) Judge Chief Justice Gowri/ Amardeep