APHC010477622012 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3333] TUESDAY, THE SECOND DAY OF SEPTEMBER TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SMT JUSTICE V.SUJATHA WRIT PETITION NO: 28186/2012 Between: 1. GPA HOLDER, M/S. UANMAX INFRA PRIVATE LIMITED, HYDERABAD, A COMPANY REGISTERED UNDER THE COMPANIES ACT, 1956, HAVING ITS REGISTERED OFFICE AT PLOT NOS. 319 & 320, 4TH FLOOR, EAST AVENUE, AYYAPPA SOCIETY, MADHAPUR, HYDERABAD, REPRESENTED BY ITS GENERAL POWER OF ATTORNEY HOLDER MR. K. HARINATH REDDY. ...PETITIONER AND 1. PRL SECY I AND CAD DEPT HYDERABAD AND 3 OTHERS, REPRESENTED BY ITS PRINCIPAL SECRETARY TO GOVERNMENT, I&CAD DEPARTMENT, A.P. SECRETARIAT, HYDERABAD 2. THE CHIEF ENGINEER PROJECTS, IRRIGATION & CAD DEPARTMENT, HYDERABAD, 3. THE SUPERINTENDING ENGINEER, AVRHNSS, CIRCLE NO. I, KURNOOL, KURNOOL DISTRICT 4. THE EXECUTIVE ENGINEER, AVRHNSS, DIVISION NO.III, KURNOOL, KURNOOL DISTRICT. ...RESPONDENT(S): Petition under Article 226 of the Constitution of India praying that in the circumstances stated in the affidavit filed therewith, the High Court may be pleased to issue a writ, order or direction, more particularly one in the nature 2 VS,J W.P.No.28186 of 2012 of a writ of mandamus declaring the action of 3rd respondent in issuing impugned Memo No. SE/AVRHNSS-I/KNL/TS/AEEG/P.28 (g1) 108 H3 dated 18-05-2012 and consequential letter No. EE/AVRHNSS Dn.3/KNL/AB/EC/PKG-28/303M of 4th respondent dated 28-05-2012 seeking to recover a sum of Rs.4,14,50,000/- being 5% of total value of work as arbitrary and illegal and set aside same and consequently direct respondents to release all payments due to petitioner and further direct respondents to release a sum of Rs.7,03,90,000 as recommended by technical committee in respect of package 28 of AVRHNSS Project IA NO: 1 OF 2012(WPMP 35918 OF 2012 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to suspend impugned order of 3rd respondent herein vide Memo No.SE/AVRHNSS-I/KNL/TS/ AEEG/P.28 (g1) 108 H3 dated 18-05-2012 and consequential letter No.EE/AVRHNSS Dn.3/KNL/AB/EC/PKG-28/303M of 4th respondent dated 28-05-2012 pending disposal of the above writ petition IA NO: 2 OF 2012(WPMP 38615 OF 2012 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to permit the petitioner to amend the writ prayer as "issue a writ, order or direction, more particularly one in the nature of a writ of mandamus declaring the proceedings no. EE/AVRHNSS/Dn.3/1CNIJAB/AI/303M, dated 28-052012 of 3rd respondent and consequential impugned Memo No. SE/AVRHNSS- 1/KNUTS/AEEG/P.28 (g1) 108 H3 dated 18-05-2012 and consequential letter No. EE/AVRHNSS Dn.3/1CNUAB/EC/PKG28/303M of 4th respondent dated 28-05-2012 seeking to recover a sum of Rs.4,14,50,000/- being 5% of total value of work as arbitrary and illegal and set aside same and consequently direct respondents to release all payments due to petitioner and further direct respondents to release a sum of Rs.7,03,90,000 as recommended by technical committee in respect of package 28 of AVRHNSS Project" and pass IA NO: 1 OF 2022 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased pleased to set aside the dismissal Order dated 14.09.2022 passed in W.P No. 28186 of 2012 and restore the writ petition on file in the interests of justice and to pass 3 VS,J W.P.No.28186 of 2012 IA NO: 2 OF 2022 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased pleased to dispense with filing of the certified copy of the order dated 14.09.2022 as the same has not been made available and as the Petitioner could not procure the same at the time of filing of the accompanying petition seeking restoration; and to pass Counsel for the Petitioner: 1. ASHOK REDDY KANATHALA Counsel for the Respondent(S): 1. GP FOR IRRIGATION & COMM AREA DEV The Court made the following: 4 VS,J W.P.No.28186 of 2012 ORDER: The present Writ Petition came to be filed under Article 226 of the Constitution of India seeking the following relief:- “….to issue a writ, order or direction, more particularly one in the nature of a writ of mandamus declaring the proceedings No.EE/AVRHNSS/Dn.3/KNL/AB/AI/303M, dated 28.05.2012 of 3rd respondent and consequential impugned Memo No.SE/AVRHNSS- I/KNL/TS/AEEG/P.28 (g1) 108 H3 dated 18.05.2012 and consequential letter No.EE/AVRHNSS Dn.3/KNL/AB/EC/PKG- 28/303M of 4th respondent dated 28.05.2012 seeking to recover a sum of Rs.4,14,50,000/- being 5% of total value of work as arbitrary and illegal and set aside same and consequently direct respondents to release all payment due to petitioner and further direct respondents to release a sum of Rs.7,03,90,000/- as recommended by technical committee in respect of package 28 of AVRHNSS Project ….” 2. The case of the petitioner is that in pursuance of the tenders called for by respondent No.3 for AVRHNSS Project package No.28 for investigation, preparation of hydraulic particulars, designs, drawings and excavation of HNSS Main Canal from KM 100.000 to KM 113.696/114.000 including cross mansonry and cross drainage works and distribution system, the petitioner participated in the said tender process and stood as a highest bidder for the same. Thereafter, the petitioner entered into an agreement No.SHE10/EPC/2004-05, dated 28.02.2005 for package No.28, the estimated cost of the said works is 82,90,00,000/- and as per the agreement, the petitioner was supposed to complete the work within 24 months from the date 5 VS,J W.P.No.28186 of 2012 of the agreement i.e., before 28.02.2007. After awarding the contract and signing of the agreement, the petitioner herein mobilized sufficient men and material for executing the work. However, to start work, one of the essential requirements was acquisition of land for excavation of canal. As the land owners were not paid any compensation amount after acquisition of the land, they have prevented the petitioner from proceeding with the excavation work. Further, respondent No.3 has also not taken any steps to handover the required land for excavation after doing needful to the land owners. Considering the said reasons, respondents vide memo No.3557/M&MI(R.II)A2/2012, dated 24.02.2012, have extended the time for completion of the work, up to 31.12.2012. 3. It is further case of the petitioner that the 3rd respondent had unilaterally deleted a portion of work from the agreement and called for tenders by issuing tender notice dated 01.03.2011 for the said deleted work by terming it as Package No.28A. The value of the deleted work was estimated at Rs.27,57,63,250/- and it was awarded to a third party for a sum of Rs.27,44,00,000/- vide agreement dated 16.05.2011. 4. The grievance of the petitioner is that the calling for tenders by deleting the some part of the work, even without issuing notice to the petitioner and before completion of the time granted to the petitioner up to 31.12.2012 vide memo No.3557/M& MI (R.II)A2/2012, dated 24.02.2012 is illegal. Further, after entering into agreement with third party, the 3rd respondent informed the 6 VS,J W.P.No.28186 of 2012 petitioner about deletion of the work vide letter dated 28.08.2011 and requested the petitioner to complete the remaining works under contract as per the schedule programme. Further, the 3rd respondent has also instructed the 4th respondent vide impugned Memo No.SE/AVRHNSS- I/KNL/TS/AEEG/P.28 (g1) 108 H3 dated 18.05.2012 to recover 5% of value of the contract i.e., Rs.4,14,50,000/- from the petitioner. Basing upon the same, the 4th respondent has issued consequential letter dated 28.05.2012 directing the petitioner to remit the said amount failing which the bank guarantee would be encashed. It is also grievance of the petitioner that though he has completed substantial part of the work and the State Level Technical Committee also submitted a report recommending payment of claim amount of Rs.703.90 lakhs for Package No.28, however, till date no payment has been made. Hence, the writ petition. 5. When the matter came up for admission on 30.10.2012, this Court passed the following interim order: “…..the respondents are directed not to recover any amounts in pursuance of the impugned letters, subject to their right to retain the bank guarantee already furnished by the petitioner. The petitioner shall extend the validity of the bank guarantee till the disposal of the writ petition.” 6. Respondent No.3 filed a counter and while admitting the facts stated by the petitioner, contended that when there were protests from local farmers regarding non-payment of compensation for their AW lands. The Department 7 VS,J W.P.No.28186 of 2012 pursued the matter and allotted compensation after obtaining special permission from the Government to settle the matter and the matter was informed to the petitioner and requested to resume the work. But the petitioner could not resume the work. After prolonged correspondence, the respondents issued notice to the petitioner in the month of June, 2010 vide letter dated 09.06.2010 with regard to taking action as per Clause 60(c) of APDSS for non completion of work in time. But, the petitioner has not responded positively. Therefore, the matter was referred to the Government and critical part of work was deleted under Clause 60(c) of APDSS and entrusted to another contractor as per the instructions of the Government. 7. It is further contended that the Hon’ble Chief Minister during the review meeting held on 18.01.2011, instructed for taking action under Clause PS 60(c) by deleting critical part of the above works from the existing agency and entrust them to a new agency. Accordingly, an estimate was prepared with the SSR 2010-11 for the deleted portion of the work, which was estimated at Rs.27,57,63,250/-. Accordingly, tenders were floated for the work and the State Level Standing Committee in its meeting held on 31.03.2011 agreed to recommend the lowest tender quoted for Rs.27,44,00,000/-. The Government vide Memo dated 23.04.2011 awarded the work to M/s.Prasad & Co.(PW) Pvt. Ltd., Hyderabad for Rs.27,44,00,000/- at 0.49436% less over the IBM value. It is further contended that the petitioner, having been fully aware of the deletion of part of the work on 28.05.2011, did not challenge the same for more than one year. It is further contended that the petitioner has stopped the work 8 VS,J W.P.No.28186 of 2012 completely and shifted his men and machinery from the work site, stating that, he is not in a position to proceed with the work until settlement of claims, and despite issuing several notices to the petitioner before deleting the work, there was no response from the petitioner to fulfill the contract. Therefore, the Government has decided to delete the critical part of work under Clause 60(c). Hence, the petitioner cannot contend that recovery of 5% amount under Clause 60(c) of APDSS is illegal and arbitrary. 8. Heard learned counsel for the petitioner and the learned Assistant Government Pleader for Irrigation. 9. Learned counsel for the petitioner reiterating the averments in the affidavit would contend that imposition of penalty of 5% on the total value of the work is illegal and arbitrary. Learned counsel for the petitioner furnished copy of the Memos No.11138/Proj.III/A1/2014 and No.10681/Proj.III/A1/2014 dated 01.07.2015 with regard to package Nos.14 and 31 of the very same project, wherein the respondents imposed 5% penalty on the balance work as per the Clause 60(c) of APDSS for non completion of work. Learned counsel for the petitioner has also brought to the notice of this Court that in similar circumstances this Court allowed W.P.No.8156 of 2013 filed in respect of Package No.25. In view of the above, learned counsel for the petitioner requested this Court to direct the concerned to take similar view in the present case also. 9 VS,J W.P.No.28186 of 2012 10. Learned Assistant Government Pleader for Irrigation and Command Area Development admitted that the respondents imposed 5% penalty on the balance work in respect of contract Package Nos.14 and 31 vide proceedings dated 01.07.2015 and also conceded to the factum of allowing of W.P.No.8156 of 2013 by this Court in similar circumstances. 11. Admittedly, in the present case, the petitioner entered into an agreement vide agreement dated 28.02.2005 for Package No.28 and the same has to be completed within 24 months from the date of the agreement i.e., before 28.02.2007. However, as the land owners were not paid any compensation amount after acquisition of the land, they have prevented the petitioner from proceeding with the work. Considering the said reasons, respondents vide Memo dated 24.02.2012 have extended the time for completion of the work, up to 31.12.2012. Even before completion of the said period, the 3rd respondent deleted part of the work entrusted to the petitioner and issued a tender notice dated 01.03.2011 for the said work on the ground of slow progress of work. Later, even without issuing any prior notice to the petitioner, respondents issued impugned proceedings dated 28.05.2012 deducting 5% finished contract value for non completion of work of Package No.28 as per the Clause P.S.60(c) of APDSS. 12. However, admittedly, as per Memos No.11138/Proj.III/A1/2014 and No.10681/Proj.III/A1/2014 dated 01.07.2015 with regard to package Nos.14 and 31 of the very same project, the respondents imposed 5% penalty on the 10 VS,J W.P.No.28186 of 2012 balance work as per Clause 60(c) of APDSS for non completion of work, instead of imposing 5% penalty on finished contract value. Taking different view by the respondents for package No.28 undertaken by the petitioner is discriminatory and arbitrary. 13. Under similar circumstances, this Court has also allowed W.P.No.8156 of 2013 vide order dated 12.08.2025, filed in respect of Package No.25. Therefore, the writ petition is allowed, setting aside the impugned proceedings No.SE/AVRHNSS-I/KNL/TS/AEEG/P.28 (g1) 108 H3 dated 18.05.2012 issued by the 3rd respondent and the consequential impugned letter No.EE/AVRHNSS Dn.3/KNL/AB/EC/PKG-28/303M issued by the 4th respondent. The matter is remanded back to the 3rd respondent for passing appropriate orders under similar lines as in Memo No.11138/Proj.III/A1/2014 pertaining to package No.14 and Memo No.10681/Proj.III/A1/2014 dated 01.07.2015 pertaining to package No.31. There shall be no order as to costs. As a sequel, miscellaneous applications, pending, if any, shall also stand closed. __________________ JUSTICE V.SUJATHA Date :02.09.2025. KGR