Swapnil Dingambar Nikam vs The State Of Maharashtra & Ors.

(PER NITIN B. SURYAWANSHI, J.) :

Rule. Rule is made returnable forthwith. Heard finally with the consent of the learned Advocates for the parties.

By this Petition, filed under Article 226 of the Constitution of India, the Petitioner challenges communication / order dated 18^th December, 2025, issued by Respondent No.2 -Chief Engineer, Prime Minister’s Village Road Scheme and communication / order dated 22^nd December, 2025, issued by Respondent No.4 - Executive Engineer, Prime Minister’s Village Road Scheme. A direction is also sought to restore and continue contract / work order dated 1^st February, 2024 issued in favour of the Petitioner and permit the Petitioner to complete the construction of the road in accordance with the work order and to grant extension of time to the Petitioner for completion of the said work in terms of the undertaking / Hamipatra, in terms of the directions issued by Respondent No.2.

The Petitioner has approached this Court in the following facts :

The Petitioner is a contractor, who was allotted tender of execution of works i.e. (1) Dondaicha – Wani – Zotwade – Nave Kolade – Langhane Road, Dhule and (2) Warpade to Newade road for contract value of Rs.1,124.83 lakh, within the stipulated period of 18 months, subject to the terms and conditions mentioned in the Tender form. The work order was issued to the Petitioner on 1^st February, 2024. As per the work order, the Petitioner was required to complete the road construction work on or before 31^st July, 2025. It is the case of the Petitioner that, the execution of the work was adversely affected due to the continuous and heavy rain fall during the said period, coupled with the peculiar soil conditions in the area, namely black soil, which is highly unsuitable for road construction during the monsoon season. According to the Petitioner, owing to the water logging, excessive moisture content and the presence of standing crops on the adjoining lands, it became technically unsafe and practically impossible to carry out the earthwork, sub-grade preparation and other allied road works. Therefore, there was delay which occurred due to the circumstances beyond the control of the Petitioner. The Petitioner applied to Respondent No.4 on 1^st August, 2025 seeking extension of time for completing the said work.

Respondent No.4, upon receipt of the application of the Petitioner, directed Respondent No.5 to submit a report. According to the Petitioner, on the same day, without conducting a proper inquiry, site inspection or affording an opportunity of hearing to the Petitioner, Respondent No.5 hastily submitted report to Respondent No.4, stating that on multiple occasions oral intimations were given to the Petitioner, however, the Petitioner failed to respond. Hence, it was concluded that extension of time cannot be given to the Petitioner. The Petitioner has termed the said report as “ex facie arbitrary, unsupported by any documentary record and has been prepared mechanically, without application of mind”.

Again, on 8^th October, 2025 the Petitioner submitted a detailed representation to Respondent No.2 – Chief Engineer, seeking extension of time for completion of the work, up to March, 2026 and requested for cancellation of the proposal forwarded by the Mandal Adhikari recommending cancellation of the work allotted to the Petitioner, on the ground of delay. According to the Petitioner, Respondent No.2, being satisfied with the explanation of the Petitioner, directed Respondent No.3 – Superintending Engineer, who in turn, directed Respondent No. 4-Executive Engineer to issue final notice to the Petitioner and upon the Petitioner expressing readiness and willingness to complete the remaining work, to obtain written undertaking / Hamipatra from the Petitioner to that effect and to grant extension of time for completion of the work up to March, 2026.

The Petitioner, in compliance of the directions issued by Respondent No.2, on 24^th October, 2025 expressly demonstrated his readiness and willingness to complete the work and accordingly submitted written undertaking to Respondent No.4, assuring to complete the said work within the extended period i.e. on or before March, 2026.

It is the case of the Petitioner that in spite of the Petitioner giving undertaking to Respondent No.4, Respondent No.4 instead of acting in accordance with the directions of Respondent No.2, acted in arbitrary manner and under extraneous and political pressure, without affording opportunity of hearing to the Petitioner, wrongly communicated Respondent No.2 that the Petitioner is not willing or ready to carryout the remaining work, by communication dated 29^th October, 2025. The Petitioner, therefore, submitted a detailed representation to Respondent No.2 on 15^th November, 2025 placing on record all the relevant facts and pointing out Petitioner’s readiness and willingness to complete the work and the arbitrariness and illegality of the proposed action. Respondent No.2, relying upon the communication dated 29^th October, 2025 and without giving an opportunity of hearing to the Petitioner, issued directions to Respondent No.3, on 18^th December, 2025 for termination of the Petitioner’s contract. Pursuant to the said communication, Respondent No.4, by the impugned order, terminated the contract of the Petitioner. Being aggrieved, the Petitioner has approached this Court.

Heard learned Senior Advocate for the Petitioner, learned AGP for the Respondents and the learned Advocates for the Applicants in the Civil Applications filed for intervention, who by way of civil applications, have sought vacation of the interim relief granted in favour of the Petitioner. Perused the grounds raised in the Writ Petition, annexures thereto and the affidavit in reply filed by Respondents No.3 and 4 and the averments made in the Civil Applications for intervention.

The main contention of the learned Senior Advocate for the Petitioner is that, the impugned orders are passed in utter violation of the principles of natural justice. Before passing the impugned orders, no notice was given to the Petitioner and though the work was in progress and in the facts of the case, extension was required to be granted, the Respondents, in arbitrary manner, have cancelled the tender. Learned Senior Counsel has placed reliance on “ABL International Ltd., V/s Export Credit Guarantee Corporation of India Ltd” 2004 (3) SCC 553 and “Subodh Kumar Singh Rathour V/s Chief Executive Officer” AIR OnLIne 2024 SC 493.

Learned AGP has strenuously opposed the petition by relying upon the affidavit in reply filed by Respondents No.3 and 4. She has submitted that the Petitioner has failed to follow the tender conditions and the conditions mentioned in the work order. The Petitioner has committed fundamental breach of the terms and conditions of the tender and has failed to follow the timeline given in the tender and the work order. The Petitioner sought extension of time, after the contract period was over. The termination of the contract is on the basis of actual verification of the work done by the Petitioner on the site and the inquiry report dated 28^th October, 2025. By relying on “Royal Medical Trust and Another V/s Union of India and Another” (2017) 16 SCC 605, learned AGP submitted that, there is no merit in the contentions raised by the Petitioner. By pointing out clause 24 of the tender, it is submitted that the said clause provides for dispute redressal system by referring the matter for settlement to the Competent Authority. She further submits that since the Petitioner has failed to avail the alternate remedy of dispute redressal, provided under the tender document, the petition be held as not maintainable and the same be dismissed.

In Civil Application No. 10775 of 2026, it is pointed out that the villagers are suffering serious hardships, as the work is not completed by the Petitioner within the stipulated time. The villagers have also placed on record photographs showing the work, so far done by the Petitioner. It is clear from the photographs that in some stretches, there is absolutely no work done and there is water logging and thick mud is accumulated on the road. Another photograph depicts that only metal is laid on some parts of the road. The villagers have made a grievance that due to the pendency of the work of the road construction, students traveling by bicycles, auto rickshaws or state transport buses face constant risk of accidents. The dug up stretches turn into pools of thick mud and waterlogged craters during rains, making road completely blocked for the students and villagers. Because of the said condition, public transport, school buses refuse to enter the village and the students and villagers are forced to walk long distances through unsafe terrain, resulting in frequent absenteeism and late arrivals. Small children attending primary and secondary schools find it extremely grueling and dangerous to navigate this damaged stretch twice a day, causing severe mental stress to both students and parents as well as the villagers. Emergency services like ambulance, daily wage workers and farmers transporting agriculture produce to markets are also suffering equally due to this prolonged infrastructural standstill. The villagers are faced with this situation as the Petitioner has left the road construction work halfway, which was to be completed on or before 31^st July, 2025.

Civil Application No. 10506 of 2026 is filed by the tenderer, to whom the tender is issued after termination of contract of the Petitioner. It is contended by the Tenderer that the Petitioner has made application dated 1^st August, 2025 for extension of time, after lapse of period mandated in the work order and the tender document. Considering the fact of rain fall, the actual ground work was required to be completed before monsoon season and premeditating this factual aspect the work was allotted to the Petitioner. During the tender period the Petitioner failed to forward any letter / application seeking extension of time and / or expressing inability or demonstrating any material aspect as to how the work could not be completed by the Petitioner within the stipulated time. It is, therefore, submitted that the communication dated 1^st August, 2025 is afterthought.

Relevant tender conditions, which are necessary for adjudication of the present Writ Petition, are as follows :

Indisputably, as per the work order dated 1^st February, 2024, the Petitioner was to complete the subject work of construction of the two roads within 18 months. The Petitioner has failed to complete the said work. Along with the affidavit in reply, filed by the Executive Engineer, several communications addressed to the Petitioner, thereby asking the Petitioner to increase the speed of the work and complete the work within the stipulated time, are placed on record, including the communications dated 27^th February, 2025 and 3^rd March, 2025. By communication dated 6^th March, 2025, the Petitioner was again informed that, already by letter dated 27^th February, 2025 the Petitioner has been instructed to increase the speed of the work as the stipulated period for completion of the work is coming to an end on 31^st July, 2025. Hence, the Petitioner was again informed that he should increase the speed of the work and see that the work would be completed within the stipulated period or else, as per section 4 of the conditions of the contract, part I, clause 44 of the General Conditions of the Contract and under section 26 (a) of the special conditions of contract, a contract Data, if the Petitioner does not carry out the work as per the mile stone, then as per the terms of conditions, a proposal for imposing penalty on the Petitioner will be submitted to the higher authority. The Petitioner was, therefore, instructed to increase the speed of the work and complete the same within the stipulated time.

By notice dated 13^th March, 2025, the Petitioner was informed that, the Petitioner was given the Work Order on 1^st February, 2024 and by letters dated 27.02.2025, 03.03.2025 and 06.03.2025, the Petitioner was asked to increase the speed of the work. The Petitioner was to complete the work on or before 31^st July, 2025, however, though 13 months’ period was over from the date of issuance of the Work Order, it was noticed that the work was not being done with the requisite speed, as per the terms and conditions of the tender. Since the Petitioner has not kept the proper pace of the work, the Petitioner was given final notice that if the Petitioner fails to start the work within 7 days from the receipt of the letter, recommendation to cancel the tender would be forwarded to the higher officers. Similar communication was also addressed to the Petitioner on 17^th March, 2025.

By communication dated 18^th March, 2025, the Petitioner was informed that the Petitioner is not carrying out the work with the required speed and, therefore, there is no requisite progress in the subject work. The Petitioner was given final notice that if within 7 days the Petitioner does not commence the work, proposal to cancel the contract given to the Petitioner would be submitted to the higher office.

All the said communications were forwarded to the Petitioner through RPAD and they are returned to the Respondents with postal endorsement “addressee left without intimation, so returned to the sender”.

In the affidavit in reply, filed by the Executive Engineer, it is specifically stated that, despite the clear contractual obligations, the petitioner failed to maintain the required progress of the work and did not achieve the prescribed milestones. The Department repeatedly issued communications directing the Petitioner to increase speed of the work. By letters dated 27^th February, 2025, 3^rd March, 2025 and 18^th March, 2025, the Petitioner was cautioned that the work must be completed within the stipulated period failing which action would be taken as per the tender conditions. By letter dated 6^th March, 2025, the Petitioner was cautioned that if the milestones are not completed in accordance with clause 26-A, strict action would be initiated against the Petitioner and proposal for imposing penalty would be submitted. However, the Petitioner failed to respond to the said communications. The Respondents, therefore, issued notice dated 13^th March, 2025 directing the Petitioner to start work within 7 days, failing which the contract would be terminated. Similar such communication was issued on 17^th March, 2025. The Petitioner refused to receive the said notices.

In terms of Clause 31.1 of the terms of the contract, the State Quality Control Inspector conducted inspection of the site on 22^nd June, 2025 and recorded several deficiencies including absence of site engineer, improper GSB gradation and non installation of mandatory project information boards. The Respondents have placed on record copy of the inspection report dated 22^nd June, 2026 conducted by Respondent No.4 Executive Engineer, which shows that as per the Quality Control Inspector, in respect of work No.1 Dondaicha – Wani – Zotwade – Nave Kolade – Langhane Road, administrative sanction was of Rs.1209.92 lakh and the tender cost was Rs.950.69 and the work done is of Rs.61.06 lakhs. Thus, only 6.40 % work is completed and the State Quality Control Inspector has given remarks in the inspection report that the work is “unsatisfactory”.

In respect work No.2, Warpade to Newade work, administrative sanction was of Rs.296.46 lakhs and the Tender Cost was Rs.235 lakhs and valuation of the actual work done was Rs.40.26 lakhs. Thus, only 17.13 % work is done. The State Quality Control Inspector has inspected the work on 22^nd June, 2026 and has given a remark as “satisfactory.”

The Petitioner was called upon by letter dated 8^th July, 2025 to rectify the said deficiencies and submit a compliance report. However, the Petitioner failed to do the compliance or to take corrective measures. By communication dated 14^th July, 2025, the Petitioner was informed that in spite of constant reminders, the Petitioner has not increased the speed to an acceptable limit and the progress is found to be unsatisfactory. Hence, the Petitioner was directed to submit a revised bar chart of the works within 2 days, failing which punitive action was to be taken against the Petitioner. 18. Technical Committee consisting of 3 Junior Engineers and 2 Deputy Engineers was constituted for technical evaluation and joint measurement and valuation of the work done by the Petitioner. The said committee submitted its report on 27^th October, 2025 stating that, in most of the stretches of work No.1, no work was done and wherever some work is done, the same is not as per the quality control norms. In respect of work No.2, it is found that some work is done.

Accordingly, on the basis of the report submitted by the Technical Committee, Respondent No. 4 – Executive Engineer submitted a report dated 28^th October, 2025 to the Superintending Engineer.

It is the grievance of the Petitioner that these reports were not made available to him before passing the impugned orders.

The said reports depict factual position of incomplete work done by the Petitioner on the site, its quality and valuation. All these facts were well within the knowledge of the Petitioner and he knew that he has failed to complete the work in accordance with the terms and conditions of the contract. Therefore, in our opinion, no prejudice is caused to the Petitioner by not making available the said reports.

In the light of the aforesaid facts, we are of the view that the Petitioner cannot claim that the impugned orders are passed without giving an opportunity of hearing to the Petitioner. It is a matter of record that from time to time communications were forwarded to the Petitioner. The Petitioner has himself agreed that he failed to complete the work within the stipulated time. Therefore, there is no merit in the contention of the Petitioner that, in spite of failure on his part to complete the work within the stipulated time and though the Petitioner failed to apply for extension of time on or before the date on which he was expected to complete the work i.e. 31.07.2025, the Petitioner is entitled to claim extension of time to complete the work. Admittedly, the Petitioner has given application seeking extension of time on 1^st August, 2025 and the undertaking is furnished by the Petitioner on 15^th October, 2025, after the deadline given to the Petitioner to complete the work i.e. 31.07.2025.

The Petitioner cannot rely on the internal correspondence of the Respondents to claim extension of time, as of right. The material on record shows that the Petitioner has violated the terms and conditions of the contract. No right is created in favour of the Petitioner, by the internal correspondence between the Respondents. Merely because Respondent No.2 has informed Respondents No.3 and 4 to ascertain willingness of the Petitioner and to obtain undertaking from him, that by itself does not create any right in favour of the Petitioner to claim that Respondents No.3 and 4 should have obtained undertaking from the Petitioner and should have granted extension of time to compete the work. The fact remains that Respondent No.2 has passed the impugned order.

Perusal of the impugned communication dated 18^th December, 2025, addressed by Respondent No.2 – Chief Engineer to Respondent No.3 – Superintending Engineer shows that after considering the report of the technical committee and the status of the work and from time to time, notices were issued to the Petitioner, however, the Petitioner has not accepted the said notices and the State Quality Control Inspector has given unsatisfactory remarks to the work of Dondaicha – Wani – Zotwade – Nave Kolade – Langhane Road and the Contractor has not taken it seriously, since the Petitioner has not completed the work within the stipulated time, as per the terms and conditions of the tender, penal action was proposed against the Petitioner. From this, it is clear that the Petitioner is not interested in completing the work allotted to him. Therefore, by taking into consideration the recommendation and as the Petitioner stopped the work for 144 days, which is more than 28 days, as per the Condition No. 52.2 (a), the Petitioner is liable to the action of termination of contract, as per clause 52.2 (e). Hence, the permission was granted to cancel the tender allotted to the Petitioner. While granting the above permission, Respondent No.2 has taken all the relevant factors into consideration and the reasons assigned in the said communication reflect application of mind on the part of Respondent No.2. Therefore, no fault can be found with the same.

Apart from the above, the Petitioner has failed to avail the alternate dispute redressal mechanism provided in the tender and on that ground also the writ Petition is liable to be dismissed.

Reliance is placed by the Petitioner on “ABL International Ltd.,” (supra). In the said decision, following observations in “Kumari Shri Lekha Vidyarthi and Others V/s State of UP and Others” 1991 (1) SCC 212 are quoted.

There can be no dispute about the aforesaid proposition, but in the facts of the present case, we are of the view that, there is no violation of Article 14 of the Constitution of India and, therefore, the impugned order terminating the contract of the Petitioner cannot be termed as arbitrary.

The Petitioner has also relied on “Subodh Kumar Singh Rathour” (supra). In that case, tender for work of maintenance was cancelled on account of technical fault in the tender. The Apex Court, after discussing the settled legal position that where the State action is challenged being arbitrary, unfair or unreasonable, the State would be under obligation to comply with the basic requirements of Article 14 of the Constitution of India and shall not act in arbitrary, unfair and unreasonable manner, proceeded to consider the challenge raised in the said matter of cancellation of the tender at the instance of the Respondents on the ground of being manifestly arbitrary and influenced by the extraneous considerations. It is held, “it is evident from the notice of cancellation dated 07.02.2023, that the tender was not terminated pursuant to any terms of the contract subsisting between the parties, rather, the respondents ‘cancelled’ the tender saying that there was technical fault in the tender that was floated”. Therefore, the Apex Court held that:

This decision is of no help to the case of the Petitioner, as the same is rendered in peculiar facts, wherein it is held that to ascertain whether the act is arbitrary or not, the Court must carefully attend to the facts and circumstances of the case. Considering the facts of the present case, we have come to a conclusion that there is no arbitrariness or unreasonableness in the action of termination of the contract by the Respondents. It is apparent on the face of record that the Petitioner has violated the terms of the contract and, therefore, the Respondents are justified in terminating the Contract.

In “Municipal Committee, Hoshiarpur V/s Punjab State Electricity Board and Others” (2010) 13 SCC 216, the Apex Court has held as follows :

Applying aforesaid ratio to the facts of the present case, even if an opportunity had been given to the Petitioner, the end result would have been the same i.e. cancellation of the contract. The Petitioner was aware of the extent of the incomplete work done by him. He was informed from time to time to increase the speed of the work and was instructed to complete the work within the stipulated time. The Petitioner has ignored the said communications, therefore the Petitioner was well aware that he has breached the conditions of the tender and the time stipulation given in the tender document and the work order. Therefore, even if the petitioner would have been called upon to show cause as to why tender should not be cancelled and the Petitioner had replied the same, the Respondents would have passed the same order of cancellation of the tender. In view of the overwhelming material on record showing the Petitioner’s indifference towards the work and inability to complete the work within the stipulated time, the Respondents are justified in terminating the contract of the Petitioner.

Applying the principles laid down in “Tata Cellular V/s Union of India” (1994) 6 SCC 651, we confine ourselves, to the question of legality of the impugned action. We find that, the decision making authority has not exceeded its powers or committed error of law. In the facts of the present case, we are of the view that, there is no violation of rules of natural justice. The decision arrived by the Respondents is not on the basis of fraud. The impugned decision cannot be said to be unreasonable.

For the aforestated reasons, we find no merit in the Petition. The Writ Petition being devoid of merit is dismissed. Rule stands discharged.

In view of dismissal of the Writ Petition, the Civil Applications are also disposed of.