A writ challenge to descoping fails where the contractor accepted it and omitted the replacement contractor.

BHEL awarded the petitioner a contract for civil, structural and architectural works at the 1×800 MW NTPC Sipat Project.

Following concerns about progress, BHEL issued notices and partially withdrew (“descoped”) portions of the work under Clauses 2.7.1 and 2.7.2 of the General Conditions of Contract (GCC), subsequently seeking recovery of alleged differential costs.

The petitioner challenged the descoping decisions and consequential recovery demand, alleging, among other things, that the respondents had not considered its replies or complied with the contractual notice requirements.

BHEL relied on the contractual progress-monitoring provisions and the petitioner’s performance records; it also contended that the petitioner had requested permission to remove materials after the descoping and had not joined or challenged the third party to whom the withdrawn work was awarded.

The Court dismissed the writ petition.

Whether BHEL’s partial withdrawal of the petitioner’s work and consequential recovery action disclosed illegality warranting interference under writ jurisdiction.

Whether the petitioner’s conduct after the descoping orders, and its failure to join or challenge the third-party award, affected its challenge to those orders.

The Court considered GCC Clause 2.7.1, which reserves BHEL’s right, in specified circumstances, to withdraw or restrict work and have it performed through other agencies, and Clause 2.7.2, which identifies contractual breaches and provides for notice and an opportunity to remedy the breach within 14 days before recourse to contractual remedies.

It also considered Clause 2.9, which provides for agreed work programmes, periodic progress reviews, recording of shortfalls and the contractor’s burden to show that shortfalls were not attributable to it.

BHEL cited Section 20A and Section 41(ha) of the Specific Relief Act, 1963, and authorities concerning infrastructure projects, contractual disputes and interim relief; these were recorded as the respondents’ submissions.

The Court’s stated reasoning and conclusion, however, rested on its assessment of the contractual record, the petitioner’s post-descoping conduct and the absence of the third-party awardee, rather than an express application of those statutory provisions or cited precedents.

The Court noted that the record included monthly plans and progress reviews under Clause 2.9, showing cumulative shortfalls attributed to the contractor, and that the petitioner had not objected to the monthly plans.

It further found that, after the descoping orders, the petitioner sought permission to remove materials no longer required for the withdrawn work.

In the Court’s view, that conduct amounted to acceptance of the descoping orders, notwithstanding the subsequent writ challenge.

The petitioner also alleged that the withdrawn work had been awarded to a third party but neither joined that party nor challenged the awards made in its favour, despite learning of them.

On these grounds, the Court found no illegality in the impugned orders requiring its intervention.

The judgment granted no substantive relief to the petitioner.