Dhanjay Giri vs Bridge, Ropeway, Tunnel & Other Infrastructure Development Corporation Ltd. (BRIDCUL) And Others

Sudhanshu Dhulia, J

The petitioner before this Court was awarded a contract by Bridge, Ropeway, Tunnel & Other Infrastructure Development Corporation Ltd. (BRIDCUL) for construction of "pre-stressed Girder bridge" of 690 mtrs. over "Chalti" river between 29.375 to 30.600 of proposed two lane of Tanakpur-Joljibi motor road. The contract was executed on 14.12.2017. The total estimated cost of the project was Rs. 30.83 crores and the project was to be completed within a period of eighteen months. The project was to start by 21.12.2017. The project has admittedly been delayed, for which the reason has been assigned by the petitioner that he was not allotted a suitable place for installation of stone crusher, which was essentially required and the permission was given by the District Magistrate only on 12.02.2019, however, before that the contract has been terminated by the respondents.

Learned counsel for the BRIDCUL, Mr. Ajay Veer Pundir, would argue that the petitioner has entered into the contract with his eyes open. He was fully conscious of the fact that it was a difficult terrain and if the stone crusher plant could not be installed, the respondents cannot be held responsible for that, and in any case the petitioner could have procured the building material from elsewhere.

In any case, the contract has an arbitration clause or something similar to an arbitration clause in clause 23.1 to clause 24.4, which are as follows:-

"23. Appointment of the Adjudicator

1. The Adjudicator shall be appointed jointly by the Employer and the Contractor, at the time of the Employer's issuance of the Letter of Acceptance. If in the Letter of Acceptance, the Employer does not agree on the appointment of the Adjudicator, the Employer will request the Appointing Authority designated in the PCC to appoint the Adjudicator within 14 days of receipt of such request.

23.2. Should the Adjudicator resign or die, or should the Employer and the Contractor agree that the Adjudicator is not functioning in accordance with the provisions of the Contract, a new Adjudicator shall be jointly appointed by the Employer and the Contractor. In case of disagreement between the Employer and the Contractor, within 30 days, the Adjudicator shall be designated by the Appointing Authority at the request of either party, within 14 days of receipt of such request.

Procedure for Disputes

24.1. If the Contractor believes that a decision taken by the Engineer was either outside the authority given to the Engineer by the Contract or that the decision was wrongly taken, the decision shall be referred to the Adjudicator within 14 days of the notification of the Engineer's decision.

24.2. The Adjudicator shall give a decision in writing within 28 days of receipt of a notification of a dispute. If the adjudicator fails to give its decision within the period of 28 days of the expiration of the above mentioned period, give notice to the other party of its dissatisfaction and intention to commence arbitration.

24.3. The Adjudicator shall be paid the daily allowance at the rate specified in the PCC, together with reimbursable expenses of the types specified in the PCC, and the cost shall be divided equally between the Employer and the Contractor, whatever decision is reached by the Adjudicator. Either party may refer a decision of the Adjudicator to an Arbitrator within 28 days of the Adjudicator's written decision. Neither party shall be entitled to commence arbitration of a dispute unless a notice of dissatisfaction has been served in accordance with the GCC 24.2 above. If neither party refers the dispute to arbitration within the above 28 days, the Adjudicator' decision shall be final and binding. In the event that a party fails to comply with the decision of the adjudicator which has become final and binding, hen the other party may without prejudice to any other rights it may have, refer the failure itself to arbitration.

24.4. The arbitration shall be conducted in accordance with the arbitration procedure published by the institution named and in the place specified in the PCC."

Learned Senior Counsel for the petitioner, Mr. Rakesh Thapliyal and learned counsel for the respondents Mr. A.V. Pundir both have fairly admitted that there is an arbitration clause.

Let this procedure be initiated. However, before this procedure is initiated, the petitioner would be at liberty to approach the Principal Secretary, Public Works Department, as his case is that he has already invested a huge amount of more than Rs. seven crores in the project and a part of work has already been carried out by him and in present conditions he would finish the work within a period of eighteen months.

Learned counsel for the respondents, Mr. Ajay Veer Pundir, however, clearly denied this. He has also referred to an inspection report, which shows that no work has been done on the ground by the petitioner. On this therefore there is a dispute between the parties.

Let a decision be taken by the Principal Secretary, Public Works Department, Government of Uttarakhand on this matter as early as possible. The parties thereafter may invoke the arbitration clause.

In view of the above, writ petition stands disposed of.

Let a certified copy of this order be issued today itself on payment of usual charges.