M/s Kuwar Constructions vs State Of Uttarakhand & Others

Sharad Kumar Sharma, J

As per the factual backdrop, which were brought to the notice of this Court, at the time when the writ petition was preferred, the petitioner has

submitted that he was registered as “A†class contractor, and after as the consequence of being the registered “A†class contractor, he was

entitled to be awarded with the contract for the project, which was floated by the respondent No.2, for the purposes of the construction of “China

Seemant Chetra Vikas Pariyojana for reconstruction/renovation of G.I.C. Vikash Khand Munsyariâ€​.

The said contract was executed in favour of the petitioner which was numbered as being Contract No.7/Executive Engineer/2020-21, dated

06.11.2020, on the basis of which, the work of construction was assigned to the petitioner. Later on, on account of there certain disputes, having being

arisen as a consequence of the issuance of the Officer Order dated 16.06.2021, by virtue of which, the contract which was awarded in favour of the

petitioner was cancelled, and the amount was forfeited.

Very peculiarly and for the convenience of the petitioner, he has only annexed the part of the contract, but the general conditions of the contract,

which also constituted to be the part of the principal contract has not been annexed. That may be the reasons best known for the petitioner. The writ

petition was entertained, and the petitioner was able to succeed to get an interim order of the “status quoâ€. The respondents have filed the

counter affidavit, where they have annexed the general conditions of the contract, and Clause (31.3), which is extracted hereunder:-

(31.3) Except where otherwise provided in the contract all questions and disputes relating to meaning of the specifications, designs, drawings and

instructions herein before mentioned and as to the quality or workman ship or materials used in the work or as to any other questions, claim, right, or

rates for extra items sanctioned and decided or not by the competent authority under the condition of the contract, matter or thing whatsoever, in any

way arising out of or relating to the contract, designs, drawings, specifications estimates instructions or orders on these conditions or otherwise

concerning the works, or the execution or failure to execute the same. Whether arising during the progress of the work or after the completion or

abandonment thereof shall be referred to the sole arbitration of the person or persons appointed by the Engineer-in-Chief, Uttarakhand Public Works

Department, there will be no objection to any such appointments that the arbitrator so appointed is a Govt. servant that he had to deal with the matter

to which the contract relates and that in the course of his duties as Government servant he had expressed views on all or any of the matters in dispute

or differences. The arbitrator to whom the matter is originally or subsequently referred being incapacitate to act, the Engineer-in-Chief, shall appoint

another person to act as arbitrator in accordance with the terms of contract. It is also a term of this contract that no person other than a person

appointed by the Engineer-in-Chief of the Uttarakhand P.W.D as aforesaid shall act as arbitrator and if for any reason that is not possible, the matter

is not to be referred to arbitration at all the arbitrator’s may form time to time, with the consent of the parties enlarge the time for making and

publishing the award.

Subject as aforesaid the provisions of Arbitration and conciliation Act 1996, or any statuary modification or re-enactment made there under and for the

time being in force shall apply to the arbitration proceedings under this clause. The sole arbitrator or arbitrators to be appointed by the Engineer-

inChief , shall be of the status given below:-

(a) (a) For claim for amount in dispute of not Over Superintending Engineer of Uttarakhand P.W.D

Rs. 75,00,000 (Rs. Seventy five lakh) in the case

of work order and in case of contracts accepted

by an Assistant Engineer/Executive Engineer.

(b) Â For claims or amount in dispute of over Rs. Chief Engineer Level-II of Uttarakhand P.W.D

75,00000 and not over Rs. 2,00,000,00 (Rs. Two

crore)

(c) For claims or amount in dispute of aggregating to Two Arbitrator one of the rank of Chief Engineer

more than Rs. 2,00,000,00 (Rs. Two crore) and Level-II and one of the rank of Superintending

upto Rs. 5,00,000,00 (Rs. Five crore). Engineer Uttarakhand P.W.D

(d) For claims or amount in dispute aggregating more Three persons One of the rank of Chief Engineer

than Rs. 5,00,000,00 crore (Rs. Five crore). Level-II, Uttarakhand, P.W.D second will be of

the rank of Superintending Engineer Uttarakhand

P.W.D and third will be law officer of the

Department if available otherwise another

Superintending Engineer Uttarakhand P.W.D as

nominated by Engineer in Chief.

In an event of any dispute having been arisen between the parties, the remedy which was admittedly available to be resorted to, for the contract

purposes or disputes arising from it, is to approach the Arbitrator, which would proceed in accordance with the provisions of the Arbitration and

Conciliation Act of 1996.

This fact was not brought to the notice of this Court. However, considering the fact that the general conditions of the contract, was part of the main

contract, which was executed in favour of the petitioner. The writ petition would not be remedy available to the petitioner. Hence, the writ petition

stands dismissed with the liberty left open for the petitioner to approach the Arbitrator for the redressal of his grievances.