RCM Infrastructure Ltd vs Union of India & Ors

The petitioner company, having been awarded a contract by the respondents for 34 construction works titled ""PROVEN OF OTM ACCN

PHASE II AT RUPA"" in the state of Arunachal Pradesh at a sum of Rs. 10,98,58,900/- under the acceptance letter dated 12.06.2013, has filed

this writ petition stating grievance against the acts and omissions on the part of the respondents in not according extension of time for completion of

work, in not releasing the pending bills, and in not considering its representations.

The petitioner has averred that though the aforesaid contract was awarded under the acceptance letter dated 12.06.2013 but the sites were

handed over much later and the site plans were approved even later. It is averred that the petitioner started the construction work in the remote site

at Rupa, which is surrounded by hilly terrain with no infrastructure and road connectivity, which made the work ""cumbersome and time

consuming"". It is further averred that the climatic condition of the location was also quite tough and difficult and there were reduced working hours;

and all these factors led to difficulties and delay in execution of the work. With these nature averments, the petitioner has alleged that the delay has

been caused for the reasons beyond its control but the authorities concerned, instead of granting extension, were threatening to cancel the contract

and were not even making the payment of the pending running account bills. The summation of its case by the petitioner is as under:-

The facts of the case in brief are that pursuant to a tender process the petitioner was allotted the Acceptance Letter dated 12.06.13 for the work

''PROVEN OF OTM ACCN PHASE II AT RUPA'' at a sum of Rs. 10,98,58,900/- for 34 construction work, Thereafter the respondent

authorities handed over two work site for building construction in October, 2013 and rest of the building sites were handed over to the petitioner

after a substantial delay, only in November, 2014 and June, 2015. Further, the site plan was approved by the respondent authorities only on

10.04.14. Immediately, the petitioner started the construction work in the remote work site in Rupa surrounded by hill terrain in the State of

Arunachal Pradesh where there is no proper infrastructure and roadways connecting the work site causing difficulties in transporting goods,

materials, equipments etc. to the site which made the work cumbersome and time consuming. That apart, the climatic condition of the said location

is far different from other States. There during the summers the morning light comes at about 7 A.M. and it sets at about 5 P.M. and during the

winters the morning light come at about 8/9 a.m. and it sets at about 4 p.m. and thus the workable hours in the said area is only 5 to 6 hours in

comparison to other locations where it is minimum 8 hours. Further there is no proper electricity and water supply in that area and skilled labors

are also not available. The materials have to be procured from other states and transported to the work site by first unloading in Bhalukpong and

then transporting in small vehicles to the work site due to deplorable road conditions. Incorporating all the aforesaid facts the petitioner intimated

the authorities vide letter dated 10.03.2015 about the reasons for delay in execution of the work. However, the authorities without considering the

matter in its right perspective warned the petitioner vide letter dated 09.07.15 of cancelling the work order if the work was not expedited and

completed as per the time schedule. Subsequently, after much persuasion the respondent authorities vide letter dated 16.12.15 granted extension

of time till 31.07.16. And during this period there were several correspondences between the petitioner and the respondent authorities regarding

procurement of materials and reinforcement of labors, which the petitioner complied as per their satisfaction. Thereafter the petitioner again

submitted a letter dated 30.07.16 praying for further extension of reasonable time. On 25.08.16 a meeting/discussion was held with the Chief

Engineer, Eastern Command Kolkatta and accordingly submitted letter dated 25.08.16 assuring to complete 60% of the work subject to release

of RAR bills and undertook to complete the project work within the specified time limit mention in the said letter against each work. Considering

the said letter the respondent authorities vide letter dated 04.10.16 granted final chance till 31.10.16 for completion of target work of 6%.

Accordingly, the petitioner after achieving the target of 6% informed the authorities vide letter dated 05.11.16 about the same and further prayed

for extension of time. However, the respondent authorities with some malafide intention deliberately under-assessed the progress of wok of the

petitioner as below 6% and threatened to cancel the contract work. Lastly, in the last week of December the Chief Engineer MES on his visit to

the work site directed the petitioner to stop the construction work and threatened to issue the cancellation order and since then, the work is at

stand still with all the materials and machineries lying idle and thereby causing serious prejudice and loss to the petitioner. The petitioner again

submitted a letter/petition dated 12.01.17 before the respondent authorities narrating the reasons for delay which were beyond the control of the

petitioner and prayed for allowing it to complete the work by further extension of time by one year and the said petition is pending consideration till

date. The petitioner against all odd was continuing with the construction work inspite of such difficult terrain and climatic conditions and the delay

has been caused for reasons beyond the control of the petitioner. That apart there has been substantial delay on the part of the respondent

authorities in handling over the work sites and approval of the site plan and the revised site plan for which there was delay in commencement of the

construction work and as such the petitioner cannot be faulted for their lapses. However, the respondent authorities without considering the above

aspects of the matter are initiating steps for cancellation of the contract and holding up the RAR bills due in a most arbitrary, illegal, unjust and

unreasonable manner which is ex-facie illegal and untenable in the eye of law.

Hence the present petition seeking adequate relief.

The petitioner has also stated its grievance that further work is not being allowed to be executed, while stating the nature and extent of work

done in the following:-

That out of the total 33 work item of the contract work, the petitioner has already completed substantial work in 13 major construction items and

they are in the verge of completion. As regards work item No. 5 relating to construction of servant quarter, the authorities are yet to allot the work

site. As regards item 17, same will be started as soon as the officer''s mess building is complete. Regarding item no. 20 construction of pump

house, the authorities are yet to dismantle the electrical pole and underground electrical cables. Regarding item No. 21 and 22 relating to

construction of soak well and septic tank, some can be started only after completion of the other major office buildings provided the authorities

timely show the area where the lines are to be placed. Item No. 23 may not be required to execute. Item 24 to 33, which are petty works, are to

be executed only after completion of the major construction work. Thus, execution of major construction works is already in the verge of

completion and the other work items can be completed within a short span of time after the major works are over. As such at this stage if the work

order is cancelled/terminated the petitioner will be highly prejudiced and incur huge loss and same would affect the reputation of the petitioner

company. That apart all the machineries and materials are lying idle in the work site and if they remain so for a long time they will get damage which

will cause immense loss to the petitioner. Further, after few months the rainy season will start and it will be difficult to expedite the work due to bad

weather conditions at that time of the season. Thus, it is prayed to allow continuation of the construction work by grating a reasonable extension of

time considering the bonafide reasons site by the petitioner and for the greater benefits of the work in hand at large.

The petitioner has also suggested that the cancellation of contract would further delay the work in question and, on the contrary, if reasonable

extension was granted to it, the work would be completed within reasonable time but the authorities were not considering the matter in a just and

fair manner. With these submissions, it is averred that the impugned actions of the respondents infringe upon the fundamental rights guaranteed

under Articles 14, 19(1)(g) and 21 of the Constitution of India; and the petitioner, having no alternative efficacious remedy, has approached this

Court. The petitioner has prayed for the reliefs in the following manner:

Under the aforesaid facts and circumstances, it is, therefore, most humbly prayed that Your Lordship would be pleased to admit this petition, call

for records, issue a rule calling upon the respondents to show cause as to why,

i) a writ in nature of Mandamus should not be issued directing the respondent authorities not to cancel the contract of the petitioner allotted vide

acceptance letter dated 12.06.13 (Annexure-A) and/or, as to why,

ii) a writ in nature of Mandamus should not be issued directing the respondent authorities to grant reasonable and fair extension of time of further

one year for completion of the contract work, and/or, as to why,

iii) a writ in nature of Mandamus should not be issued directing the respondents to consider the petition/letter dated 15.09.16 and 12.01.17

(Annexure U & Y, pg 80 - 83, 108 - 111), and/or, as to why

iv) a direction should not be issued to immediately release /pay the RAR bill amounting to Rs. 93,53,000/- due to the petitioner,

And, after perusal of the records, upon hearing the parties and after showing cause or causes, if any, make the Rule absolute, granting full relief to

the petitioner as prayed for and/or may pass any such order/s as Your Lordship may deem fit and proper in the interest of justice.

This petition was initially considered on 08.03.2017 when, after finding that the matter related to the execution of work under the contract, the

Court posed the query about existence of arbitration clause in the agreement. In response, learned counsel for the petitioner though frankly

admitted that the agreement in question carried an arbitration clause, but submitted that the petitioner has a just and appropriate case to invoke the

writ jurisdiction of this Court. However, at request, the matter was adjourned.

Now, the learned counsel for the petitioner has vehemently argued that alternative remedy is not of that absolute bar and in the present matter,

even if relating to execution of a contract, grievance of the petitioner deserves to be examined in the writ jurisdiction. The learned counsel has

particularly emphasised and reiterated on his submissions that no major factual dispute is involved in the matter and the essential issue being that of

reasonable extension of time for execution, the respondents deserve to be called upon to submit their reply to the averments taken in the petition.

The learned counsel has referred to and relied upon the decisions of the Hon''ble Supreme Court in Whirlpool Corporation v. Registrar of Trade

Marks, Mumbai and others : (1998) 8 SCC1; Harbanslal Sahnia and Another v. Indian Oil Corpn. Ltd. and others : (2003) 2 SCC 107; Union of

India and others v. Tantia Construction Private Limited : (2011) 5 SCC 697; and Ram Barai Singh and Company v. State of Bihar and others :

(2015) 13 SCC 592. The learned counsel has also pointed out that as per the arbitration clause contained in the agreement between the parties, in

the event of cancellation of the contract, reference cannot be made to the arbitration until alternative arrangements are made by the Government;

and in the present case, this stage having not arrived, the arbitration clause cannot be said to be available and operating at this juncture.

The learned counsel for the petitioner has strenuously argued that the petitioner cannot be held solely responsible for all the delays when the

respondents did not hand over and did not clear the sites for a long length of time and then, took more than one and a half years before giving the

approved plans. The learned counsel has particularly referred to the representation dated 12.01.2017 (Annexure - Y) as also the previous

representations dated 15.09.2016 (Annexure - U) and dated 05.11.2016 (Annexure - X) to submit that the petitioner had indicated a substantial

execution of work and asked for reasonable extension of time but the representations have not been attended at and have not been answered by

the respondents. Learned counsel has also attempted to refer to the copies of certain photographs, allegedly of the sites in question, to suggest that

a substantial work has been carried out and the petitioner deserves to be given an opportunity to complete the work and the respondents deserve

to be restrained from cancelling the contract. The learned counsel has also submitted that in any case, a direction deserves to be issued to the

respondents to consider the representations already made by the petitioner.

Learned counsel for the respondents, on the other hand, has questioned the maintainability of this writ petition with the submissions that the

matter directly involves such questions of facts that cannot be determined in the writ jurisdiction and then, there exists arbitration clause in the

agreement for resolution of disputes. The learned counsel would submit that the contract in question was awarded to the petitioner in the month of

June 2013 with the stipulated date of completion as 07.07.2015 but looking to the various circumstances, one year''s extension was given to the

petitioner until 31.07.2016 and yet further extension was given until 31.10.2016 but the petitioner could not complete the work; and as per his

instructions, as on 31.01.2017, the petitioner had executed only about 28.15% of the awarded work and the respondents were taking steps for

cancellation of the contract when this petition came to be filed.

Having given thoughtful consideration to the submissions made with reference to the law applicable and having examined the record, this Court

is not persuaded to entertain this writ petition.

There remains hardly any doubt that the present matter is clearly the one concerning execution of a contract work. As noticed from the

averments taken, the petitioner seeks to indicate several so called factors wherefor, the work in question could not have been executed within the

stipulated time including the allegation that even some of the sites were handed over only in the month of November, 2014 and June, 2015 and the

site plans were approved only on 10.04.2014. The petitioner has also indicated the factors that the sites in question are located in remote areas

with no proper accessibility. The petitioner has alleged that for different timings of availability of sunlight because of location of the sites in the far

east, the working hours were reduced. The petitioner has also alleged that there was no proper infrastructure in the area and skilled labourers were

also not available. Even while referring to these factors, the petitioner has admitted that the authorities had indeed granted extension of time by

about one year and until 31.07.2016; and thereafter, the petitioner got another chance until 31.10.2016 for completion of the target work of 6%. It

is submitted that after having achieved the target work, the submissions were made for further extension of time but the authorities are not granting

such extension and rather, the petitioner is being asked to stop the work. Learned counsel for the petitioner, while particularly referring to

paragraph 11 of the representation dated 12.01.2017, has argued that the petitioner has completed a substantial amount of work and deserves to

be granted further extension of time. The said paragraph 11 of the representation reads as under:

We have already completed about 80/90% of works in most of the sites and the rest of the works are also in full progress and expect to

complete the work within this year if further unwarranted hindrances are not made by the authorities which effects the smooth execution of the

work. In the site always MES, official are saying that our work will be cancel by which most labourers are left the site and the progress of work

hampered. Thus, it is prayed for grating further one year time for completion of the work and if such extension is granted, we undertake to

complete the work within the extended period. In anticipation of your positive response.

Learned counsel for the respondents, while asserting that the petitioner has completed only about 28.15 % of the awarded work as on

31.01.2017, has submitted that the suggestions as made in paragraph 11 of the representation are rather contradicted by the very opening

paragraph of the same representation. This opening paragraph in the same representation dated 12.01.2017, as referred by the learned counsel for

the respondents, could also be taken note as under:

With due respect we would like to bring to your kind attention that we have been awarded the PROV OF OTM ACCN (Phase-II) AT RUPA

work on 06.07.2013. But the work sites were handed over to us after about one year as a result there was delay in starting the work. However,

inspite of all odds we have completed about 31% of the awarded work. This completion status of 31% is based on the total project cost and if we

only take civil works, than our progress is more than 60%. It is pertinent to mention herein that the building work is only worth Rs. 4 crore, out of

the total contract value of Rs. 10.98 crores. We deeply regret the delay caused in the completion of the work which is for the reasons stated herein

below:-

It is at once clear that the petitioner-company itself has made different submissions as regards the percentage of work done with reference to the

so called ""awarded work"" (31%); the so called ""civil works"" (60%) and ""most of the sites"" (80/90%). Learned counsel for the petitioner would

submit that the substantial work executed by the petitioner could be seen from the copies of the photographs annexed with the petition.

The submissions aforesaid have been taken note of only to indicate that the matter relates to such basic questions of fact which cannot be

determined in the writ jurisdiction of this Court. As to whether the particular factors were of practical hindrance in execution of the work and

whether the requisite steps were taken by the petitioner to deal with such factors would entail an enquiry into several aspects concerning facts. This

would also remain a question for consideration as to whether the petitioner would not be deemed to have taken all the local factors into account

while making an offer for the contract in question. The so called photographs cannot by themselves make out percentage of work carried out and

reference to the same practically carries no meaning for the purpose of the present petition.

In an overall comprehension of the matter, it is but clear that the petitioner seeks to suggest existence of certain facts and seeks issuance of writ

of prohibition and mandamus in this contractual matter on that basis but then, as per the petitioner''s own showing the work has not been

completed; and the petitioner lastly prayed for an extension of time for about one year. It would always remain a question of fact as to how much

work the petitioner has executed and, if the contract has not been performed as required, who is to be held responsible for the non-performance

and/or breach of contract. These issues by their very nature, involve determination of the questions of facts on the basis of evidence; and,

ordinarily, such a determination is not carried out in the writ jurisdiction of this Court.

There cannot be any quarrel with the principles of law enunciated by the Hon''ble Supreme Court in the decisions referred by the learned

counsel for the petitioner. In the case of Whirlpool Corporation (Supra), the Hon''ble Supreme Court, even while pointing out that the existence of

alternative remedy is not of that absolute bar and the writ petition can be entertained in exceptional circumstances, has expounded as followed:

Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a

writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available,

the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a

bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where

there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act

is challenged. There is a plethora of case-law on this point but to cut down this circle of forensic whirlpool, we would rely on some old decisions of

the evolutionary era of the constitutional law as they still hold the field.

Rashid Ahmed v. Municipal Board, Kairana laid down that existence of an adequate legal remedy was a factor to be taken into consideration

in the matter of granting writs. This was followed by another Rashid case, namely, K.S. Rashid & Son v. Income Tax Investigation Commission

which reiterated the above proposition and held that where alternative remedy existed, it would be a sound exercise of discretion to refuse to

interfere in a petition under Article 226. This proposition was, however, qualified by the significant words, ""unless there are good grounds

therefor"", which indicated that alternative remedy would not operate as an absolute bar and that writ petition under Article 226 could still be

entertained in exceptional circumstances.

A specific and clear rule was laid down in State of U.P. v. Mohd. Nooh as under:

But this rule requiring the exhaustion of statutory remedies before the writ will be granted is a rule of policy, convenience and discretion rather than

a rule of law and instances are numerous where a writ of certiorari has been issued in spite of the fact that the aggrieved party had other adequate

legal remedies"".

This proposition was considered by a Constitution Bench of this Court in A.V. Venkateswaran, Collector of Customs v. Ramchand Sobhraj

Wadhwani and was affirmed and followed in the following words:

The passages in the judgments of this Court we have extracted would indicate (1) that the two exceptions which the learned Solicitor General

formulated to the normal rule as to the effect of the existence of an adequate alternative remedy were by no means exhaustive, and (2) that even

beyond them a discretion vested in the High Court to have entertained the petition and granted the petitioner relief notwithstanding the existence of

an alternative remedy. We need only add that the broad lines of the general principles on which the Court should act having been clearly laid down,

their application to the facts of each particular case must necessarily be dependent on a variety of individual facts which must govern the proper

exercise of the discretion of the Court, and that in a matter which is thus pre-eminently one of discretion, it is not possible or even if it were, it

would not be desirable to lay down inflexible rules which should be applied with rigidity in every case which comes up before the Court"".

Another Constitution Bench decision in Calcutta Discount Co. Ltd, v. ITO, Companies Distt. 1 laid down:

Though the writ of prohibition or certiorari will not issue against an executive authority, the High Courts have power to issue in a fit case an order

prohibiting an executive authority from acting without jurisdiction. Where such action of an executive authority acting without jurisdiction subjects

or is likely to subject a person to lengthy proceedings and unnecessary harassment, the High Courts will issue appropriate orders or directions to

prevent such consequences. Writ of certiorari and prohibition can issue against the Income Tax Officer acting without jurisdiction under Section

34, Income Tax Act.

Much water has since flown under the bridge, but there has been no corrosive effect on these decisions which, though old, continue to hold the

field with the result that law as to the jurisdiction of the High Court in entertaining a writ petition under Article 226 of the Constitution, in spite of the

alternative statutory remedies, is not affected, specially in case where the authority against whom the writ is filed is shown to have had no

jurisdiction or had purported to usurp jurisdiction without any legal foundation.

In the case of Tantia Construction Pvt. Ltd., (Supra), the Hon''ble Supreme Court reiterated the principles that alternative remedy was not that

of absolute bar in exercise of writ jurisdiction while observing as under:

Apart from the above, even on the question of maintainability of the writ petition on account of the arbitration clause included in the agreement

between the parties, it is now well established that an alternative remedy is not an absolute bar to the invocation of the writ jurisdiction of the High

Court or the Supreme Court and that without exhausting such alternative remedy, a writ petition would not be maintainable. The various decisions

cited by Mr. Chakraborty would clearly indicate that the constitutional powers vested in the High Court or the Supreme Court cannot be fettered

by any alternative remedy available to the authorities. Injustice, whenever and wherever it takes place, has to be struck down as an anathema to

the rule of law and the provisions of the Constitution.

We endorse the view of the High Court that notwithstanding the provisions relating to the arbitration clause contained in the agreement, the

High Court was fully within its competence to entertain and dispose of the writ petition filed on behalf of the respondent Company. We, therefore,

see no reason to interfere with the views expressed by the High Court on the maintainability of the writ petition and also on its merits.

Again, in Harbanslal Sahnia''s case, the Hon''ble Supreme Court delineated the principles that in an appropriate case, the High Court can still

exercise writ jurisdiction, particularly if the case relates to the enforcement of fundamental rights, or failure of principles of justice, or where the

orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged. The Hon''ble Supreme Court, inter alia, observed as

under:

So far as the view taken by the High Court that the remedy by way of recourse to arbitration clause was available to the appellants and

therefore the writ petition filed by the appellants was liable to be dismissed is concerned, suffice it to observe that the rule of exclusion of writ

jurisdiction by availability of an alternative remedy is a rule of discretion and not one of compulsion. In an appropriate case, in spite of availability of

an alternative remedy, the High Court may still exercise its writ jurisdiction in atleast three contingencies: (i) where the writ petition seeks

enforcement of any of the fundamental rights; (ii) where there is failure of principles of natural justice; or (iii) where the orders or proceedings are

wholly without jurisdiction or the vires of an Act is challenged. (See Whirlpool Corpn. V. Registrar of Trade Marks (1998) 8SCC 1). The present

case attracts applicability of the first two contingencies. Moreover, as noted, the petitioners dealership, which is their bread and butter, came to be

terminated for an irrelevant and non-existent cause. In such circumstances, we feel that the appellants should have been allowed relief by the High

Court itself instead of driving them to the need of initiating arbitration proceedings"".

In the case of Ram Barai Singh and Company (Supra), the Hon''ble Supreme Court reiterated the law that existence of arbitration clause in an

agreement does not ipso facto render the writ petition not maintainable, while observing as under:-

11.In our view, a constitutional remedy by way of writ petition is always available to an aggrieved party and an arbitration clause in an agreement

between the parties cannot ipso facto render a writ petition ""not maintainable"" as wrongly held by the Division Bench. Availability of alternative

remedy is definitely a permissible ground for refusal by a Writ Court to exercise its jurisdiction in appropriate cases. But once the respondents had

not objected to entertainment of the writ petition on ground of availability alternative remedy, the final judgment rendered on merits cannot be

faulted and set aside only on noticing by the Division Bench that an alternative remedy by way of arbitration clause could have been resorted to.

In the case of Joshi Technologies International INC. v. Union of India and others : (2015) 7 SCC 728, after referring to several of the

landmark decisions including the one in Whirlpool Corporation (Supra), the Hon''ble Supreme Court has summarised the principles relating to the

writ jurisdiction in the contractual matters in the following:

The position thus summarised in the aforesaid principles has to be understood in the context of discussion that preceded which we have

pointed out above. As per this, no doubt, there is no absolute bar to the maintainability of the writ petition even in contractual matters or where

there are disputed questions of fact or even when monetary claim is raised. At the same time, discretion lies with the High Court which under

certain circumstances, it can refuse to exercise. It also follows that under the following circumstances, ""normally"", the Court would not exercise

such a discretion:

69.1. The Court may not examine the issue unless the action has some public law character attached to it.

69.2. Whenever a particular mode of settlement of dispute is provided in the contract, the High Court would refuse to exercise its discretion under

Article 226 of the Constitution and relegate the party to the said mode of settlement, particularly when settlement of disputes is to be resorted to

through the means of arbitration.

69.3. If there are very serious disputed questions of fact which are of complex nature and require oral evidence for their determination.

69.4. Money claims per se particularly arising out of contractual obligations are normally not to be entertained except in exceptional

circumstances.

In the aforesaid decision in Joshi Technologies International (Supra), the Hon''ble Supreme Court has also pointed out the ordinary course of

action in case of the alleged breach of contract in the following:

70.6. Ordinarily, where a breach of contract is complained of, the party complaining of such breach may sue for specific performance of the

contract, if contract is capable of being specifically performed. Otherwise, the party may sue for damages.

As noticed, the present matter directly relates to such questions of fact which would require oral and documentary evidence for determination

and otherwise, there is no public law character involved in the present matter relating to execution of work under a contract. Thus, looking to the

overall circumstances, this Court is not persuaded to entertain the matter in the writ jurisdiction. Apart from the above, it is also clear that the

agreement between the parties specifically provides for arbitration as the mode of resolution of dispute. The arbitration clause in the agreement in

question reads as under:

Arbitration.- All disputes, between the parties to the Contract (other than those for which the decision of the C.W.E. or any other person is

by the Contract expressed to be final and binding) shall, after written notice by either party to the Contract to the other of them, be referred to the

sole arbitration of an Engineer officer to be appointed by the authority mentioned in the tender documents.

Unless both parties agree in writing such reference shall not take place until after the completion or alleged completion of the Work or termination

or determination of the Contract under Condition Nos. 55,56 and 57 hereof.

Provided that in the event of abandonment of the Works or cancellation of the Contract under Condition Nos. 52,53 and 54 hereof, such

reference shall not take place until alternative arrangements have been finalized by the Government to get the Works completed by or through any

other Contractor or Contractors or Agency or Agencies.

Provided always that commencement or continuance of any arbitration proceeding hereunder or otherwise shall not in any manner militate against

the Government''s right of recovery from the contractor as provided in Condition 67 hereof.

If the Arbitrator so appointed resigns his appointment or vacates his office or is unable or unwilling to act due to any reason whatsoever, the

authority appointing him may appoint a new Arbitrator to act in his place.

The Arbitrator shall be deemed to have entered on the reference on the date he issues notice to both the parties, asking them to submit to him their

statement of the case and pleadings in defence.

The Arbitrator may proceed with the arbitration, exparte, if either party, inspite of a notice from the Arbitrator fails to take part in the proceedings.

The Arbitrator may, from time to time with the consent of the parties, enlarge, the time upto but not exceeding one year from the date of his

entering on the reference, for making and publishing the award.

The Arbitrator shall give his award within a period of six months from the date of his entering on the reference or within the extended time as the

case may be on all matters referred to him and shall indicate his findings, along with sums awarded, separately on each individual item of dispute.

The venue of Arbitration shall be such place or places as may be fixed by the Arbitrator in his sole discretion.

The award of the Arbitrator shall be final and binding on both parties to the Contract.

The learned counsel for the petitioner has argued with reference to the first proviso in the arbitration clause that in the event of cancellation of a

contract, the arbitration will not take place until finalisation of alternative arrangement by the Government and thus, at the present stage, the said

clause cannot be said to be applicable. This argument does not make out a case for entertaining the matter in the writ jurisdiction for the simple

reason that when the arbitration has been chosen as the mode of resolution of dispute and the particular methodology for invoking the arbitration

clause has been provided in the agreement itself, as to whether the reference could be made at present or is to wait until the happening of certain

events, by itself, does not render the clause nugatory; and it cannot be said that the arbitration as a mode of resolution of dispute is not available to

the petitioner in accordance with the Arbitration and Conciliation Act, 1996.

This Court would not make any further comment in the matter because the issue being considered herein is limited to the question as to

whether the present petition seeking issuance of writ of prohibition and mandamus be entertained or not? The answer to this question is in the

negative for the reasons already indicated above.

Learned counsel for the petitioner has in the last made a fervent plea that at least directions may be issued to the respondents to take a decision

on its representations. As noticed, the present one is a matter concerning contract and in relation to such a contractual matter, it cannot be said that

any statutory representation has been made so as to call for a mandamus to the respondents for a decision thereupon. In the totality of

circumstances of the case, this Court is not persuaded even to issue any direction to the respondents in relation to the representation made by the

petitioner seeking further extension of time. In relation to any legal grievance in that regard, this Court would only leave it open for the petitioner to

take recourse to appropriate proceedings in accordance with law.

For what has been discussed and observed hereinabove, exercise of writ jurisdiction in this matter is declined and this writ petition stands

dismissed. However, in the interest of justice, it is made clear that none of the observations herein shall be construed as any expression on the

merits of the case by this Court either way and any recourse to any other remedy by the petitioner shall be dealt with in the appropriate forum

strictly in accordance with law.