Sundar Singh Bora vs State Of Uttarakhand & Others

Sudhanshu Dhulia, J

The petitioner is a contractor who inter alia undertakes construction, repair work of motor roads in Uttarakhand. The petitioner entered into a contract with the Public Works Department for the improvement of a road from "Devnai, Pokhri, Kohina Motor Marg" to "Koteshwar" in District Bageshwar. The work so allotted to the petitioner could not be completed as there was a complaint against the work of the petitioner as he has violated the provisions of the Uttaranchal Minerals (Prevention of Illegal Mining, Transportation and Storage) Rules, 2005. Consequently the petitioner was directed to stop the work by the concerned District Magistrate. However, at the same time, the petitioner has to fulfill the terms of the contract as he has to complete the work within a stipulated period of time but since he could not complete the work, he has filed the writ petition with the following prayers:-

"(i) A writ, order or direction in the nature of certiorari to quash/the agreement date 14.08.2018 (Annexure No.2) executed between the petitioner and the respondents for purpose of improvement and metalling of the road i.e. Devnai, Pokhri Kohina Motor Marg to Koteshwar, District Bageshwar, between 1 km to 2 km.

(ii) A writ, order or direction in nature of mandamus to direct the respondents no.1 to 3 not to forfeit the sureties tendered to the department in form of FD deposited with the Bank for the amount of Rs.8,70,000/- (Rupees Eight Lakh Seventy Thousand Only) as well as to release the same in favour of the petitioner."

As far as the first prayer is concerned, the same cannot be granted in a writ petition as there cannot be a direction in the nature of certiorari to quash the agreement dated 14.08.2018 as the matter is purely civil in nature. Moreover it involves disputed question of facts.

The second prayer of the petitioner is that a direction be given to the respondents not to forfeit his surety which is of Rs.8,70,000/- (Rupees Eight Lakh Seventy Thousand Only). Although, the petitioner has not annexed the terms of the contract along with the writ petition but today a copy of the Government Order dated 08.01.2014 has been produced before this Court by the learned counsel for the petitioner, which according to the petitioner, are the general conditions of the contract with the Government. The same is made a part of the record as Annexure No. "A" to the writ petition. Clause 31 of the General Conditions of contract reads as under:-

"Clause 31 Protests:-

(31.1) If the contractor considers any work demanded of him to be outside the requirement of contract, or considers any record or ruling of the Engineer-in-Charge or of his subordinate to be unfair, he shall immediately upon such work being demanded of such record or ruling being made, ask in writing for written instructions or decisions, whereupon he shall proceed without delay to perform the work or confirm to the record or ruling and within twenty days after date of receipt of the written instructions or decision he shall file a written protest appeal to the next higher to the officer accepting the tender stating clearly and in detail the basis of his objections. Except for such protest or objections, as are made on record in the manner here in specified and within the time limit stated the record, ruling instructions or decisions of the appellate officer as above shall be final and conclusive. Instructions and/or decisions of the appellate officer contained in letters transmitting drawings to the contractor shall be considered as written instructions or decision subject to protest objections as wherein provided.

(31.2) If the contractor is dissatisfied with the final decision of the appellate officer (officer next higher then the officer accepting the tender) in pursuance of Clause 31.1, the contractor may within thirty days after receiving notice of such decision, give notice in writing requiring that the matter be submitted to arbitration and furnishing detailed particular of the dispute or differences specifying clearly the point at issue. If the contractor fails to give such notice within the period of thirty days as stipulated above, the decision of the appellate officer shall be conclusive and binding on the contractor.

(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 workmanship 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 mater 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. Thereof and the rules 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-in-Chief, shall be of the status given below:-

(a) For claim for amount in Superintending Engineer of dispute of not over 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) For claims or amount in Chief Engineer Level - II of dispute of over Rs.75,00000 Uttarakhand P.W.D.and not over Rs.2,00,000,00 (Rs. Two Crore)

(c) for claims or amount in Two Arbitrator one of the rank dispute of aggregating to of Chief Engineer Level - II and more than Rs.2,00,000,00 one of the rank of (Rs. Two Crore) and upto Superintending Enginner Rs.5,00,000,00 (Rs. Five Uttarakhand P.W.D.Crore).

(d) For claims or amount in dispute aggregating more than Rs.5,00,000,00 crore (Rs. Five Crore).

Three persons one of the rank of Chief Engineer Level - II, Uttarakhand, P.W.D. second will be of the rank of Superintending Engineer Uttarakhand P.W.D. and third will be the law officer of the Department if available otherwise another Superintending Engineer Uttarakhand P.W.D. as nominated by Engineer in Chief.

All disputes between the parties to the contract arising out of and relating to the contract shall after written notice by either to the contract to the other party, be referred to arbitration as above. Unless the parties otherwise agree, such reference shall not take place until after the completion or abandonment of the works or the determination of the contract. The venue of arbitration shall be a place or places as may be fixed by the arbitrator in his/their sole discretion. Any suit or application for the enforcement of this arbitration clause shall be filed in the competent court within District, and no other court of any other district of the Uttarakhand or outside Uttarakhand shall have any jurisdiction in the matter. The award of the arbitrator shall be, final conclusive and binding on both the parties to the contract."

As per the aforesaid provision in case the claim is not over Rs.75,00,000/- (Rupees Seventy Five Lakh Only), the contractor has to go before the Superintending Engineer of Uttarakhand, PWD. The claim of the petitioner is below Rs.75,00,000/- (Rupees Seventy Five Lakh Only) and therefore the petitioner can approach the Superintending Engineer of Uttarakhand, PWD.

Let the petitioner make a representation before the Superintending Engineer, unless already made, who shall decide the representation of the petitioner by passing a speaking order within a period of three weeks from the date of production of a certified copy of this order before him. However, it is made clear that till such a representation is decided by the Superintending Engineer, no coercive measure shall be taken against the petitioner

Writ petition stands disposed.