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2023 Supreme(UK) 395
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
VIPIN SANGHI, ALOK KUMAR VERMA, JJ.
M/s Super Construction Associates – Petitioner
Versus
State of Uttarakhand and Others – Respondents
Writ Petition (M/S) No. 336 of 2023
Decided On : 02-03-2023
Advocate Appeared:
For the Petitioners: Shashank Pandey, Akshay Pradhan.
For the Respondents: K.N. Joshi, S.S. Chauhan.
The existence of an arbitration agreement between the parties allows for the resolution of disputes through arbitration.
Headnote:
Writ Petition - Disqualification of Contractor - Public Works Department - Special Appeal No. 335 of 2020, Paragraph Nos. 20 and 21 - The court found the disqualification of respondent no. 4 to be bad and directed the financial bid of respondent no. 4 to be opened. The work was awarded to respondent no. 4 as their financial bid was lower than that of the petitioner.
Fact of the Case:
The petitioner sought to set aside the dismissal of their complaints and to restart the work or clear dues for work already done. The contract awarded to the petitioner was found to be illegal in a previous case. The petitioner claimed to have done substantial work and raised concerns about being denied payment for the work already done.
Finding of the Court:
The court dismissed the writ petition, stating that the petitioner can raise their claims in arbitration as an arbitration agreement exists between the petitioner and respondent no. 2. The court also noted that complete videography of the work done by the petitioner was done before the start of work by respondent no. 4.
Issues: Disqualification of contractor, denial of payment for work done, and the legality of the contract awarded to the petitioner.
Ratio Decidendi: The court found the disqualification of respondent no. 4 to be bad and directed the financial bid of respondent no. 4 to be opened. The work was awarded to respondent no. 4 as their financial bid was lower than that of the petitioner. The court also emphasized the existence of an arbitration agreement between the petitioner and respondent no. 2.
Final Decision: The writ petition was dismissed, and the petitioner was advised to pursue their remedies in arbitration.
JUDGMENT :
VIPIN SANGHI, J.
1. The petitioner has preferred the present writ petition to seek the following reliefs:
“(I) Issue a writ, order or direction in the nature of Certiorari setting aside the impugned Resolution of the Chief Engineer PMGSY (Kumaon Zone) PWD, Almora dated 04.02.2023, whereby the complaints made by the Petitioner were dismissed (Annexure No. 1).
(II) To issue writ, order or direction in the nature of mandamus directing the respondent no. 2 to permit the petitioner to restart the work.
Or in alternative
Issue a writ, order or direction in the nature of Mandamus directing the Respondents to clear the dues of the Petitioner for the work already done by the Petitioner on the site.
(III) Graciously be pleased to pass any such other relief(s) as this Hon’ble Court may deem just and proper in the circumstances of this case.”
2. In response to the tender floated by the respondent-authorities, being execution of Padampuri Harakhan Road Km.54 to Syura-Kaunta-Kakor-Harishtal (Hatyarital) Motor Road State-II. Package No. UT-07-04, length- 36.950 Kms. and the maintenance work for five years, the contract was awarded to the petitioner by the respondent, which, this Court found to be completely illegal at the instance of respondent no. 4 herein in Writ Petition (M/S) No. 894 of 2020, which was affirmed by the Division Bench in Special Appeal No. 335 of 2020. The disqualification of respondent no. 4 was held to be bad, and in the Special Appeal, decided on 29.09.2022, it was directed that the financial bid of respondent no. 4 should be opened, and if the petitioner’s financial bid is found to be the lower, the petitioner would continue to work, while, on the other hand, if the financial bid of respondent no. 4 is found the lower, the work would be awarded to respondent no. 4. In Paragraph Nos. 20 and 21 of its judgment, the Division Bench observed:
“20. We direct the respondent authorities to forthwith proceed to open the financial bid of respondent No. 1 and, thereafter, proceed in the matter. In case the financial bid of the appellant is found to be the lowest, the appellant shall forthwith commence execution of the contract. However, in case the financial bid of respondent No. 1 is found to be the lowest, the respondent authorities are directed to proceed in accordance with law, without any further delay.
21. The pendency of these proceedings has delayed the execution of the contract by two years and in public interest, the work should be undertaken with expedition. We also direct the Secretary, Public Works Department in the Government of Uttarakhand to have the conduct of the Executive Engineer and the Superintending Engineer concerned examined from the point of view, whether they have acted in accordance with the rules and, if not, the action that needs to be taken against them for causing disruption of public works, which may also have adverse financial implications for the State.”
3. Pertinently, we had dealt with the submissions of the present petitioner that the petitioner would be prejudiced, since it was claimed by the petitioner that the petitioner had done substantial amount of work. In Paragraph No. 19 of our judgment, rendered in Special Appeal No. 335 of 2020, M/s Super Construction Associates vs. M/s Dalip Singh Adhikari and Others, decided on 29.09.2022, we had observed as follows:
“19. We have considered the submissions of the learned counsels, and we are of the view that the impugned order passed by the learned Single Judge does not call for any interference. The sequence of facts and events taken note of hereinabove shows a clear pattern emerging, and leave no manner of doubt in our mind that the respondent authorities, in particular, the Executive Engineer and the Superintending Engineer concerned repeatedly attempted to placate respondent No. 1 to somehow trip the said respondent out of race, so as to favour the appellant. After having declared the technical bid of respondent No. 1 as responsive on 08.05.20
