Court No. - 39

Case :- WRIT - C No. - 29594 of 2022

Petitioner :- Ganga Singh Kushwaha

Respondent :- State Of U.P. And 4 Others

Counsel for Petitioner :- Shyam Sunder Maurya

Counsel for Respondent :- CSC,Pranjal Mehrotra,Sunil Kumar Misra

Hon'ble Mrs. Sunita Agarwal,J.

Hon'ble Vipin Chandra Dixit,J.

Heard Sri Shyam Sunder Maurya, learned counsel for the petitioner, Sri Sunil

Kumar Misra, learned counsel appearing for Uttar Pradesh Awas Evam Vikas

Parishad-respondent Nos. 2 to 5 and the learned Standing Counsel appearing for

respondent no.1-State.

The present writ petition is directed against the order dated 21.8.2019 passed by

the respondent Nos.3 namely, Executive Engineer, Uttar Pradesh Awas Evam

Vikas Parishad, Construction Unit, Rajdepur Yojna, Rauza Ghazipur, whereby

the request of the petitioner for referring the dispute to the Arbitrator in terms of

the Contract/Agreement, has been rejected on the ground that a direction was

given by the Chief Engineer in its letter dated 16.1.2017 that there was no

decision for appointment of Arbitrator in the matter and the said information be

passed on to the petitioner/contractor herein.

Taking note of the assertion in the affidavit dated 25.11.2022 by the Chief

Engineer, Uttar Pradesh Awas Evam Vikas Parishad, we have noticed that the

said affidavit was not in sufficient compliance of the direction of this Court's

order dated 2.11.2022.

On the prayer made by Sri Sunil Kumar Misra, learned Advocate appearing for

Uttar Pradesh Awas Evam Vikas Parishad, time was granted to complete his

instructions to bring on record the decision of the Engineer-in-Charge, in terms

of Clause 32(a) of the General Conditions of the Contract. The letter dated

16.1.2017, reference of which is found in the order impugned dated 21.8.2019,

was directed to be brought on record. The justification for denial of the claim of

the petitioner to refer the dispute to the Arbitrator was also required to be given

in the personal affidavit of the Chief Engineer.

In the affidavit dated 11.1.2023 of the Chief Engineer, Uttar Pradesh Awas Evam

Vikas Parishad, it is sought to be submitted that the petitioner was required to

complete the work within the stipulated time frame as per the agreement dated

24.9.2011. On utter failure of the petitioner in completing the work, the contract

was rescinded by order dated 21.1.2015. By the letter dated 5.11.2016 the

petitioner requested to initiate for arbitration, in pursuance of which report of the

Executive Engineer was sought, who in his report had denied for initiation of

arbitration proceeding stating that since the issue was very limited and nothing

factual was to be decided and security deposit to extent of 10% was forfeited

strictly in pursuance of the unchallenged agreement between the parties.

In view of aforesaid report of the Executive Engineer dated 4.1.2017 submitted

to the Superintending Engineer, Uttar Pradesh Awas Evam Vikas Parishad, the

Senior Staff Officer who was an officer senior to the Superintending Engineer

and below the rank of Executive Engineer has decided not to appoint arbitrator

in the matter which decision was communicated to the petitioner vide letter

No.767 dated 27.2.2017 through registered post. The petitioner has not

challenged the decision.

Clause 32(b) of the General Conditions of the Contract which provides to give

notice in writing within 28 days of receipt of the decision. The matter was not

submitted to the Arbitrator, copy of the letter dated 16.1.2017 has been appended

at page 31 of the affidavit dated 11.1.2023. A perusal thereof indicates that the

Chief Staff Officer of the Engineering Department, Uttar Pradesh Awas Evam

Vikas Parishad has addressed the said letter to the Executive Engineer , 3rd

Circle, Uttar Pradesh Awas Evam Vikas Parishad, Lucknow refusing for

appointment of Arbitrator with the assertion therein that the direction was given

by the Chief Engineer(M). The decision of the Chief Engine