Failure to respond and constitute the Dispute Resolution Board leads to waiver of contention regarding its requirement.

ORDER

The petitioner is a Partnership Firm. The 1^st respondent published a tender dated 15.07.2020 for the work; namely, ‘Demolition and reconstruction of T-39 Hanger and Lean Area at NAY Kochi’. The petitioner’s bid was accepted and work was awarded to them. Annexure A1 is a copy of the Letter of Acceptance dated 22.02.2021. Annexure A2 is a copy of an agreement executed between the petitioner and the 1^st respondent. The General Conditions of Contract (GCC) approved by the Ministry of Defense is the guiding document for all works executed by the Military Engineering Services.

2. According to the petitioner, all requirements as per the agreement were complied and all arrangements were made to start the work on 27.04.2021 and the period of completion of work was 700 days. The department allegedly failed to hand over the site free of obstructions in time and the petitioner could not start the work as scheduled. There was idling of labour and plant as well as machinery. It is also alleged that there was further delay on the part of the respondents in giving required permissions and sanctions. Further there was delay in approving the designs and supply of signed working drawings. However, the work was completed by the petitioner. According to the petitioner work was completed by all means on 31.01.2025. However, the extra expenses incurred by the petitioner was not honoured. A notice was issued on 30.05.2025 calling upon the 1^st respondent to settle the claims or to appoint an arbitrator. A copy of the notice is produced as Annexure A4. It was received by the 1^st respondent on 19.06.2025. Annexure A5 is a copy of the receipt of acknowledgment. As there was no response from the 1^st respondent, this arbitration request was filed.

3. The respondents entered appearance through the Deputy Solicitor General. No counter affidavit has been filed by the respondents.

4. Heard the learned counsel for the petitioner and the learned Deputy Solicitor General.

5. Though a contention was raised by the respondents that as per the terms of the GCC, the dispute ought to have been referred for resolution by the Dispute Resolution Board, no Board was constituted by them. Time was granted to the respondents to constitute the Dispute Resolution Board by orders dated 24.10.2025 and 07.11.2025. On 07.11.2025 an interim order was passed clarifying that “if the respondents intends to stick on their contention that the petitioner was bound to approach the Dispute Resolution Board, they shall constitute Board before the next posting of the case.” The respondents were rasing a contention that the disputes are to be considered at the first instance by the Dispute Resolution Board. The petitioner, on the other hand, contended that the respondents had not constituted the Dispute Resolution Board and was simultaneously raising objections before the respondents.

6. Today when the case is taken up, the learned counsel for the petitioner handed over a copy of communication from the Office of the HQ Chief Engineer, Southern Command, Pune, titled ‘Constitution of Dispute Resolution Board (DRB)’. As per the communication the constitution of the Board as per the contract condition is as under: “4.1 Chairman: Joint DG (Contracts) of the concerned command Chief Engineer where Jt DG(C) is not posted in the Comd, any other Chief Engineer/Brig level offr Posted in CE Comd shall nominated by Comd CE at his Dole discretion.

4.1.1 Member 1 Col/Director rank officers of Comd CE or of any other Zonal CE be nominated by Comd CE.”

4.1.2 Member 2

7. However, only the Chairman and one member have been nominated and the 2^nd member has not been nominated. Terms of the order dated 07.11.2025 of this Court was very clear t