- (1.) The petitioner by way of present petition filed under Articles 226/227 of the Constitution of India, is seeking a writ of certiorari for quashing the impugned letter dated 07.03.2011 (Annexure P/21) issued by the Executive Engineer (W), Punjab Water Supply & Sewerage Board, Division No. II, Bathinda and also quashing of advertisement Nos. G/07 and G/08 issued on 08.03.2011 appended as Annexure P-22 collectively.
(2.) Upon notice having been issued to the respondents, reply has been filed on behalf of respondents No. 1 to 10. In the reply, preliminary objections have been taken. It has been pleaded that under Clause 25 of the Agreement, the petitioner can seek alternative remedy of Arbitration and a prayer has been made for dismissal of the petition on that ground. It is submitted that the petition is not maintainable in view of the aforesaid clause in the contract agreement. Preliminary Objection No. 3 reads thus: "That the writ petition filed by the petitioner is totally misconceived in view of the fact that there is a clear cut arbitration clause in Clause 25 of the agreement. The contents of the arbitration clause are reproduced below: (i) If any dispute or difference of any kind whatsoever shall arise between the PWSSB, its authorized representative and the contractor/bidder in connection with or arising out of this contract or the execution of work there under. (ii) Whether before its commencement or during the progress of work or after the termination, abandonment or breach of the contract, it shall, in the first instance, be referred for settlement to the Engineer-in-charge of the work and he shall within a period of 60 days after being requested in writing by the contractor to do so convey his decision to the contractor. Such decision in respect of every matter so referred shall, subject to arbitration as hereinafter, provided, be final and binding upon the contractor. In case the work is already in progress, the contractor shall proceed with the execution of the work on receipt of the decision of the Engineer-in-charge as aforesaid with all due diligence, whether any of the parties require arbitration as hereinafter provide or not. (iii) If the Engineer-in-charge has conveyed his decision to the contractor and no claim for arbitration has been filed by the contractor within a period of 60 days from the receipt of the letter communicating the decision, the said decision shall be final and binding upon the contractor and will not be a matter of arbitration at all. (iv) If the Engineer-in-charge failed to convey his decision within a period of 60 days after being requested as aforesaid the contractor may within further 60 days of the expiry of the first 60 days from the date on which the said request was made by the contractor refer the dispute for arbitration as herein after provided. (v) All disputes or differences in respect of which the decision is not final and conclusive shall, at the request of either party made in a communication sent through registered AD post be referred to the sole arbitration of the Superintending Engineer of the circle concerned in the PWSSB, acting as such at the time of reference unless debarred from acting as an arbitrator by an order of PWSSB in which event, the M. D. , shall appoint another technical officer not below the rank of Superintending Engineer to act as an Arbitrator on the receipt of a request from either party. (vi) M. D. , PWSSB shall have the authority to change the Arbitrator on an application by either the contractor or the Engineer-in-charge requesting change of the Arbitrator, giving reasons thereof, either before the start of the Arbitration proceedings or during the course of such proceedings. The Arbitration proceedings would stand suspended as soon as an application for change of arbitrator is filed before the M. D. , PWSSB and a notice thereof is given by the applicant to the Arbitrator. The M. D. after hearing both the parties may pass a speaking order rejecting the application or accepting to change the Arbitrator simultaneously, appointing a technical officer, not below the rank of a Superintending Engineer as Arbitrator under the contract. The new Arbitrator so appointed may enter upon the reference a fresh or he may continue the hearings from the point these were suspended before the previous Arbitrator. (vii) The reference to the Arbitrator shall be made by the claimant party within 120 days from the date of dispute of claim arises during the execution of work. If the claim pertains to rates or recoveries introduced in the final bill, the reference to the Arbitrator shall be made within 6 calendar months from the date of payment of the final bill to the contractor or from the date a registered notice is sent to the contractor to the effect that his final bill is ready by the Engineer-in-charge (whose decision in this respect shall be final and binding) which ever is earlier. (viii) It shall be an essential term of this contract that in order to avoid frivolous claims, the party invoking Arbitration shall specify the disputes based on facts and calculations stating the amount claimed under each claim and shall furnish a "deposit-at call" for 10% of the amount claimed in a scheduled bank in the name of the Arbitrator, by his official designation who shall keep the amount in deposit, till the announcement of the award. In the event of an award in favour of the claimant, the deposit shall be refunded to him in proportion to the amount awarded with respect to the amount claimed and the balance, if any, shall be forfeited and paid to the other party. (ix) The provisions of the Indian Arbitration Act 1940 or any other statutory enactment there under or modifications thereof and for the time being in force shall apply to the arbitration proceedings under this clause. The filing of the writ petition under Articles 226-227 of the Constitution of India is thus misconceived in view of the alternative remedy of arbitration provided in the agreement between the petitioner and the respondents. "
(3.) Learned counsel for the respondents further submitted that the contract which had been awarded to different party during the pendency of the writ petition has been completed.;