ARUN PALLI, J. - (1.) This order shall decide these two civil writ petitions, for the question that arises for determination in both is common. However, the facts are being culled out from Civil Writ Petition No.19184 of 2014.
(2.) Petitioner i.e. Dhandi Builders Limited was awarded a composite work of construction of 96 flats (Category II, Group III) in Sector 51 -A, Chandigarh, for a sum of Rs.3,52,84,921/ -, vide memo dated 08.05.2002, issued by Executive Engineer IV, Chandigarh Housing Board (hereinafter referred to as, "the Board"). A formal contract entered into between the parties, dated 14.05.2002, is appended as Annexure P7 with the petition. 1 of 14 Likewise, a similar contract for construction of 88 flats (Category II, Group IV) in Sector 51 -A, Chandigarh was also assigned to the petitioner, for Rs.3,23,38,773/ -, vide memo of an even date. Rest of the terms and conditions of the contract were identical as in the other agreement. The petitioner is alleged to have failed to complete the work at various stages as per the terms of the contract. Resultantly, a show cause notice, dated 05.09.2002, was served upon it; as to why action under clauses 2, 3, 3(a) & 3(c) of the contract be not taken. Eventually, the Executive Engineer -III (Civil), in terms of clause 2 of the contract, levied compensation @ 10% of the estimated cost of the work amounting to Rs.35,28,492/ -, upon the petitioner. And the contract itself was also rescinded vide order dated 06.01.2003. Being aggrieved, petitioner submitted a representation to the Chairman of the Board on 09.01.2003, in terms of clause 2 of the contract, and requested to waive the imposition of penalty by way of compensation. Vide order dated 13.02.2003, Sh. G.S. Rosha, the then Superintending Engineer of the Board, was designated by the Chairman as his authorized nominee to adjudicate upon the said representation. And at the same time, petitioner also preferred a Civil Writ Petition No.1047 of 2003, for the Board had also rescinded the contract itself. However, this court dismissed the said writ petition vide order dated 13.05.2003, for in terms of Clause 25A of the Contract, the dispute between the parties was arbitrable. Resultantly, pursuant to an application, dated 24.07.2003, submitted by the petitioner, Sh. 2 of 14 G.S. Rosha was also appointed as Arbitrator to adjudicate upon the dispute between the parties. Thus, Sh. G.S. Rosha was seized of the two disputes; (a) arising under clause 2, and (b) arbitration proceedings arising under clause 25A of the contract. The matter remained inconclusive for a long time till vide an order dated 21.02.2012 (Annexure P1), Sh. G.S. Rosha concluded that levy of compensation and subsequent rescision of the contract by the Board was unjustified. The conclusion arrived at reads thus: "27. In view of the above findings, I come to the conclusion that the levy of compensation and subsequent recision of the contract of the agency by the respondent Board vide its letter dated 06.01.2003 was unjustified, not in accordance with the true spirit of the signed Contract Agreements, legal position and facts brought on record and is thus set aside. The Board thereby committed a breach of the Contract with the result that the Board had no right to levy any compensation on the claimant agency and also either to retain the dues payable to the claimant by way of final bill of the work or to forfeit the security deposit of the Claimant in an attempt to recover any alleged compensation on account of liquidated damages or on account of expenses incurred by it in getting the work completed at the risk and cost of the agency."
(3.) Likewise, vide an arbitral award of an even date, he also accepted the claims of the petitioner. Against the award rendered by the Arbitrator, the Board filed objections under Section 34 of the Arbitration & Conciliation Act, 1996. Whereas, against the order under Clause 2, the Board preferred an appeal under Section 72 -A of the Haryana Housing Board Act, 1971 (as extended to Union Territory Chandigarh) [for short, 'the Act']. Petitioner preferred two 3 of 14 civil writ petitions, bearing CWP No.13026 of 2012 & CWP No.13594 of 2012, for there were two separate orders arising out of two separate contracts, and questioned the maintainability of the appeals. However, on a statement made by counsel for the Board that a decision was taken to withdraw those appeals, the petitions were accordingly dismissed by this court vide order dated 10.12.2012 (Annexure P2). For, the Board assailed the order, dated 21.02.2012, this time, vide a revision petition under Section 72 -B of the Act, before the Advisor to the Administrator, UT Chandigarh (respondent No.1), petitioner again preferred a Civil Writ Petition No.15236 of 2013, and questioned the jurisdiction of respondent No.1 to hear and adjudicate upon the matter. This court vide order, dated 18.07.2013, dismissed the said petition with liberty to the petitioner to raise the issue as regards jurisdiction before the revisional authority itself. Accordingly, the petitioner moved a formal application, dated 30.10.2013 (Annexure P5), before respondent No.1 and questioned the maintainability of the revision preferred by the Board. But, vide order dated 28.07.2014, respondent No.1 (Advisor) concluded, for the Chief Engineer of the Board had decided the representation of the petitioner as an appellate authority, he was competent to hear the revision against the said order. The conclusion arrived at reads thus: "The present revision petition has been filed under Section 72 -B of the Haryana Housing Board Act, 1971 (as extended to UT, Chandigarh) and as per Section 72 -B of the aforesaid Act, "the Administrator may either suo moto or on an application of the party, call for and examine the record of any proceedings or decision or 4 of 14 order passed by the Board, Chairman, Chief Executive Officer or Officer of the Board for the purpose of satisfying itself as to the legality or propriety of any decision or order passed and if in any case it shall appear to the Administrator that any such decision or order should be modified, annulled or revised, the Administrator may after giving the persons affected thereby an opportunity of being heard, pass such order thereon as it may deem fit". The Finance Department, Chandigarh Administration has issued notification dated 4.4.2005 vide which the powers exercised under Section 72 -B of the Haryana Housing Board Act, 1971 (as extended to Chandigarh) by the Administrator have been delegated to the Adviser to the Administrator, Union Territory, Chandigarh. Since the Chief Engineering has decided the matter under Clause 2 of the Agreement in the capacity of Appellate Authority, this court is fully competent to hear the revision petition filed under Section 72 -B of the Act. To come up for further hearing on merits on 17.9.2014. ;