IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.103 of 2011 M/S Ajanta Construction Company, F/175, P.C. Colony, Kankarbagh, Patna-20 through its partner namely Sri Sushil Kumar Choubey, son of Late Hare Ram Choubey, resident of F/175, P.C. Colony, P.S.- Kankarbagh, District-Patna. ……..Petitioner. Versus 1. The State of Bihar through the Principal Secretary, Road Construction Department, Bihar, Patna. 2. The Engineer-in-Chief, Road Construction Department, Bihar, Visheshwaraiya Bhawan, Bailey Road, Patna-1. 3. The Chief Engineer, Road Construction Department, Bihar, Visheshwaraiya Bhawan, Bailey Road, Patna-1. 4. The Superintending Engineer, Road Construction Department, Work Circle, Saharsa. 5. The Executive Engineer, Road Construction Department, Khagaria. …..Respondents. ----------- For the petitioner : Mr. Dinesh Choudhary, Advocate. For the respondents : Mr. P.K.Verma, A.A.G.-V. Mr. Saroj Kumar, A.C. to A.A.G.- V. -------- 03/ 17.01.2011 Heard learned counsel for the petitioner and learned counsel for the respondents. 2. This writ petition has been filed by the petitioner challenging order dated 03.02.2010 (Annexure-11) passed by the Secretary Road Construction Department, Govt. of Bihar, Patna (respondent no.1) quashing order dated 31.12.2009 (Annexure-8) by which the Engineer-in-Chief, Road Construction Department, Govt. of Bihar, Patna (respondent no.2) rescinded the agreement between the parties and directed return of the earnest money along with any remaining payment due. 3. The matter was considered by the Engineer-in-Chief as per the direction of this court vide order dated 20.08.2009 (Annexure-1) passed in CWJC no.10014 of 2009 and CWJC - 2 - No.10033 of 2009 which were disposed of with a direction that if the petitioner makes fresh application before the Engineer-in-Chief raising all his grievance, the said authority shall dispose it of preferably within four weeks from the date of receipt of application and finalization of fresh tender would be subject to the disposal of the representation by the Engineer-in-Chief, Road Construction Department who may consider letter dated 20.04.2009 (Annexure-3) issued by the Superintending Engineer, Road Construction Department Work Circle Saharsa (respondent no.4). 4. CWJC No.10014 of 2009 was filed by the petitioner with respect to work contract vide Agreement No.2SBD of 2006- 07 for widening and strengthening of Khagaria-Parihara-Bakhri Road, whereas CWJC No.10033 of 2009 was filed by the petitioner with respect to work contract vide Agreement No.1 SBD of 2006-07 for widening and strengthening of Maheshkhut-Gogari Parwatta-Sultanganj Ghat Road under plan head 2006-07. It was claimed by the petitioner in both the writ petitions that due to unprecedented rain and damages to the approach road, he could not complete the work, but inspite of adverse working condition he still executed substantial work, but inspite of the aforesaid fact only partial payments were made and the contract work had been rescinded. 5. After disposal of those writ petitions, the petitioner’s application was decided by the Engineer-in-Chief vide order dated - 3 - 31.12.2009 (Annexure-8). The said order of the Engineer-in-Chief with regard to payment forfeited amount was set aside by the Secretary, Road Construction Department, Govt. of Bihar vide order dated 03.02.2010 (Annexure-11) although it upheld the order of rescinding. Now the aforesaid order of the Secretary with regard to payment has been challenged by the petitioner in the instant writ petition. 6. It is quite apparent that entire matter is with respect to partial execution of the work contract and payment/refund with respect thereto. Section 2(e) of the Bihar Public Works Contract Disputes Arbitration Tribunal Act, 2008, especially provides that “Dispute” would include the aforesaid matter and Section 2(k) defines “works contract” which includes construction, repairs of the roads which is the subject matter here. Section 9 of the Act provides that where any dispute arises between the parties to the contract, either party shall, irrespective of whether such contract contains an arbitration clause or not, refer within one year from the date on which the dispute has arisen, such dispute in writing to the Tribunal for arbitration in such form and accompanied by such documents or other evidence and by such fees, as may be prescribed and the said dispute shall be tried and decided by the Bihar Public Works Contracts Disputes Arbitration Tribunal which according to Section 11 had the powers of the court. 7. Since the aforesaid Tribunal has now become functional, the petitioner should have approached the said Tribunal - 4 - instead of coming to this court as the Tribunal was competent to decide such dispute in accordance with law. 8. In the said circumstances, this writ petition is disposed of with a liberty to the petitioner to approach the Tribunal with respect to the matter in dispute. Sunil (S. N. Hussain, J.)