-:- 1 -:- Writ Petition No.1865 of 2011. 01.10.2011 :- Shri S.V.Dandwate, learned counsel for the petitioner. Shri Bhuwan Deshmukh, learned Govt. Advocate for the Respondents/State. Heard. O R D E R BY filing this petition under Article 226 of the Constitution of India, the petitioner has challenged the Notice Inviting Tender dated 07.02.2011 (Annexure-P/6) issued by the Respondents on the ground that the work for which the NIT has been issued has already been awarded to him and as such for the same work no fresh NIT could have been issued. [2] Briefly stated the petitioner, a contractor registered under Class A/5 category with the Respondents was issued work order dated 13.10.2008 (Annexure-P/3) for construction of Asir Chandni Nepa Road length 20.55 kms. with 46 culverts estimating costs of Rs.905.74 lacs on acceptance of his bid in pursuance of NIT dated 17.07.2008 as per the tender document (Annexure-P/4). -:- 2 -:- [3] According to the petitioner on the basis of the aforesaid work order, he had started work and has completed work to the extent of more than the amount of Rs.905.74 lacs and was paid more than the said amount in view of the fact that his bid was accepted at the rate of 24.90% above schedule of rates (S.O.R.). He has stated that the said work allotted to him is still going on and during its continuation it is not within the powers of the Respondents to have issued fresh tender. [4] The Respondents have filed reply and have stated that since the petitioner could not complete the work within the time frame fixed for the same and the amount for which the petitioner's tender was issued and accepted, exceeded the limit, in order to get the remaining work being completed, the impugned NIT was issued. [5] Having heard learned counsel for the parties at length and after perusal of the record produced before us, we find that the contract agreement executed between the parties contains an arbitration clause which reads thus :- -:- 3 -:- “Clause 29.-- Except as otherwise provided in this contract all question and dispute relating to the meaning of the specifications, designs, drawings and instructions herein before mentioned and as to thing whatsoever, in any way arising out of or relating to the contract, designs, drawings, specifications, estimates, concerning the works, or the execution or failure to execute the same, whether arising during the progress of the work or after the completion or abandonment thereof shall be referred to the Superintending Engineer in writing for his decision, within a period for 30 days of such occurrence. Thereupon the Superintending Engineer shall give his written instructions and/or decisions within a period of 60 days of such request. This period can be extended by mutual consent of the parties. Upon receipt of written instructions or decisions, the parties shall promptly proceed without delay to comply such instructions or decisions. If the Superintending Engineer fails to give his instructions or decisions in writing within a period of 60 days or mutually agreed time after being requested if the parties are aggrieved against the decision of the S.E. the parties may within 30 days prefer an appeal to the Chief Engineer who shall afford an opportunity to the parties of being heard and to offer evidence in support of his appeal. The Chief Engineer will give his decision within 90 days. If any party is not satisfied with the decision of the Chief Engineer, he can a refer such disputes for arbitration by an Arbitration Tribunal to be constituted by the State Government which shall -:- 4 -:- consist of three members of whom one shall be chsen from among the officers belonging to the Department not below the rank of S.E. one Retired Chief Engineer of any Technical Department, and one serving officer not below the rank of S.E. belonging to another Technical Department.” [6] In the circumstances, in our considered view the petitioner is having an alternative remedy of arbitration. We find no force in the submission of learned counsel for the petitioner that the Respondents having not terminated the petitioner's contract, it was not open for them to have issued fresh Notice Inviting Tender for completion of the alleged balance work. [7] We find that undisputedly the entire work has not been completed by the petitioner with the time limit. We also find that the petitioner was issued several letters asking him to complete the work, however, he could not complete the same within the time frame fixed in the agreement. He on the other hand made prayer for extension. Instead of extending the time, keeping in view the fact that the work has exceeded from the sanctioned financial limit, it was deemed -:- 5 -:- fit by the Respondents to invite fresh tenders for completion of the balance of work which was allotted to the petitioner. [8] In our considered view, the said decision of the Respondents in the absence of mala-fides or arbitrariness cannot be interfered by this Court in a petition under Article 226 of the Constitution of India, more particularly when the petitioner has remedy of invoking the arbitration clause existing in the terms of Contract. [9] Accordingly we dismiss this petition with liberty to the petitioner to avail remedy of arbitration within 30 days from today. [10] With the aforesaid observations and extension of limitation to avail remedy of arbitration, the writ petition stands dismissed. Cc within three days. [ Shantanu Kemkar ] [ Prakash Shrivastava ] JUDGE JUDGE (AKS)