WP(C) 1135/2010 BEFORE THE HON’BLE MR. JUSTICE A.POTSANGBAM Heard Mr. B.R. Dey, learned senior counsel appearing for the petitioner and Mr. S. Saikia, learned Standing Counsel appearing for the Public Works Department, Government of Assam. This petition has come up for consideration of its admission. An affidav it-in-opposition on behalf of the State PWD has been filed wherein the con tract agreement dated 15.10.2007 entered into between the petitioner and the Governor of Assam is made available. It is also noticed from the records that when this petition was moved for motion on 17.2.2010, the learned senior counsel appearing for the petitioner was directed to furnish the contract document of the work or der in question, before the court but no such document is made available from th e end of the petitioner. The writ petitioner has filed this petition challenging the order dated 31.12.2009 by which the work order of the one package reflected in the agreement referred to above, has been withdrawn by the Executive Enginee r, PWD, Tinsukia Division, allegedly on the ground that the progress of the work was not being made by the Contractor in terms of the conditions stipulated in t he agreement and as a result, the public interest have suffered. Mr. Saikia, learned Standing Counsel appearing for the PWD submits that this wri t petition is not maintainable for the simple reason that in the agreement enter ed into between the parties, there is a provision for referring any dispute to t he Review Committee. The relevant portion of the agreement is quoted below - 24. Disputes 24.1 If the Contractor believes that a decision taken by the Engineer was eit her outside the authority given to the Engineer by the Contract or that the deci sion was wrongly taken, the decision shall be referred to the Dispute Review Exp ert within 14 days of the notification of the Engineer’s decision. 25. Procedure for Disputes 25.1 The Dispute Review Expert (Board) shall give a decision in writing withi n 28 days of receipt of a notification of a dispute. 25.2 The Dispute Review Expert (Board) shall be paid daily at the rate specif ied in the Contract Data together with reimbursement expenses of the rypes speci fied in the Contract. Secondly, there is also a provision for arbitration under the Arbitration and Co nciliation Act, 1996, in Clause 25(3) of the agreement and the same is reproduce d herein below - ARBITRATION (GCC Clause 25.3) The procedure for arbitration will be as follows : 25.3 (a) In case of Dispute or difference arising between the Emp[loyer and a domestic contractor relating to any matter arising out of or connected with thi s Agreement, such dispute or difference shall be settled in accordance with the Arbitration and Conciliation Act, 1996 The parties shall make efforts to agree o n a sole arbitrator and only if such an attempt does not succeed and the Arbitra l Tribunal consisting of 3 arbitrators one each to be appointed by the employer and the Contractor and the third Arbitrator to be chosen by the two Arbitrators so appointed by the parties to act as Presiding Arbitrator shall be considered. In case of failure of the two arbitrators appointed by the parties to reach upn a consensus within a period of 30 days from the appointment of the arbitrator ap pointed subsequently, the Presiding Arbitrator shall be appointed by the Counci l, Indian Roads Congress. (b) The Arbitral tribunal shall consist of three Arbitrators one each to be appointed by the Employer and the Contractor. The third Arbitrator shall be chos en by the two Arbitrators so appointed by the parties, and shall act a presiding arbitrator. In case of failure of the two arbitrators by the parties to reach u pon a consensus within a period of 30 days shall be appointed by the Council, I ndian Roads Congress. ' If one of the parties fails to appoint its arbitrator in pursuance of sub-clau se(a) and (b) above within 30 days after receipt of the notice of the appointmen t of its arbitrator by the other party, then the Council, Indian Roads Congress shall appoint the Arbitrator. A certified copy of the order of the Council, Indi an Roads Congress, making such an appointment shall be furnished to each of the parties. (d) Arbitration proceedings shall be held in India, and the language of the arbi tration proceedings and that of all documents and communications between the par ties shall be English. (e) The decision of the majority of Arbitrators shall be final and binding upon both parties. The cost and expenses of Arbitration proceedings will be paid as d etermined by the arbitral tribunal. However, the expenses incurred by each party in connection with the preparation, presentation, etc. of its proceedings as al so the fees and expenses paid to the arbitrator appointed by such party or on it s behalf shall be borne by each party itself. (f) Performance under the contract shall continue during the arbitration proceed ings and payments due to the contractor by the owners shall not be withheld, unl ess they are the subject matter of the arbitration proceedings. According to Mr. Saikia, learned Standing Counsel, it is well settled by Apex Court as well as by this Court that whenever there is any dispute between the employer and the Contractor, arising out of a contract agreement voluntarily executed between the parties, the same is referable to an arbitral proceeding i f such clause is available in the agreement. It is not the case of the petitione r that there is no arbitration clause in the agreement but his argument is that the decision taken by the respondents-authority is arbitrary and contrary to the facts maintained by the department. This dispute of facts cannot be gone into i n a writ proceeding. Be that as it may, all the issues or any other legal issues which are no w raised by the petitioner before this Court can well be urged before the arbitr al proceeding, if so advised. In view of the provision contained in the agreemen t as extracted above, this Court is of the opinion that it is for the petitioner to approach the authority in terms of the aforesaid arbitration clause and seek for redressal of the dispute(s) before an arbitral proceeding. Accordingly, this writ petition is not entertained and the same is dispo sed of in terms of the observations made above. Interim order if any stands vacated.