IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.1069 of 2009 1. UNION OF INDIA THROUGH MINSTRY OF RAIL 2. EAST CENTRAL RAILWAY HAVING ITS OFFICE AT HAZIPUR. 3. DIVISIONAL RAIL MANAGER, EAST CENTRAL RAILWAY, SAMASTIPUR. 4. SENIOR DIVISIONAL ENGINEER (SPECIAL), SAMASTIPUR. 5. ASSISTANT ENGINEER (BRIDGE), EAST CENTRAL RAILWAY, RAXAUL. --APPELLANTS Versus M/S CHANDRA ENTERPRISES HAVING ITS OFFICE AT MIGH-83, LOHIANAGAR. P.S. KANKARBAGH, TOWN AND DISTRICT-PATNA THROUGH AMIT KUMAR, ONE OF THE PARTNERS. --RESPONDENT For the Appellants : Mr. Ashok Kr. Keshari For the Respondent : Mr. Abhinay Raj. 8 21.04.2011 The present Letters Patent Appeal is filed agaisnt the judgment and order passed in CWJC no. 14176 of 2008 dated 26th March, 2009, wherein the respondent (writ petitioner) had questioned that part of the contract by which Railways issued re-tender and he is also aggrieved by awarding of new contract at the risk and cost of the petitioner. The case relates to the original tender awarded to the respondent for unloading of and placement of Pre- Stressed Concrete (PSC) slabs on five bridges on the Muzaffarpur-Narkatiyaganj section. Case of the 2 respondent (being petitioner in the writ petition) is that he could not put the P.S.C. slabs on the bridge space because the Railways have failed to complete the bridges and he was not able to lay down the slab on them. It is contended by the Railways that it is not in dispute that so far as bridge no.139 is concerned, the respondent has completed the work on extended time and so far as bridge no.332 is concerned, as the respondent failed to do the job and it was affecting the passengers traffic, the Railways did the job themselves and they have rescinded the contract. However, it has been expressed that inspite of granting extensions the three bridges, that is, bridges no. 274, 341 and 374 have not been completed. They were not available for laying down the PSC slabs and the action of the Railway Authorities in awarding the re-tender at risk and cost of the petitioner is arbitrary. The observation of the learned single Judge is that the Railway has not completed the above bridges and hence the respondent did not complete the remaining work. But, the argument of Railways are that he has not completed the laying down of the PSC slabs within the time frame on risk and cost of the respondent. The learned single Judge has observed 3 that as the three bridges were not completed for the purpose of laying down the slabs hence re-tender at the risk and cost of the petitioner cannot be sustained and the writ petition was allowed and the said clause has been set aside. Aggrieved by the said order the present Letters Patent Appeal has been filed. It has been contended by the learned counsel for the appellants- Railways that the fact remains that the respondent could not complete the projects within the extended time and the contract has been rescinded and hence general clauses of the contract would also go to show that the respondent can raise the arbitration dispute that is risk and cost clause as the Railways has not completed the bridges. This is a question of fact and it cannot be decided under Article 226 of the Constitution of India. The respondent is to raise the dispute before the Arbitrator as it required that evidence to be sought with regard to the disputed question of fact. The learned counsel for the respondent has contended that the appellants-Railways ought not to have issued the re-tender at the risk and cost of the petitioner as the respondents-Railways have failed to hand over the 4 bridges to the respondent. But, however, the fact remains that whether the Railways failed to hand over the bridges is disputed question of fact has to be gone into by way of evidence. The remedy of Article 226 of the Constitution of India is not available where the disputed question of fact is available and have to be gone into before the appropriate forum. Under the above circumstances, we are of the opinion that the respondent has to avail the remedy in accordance with law before appropriate forum and under the above circumstances, as the disputed question of fact is involved in the present case, we are of the opinion that the order of the learned single Judge cannot be sustained and it has to be set aside. Accordingly, the impugned order is set aside and the Letters Patent Appeal is allowed with the above observation to have the disputed question decided before the appropriate forum if they are aggrieved by assertion of clause, that is, risk and cost. (T. Meena Kumari, J.) AAhmad ( Akhilesh Chandra, J.)