IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.370 of 2008 1. The Union of India through the Chairman, Railway Board, Rail Bhawan, New Delhi. 2. The Chairman Railway Board, Rail Bhawan, New Delhi. 3. The General Manager, East Central Railway, Hazipur, District-Hazipur. 4. The Chief Administrative Officer (Construction) (South), Mahendrughat, Patna, District-Patna. 5. The Chief Engineer(Construction) (sough) East Central Railway, Mahendrughat, Patna District-Patna. 6. The Deputy Chief Engineer(Construction) East Central Railway, Mahendrughat, Patna, District-Patna. 7. The Executive Engineer(Construction), East Central Railway, Ara. ……….Respondents/Appellants Versus M/S Dayanand Prasad Sinha & Janta Path, Kankarbagh Raod Patna-20, through its Special Attorney Sri Mritunjay Kumar Singh, son of Sri Shiv kumar Singh,resident of Om Sai Villa Apartment, Bahadurpur, Police Station Kankarbagh, District-Patna. ………..Petitioner/Respondent ----------- For the appellants - Mr. Bindhyachal Singh, Adv. Mr. Prashant Kumar, Adv. Mr. Vipin Kr. Singh, Adv. Mr. Ram Vinod Singh, Adv. Mr. Sushil Kumar Singh, Adv. For the Respondent – Mr. Sanjeev Kumar, Adv. --------- 10/- 28.06.2011 The present Letters Patent Appeal has been filed against the order passed in C.W.J.C. No. 12545 of 2007 dated 02.04.2008, wherein the respondent was the petitioner and the appellant-railways was the respondent. The matter arises out of a contract laying down a new broad gauge line between certain sections of Ara-Sasaram route being Contract Agreement No. ECR/CAO/61 dated 06.09.2004. The said contract was rescinded by the Railway-petitioner vide Annexure – 23 dated 02.08.2007. Subsequently, a fresh contract has been ordered 2 and an agreement entered into with the risk and cost of the respondent herein. Aggrieved by the said agreement the respondent has chosen to file the writ petition seeking a direction to quash Letter No. DCE/Con/DNR/A-S/12/452 dated 27.07.2007 (Annexure – 23 of the writ petition) issued under the signature of Deputy Chief Engineer(Construction), East Central Railway, Danapur, (Respondent No. 6 in the writ petition). The main contention urged before the learned Single Judge was that the delay has occurred on the part of the Railways and therefore the respondent contractor was not responsible to complete the work on time. Hence it is claimed that issuance of Annexure – 23, is in violation of Clause 62 of the general conditions of the agreement. The learned counsel for the petitioners, respondent herein has vehemently argued that the delay has been caused on the part of the Railways in view of Annexure – 40 and 41. The learned counsel appearing on behalf of the appellant- railway has submitted that the delay on the part of the Railways is a disputed question of fact which cannot be gone into in a writ jurisdiction under Article 226 of the Constitution of India. The dispute arose with regard to arbitration which is also a part of the agreement itself. The learned counsel for the respondent has disputed the said proposition stating that as the delay occurred on the part of the Railways, the time was extended. But however, we are of the view that as no material is placed before this court by the respondent-contractor to the effect that he has completed the work during the extended period. 3 Under the above circumstances, we are of the opinion that in absence of any such material to the effect that the contractor has completed his work during the extended time, as a result of which the work has been re-tendered at the risk and cost of the respondent- contractor, it has to be held that the above questions is a disputed question of fact which should be gone into by the appropriate Forum and this Court cannot decide the disputed question of facts. Under the above circumstances, the order passed by the learned Single Judge is set aside and the respondent shall raise the dispute before an arbitrator in accordance with law. With the above observation this Letters Patent Appeal stands allowed. Prakash/Praveen ( T. Meena Kumari, J.) ( Akhilesh Chandra, J.)