IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI THURSDAY, THE 27TH AUGUST 2009 / 5TH BHADRA 1931 WP(C).No. 20174 of 2007(B) -------------------------- PETITIONER: ------------------ CHANDRAGIRI CONSTRUCTION COMPANY, 3/402 A, BACKER CHAMBER, V KARAT ROAD, WEST NADAKAVU, KOZHIKODE-673 011, REPRESENTED BY ITS PARTNER K.M.MOHAMMED SHERIFF, PADHOOR HOUSE, THEKKIL P.O., KASARAGOD. BY ADV. SRI.K.BABU THOMAS SMT.MARYKUTTY BABU RESPONDENTS: --------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, PUBLIC WORKS DEPARTMENT, SECRETARIAT, TRIVANDRUM. 2. THE CHIEF ENGINEER, PWD, NATIONAL HIGHWAYS, PUBLIC OFFICE, TRIVANDRUM. 3. THE SUPERINTENDING ENGINEER, PWD, NATIONAL HIGHWAYS, CENTRAL CIRCLE, VYTILA, KOCHI-19. 4. THE EXECUTIVE ENGINEER, NATIONAL HIGHWAY, BRIDGE DIVISION, KODUNGALLOOR, TRISSUR. 5. UNION OF INDIA REPRESENTED BY THE SECRETARY TO GOVERNMENT, MINISTRY OF SHIPPING, ROAD TRANSPORT AND HIGHWAYS, CENTRAL GOVERNMENT SECRETARIAT, NEW DELHI. 6. THE DIRECTOR GENERAL,(ROAD DEVELOPMENT & SS), MINISTRY OF SHIPPING, ROAD TRANSPORT AND HIGHWAYS, TRANSPORT BHAVAN, NO.1 PARLIAMENT STREET, NEW DELHI-1. WP(C).No. 20174 of 2007(B) :2: 7. THE CHIEF ENGINEER, NATIONAL HIGHWAYS, MINISTRY OF SHIPPING, ROAD TRANSPORT AND HIGHWAYS, NEW DELHI. 8. THE REGIONAL OFFICER, MINISTRY OF SHIPPING, ROAD TRANSPORT AND HIGHWAYS, PUBLIC OFFICE, TRIVANDRUM-695033. 9. THE PAY AND ACCOUNTS OFFICER, NATIONAL HIGHWAYS, 1ST FLOOR, F WING, KENDRIYA SADAN, BANGALORE-560034. R1 TO R4 BY GOVERNMENT PLEADER SRI. MANOJ. R5 TO 9 BY ADV. SRI.P.PARAMESWARAN NAIR,ASST.SOLICITOR. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27/08/2009 ALONG WITH W.P.(C) NO.30862 OF 2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 20174 of 2007(B) APPENDIX PETITIONER'S EXHIBITS: P1 : COPY OF RELEVANT PORTION OF AGREEMENT. P2 : COPY OF BILL FOR PAYMENT OF RS.2,10,15,547/- AND P.V. BILL FOR RS.16,31,200/- P3 : COPY OF ORDER OF THE 3RD RESPONDENT REVOKING THE TERMINATION. P4 : COPY OF INTERIM PAYMENT CERTIFICATE FOR RS.1,61,89,27/- ISSUED BY THE 3RD RESPONDENT P5 : COPY OF JUDGMENT IN WP(C) NO. 29275/2006 P6 : COPY OF REVISED ESTIMATE PROPOSALS FOR RS.1465 LACS. P7 : COPY OF REPRESENTATION OF THE PETITIONER. P8 : COPY OF REVISED ESTIMATE ITEMS SENT BY THE 2ND RESPONDENT FOR APPROVAL OF THE RESPONDENTS 5 TO 8. P9 : COPY OF PART BILLS FOR PAYMENT. P10 : COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER TO THE RESPONDENTS. P11 : COPY OF THE REVISED ESTIMATE SUBMITTED BY THE 2ND RESPONDENT DATED 8.7.2008 P12 : COPY OF THE LETTER DATED 6.12.2006 SUBMITTED BY THE 1ST RESPONDENT TO ADVOCATE GENERAL, TO REVOKE THE RESCISSION. P13 : COPY OF THE OPINION OF THE LAW SECRETARY DATED 23.5.2008. P14 : COPY OF THE UNAUTHORIED LETTER OF THE 1ST RESPONDENT SUPPRESSING EXT.P5 JUDGMENT. P15 : COPY OF LETTER OF THE 3RD RESPONDENT DETAILING THE AUTHORITY AND CIRCUMSTANCES LEADING TO EXT.P3. P16 : COPY OF REPRESENTATION OF THE PETITIONER TO THE RESPONDENTS 2 TO 4, REQUESTING PAYMENT OF RS.2,89,99,285/- AND APPROVAL OF VARIATIONS. P17 : COPY OF REPRESENTATION OF THE PETITIONER TO RESPONDENTS 2 TO 4, REQUESTING PAYMENT OF RS.2,89,99,285/- AND APPROVAL OF VARIATIONS. P18 : COPY OF LETTER OF THE 2ND RESPONDENT TO THE 1ST RESPONDENT, WITH VALUE OF WORKS CARRIED OUT AT RS.215 LAKHS SUBSEQUENT TO REVOCATION OF TERMINATION. RESPONDENTS' EXHIBITS: R5(A) : COPY OF MINISTRY'S SANCTION LETTER NO.RW/NH/12014/111/2002 DATED 27.05.2003. R5(B) : COPY OF MINISTRY'S LETTER NO.RW/NH-12018/71/05-KL(P-7) DATED 24.8.2005 R5(C) (I) (II) (III) : COPIES OF LETTERS DATED 21.4.2008, 01.05.2008 AND 06.05.2008 R5(D) : COPY OF LETTER NO.RW/NHIII/COORD/32/84 DATED 19.5.1984 R5(E) (I) (II) (III) & (IV) : COPIES OF TERMINATION ORDER AND OTHER LETTERS ISSUED BY STATE PWD R5 (F) : COPY OF STATE PWD ORDER AGREEING TO REVOKE THE TERMINATION ORDER DATED 26.2.2007. // TRUE COPY // P.A. TO JUDGE app/- V.GIRI, J. = = = = = = = = = = = = = = == = = = = = = W.P.(C). Nos. 20174 OF 2007 & 30862 OF 2008 = = = = = = = = = = = = = == = = = = = = = Dated this the 27th day of August 2009. JUDGMENT It is unnecessary to recapitulate the detailed facts that have led to the institution of these two writ petitions, which are by the same party and relating to the same contract. 2. Suffice to mention that the contract awarded to the petitioner by the Public Works Department has been terminated. It is admitted that a major portion of the work has been completed. Request made by the petitioner for approval of the revised estimate has been rejected. Learned Counsel for the petitioner submits that there is an arbitration clause in the agreement executed between petitioner and the State and therefore all disputes including the one relating to validity of the termination, acceptability or the rejection of the request for approval of the revised estimate and such other matters may be referred for adjudication by an arbitrator in terms of the provisions of Clause 25 in Ext.P1. 3. Learned Government Pleader submits that the Government has taken the stand that there is no valid arbitration W.P.(C). Nos. 20174 OF 2007 & 30862 OF 2008 2 agreement. He further contends that the inclusion of Clause 25 in Ext.P1, was not with the authority of the Government. Prima facie, this contention seems to be without merit. But obviously, what is to be taken note of is that there is no consensus between the parties as regards the existence of the arbitration agreement leave alone the person, who may be appointed as an arbitrator. In the circumstance, the remedy of the petitioner lies under the provisions of the Arbitration and Conciliation Act 1996 or before the Civil Court as the case may be. 4. Learned Government Pleader further submits that the Government has sanctioned the amount to be paid to the petitioner for the work already completed at the time of the termination of the contract. The said amount shall be disbursed within 2 months from the date of receipt of a copy of this judgment. Writ petitions are disposed of as above. Other contentions of the parties are left open. (V.GIRI) JUDGE kkms/