1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. :: O R D E R :: DATE OF ORDER :: 17-04-2008 S.B. CIVIL WRIT PETITION NO.2545/2008 M/S BANNA RAM LOL CONSTRUCTION CO. Vs. STATE OF RAJASTHAN & ANR. HON'BLE DR. JUSTICE VINEET KOTHARI Mr.Sanjay Mathur, for the petitioner. ***** Heard learned counsel for the petitioner. Learned counsel for the petitioner submits that the impugned orders passed by the Employer, The Chief Engineer (PMGSY), P.W.D, Jaipur on 11.02.2008 terminating the contract of the petitioner as per Clause 52 of the Standard Binding Document is wrong and though he has filed an appeal against the said order under Clause 24.1, the same has yet not been decided. Under the Standard Binding Document for PMGSY Clause 24 and 25 providing for alternative dispute redressal forum reads as under:- “24.Dispute Redressal System 24.1 If any dispute or difference of any kind what-so-ever shall arises in connection with or arising out of this Contract or the execution of Works or maintenance of the Works there under, whether before its commencement or during the progress of Works or after the termination, abandonment or breach of Contract, it shall, in the first instance, be referred for settlement to the competent authority, described along with their powers 2 in the Contract Data, above the rank of the Engineer. The competent authority shall, within a period of forty-five days after being requested in writing by the Contractor to do so, convey his decision to the Contractor. Such decision in respect of every matter so referred shall, subject to review as hereinafter provided, be final and binding upon the Contractor. In case the Works is already in progress, the Contractor shall proceed with the execution of the Works, including maintenance thereof, pending receipt of the decision of the competent authority as aforesaid, with all due diligence. 24.2Either party will have the right of appeal, against the decision of the competent authority, to the Standing Empowered Committee if the amount appealed against exceeds rupees or lakh. 24.3 The composition of the Empowered Standing Committee will be: I. One official member, Chairman of the Standing Empowered Committee, not below the rank of Additional Secretary to the State Government; II. One official member not below the rank of Chief Engineer; and III. One non-official member who will be technical expert of Chief Engineer's level selected by the Contractor from a panel of three persons given to him by the Employer. 24.4 The Contractor and the Employer will be entitled to present their case in writing duly supported by documents. If so requested, the Standing Empowered Committee may allow one opportunity to the Contractor and the Employer for oral arguments for a specified period. The Empowered Committee shall give its decision within a period of ninety days from the date of appeal, failing which the contractor can approach the appropriate court for the resolution of the dispute. 24.5 The decision of the Standing 3 Empowered Committee will be binding on the Employer for payment of claims up to five percent of the Initial Contract Price. The Contractor can accept and receive payment after signing as “in full and final settlement of all claims”. If he does not accept the decision, he is not barred from approaching the courts. Similarly, if the Employer does not accept the decision of the Standing Empowered Committee above the limit of five percent of the Initial Contract Price, he will be free to approach the courts applicable under the law. 25. Arbitration 25.1 In view of the provision of the clause 24 on Dispute Redressal System, it is the condition of the Contract that there will be no arbitration for the settlement of any dispute between the parties.” Learned counsel for the petitioner submits that even without deciding the said appeal of the petitioner, the respondents are proceeding to invite fresh tenders for the work in question. Having heard learned counsel for the petitioner, this Court is of the opinion that since the alternative forum by way of dispute redressal system has been made available to the contractor, whether before its commencement or during the progress of work or even after termination or abandonment or breach of contract, it would be appropriate that the petitioner's grievance, if any, is heard and redressed by such Committee constituted under this aforesaid Clause 24. Since the petitioner has already approached the said Committee by way of Annex.8 dated 04.03.2008 it is expected that 4 the said Committee would take up the proceedings under Clause 24 quoted above and decide the same expeditiously. The petitioner is also directed to co-operate in the matter and in the first instance the petitioner shall remain present before the Chief Engineer, PNGSY, P.W.D., Jaipur on 01.05.2008 whereupon the next date for proceeding by the said Committee may be informed to the petitioner and after affording an opportunity of hearing to the petitioner the said Committee is expected to decide the matter or representation filed by the petitioner in accordance with law within a period of two months. With these observations, the petition stands disposed of. If the petitioner is aggrieved of the said decision,of the Committee he will be free to approach this Court against the such decision. [VINEET KOTHARI],J. mamta