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2015 DIGILAW 649 (HP)

Hemender Pal Singh v. State of Himachal Pradesh

2015-06-01

DHARAM CHAND CHAUDHARY

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JUDGMENT : Dharam Chand Chaudhary, J. Petitioner-contractor was awarded the work namely "Providing LIS for Horticulture Land of Various Panchayats in Tehsil Rohru, Jubbal and Kotkhai Phase-III (Charol, Panog, Kairi, Koti Area Below D/T of Stage 2nd) (C/O Storage Tank of Various Capacities and Lying and Jointing of Various Dai)", District Shimla, H.P., vide agreement No.138 of 2009-10 by the 2nd respondent, the Chief Engineer, I&PH, U.S. Club Shimla - 1, vide letter of award dated 22.12.2009, at a total cost of Rs.1,13,83,640/-. 2. The work was required to be completed within one year to be reckoned from the 15th day of issuance of the letter of award. The petitioner-contractor, therefore, was required to complete the work by 5th January 2011. He, however, could complete the work valuing only about Rs.34,62,356/-. He could not execute the remaining work for want of the site, which was to be made available by the respondent-department by acquiring private land and also on obtaining the clearance from Forest Department. The petitioner-contractor, therefore, could not execute the balance work costing Rs.79,22,284/-. He has suffered loss @15% on account of non-execution of the balance work costing Rs.79,22,284/- which works out to Rs.11,88,342/-. The work costing Rs.5,00,000/-, he executed after the submission of last bill has also not been measured nor any payment made to him. In a nut-shell, the petitioner- contractor submits that the following disputes arise for determination: (a) Legality of the order of imposing penalty by the Executive Engineer; (b) Recovery of withheld amount Rs.5,00,000/-; (c) Damages for loss of profit; (d) Payment for idle labour/infrastructure Rs.16,00,000/- (e) Unmeasured worked Rs.5,00,000/- (f) Interest at the rate of 18%." 3. The present is a case where disputes have arisen between the parties during the execution of the work awarded to the petitioner-contractor. In terms of clause 25 of the contract agreement such disputes can be referred to the sole arbitrator to be appointed by the Engineer-in-Charge/Chief Engineer, Irrigation, and Public Health Department. 4. Learned Additional Advocate General, on instructions, submits that the Chief Engineer has appointed Superintending Engineer Arbitration Circle Solan as Arbitrator to adjudicate the disputes. In this case the said authority has, however, lost its right to appoint the Arbitrator, after expiry of period of 30 days from the date of receipt of notice Annexure P-2. 4. Learned Additional Advocate General, on instructions, submits that the Chief Engineer has appointed Superintending Engineer Arbitration Circle Solan as Arbitrator to adjudicate the disputes. In this case the said authority has, however, lost its right to appoint the Arbitrator, after expiry of period of 30 days from the date of receipt of notice Annexure P-2. Therefore, at this stage, the competent authority i.e. the Chief Engineer is ceased to exercise the powers, the contract agreement conferred upon him. The arbitrator has, therefore, to be appointed by this Court. 5. Having gone through the nature of the dispute, not complicated and technical in nature and rather a law knowing person is competent to adjudicate the same, I appoint Shri Harish Bahl, Advocate, H.P. High Court, Shimla as sole arbitrator to adjudicate the above disputes having arisen during the execution of the work in this case. It is expected from Mr. Bahl that he will enter upon the reference within a week from the date he receives an authenticated copy of this judgment, which shall be made available to him by the Registry of this Court. It is also expected from Mr. Bahl that he will conclude the proceedings at the earliest preferably within six weeks from the date of entering into the reference. 6. The fee of Mr. Bahl is assessed as Rs.1,00,000/-, which shall be shared equally by the parties on both sides. He shall also be entitled to Rs.10,000/- towards secretarial charges. The said amount shall also be shared by both sides equally. 50% of the amount will be paid to Mr. Bahl on the day he enters upon the reference and the remaining on the conclusion of the proceedings and before pronouncement of the award. The petition is accordingly allowed and disposed of.