Himachal Pradesh High Court
Ganesh Prasad vs State Of H.P. And Another on 28 June, 2019
Author: Dharam Chand Chaudhary
Bench: Dharam Chand Chaudhary
IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA
Arb. Case No.62 of 2018
Date of decision : June 28, 2019
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Ganesh Prasad ...Petitioner.
Versus
State of H.P. and another ...Respondents.
Coram
The Hon'ble Mr. Justice Dharam Chand Chaudhary, Judge.
Whether approved for reporting? 1 No No.
For the Petitioner: Ms. Meenakshi Sharma, Advocate.
For the Respondents: Mr. Ashwani Sharma, Addl. Advocate
r General for the respondents.
Dharam Chand Chaudhary, J (Oral)
Petitioner is a Class "A" Contractor. The work, namely construction of "Khabal Sandalsi Rohal Road KM 0/0 to 6/0 (SH F/C, C.D. Soling etc. under Pradhan Mantri Gram Sadak Yojna (PMGSY)", was awarded to him. He executed the agreement Annexure P-2 with the Executive Engineer, HPPWD, Division Rohru, District Shimla. Irrespective of he having faced lot of difficulties, executed the work awarded to him.
The report with respect to the completion of work is Annexure P-3.
Whether reporters of the local papers may be allowed to see the judgment?
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2. The complaint is that the respondents have neither carried out correct measurement of the work done nor .
released the security amount lying deposited with them.
Being so, dispute arose between the parties within the meaning of agreement Annexure P-2. The petitioner has set up the claim for payment after carrying out the measurement correctly and also the release of the amount of security or in the alternative requested to refer the dispute for adjudication by way of arbitration. Proceedings for settlement conducted vide communication Annexure P-4 also failed. Subsequently, petitioner vide notice Annexure P-5 requested the respondents to refer the matter to the Arbitrator. On this, consent of the petitioner for referring the matter to the adjudicator in terms of Clause 24 of the contract agreement was again sought vide Annexure P-6. The petitioner consented for the same vide communication Annexure P-7. The matter, however, was not referred to the adjudicator nor the dispute settled as yet.
Therefore, by way of this application, a prayer has been made to refer the matter for adjudication of the dispute having arisen between the parties with respect to the work in question.
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3. The respondents though have filed reply to the application, however, nothing concrete has come thereby on .
record to show otherwise that the petitioner is not justified in claiming the appointment of Arbitrator or that no dispute is in existence between the parties.
4. In view of the facts and circumstances of the case and also the submissions made on behalf of the parties, the present is a case where the petitioner has executed the work awarded to him. The amount due and admissible to him has not been released nor Arbitrator appointed, irrespective of he having served the respondents with notice Annexure P-5. The efforts made to settle the dispute with the assistance of adjudicator also failed and irrespective of the petitioner having consented vide communication Annexure P-7 for appointment of any of the retired officers named in Annexure P-6 as 3rd member of Standing Empowered Committee, the respondents failed to do so. Therefore, Arbitrator is now to be appointed by the Court to adjudicate the claims and counter claims of the parties.
5. Since the dispute is technical in nature, therefore, Shri Suman Vikrant, Engineer-in-Chief (Retired) from ::: Downloaded on - 29/09/2019 00:09:26 :::HCHP ...4...
Irrigation and Public Health Department is appointed as Arbitrator to adjudicate the same.
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6. Learned Arbitrator to enter upon the reference at the earliest within two weeks from the date of receipt of an authorization along with an authenticated copy of this judgment from the Registry of this Court. It is expected from the Arbitrator that he will conclude the proceedings, within six months from the date he enters upon the reference. The fee is payable to the Arbitrator as per the provisions contained under Section 11 read with Schedule V of the Act, which he shall determine at his own. Fee payable to the Arbitrator shall be shared equally by the parties on both sides. A sum of Rs.50,000/- shall be paid to the Arbitrator in advance, after he enters upon the reference and the remaining well before the pronouncement of the award.
The petition is accordingly allowed and stands disposed of, so also the pending application(s), if any.
June 28, 2019(ss) (Dharam Chand Chaudhary), J ::: Downloaded on - 29/09/2019 00:09:26 :::HCHP