This is an oral order in a civil writ petition challenging delay in dispute resolution under the PMGSY contract.
Liberty granted to file fresh request; Chief Engineer to decide within 45 days; liberty to move Secretary for Empowered Standing Committee.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.8160 of 2011
====================================================== 1. M/S R.S.Pandey & Co. Through Its Managing Director Dinesh Pandey R/O Manjhaulia Road, Distt. - Muzaffarpur .... .... Petitioner/s Versus 1. The Union Of India Through The Secretary, Central Public Works Department, Government Of India, New Delhi 2. The Chief Engineer, Central Public Works Department, Pant Bhawan, Patna 3. The Project Manager, Pmgsy Project Circle, Cnetral Public Works Department, Pant Bhawan, Patna 4. The Executive Enginner, Pmgsy Project Division, Muzaffarpur At Pcd Ii, Cpwd, Patna 5. The Executive Enginner, Pmgsy Project Division, Central Public Works Department, Madhubani .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Siya Ram Sahi, Adv. For the Respondent/s : Mr. Zaki Haider, CGC. ====================================================== CORAM: HONOURABLE MR. JUSTICE JAYANANDAN SINGH ORAL ORDER 8 10-12-2013 Under the heading „Dispute Redressal System‟ of the Standard Bidding Document (SBD) for Prime Minister Gramin Sadak Yojna (PMGSY) Clause 24.1, 24.2 and 24.3 reads as follows :- “24.1. If any dispute or difference of any kind whatsoever 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 the Contract, it shall, in the first instance, be referred for settlement to the competent authority, described along with their powers in the Contract Data, above the rank of the
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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. 24.2. Either 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 one 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.”
Learned counsel for the petitioner submits that the
petitioner has already filed a representation by way of request for settling the dispute to the Chief Engineer on 14.3.2013, vide Annexure-2/1 of the reply to the counter affidavit. He submits that, in terms of the said clause 24.1 and 24.2, it is only after the decision of the competent authority that the petitioner can
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approach the Empowered Standing Committee, if any. He submits that the competent authority, in terms of clause 24.1, has to give his decision within 45 days after filing of the representation. Hence, since petitioner has already approached before the competent authority, his application should have been considered and final decision should have been communicated to him positively within 45 days from the date of filing of the same, which has not been done.
Learned counsel for the respondents submits that the same may be done even today and for this purpose petitioner may be given liberty to file a fresh request for decision on the dispute being raised by him.
This writ application is accordingly disposed of with liberty to the petitioner to file a fresh application before the respondent Chief Engineer, Central Public Works Department within two weeks from today. As and when the Chief Engineer receives the said request on behalf of the petitioner, he shall take a decision and communicate the same to the petitioner positively within 45 days thereafter. In case, he is not the competent authority, then he shall transfer the request of the petitioner to the competent authority, who shall also take a decision and communicate it to the petitioner within 45 days thereafter. If the
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petitioner is aggrieved he will be at liberty to move the Secretary of the Central Public works Department for referring the matter to the Empowered Standing Committee which shall be constituted, if already not in existence, positively within two weeks from the date of receipt of the request from the petitioner. The matter shall be thereafter taken up by the Standing Empowered Committee which shall take steps to decide the matter strictly in terms of the relevant clauses of the SBD and at the earliest.
(Jayanandan Singh, J)
Arvind/-
1 issue framed by the court
Whether the petitioner can approach the Empowered Standing Committee before obtaining a decision from the competent authority under Clause 24.1 of the SBD.
1 provisions across 1 enactments
M/S R.S.Pandey & Co. Through Its Managing Director Dinesh Pandey
The Union Of India Through The Secretary, Central Public Works Department
The Chief Engineer, Central Public Works Department
The Project Manager, Pmgsy Project Circle
The Executive Enginner, Pmgsy Project Division, Muzaffarpur
The Executive Enginner, Pmgsy Project Division, Madhubani
Jayanandan Singh
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
