TIE HIGH couRI` oF slKKlm : GAmGTOK CIVIL RE:VISION PETITION NO.7 0F 2004 In the matter of an application under section 115 of the Code of Civil Procedure, 1908 and in the matter of 1. Union of India, 'mrou8h the Chief Engineer, MiHtary Engineering Service, Shiguri Zone, Sevoke Road, P.0. Salugara -734 318, Jalpalguri, West Bengal. The Chief Engineer, Mhitary EnSneering Service, Sfliguri Zone, Sevoke Road, P.O. Salugara -734 318, Jalpaiguri, West Bengal The Engineer-in-Chief, Any Headquarters, Kasmere House, DHQ, P.O. NewDelhi-110 011... Petitioners VERSUS Tirath Ran Oberoi, Goverrment Contractor, Oberoi Building, M. G. Mars, Gangtok, East Sikkin. •.. Oppoalte Puny For the petitioners For the respondent : Kama Thinley, Additional Central Government Standing Counsel. 8. Sharma, Advocate. +i ® PRESENT .. THE HONIBm sllRI uusTlcB R.K. PATRA, clllEF uusITCE. Date Of order : 23Ta Nbvernber, 2004. ORDER R.K. PA". C.I. 'mis revision arises out of a proceeding initiated by the opposite party under sections 5, 8, 11 and 12 of the Arbitration Act, 1940 in the Court of District Judge (E & N), Siklin at Gangtok vide T.S. (Arbitration) no. 2 of 2004. By the inpugned order dated 31.5.2004, the leaned District Judge held that a case for appointment Of an independent arbitrator has been made out and accordingly directed the parties to submit a panel of names. Being aggrieved ty the said order, the department has filed this revision. 2. For the work of "constmction of school building of Kendriya Vidyalaya at Gangtok" an agreement was executed between the petitioners and the opposite party vide agreement no.CESZ/ 136-WE/ 12 of 85-86. During execution of the work, certain disputes and differences between the parties arose. The opposite party accordingiv ffled Civil Miscellaneous Case (arbitration) no.8 of 1994 in the Court of District Judge for appointment of an arbitrator to decide 17 number of claims. During the pendency of the said case, the petitioners althouch appointed Brig. T. K. Mittal as the sole arbitrator it did not refer to him all the claims raised by the opposite party. The arbitrator also did not render his award within reasonable time. In the circumstances, the opposite party ffled another case bearing suit no.16 of 1999 for appointment of another arbitrator. The leaned District Judge by order dated 27.9.1999 called upon the petitioners to appoint an arbitrator and in obedience to the said order, the petitioners appointed one M. K. Chitkara, Chief Engineer as arbitrator. The appointing authority however out of 17 clains laid by the opposite party referred only 10 clains to bin. The opposite party appeared before the arbitrator and submitted that all his clains have not referred to. The said arbitrator however resigned. The department as a consequence appointed one Namo Narain as the arbitrator in its letter dated 3.1.2001. The appointing authority again instead of referring all the disputes raised by the opposite party referred to the new arbitrator only 10 items. The opposite party requested the arbitrator to consider all his claims. At this time, the arbitrator informed the opposite party that he would hold the arbitration proceedings at Calcutta not at Gangtok or at Siliguri on health ground. He however, did not proceed in the matter. Finding no other alternative, the opposite party filed the present case for appointment of an independent arbitrator. During the pendeney of the case, the department appointed one 8. N. Roy as arbitrator on 14.10.2003. He however resigned on being informed by the counsel for the opposite party to the 11+ ® effect that his appointment was during the pendency of the Case. 3. Considering the manner in which the matter had been proceeding the learned District Judge by the impugned order has observed that an independent arbitrator should be appointed for resolution of the disputes. 4. There is no dispute that a vacancy has arisen LI and an arbitrator has to be appointed. Irearned counsel for the petitioners submitted that in view of the arbitration clause no arbitrator outside the purview of the arbitration clause can be appointed and discretion should be given to the department to appoint an arbitrator in terns of the arbitration clause. 5. 'The question that arises for consideration is whether the leaned District Judge has exercised proper discretion in deciding to appoint an independent arbitrator. 6. The facts narrated above speak for themselves. Althouch the department appointed four arbitrators none of them made any progress. The arbitration proceedings are required to be disposed of with utmost dispatch and urgency. The conduct of the departmental arbitrators was not encouraging. Therefore in the interest of justice and in the facts and circumstances of the case an independent arbitrator should be appointed. I therefore do not find any flaw in the impugried order. Counsel for the petitioners declined to submit a list of persons for consideration on the plea that it is only the desigriated authority has jurisdiction to appoint an arbitrator. The opposite party has submitted a panel of retired District Judges for being considered for appointment as arbitrator. 8. For the reasons aforesaid, I hereby choose Shri I,~ 8. R. Pradhan, fomer District Judge and Secretary, Law, Nan Nang, Gangtok out of the panel of names submitted by the opposite party and appoint him as arbitrator to decide all the disputes put forth by the opposite party. The petitioners are hereby directed to refer all the disputes raised - by the opposite party to him for the decision. The arbitrator shall conclude the proceedings as expeditiously as possible and give the award within four months after entering on the reference. He is entitled to his fees and charges which he shall reasonably fix. Both 'the parties shall share the remuneration equally. 9. With the above observations and directions, this revision is disposed of. No costs. Dictation taken & typed by me Dipak Saha R.K.#/ Chkeif Jdstice ae.11.2ou E=