IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition (M/S) No. 1233 of 2004 Union of India through Garrison Engineer, Pithoragarh. … Petitioner. Versus 1. District Judge, Pithoragarh. 2. Aziz Baksh through legal representative Jawed Baksh, resident of Siltham Road, Pithoragarh. … Respondent. Mr. Ajay Singh Bisht, Advocate, Central Govt. Counsel, learned counsel for the petitioner. Mr. Sudhir Kumar, Brief Holder, learned counsel for the respondent no.1. None present for respondent no.2. Date June 16, 2011. Hon’ble B.S.Verma, J. (Oral) By means of this writ petition, the petitioner has sought a writ of certiorari quashing the judgment and orders dated 12-8-1999 and 28-7-2004 passed by the District Judge Pithoragarh, Annexure Nos. 2 and 4 respectively. By order dated 12-8-1999, the District Judge has dismissed the suit of the plaintiff-petitioner on the ground that he had no jurisdiction in the matter. By the order dated 28-7-2004, the District Judge has rejected the review application of the petitioner on the ground that there is no provision in the Arbitration and Conciliation Act 1996 (for short New Act) to review the award. 2. Brief facts giving rise to the present writ petition are that the father of the respondent late Sri Aziz Baksh entered into a contract agreement with the petitioner for construction of a bridge. Under the contract agreement, there is an arbitration clause in case of dispute between the parties to the agreement and in that event the matter was to be referred to Arbitrator. The plaintiff-petitioner filed Original Suit bearing O.S. No. 18 of 1996 on 21-5-1996 to refer the matter for arbitration and vide order dated 7-1-1997, the matter was referred to the arbitrator and the Chief Engineer, Bareilly Zone, Bareilly Cantt. Appointed Sri B.P.Sunnak, Superintending Engineer as Sole Arbitrator on 18-9-1997. 2 3. Since the Arbitrator was appointed by order dated 7-7- 1997, the learned District Judge has held that the reference is to be deemed to be under the new Act, therefore, the District Judge dismissed the suit of the petitioner-plaintiff on the ground that the proceeding ought to have been initiated under the New Act. Ultimately the arbitrator gave his award on 30-1-1999. The petitioner filed O.S. No. 6 of 1999 for setting aside the award and not to make the same the Rule of the Court and further to appoint a fresh arbitrator. The learned District Judge dismissed the suit by judgment and order dated 12-8-1999 on the ground that the proceeding for appointment of arbitrator having been initiated under the new Act and not under the Arbitration Act 1940 (for short the old Act), he has no jurisdiction to entertain the suit. 4. I have heard learned counsel for the parties. 5. It has been contended by the learned counsel for the petitioner that the proceeding for appointment of arbitrator was initiated prior to coming into force of the new Act, on the basis of the notice dated 12-9-1994, whereby a request was made by Jawed Baksh, son of the late Sri Aziz Baksh to appoint the Arbitrator to Garrison Engineer, Pithoragarh. It has also been contended that the contractor filed the application under Section 20 of the old Act for appointment of arbitrator. 6. Now the question arises whether the proceeding for appointment of Arbitrator giving rise to the present writ petition was initiated at the time when the old Act was in force or the same had commenced after the coming into force of the new Act on 26- 1-1996. 7. Undisputedly the notice was sent by the son of the contractor late Aziz Baksh on 12-9-1994 and on the basis of this notice, which has been annexed as Annexure SA-1 to the supplementary affidavit filed by the petitioner, the application 3 under Section 20 of the old Act was filed in the court for appointment of arbitrator. The learned District Judge in his order dated 28-7-2004 has observed that the son of the contractor namely Jawed Baksh moved application under Section 20 of the old Act to the District Judge Pithoragarh. The arbitrator was ultimately appointed and matter was referred to the arbitrator thereafter and the award of the arbitrator was published on 30-1-1999 and notice under Section 14(1) of the old Act was issued in the matter. The petitioner filed its objection for setting aside the award. It is pertinent to note that according to the petitioner, it is a case falling under the old Act and that the District Judge himself has directed the Chief Engineer concerned vide order dated 7-7-1997 to appoint the sole arbitrator. That order has not been assailed by either of the parties. 8. It is evident that notice for appointing arbitrator was sent on 12-9-1994 and the application under Section 20 of the old Act was also made to the District Judge Pithoragarh prior to coming into force of the new Act and since the District Judge Pithoragarh has directed the authority concerned to appoint a sole arbitrator, which was in fact appointed on 18-9-1997 and ultimately the sole arbitrator has given his award under the provisions of the old Act, therefore, in any view of the matter, it cannot be said that the provisions of the new Act were applicable to the case at hand. 9. In the above facts and circumstances, I am of the considered view that the learned District Judge was not justified in dismissing the suit no. 6 of 1999 filed by the petitioner on the ground of lack of jurisdiction under the new Act. I am fortified in my view by the Apex Court judgment in the case of M/s Shetty’s Constructions Co. Pvt. Ltd. Vs. M/s Konkan Railway Construction and another, wherein the Apex Court in paragraph 4 has inter alia observed that “we may turn to Section 21 of the new Act which lays down that unless otherwise agreed to between the parties, the arbitration suit in respect of arbitration dispute commenced on the 4 date on which the request for referring the dispute for arbitration is received by the respondents. Therefore, it must be found out whether the requests by the petitioner for referring the disputes for arbitration were moved for consideration of the respondents on and after 26-1-1996 or prior thereto. In such requests were made prior to that date, then on a conjoint reading of Section 21 and Section 85(2)(a) of the new Act, it must be held that these proceedings will be governed by the old Act. As seen from the aforenoted factual matrix, it at once becomes obvious that the demand for referring the disputes for arbitration was made by the petitioners in all these cases months before 26-1-1996, in March and April, 1995.” 10. For the reasons and discussion above, I hold that the learned District Judge committed a manifest error in dismissing the suit for the petitioner by order dated 12-8-1999 and the subsequent order dated 28-7-2004 rejecting the review application is also not tenable. Consequently, both the orders are liable to be set aside. The writ petition deserves to be allowed. 11. The writ petition is allowed. The impugned orders are set aside. Costs easy. The Original Suit No. 6 of 1999 Union of India Vs. Late Aziz Baksh through legal representative Sri Jawed Baksh is restored to its original number. 12. The matter is remanded to the District Judge Pithoragarh to transfer the suit to the Civil Judge (Senior Division) concerned, if the court of Civil Judge is working there for disposal in accordance with the old Act or the decide the same himself if that court is vacant, expeditiously as far as possible. (B.S.Verma, J.) RCP