HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Arb.C. No.: 36 of 2002. Reserved on: 5.5.2008. Decided on: 6.5.2008. M/s Mengi Engineering Company ………Petitioner. Versus State of H.P. and another ………Respondents. Coram: The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? No. For the petitioner: Mr.Ramakant Sharma, Advocate. For the respondents: Mr.J.S. Guleria, Law Officer. V.K. Ahuja, J: This is a petition filed by the petitioner under Section 34 of the Arbitration and Conciliation Act, 1996 for setting aside the award dated 31.1.2002, passed by the Arbitrator-cum-Superintending Engineer, Arbitration Circle, HPPWD, Solan (respondent No.2). Briefly stated the allegations made by the petitioner are that the work of construction of 75 metres span through type steel truss bridge over Tabo Nallah on Rangrik Sumdho Raod (SH:- C/o Super-structure only) was allotted to ___________ 1.Whether reporters of Local papers may be allowed to see the judgment? Yes. - 2 - the petitioner by respondent No.2 vide his award letter, dated 22.6.1984, at a lump sum cost of Rs.30.00 lacs. A dispute arose in between the parties and the matter was referred to the arbitration of respondent No.2, who entered into reference and passed the award on 31.1.2002. The petition under Section 34 was filed by the petitioner for setting aside the award taking various objections as raised in the petition. One of the main objection raised under para 23 of the petition by the petitioner was that the Arbitrator himself was the Executive Engineer during the part of the work and since he himself was the Incharge of the work, he could not have been an Arbitrator to give the award and accordingly, he had misconducted himself and the award was liable to be set aside. An opportunity was given to the State to furnish particulars in regard to the posting of the Arbitrator Shri B.S. Parmar as Executive Engineer of the work in question and a letter of the Executive Engineer has been submitted which was taken on record of the case. A perusal of the said letter shows that the Arbitrator was working in this Division from July, 1988 to 27.11.1990 as Executive Engineer. Once he was working in the Division as Executive Engineer and was also Incharge of the work, he could not act as an Arbitrator and, therefore, the award submitted by him is liable to be set aside since he could not have gone into the question i.e. the dispute in between the parties once he had been the Incharge of the work. The proceedings conducted by him in full cannot be set aside, suffice to say that the award made by him is liable to be set aside which is set aside accordingly for this very reason and the matter shall again be referred to - 3 - respondent No.2 by designation i.e. Arbitrator-cum-Superintending Engineer, Arbitration Circle, HPPWD, Solan, who shall hear both the parties afresh and give its findings. The petitioner has not pressed the other grounds taken in the petition and the petitioner is at liberty to take these grounds if and when necessity arises. In view of the above observations, the petition is allowed and the case is referred again to the Arbitrator i.e. respondent No.2 for giving his findings afresh after hearing the parties. Record of the case be sent back to him for consideration. The petition is allowed accordingly. In view of the final disposal of the main petition, all the pending miscellaneous application(s), if any, shall also stand disposed of. May 6, 2008. (V.K. Ahuja), (TILAK) Judge.