C.W.P NO. 8693 OF 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P NO. 8693 OF 2009 DECIDED ON : 29.05.2009 Jai Bharat Const. Co. ...Petitioner versus Municipal Corporation and anr. ...Respondents CORAM : HON'BLE MR. JUSTICE SURYA KANT Present : Mr. Sanjiv Bansal Advocate, for the petitioner. SURYA KANT, J. (ORAL) The petitioner seeks quashing of the order dated 20.05.2009 (Annexure P-5), whereby the Municipal Corporation, Chandigarh has revoked the appointment of one Adarsh Kumar, retired Chief Engineer as an Arbitrator and has asked the petitioner to give its consent for appointment of any other Superintending Engineer working in different construction circles of Chandigarh, as the sole Arbitrator. The petitioner is a Contractor who is stated to have executed certain works for the Municipal Corporation, Chandigarh. As there is some dispute regarding non-releasing of the alleged due payments, the matter requires to be resolved by C.W.P NO. 8693 OF 2009 -2- an Arbitrator in terms of the following Clause contained in the agreement between the parties : 25-A If any question, difference or objection whatsoever shall rise in any way connected with or arising out of this instruments or the meaning or operation of any part thereof or the rights, duties of liabilities of either party, then save in so far as the decision of any such matter is hereinbefore provided for and has been so decided every such matter including whether its decision has been otherwise provided for and/or whether it has been finally decided accordingly, or whether the contract should be terminated or has been rightly terminated and as regards the rights and obligations of the parties as the result of such termination shall be referred for arbitration to the Superintending Engineer, the M.C., P.H Circle, Chandigarh or acting as such at the time of reference within 180 days viz. Six months from the date of making final payment to the contractor or when the contractor is not willing to receive the payment from the date a registered notice is sent to him that his final bill is ready for payment and his decision shall be final and binding and where the matter involves C.W.P NO. 8693 OF 2009 -3- a claim or the payment or recovery of deduction of money, only the amount, if any, awarded in such arbitration shall be recoverable in respect of the matter so referred. “If the matter is not referred to arbitration within the specified period, all the rights and claims under the Contract shall be deemed to have been forfeited and absolutely barred”. (emphasis applied) Learned counsel for the petitioner, however, points out that the present incumbent on the post of Superintending Engineer, P.H.Circle is related to the petitioner due to which he is disqualified to act as an Arbitrator. It was in this backdrop that on 08.05.2009, Mr. Adarsh Kumar, a retired Chief Engineer, who is empanelled for appointment as an Arbitrator by the Indian Council of Arbitrators, was appointed as the sole Arbitrator. However, even before the said Arbitrator could resume charge and start proceedings, the Corporation has revoked his appointment within a period of less than two weeks and the petitioner has been asked to give its consent for appointment of another sole Arbitrator out of the Superintending Engineers who are working in different circles of U.T Administration. Aggrieved, the petitioner has approached this Court. Two fold contentions are raised by the petitioner. Firstly, it is urged that once an Arbitrator has been appointed, he can be C.W.P NO. 8693 OF 2009 -4- removed only for the reasons provided under Section 12 read with Section 13 of the Arbitration Act, 1996 (in short “the Act”) and that the procedure provided for removal of the Arbitrator has also not been tollored and since none of the eventualities, as contemplated by Section 12 (3) of the Act are pointed out in the impugned order, the same is wholly illegal. Secondly, the petitioner cannot be asked to accept the Superintending Engineer working with the U.T Administration as a sole Arbitrator, contrary to the terms and conditions of the agreement between the parties. Having heard learned counsel for the petitioner, I do not find any merit so far as the first contention is concerned. Since the Arbitrator could not have been appointed contrary to the agreed terms and conditions, no illegality has been committed by the Municipal Corporation in rectifying its mistake. The inadvertent appointment of Mr. Adarsh kumar as the Arbitrator being in violation of Section 12(3)(b) of the Act, no fault can be found with the cancellation of his appointment especially when he was yet to resume the charge as an Arbitrator. As regards the petitioner's second contention, the petitioner is at liberty to approach the appropriate Judicial Authority, under Section 8 of the Act, instead of directly invoking the writ jurisdiction of this Court. Disposed of accordingly. C.W.P NO. 8693 OF 2009 -5- Let a copy of this order be given dasti on payment of usual charges. MAY 29, 2009 (SURYA KANT) shalini JUDGE