IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Arb. Case No. 80 of 2011 (O&M) Date of Decision: 29.9.2011 The Kurali Toll Bridge .....Petitioner Versus State of Punjab and others ….Respondents CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Shri P.S. Rana, Advocate, for the petitioner. Shri Ashwani Kumar Bansal, Advocate, for respondent Nos. 2 and 3. Hemant Gupta, J. (Oral) This is an application filed by the petitioner for appointment of a Sole Arbitrator and in the alternative to constitute the Arbitral Tribunal, for settlement of disputes and differences arising out of an agreement dated 18.12.2003, for construction of a Railway Over-bridge at the level crossing No. 32-B, Kurali on Sirhind Nangal Dam Section of Northern Railway Crossing, Chandigarh. It is pointed out by the petitioner that in terms of Clause 8 of the agreement, the disputes between the parties are required to be referred to an Arbitral Tribunal, consisting of three Arbitrators, one Arb. Case No. 80 of 2011 (O&M) to be appointed by the Govt. of Punjab; another by the petitioner and the third Arbitrator by the Government of India, who is to act as a Presiding Arbitrator of the Arbitral Tribunal. The disputes have arisen regarding revision of toll collection rates as contained in Schedule Annexure II. Clause 5 of the said Schedule contemplates that the entrepreneur i.e. the petitioner shall be permitted to revise toll collection rates once in one year and the revision shall be linked with the wholesale price index. The petitioner has sought revision of the toll collection rates, which has been declined by the department vide order Annexure A-12 by the Ministry of Road Transport & Highways on 18.3.2011. In the said communication, it has been pointed out that the Competent Authority in the Ministry has decided that the toll revision is to be done once in every two years. Since the previous revision of toll was notified on 5.10.2009, therefore, the proposal for toll revision was communicated to be recommended accordingly. The petitioner has raised a dispute for defining the revision in toll collection rates every year and nominated Hon’ble Mr. Justice S.K. Jain, as its Arbitrator vide the communication dated 11.4.2004 and sought intervention of this Court vide the petition filed on 17.5.2011. The State in its reply averred that the dispute between the parties is to be dealt with as per Clause 8 of the Agreement i.e. Arbitral Tribunal of three Arbitrators. On the other hand, Shri Ashwani Kumar Bansal, appearing for the Government of India has stated that the Govt. of India shall appoint, the Presiding arbitrator after parties have nominated their arbitrators. ( 2) Arb. Case No. 80 of 2011 (O&M) Learned counsel for the petitioner has vehemently argued that the sole arbitrator needs to be appointed as in respect of the earlier disputes arising between the parties, the sole arbitrator was appointed vide order dated 12.8.2009 passed in Arbitration Case No. 51 of 2008. Therefore, for the reasons mentioned in the aforesaid order, a sole arbitrator is to be appointed in respect of the present disputes as well. It is admitted by the parties that the present disputes are separate and distinct from the disputes which were subject matter of Arbitration Case No. 51 of 2008. That was a case, where the dispute, inter-alia, was in respect of the consequences of extension of time in completion of the project. The Arbitration clause reads as under:- “8. Settlement of disputes 8.1 In case of any dispute arising at anytime between any of the parties to the contract, the same shall be settled under the provision of Arbitration and Conciliation Act, 1996. Such dispute shall be referred to arbitration consisting a penal of 3 arbitrators out of which one will be appointed by GOP, one by the Entrepreneur and the third by GOIU who will act as Presiding Officer of the Arbitrator Tribunal. Majority decision shall prevail. The award given by the Arbitral Tribunal shall be final and binding on the parties. The place of arbitration shall be Chandigarh. The arbitration proceedings shall be held at Chandigarh and any dispute arising out of this agreement shall be subject to Chandigarh Court’s jurisdiction.” The petitioner has sought appointment of an Arbitrator on 11.4.2011 and invoked the jurisdiction of this Court on 17.5.2011 i.e. soon after completion of 30 days of the issuance of the notice. Thee is no circumstance as was in the earlier case to draw an inference that the agreed arbitral Tribunal will not be able to decide ( 3) Arb. Case No. 80 of 2011 (O&M) the disputes. Since, the petitioner has appointed its Arbitrator, the present petition is disposed of with a direction to the Government of Punjab to nominate its Arbitrator within one month of receipt of a copy of this order and the Government of India to nominate the Presiding Arbitrator within one month of the communication so received from the Government of Punjab. If either the Government of Punjab or Government of India does not appoint the Arbitrator in terms of the contract, it shall open to the petitioner to invoke the jurisdiction of this Court for appointment of such Arbitrator. The Arbitrators shall be entitled to fix their fees, which shall not exceed the fee as per the Punjab & Haryana High Court (Arbitrators’ Panel & Fee) Rules, 2011. [HEMANT GUPTA ] JUDGE 29.9.2011 ds/preeti ( 4)