IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CASE NO.: F.A.O. 1675 of 2007 DATE OF DECISION : July 9,2009 The Dashmesh Co-operative Labour & Construction Society Ltd. .......Appellant versus Punjab Mandi Board and another ......Respondent CORAM : HON'BLE MS. JUSTICE NIRMALJIT KAUR PRESENT: Mr. Vishal Gupta, Advocate for the appellant. Ms. Puneeta Sethi, Advocate for respondents No.1 & 2. NIRMALJIT KAUR, J. The appellant-Society has filed the petition for setting aside the order dated 23-12-2006 passed by the District Judge, Ropar, dismissing the application under Section 34 of the Indian Arbitration and Reconciliation Act, 1966. The appellant-Society, being the lowest tenderer, was allotted the work for construction of cause way in between R.D. No.4400 to 4550 on link road from Nurpur Khurd to Kartarpur, Hayatpur, M.C. Anandpur Sahib, approximately costing Rs.2,56,000/- and construction of cause way in between RD No.3770 to 7900 under the S/R to L/R from Village Tibba Nangal to Kathakgarh, Baman Majra, Jatwar Road, M.C. Anandpur Sahib, approximately costing Rs.5,62,000/-. The Arbitrator, vide award dated 16-07-1999, disallowed the claim of the appellant-Society. The District Judge, Ropar, vide judgment dated 23-12-2006, dismissed the objections F.A.O. 1675 of 2007 -2- filed by the appellant-Society on the ground that the appellant-Society had not used the boulders of approved quarry. Mr. Vishal Gupta, learned counsel for the appellant submitted that the District Judge as well as the Arbitrator has lost sight of the fact that the appellant-Society has constructed the cause way, way back in the year 1990 and the same have been in very good shape till the present day which shows that the good quality of boulder had been used by the appellant-Society. In the present case, the stones as used by the appellant-Society, were duly approved by the Superintending Engineer, as well as, the Junior Engineer working at the site and they found that the cause way constructed is proper and as per specification and there is no defect in the same. Secondly, the said opinion that the boulder was not as per the proper specification and was not of good quality, is not based on any expert opinion and the Chief Engineer never visited the spot nor has given any notice of his inspection and has never checked the boulder and other material at the spot. Thus, simply on the basis of his oral assessment without any evidence to the contrary, it could not have been presumed that the boulder has been used from an un-approved quarry. Learned counsel for the parties have been heard. The first argument of learned counsel for the appellant has no merit, in view of the finding recorded by the District Judge, Ropar, which reads as follows :- “ As per clause 7 of the Schedule attached with the tender documents containing the description of items, the boulders to be used by the contractor was boulder 20 Kg. to 40 Kg. from an approved quarry of Chandimandir/Panchkula/Devi Nagar/ Surajpur or any F.A.O. 1675 of 2007 -3- other approved quarry as duly stacked uniformly distributed along the construction. Learned counsel for the objector has failed to invite my attention to any such material/fact available either on the arbitration file or in the record of this Court that the boulders from Binewas quarry were approved by the Engineer-in-charge i.e. XEN who has signed the contract agreement on behalf of the Board after the acceptance of the tender submitted by the petitioner Society.” The second argument is also liable to be rejected in as much as the Chief Engineer definitely falls within the definition of `expert' in the concerned matter for assessing the quality of construction. Even otherwise, the violation, pointed out herein is with respect to the boulders used from a quarry which was not an approved quarry, as such, either by the Board or even by the Executive Engineer. In view of the above, I find no ground to interfere or set aside the order dated 23-12-2006 of the District Judge, Ropar, dismissing the application under Section 34 of the Indian Arbitration and Reconciliation Act, 1966. The FAO is, accordingly, dismissed. (NIRMALJIT KAUR) JUDGE July 9, 2009 gurpreet Whether to be referred to the Reporter : Yes / No