IN THE HIGH COURT OF JUDICATURE AT PATNA REQ. CASE No.14 of 2010 ----------- Sheo Kumar Singh, son of Sri Jagarnath Roy, resident of Lalji Tola, Near Devi Asthan, P.S. Gandhi Maidan, Town and District Patna … Petitioner Versus 1. Union of India through the Chief Executive Officer, Prasar Bharti (Broadcasting Corporation of India) Prasar Bharti Secretariat 2nd Floor, PTI Building, Sansad Marg, New Delhi 2. The Engineer-in-Chief (Civil), All India Radio, Akashvani Bhawan 1st Floor, Sansad Marg, New Delhi 3. The Chief Engineer (Civil), Prasad Bharti (Broadcasting Corporation of India) Civil Construction Wing, Akashvani 6th Floor, CGO Complex, New Delhi-110003. 4. The Superintending Engineer (Civil), Civil Construction Wing, All India Radio, 4th Floor, Door Darshan Bhawan, U.S. Sharni Road, Golf Green, Kolkata-95. 5. Executive Engineer (Civil), Prasar Bharti, Broadcasting Corporation of India, Civil Construction Wing, All India Radio, Patna. 6. The Assistant Engineer, (Civil), Civil Construction Wing, All India Radio, Patna. 7. The Station Engineer, Door Darshan Kendra (DDK), Patna. …. Respondents ------- For the Petitioner : Mr. Manish Kumar, Advocate For the Union of India : Mr. Sunil Kumar, C.G.S. ---------- 07/ 06.04.2011 Heard learned counsel for the petitioner and learned counsel for the respondents. 2. This request case has been filed by the petitioner for appointment of sole Arbitrator for resolving the dispute between the parties with respect to work contract for repairing and exterior painting with weather coat of Studio, Office Building and ancillary structure for D.D.K., Patna vide T.S. No. 12/CCW/AIR/EE@/Pat/08-9, for which partial estimate was passed on 09.02.2009 and a Press tender was issued on 10.07.2009 3. Learned counsel for the petitioner submits that the 2 petitioner had done the aforesaid work, for which there was an agreement between the parties but he did not dismantle the Chhajja as any such modification was not provided in the work contract. He further submits that he raised dispute before the authorities concerned., but they did not pay any heed to the just and proper request of the petitioner and finally the contract was rescinded by the authorities on 03.03.2010. Thereafter also several applications etc. were filed before different authorities, but they remained unheeded. 4. Ultimately the matter came up before a bench of this Court in C.W.J.C. No. 9426 of 2010, which was disposed of by order dated 16.06.2010 (Annexure 31) observing, “If the contractual agreement contains an arbitration clause, and the petitioner has invoked the same, to prevent multiplicity of litigations, burdening the courts, this Court directs respondent no.1 (Chief Executive Officer ) to appropriately examine the claim of the petitioner dated 09.06.2010 (Annexure 30) and forthwith without any unnecessary delay proceed in accordance with law thereunder by a reasoned and speaking order within four weeks from the date of receipt/presentation of a copy of this order “. 5. In view of the aforesaid order of this Court, the petitioner filed an application dated 18.06.2010 (Annexure 32) before the Chief Executive Officer along with a copy of the aforesaid order of this Court dated 16.06.2010 as well as letters dated 23.05.2010 (Annexure 29) and 09.06.2010 (Annexure 30), praying therein to act in accordance with the observation made in the order of this Court dated 16.06.2010 and for other ancillary reliefs. 3 6. The said application of the petitioner was rejected by the Chief Engineer vide his order dated 14.07.2010 (Annexure 33) on the ground that opportunity was given to the petitioner to reply the show cause notice to avoid rescination of the contract, but the petitioner did not give any positive response to the said show cause and resumed the work and accelerated. He also observed that the revocation of the contract could not be dealt under Clause 25 of the agreement as per the law and after rescination of the contract under Clause 3(a) and (3(b). 7. From the aforesaid facts and circumstances of the case, it is quite apparent that the question of appointment of Arbitrator has not at all been considered by the authorities concerned. Admittedly Clause 25 of the agreement is the arbitration clause, which reads as follows :- “ Except where otherwise provided in the contract, all questions and disputes relating to the meaning of the specifications, design, drawings and instructions here-in before mentioned and as to the quality of workmanship or materials used on the work or as to any other question, claim, right, matter or thing whatsoever in any way arising out of or relating to the contract, designs, drawings, specifications, estimates, instructions, orders or these conditions or otherwise concerning the works or the execution or failure to execute the same whether arising during the progress of the work or after the cancellation, termination, completion or abandonment thereof shall be dealt with as mentioned hereinafter : (i) If the contractor considers any work demanded of him to be outside the requirements of the contract, or dispute any drawings, record or decision given in writing by the Engineer-in-Charge on any matter in connection with or arising out of the contract or carrying out of the work, to be unacceptable, he shall promptly within 15 days request the Superintending Engineer in writing for written instruction or decision. Thereupon, the Superintending Engineer shall give his written instructions or decision within a period of one month from the receipt of the contractor’s letter. If the Superintending Engineer fails to give his instructions or decision in writing within the aforesaid period or if the contractor is dissatisfied with the instructions or decision of 4 the Superintending Engineer, the contractor may, within 15 days of the receipt of Superintending Engineer’s decision, appeal to the Chief Engineer who shall afford an opportunity to the contractor to be heard, if the latter so desires, and to offer evidence in support of his appeal. The Chief Engineer shall give his decision within 30 days of receipt of contractor’s appeal. If the contractor is dissatisfied with this decision, the contractor shall within a period of 30 days from receipt of the decision, give notice to the Chief Engineer for appointment of arbitrator failing which the said decision shall be final binding and conclusive and not referable to adjudication by the arbitrator. (ii) Except where the decision has become final, binding and conclusive in terms of Sub Para (i) above, disputes or difference shall be referred for adjudication through arbitration by a sole arbitrator appointed by the Chief Engineer, CPWD, in charge of the work or if there be no Chief Engineer, the Additional Director General of the concerned region of CPWD or if there be no Additional Director General, the Director General of Works, CPWD. If the arbitrator so appointed is unable or unwilling to act or resigns his appointment or vacates his office due to any reason whatsoever, another sole arbitrator shall be appointed in the manner aforesaid. Such person shall be entitled to proceed with the reference from the stage at which it was left by his predecessor. 8. From a plain reading of the aforesaid clause, it is quite apparent that the arbitration can be claimed by the petitioner even after the cancellation, termination, completion or abandonment of the work and the Superintending Engineer is authorized to take steps in view of the arbitration clause. This aspect of the matter has been completely ignored by the Chief Engineer in his order dated 14.07.2010. Furthermore when the said order has been passed by the Chief Engineer, there is no occasion for the petitioner to file an appeal against the same, which has to be filed before the Chief Engineer himself. 9. In the said circumstances, the petitioner has justifiably approached this Court for appointment of an Arbitrator. This Court thinks 5 it to be a fit case for appointment of an Arbitrator to resolve the entire dispute between the parties. Accordingly, Mr. A.C. Verma, a retired Managing Director of the State Bank of India, presently residing in Flat No.41-B, Geetanjali Apartment, Shastrinagar, behind J.D. Women’s College, Patna-800023 is appointed as an Arbitrator with respect to the dispute between the parties in accordance with the provisions of the Arbitration and Conciliation Act, 1996. The parties must approach the said Arbitrator along with a certified copy of this order within four weeks from today and the said Arbitrator shall be at liberty to fix his remuneration, expenses and dates for early disposal of the arbitral proceeding. The said payments would be shared by both parties half and half. 10. With the aforesaid observation/direction, this request case is disposed of. Let a copy of this order be sent to the said Arbitrator immediately. MPS/ ( S. N. Hussain, J. )