IN THE HIGH COURT OF JUDICATURE AT PATNA REQ. CASE No.52 of 2008 ----------- U. P. State Bridge Corporation Ltd., a body Corporate, having its head office at 16, Madan Mohan Malviya Marg, Lucknow, having its local/comp office at Digha Ghat, Patna, through Sri Vinod Kumar Project Manager, U. P. State Bridge Corporation Ltd., being a duly constituted Attorney of the said Corporation appointed through Power of Attorney, residing at NIC-123 Gayitri Mandir Road, Kankarbagh in the town and District of Patna. ……. Petitioner. Versus 1. The State of Bihar, through the Secretary and Commissioner, Road Construction Department, Government of Bihar, Patna 2. 2. The Chief Engineer, Ganga Bridge Project Wing, Road Construction Department, Government of Bihar, Bailey Road, Patna 3. The Superintending Engineer, Ganga Bridge, Circle no.II, Road Construction Department, Bhagalpur, (Bihar). …….Opposite Parties. ------ For the Petitioner : M/s Jashawir Singh Arora and Ajay Kumar, Advocates. For the Opp. Parties : Mr. P. K. Verma, A.A.G. XI and Dr. Mankeshwar Tiwari, A.C. to A.A.G. XI. ------- 09/ 30.04.2010 Heard learned counsel for the petitioners and learned counsel for the opposite parties. 2. Learned counsel for the opposite parties very fairly submits that inspite of his repeated efforts, he could not get any information from the opposite parties. 3. This case was placed on 29.01.2010, but on that date an adjournment was sought on behalf of the opposite parties for filing counter affidavit and the case was adjourned. On the next date i.e. 19.02.2010 again the case was adjourned due to the opposite parties. However, on 26.02.2010 a counter-affidavit was filed on 2 behalf of the opposite parties, but the case was adjourned on the request of the opposite parties for providing the name of its representative in place of Shri U. K. Agrawal, who was its representative in the Tribunal earlier appointed by this Court, but had now resigned. The .said order was not complied on the next date i.e. 05.03.2010 and the case was again adjourned. On 12.03.2010, the case was again adjourned due to the opposite parties and on 19.03.2010 the case was adjourned on the request of learned counsel for the opposite parties. However, when the case was listed on 23.04.2010 another adjournment was sought on behalf of the opposite parties, which was allowed with a direction that on the next date learned counsel for the opposite parties must be prepared on all aspects of the matter so that a final order may be passed. 4. Today learned counsel for the opposite parties submits that in their counter affidavit it was claimed that the matter be sent for arbitration to the Bihar Public Works Contracts Dispute Arbitration Tribunal, which has started functioning since December, 2009 under the provision of the Bihar Public Works Contracts Dispute Arbitration Tribunal Act, 2008. He further submits that after filing of the said counter affidavit, this Court had adjourned the said case at the instance of the opposite parties for providing the name of its representative in place of Shri U. K. Agrawal, who was its representative in the Arbitral Tribunal earlier appointed by this Court, but had now resigned. It is also stated by learned counsel for the opposite parties that with regard to the said order of this Court 3 dated 23.04.2010, he tried his best to get instruction from the opposite parties, but no instruction has been received and only by telephonic message today he was informed that prayer in this case be made only to refer the matter to the Bihar Public Works Contracts Dispute Arbitration Tribunal. 5. Considering the entire facts and circumstances, there is no dispute that there was an agreement dated 05.03.1991 having an arbitration clause and there was a dispute between the parties due to which a notice as required was sent by the petitioner to the opposite parties, whereafter, Request Case no.2 of 2003 was filed by the petitioner, which was disposed of by a Bench of this Court vide order dated 18.04.2003 (Annexure 6) stating that the petitioner has nominated Mr. Y. K. Jain, Retired Chief Engineer as an Arbitrator on his behalf and the State has nominated Shri A. K. Lal, Engineer-in-Chief as an Arbitrator on its behalf and both of them were appointed as Arbitrators in terms of the agreement and the third Arbitrator, who was to act as the Chairman was to be appointed by the Executive Committee of the Indian Roads Congress, Sahnahan Road, Jamnagar. 6. It transpires that during the pendency of the arbitration proceeding Shri A. K. Lal withdrew himself, whereafter the State of Bihar did not substitute any body else in his place, as a result of which the petitioner had to file Request Case No. 48 of 2006, which was disposed of by a Bench of this Court vide order dated 08.03.2007 appointing Shri N. Ray Choudhary as the 4 Chairman, whereas, Shri U. K. Agrawal was the representative of the State Government and Shri Y. K. Jain was the representative of the petitioner. 7. It transpires that after some time Shri U. K. Agrawal, representative of the State Government felt difficulty in continuing with the arbitration proceeding and resigned on 26.03.2008 (Annexure 9), whereafter, the petitioner sent letter dated 24.09.2008 (Annexure 10) to the State Government to fill up the place of its representative in the Arbitral Tribunal. Subsequently a reply was sent by the authorities of the State (opposite parties) on 08.12.2008 (Annexure 11) to the Project Manager of the petitioner stating that the Bihar Public Works Contracts Dispute Arbitration Tribunal had already been constituted under the provision of the Bihar Public Works Contracts Dispute Arbitration Tribunal Act, 2008 and hence the matter has to be referred to the said Tribunal. The said stand is being reiterated before this court by learned counsel for the opposite parties. 8. Learned counsel for the petitioner on the other hand submits that on the date when the vacancy had occurred i.e. 26.03.2008 (Annexure 9) the said Act was not in force as it has come into force with effect from 02.05.2008, whereas the letter (Annexure 11) was issued by the authorities of the State Government on 08.12.2008, when no Tribunal was functioning. He also avers that the Arbitral Tribunal having already been formed by the authorities and affirmed by this Court, there was no occasion for 5 the opposite parties to take a different stand. Hence he submits that it was the duty of the State Government to nominate its representative for the Tribunal specifically appointed by this Court. 9. From the entire facts and circumstances of the case, it transpires that an Arbitral Tribunal has been formed vide an order of this Court dated 18.04.2003 (Annexure 6) in Request Case No. 02 of 2003 as per the arbitration clause of agreement between the parties dated 05.03.1991 and the said Tribunal had continued functioning and, thereafter, at the instance of both the parties, a new nominee of the opposite parties was substituted by this Court vide order dated 08.03.2007 passed in Request Case No. 48 of 2006 and the said Arbitral Tribunal continued till the representative of the opposite parties resigned. 10. In the said circumstances, this Court does not find any reason to take a completely different view contrary to the order passed in the aforesaid request cases nor does this Court see any reason to refer the matter either to the Bihar Public Works Contracts Dispute Arbitration Tribunal or to appoint an independent Arbitrator in this regard. Hence, in view of the facts of this case as well as the attitude adopted by the opposite parties, this Court feels necessary to follow the procedure provided by the Arbitration and Conciliation Act, 1996 under section 11(6) thereof and appoint Shri Mr. N. P. Singh, a retired Chief Engineer of Road Construction Department as O.P.’s Members of the Arbitral Tribunal already formed by this Court. Now and since the Tribunal is complete, it is 6 directed to proceed in the matter expeditiously. 10. With the aforesaid observations/directions, the instant request case is disposed of. MPS/ ( S. N. Hussain, J. )