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2000 DIGILAW 463 (PAT)

Ram Ratan Prasad Agrawal v. State Of Bihar

2000-03-24

SHIVA KIRTI SINGH

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Judgment 1. Heard the parties. 2. Clause 23 in the agreement dated 4.12.92 provides for arbitration of any dispute between the parties by the Superintending Engineer concerned. On behalf of the opposite parties a counter affidavit was filed enclosing therewith a resolution dated 18.11.92 issued from the Road Construction Department, under which a decision appears to have been taken to delete clause 23 of the agreement prescribed in form F2 of the P.W.D. Code. On behalf of the petitioner a rejoinder has been filed in which it has been alleged that any modification in the form of agreement prescribed by the P.W.D. Code is required to be published in official gazette which has not been done so far and it has further been alleged that the resolution contained in annexure-A was not communicated to the concerned office in the Building Construction Department and therefore the actual agreement signed on 4.12.92 legally and validly contained in clause 23 which provides for arbitration. Sufficient opportunity was given to learned counsel for the State and the opposite parties to file a reply to the said rejoinder or produce before this court a copy of the gazette notification which was directed to be published even under the resolution contained in annexure-A to show that necessary amendment in the P.W.D. Code has been carried out. Inspite of such opportunity no reply has been filed till date nor any gazette notification could be traced out by the opposite parties. 3. In the aforesaid circumstances, in my opinion, in the matter at hand, it will be appropriate for this Court to proceed on the basis that Clause-23 in the agreement is the valid clause and hence the opposite parties were required to accept the said clause. 4. The allegation in this application that the opposite parties are not accepting the request of the petitioner to refer the dispute to the Arbitrator, has not been refuted and annexure-4 to the application which is a notice to the Secretary of the Department dated 7.6.99 supports the aforesaid allegation of the petitioner. In such circumstances, in my view, the State of Bihar, represented by the Executive-Engineer, Patliputra Division, Housing and Building Construction Department, Patna has failed to discharge its duties to refer the dispute to the Superintending Engineer as required by Clause-23 of the Act (sicagreement ?). In such circumstances, in my view, the State of Bihar, represented by the Executive-Engineer, Patliputra Division, Housing and Building Construction Department, Patna has failed to discharge its duties to refer the dispute to the Superintending Engineer as required by Clause-23 of the Act (sicagreement ?). In this situation, in my view, Sub-section (6) of section 11 of the Arbitration & Conciliation Act, 1996 is attracted. Keeping in view the provisions contained in clause 23 of the agreement, in my view, at the first instance it would be appropriate to direct the opposite parties to refer the dispute to the concerned Superintending Engineer of the Circle within a month from today. Since the matter relates to a work which is said to have been completed in 1993, hence the Arbitrator, in this case the Superintending Engineer should enter upon the arbitration as soon as reference is made to him and should make efforts to conclude the arbitration within a period of six months. This application is, accordingly, disposed of. 5. Let a copy of this order be handed over to the learned counsel for the opposite parties.