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2005 DIGILAW 2310 (RAJ)

Wagad Construction Co. v. State of Rajasthan

2005-08-31

GYAN SUDHA MISRA

body2005
Judgment Gyan Sudha Misra, J.- This is an application for appointment of an Arbitrator in regard to a dispute which, according to the applicant, has arisen between him and the respondent Department of Irrigation. 2. It is an admitted position that while awarding a contract to the applicant for executing earth work and lining of Tonk Distributory of RMC of Bisalpur Project, an agreement had been executed between the applicant and the respondent wherein Clause (23) envisages that in case any difference or dispute arises between the contracting parties, the dispute shall be referred to the Standing Committee for settlement of disputes. The committee would constitute of five members, who would be, Administrative Secretary concerned, Finance Secretary, Law Secretary, Chief Engineer-cum-Additional Secretary and Chief Engineer concerned. The procedure thereafter has been laid down in regard to reference of dispute to the Arbitrator which states that Engineer-in-Charge, on receipt of application alongwith non-refundable prescribed fee, which would be 2% of the amount in dispute not exceeding Rs. 1 lakh, will refer the dispute to the committee within a period of one month from the date of receipt of application. 3. The applicant, admittedly, did not file any application before the Department requesting for reference of a dispute in pursuance of Clause (23) of the agreement and admittedly he did not even pay the prescribed fee. However, the question of fee would have arisen if the applicant had filed any application but the applicant neither filed any application for referring the dispute to the Standing Committee as per the clause in the agreement, nor deposited any fee for appointment of Arbitrator. He, however, has sought to put the cart before the horse by filing an application before this Court raising a grievance that the respondent Department has constituted a committee of four members only which is an even number whereas the Standing Committee should consist of five members given out in the agreement which should be five, meaning thereby that the committee should consist of five members which is an odd number. The applicant, therefore, has urged that the dispute, which has arisen, should not be referred to the Standing Committee and the Court, in terms of Section 11 of the Indian Arbitration and Conciliation Act, 1996, should appoint an Arbitrator as per the choice of the parties. 4. The applicant, therefore, has urged that the dispute, which has arisen, should not be referred to the Standing Committee and the Court, in terms of Section 11 of the Indian Arbitration and Conciliation Act, 1996, should appoint an Arbitrator as per the choice of the parties. 4. If the applicant had raised this grievance after filing an application alongwith the prescribed fee and the other contracting party, i.e., the respondent Department of Irrigation had referred the dispute to a committee of four persons, the applicants grievance could have been adequately met with by this Forum but the applicant has conveniently ignored his part as he neither filed any application nor deposited the prescribed fee and has straightway filed an application anticipating that the dispute will be referred to a committee of four persons. Even if this lacuna on the part of the respondent Department is existing, this grievance of the applicant could have been met with, provided he had executed his part in terms of the contract. But, when he has failed to file even an application alongwith the prescribed fee for reference of dispute to the Arbitrator in terms of the agreement, it is obvious that he cannot be permitted to go ahead to the next step which envisages the Standing Committee to be constituted of five members. It need not be emphasized that the relationship between the applicant and the respondent is admittedly of a contractual nature and if one of the contracting parties challenges the action of the other contracting parties, the same can be examined only if the contracting party, who raises a grievance, has already done his part. It may be stated even at the risk of repetition that the applicant, having not executed his part as per the terms and conditions of the agreement by not filing the application nor paying the prescribed fee, cannot be permitted to raise a grievance against the composition of the Standing Committee on the ground that it does not consist of odd number of five persons as per the agreement. That stage could have been looked into at the appropriate time if the applicant had executed his part. He, having failed to execute his part, his grievance cannot be met with and, therefore, his plea that an Arbitrator should be appointed as per the Act of 1996 has no force. That stage could have been looked into at the appropriate time if the applicant had executed his part. He, having failed to execute his part, his grievance cannot be met with and, therefore, his plea that an Arbitrator should be appointed as per the Act of 1996 has no force. In fact the motive for this is not far to see, as the applicant in spite of the deed of agreement, wants to avoid the decision of the Standing Committee by requesting this Forum to appoint an Arbitrator in regard to the dispute under the Act of 1996 but for the reasons stated hereinbefore, the same cannot be entertained. 5. The application, therefore, stands dismissed. The applicant, however, shall be at liberty to resort to the terms and conditions of the agreement for reference of the dispute to the Settlement Committee as per the procedure incorporated therein.