ORDER 1. By this petition, the petitioner-NVDA have challenged the impugned order dated 31.11.2005, passed by the V Additional District Judge, Bhopal in Execution Case No.97/2004 rejecting the application for vacating the order of attachment filed by the petitioners. The petition also impugns the award dated 10.8.2004 passed by respondent No.2 Shri P.C Jain, Chief Engineer, Public Works Department (Retd.) in his capacity as a sole arbitrator. 2. Brief backdrop of the case is that respondent No. 1 Shri Vasudev R. Mendiratta had entered into an agreement dated 30.9.1998 with the petitioners-Narmada Valley Development Authority for the construction of their head office building at Bhopal in which the original concept of the building was revised as a result of which there was an increase in the number of contracted quantities and new items were included. The rates were fixed by the petitioners- NVDA by its resolution dated 14.6.2003 for the additional quantity and the extra items were disputed by respondent No.1 and he filed an application under section 9 of the Arbitration and Conciliation Act, 1996 before the Vth Additional District Judge, Bhopal. 3. The trial Court rejected the application and directed the respondents to approach the competent forum under Clause 8.2 of the agreement. On 14.1 0.1998, the work order was issued in favour of respondent No. 1 it mentioning an express condition that in case of any dispute between the parties to the said agreement the value thereof exceeds Rs. 50,000/-, the same would be referred to the Arbitration Tribunal as alleged by the petitioners. Whereas respondent No. 1 Shri Vasudev R. Mendiratta appointed respondent No.2 Shri P.C. Jain, Chief Engineer, Public Works Department (Retd.) as the sole arbitrator on his own. The respondent No.1 Vasudev R. Mendiratta had acted illegally by appointing sole arbitrator to the dispute when his application for appointment of such arbitrator was refused by the Chief Engineer vide Annexure P-5 since the Chief Engineer held that the value of the claim was more than Rs. 50,000/- and the respondents ought to have approached the Arbitration Tribunal. The respondent No.1 Vasudev R. Mendiratta had acted illegally by appointing sole arbitrator to the dispute when his application for appointment of such arbitrator was refused by the Chief Engineer vide Annexure P-5 since the Chief Engineer held that the value of the claim was more than Rs. 50,000/- and the respondents ought to have approached the Arbitration Tribunal. The respondent No.2 passed the award ex-parte on 10.8.2004 and the same was being executed in Execution Case No. 97/2004 pending before the Executing Court wherein the Executing Court directed the attachment of treasury account of the petitioners-NVDA as well as the vehicles in their possession and the application of the petitioners- NVDA for vacating the said order was rejected and has been impugned in the present petition. 4. Counsel for petitioners-NVDA has submitted that the impugned award and the execution proceedings are a nullity in law since the same could not have been passed due to the express condition that the dispute involving more than Rs. 50,000/- could not have been adjudicated upon by the sole arbitrator and hence the Executing Court also consequently did not have jurisdiction to execute such an award, which was null and void. 5. Counsel for respondents on the other hand has drawn attention to the definition of a dispute as per section 2 of the M.P. Madhyastham Adhikaran Adhiniyam, 1983 stating that since the claim was not pertaining to an ascertained amount of money valued at Rs. 50,000/- or more, the matter could not have been referred to the Arbitration Tribunal under M.P. Madhyastham Adhikaran Adhiniyam, 1983. Section 2 (d) runs as under: "Dispute means claim of ascertained money valued at Rupees 50,000/- or more relating to any difference arising out of the execution or non-execution of a works contract or part thereof." 6. Drawing the attention to the award dated 10.8.2004 filed as Annexure P-9 to the petition, counsel for respondents drew the attention of this Court to the statement annexed with the award and in column 4, the award was given against the claim then column 2 under each serial the award granted mentioned only the rate of the agreemented items and to the terms agreed on by the agreement. No amount was quantified; only costs were awarded and Rs. No amount was quantified; only costs were awarded and Rs. 25,000/- was levied as Arbitration Fee to be paid 50% by each of the parties and hence it could not be interpreted that the amount as per claim was Rs. 50,000/- or above Rs. 50,000/- and hence question of approaching the Arbitration Tribunal did not arise according to the provisions of the M.P. Madhyastham Adhikaran Adhiniyam, 1983. 7. Counsel for petitioners/State has relied on M/s. Spedra Engineering Corporation and Contractors, Bhopal v. State of Madhya Pradesh [ 1988 JLJ 601 = AIR 1988 MP 111 ] whereby, this Court while considering the question of section 7 of the Madhyastham Adhinkaran Adhiniyam, 1983 considered the classification of the works contract with Government or Government undertaking were to refer the dispute to the Arbitration Tribunal constituted under the Act as already mentioned in section 20 (2) of the Act which is being reproduced hereinbelow for convenience :- "Nothing in sub-section (1) shall apply to any arbitration proceeding either pending before any arbitrator or umpire or before any Court or authority under the provisions of Arbitration Act, or any other law relating to arbitration, and such proceedings may be continued, heard and decided in accordance with agreement or usage or provisions of Arbitration Act or any other law relating to arbitration in all their stages, as if this Act had not come into force." 8. Thereby indicating that the clause in the agreement for appointment of sole arbitrator had become inoperative. According to section 20 (2) there is a saving that the Act shall not be applicable to proceedings either pending any arbitrator or before any other authority prior to coming into effect of the Act and such proceedings may be continued, heard and decided in accordance with agreement envisaged or provisions of the Arbitration Act. However, this arbitration agreement was admittedly entered into consequent to coming into effect of the M.P. Madhyastham Adhikaran Adhiniyam, 1983 and hence according to the counsel for petitioners/NVDA the respondents cannot seek refuge under this provision and refer the matter to the sole arbitrator. 9. According to the counsel for petitioners NVDA, they did not participate in the proceedings since the appointment of the arbitrator itself was unacceptable to the petitioners-NVDA and the petitioners-NVDA have been protesting right from the initiation of the arbitration proceedings before the arbitrator. 9. According to the counsel for petitioners NVDA, they did not participate in the proceedings since the appointment of the arbitrator itself was unacceptable to the petitioners-NVDA and the petitioners-NVDA have been protesting right from the initiation of the arbitration proceedings before the arbitrator. Mere statement by the counsel for respondents that the award was a declaration would not obliterate the position of law. 10. Referring to section 7 (A & B), counsel for petitioners-NVDA has stated that as per section 7 (1) of the Act either party to a works contract shall irrespective of the fact whether the agreement contains an arbitration clause or not, refer in writing the dispute to the Tribunal. Section 7 (A) (1) mandates thus: (1) Every reference petition shall include whole of the claim which the party is entitled to make in respect of the works contract till the filing of the reference petition but no claims arising out of any other works contract shall be joined in such a reference petition. Section 7 (B) also besides prescribing limitation forbids for the making of a reference before the Tribunal until the decision of the final authority under the works contract and thus the respondents cannot get over the provisions of law by stating that a declaratory decree has been sought from the arbitrator and whereas it is also an established fact that declaratory decree cannot be executed. Hence, the whole action of the arbitrator was without validity and malafide, besides being non est in law. The petitioners-NVDA have prayed for quashment of the award and the consequent execution proceedings. 11. Counsel for respondents on the other hand has vehemently supported the validity of the award passed by the arbitrator as well as the order of the Executing Court impugned in the petition primarily objecting to the delay in filing of the petition. Counsel for respondents have also protested against lack of knowledge as claimed by the petitioners-NVDA, stating that the proceedings by order dated 12.1.2005 and 2.3.2005 before the Executing Court Annexure P-14, clearly demonstrate that the petitioners-NVDA have resisted the warrant of attachment and were praying for time on the report submitted by the Process Server. The petitioners- NVDA had approached this Court under Article 227 of the Constitution of India to avoid the execution of the warrant of attachment issued by the Executing Court. 12. The petitioners- NVDA had approached this Court under Article 227 of the Constitution of India to avoid the execution of the warrant of attachment issued by the Executing Court. 12. Initially, the petitioners-NVDA had participated in the proceedings for appointment of sole arbitrator under section 97 of the Arbitration & Conciliation Act, 1996 before the Court of V Additional District Judge, Bhopal in respect of the sale agreement and had filed reply to the application on 15.9.2003 (Annexure R-10) and the same has been decided by the V Additional District Judge, Bhopal on 16.9.2003 vide Annexure P-2 filed by the petitioners-NVDA. The petitioners-NVDA never questioned the jurisdiction or the applicability of the provisions of the Conciliation Act and hence the petitioners-NVDA having once accepted the jurisdiction of the Court could not now turn around and state that the dispute could not have been decided except under the provisions of the M.P. Madhyastham Adhikaran Adhiniyam, 1983. Merely because the prayer of the petitioners-NVDA was rejected by the Court of V Additional District Judge, Bhopal, a favourable order has not been passed in favour of the petitioners-NVDA. The petitioners-NVDA cannot now withdraw and state that the Arbitration & Conciliation Act, 1996 is not applicable to the dispute. 13. Also laying stress on the fact that when the respondents/contractors made a request for referring the dispute to arbitration as per arbitration clause 8.2 of the agreement (Annexure P-3) vide letter dated 11.9.2003, the petitioners-NVDA did not respond to the same and hence after waiting for the period of 45 days as per agreement selected one of the officer of the list to act as sole arbitrator and was finally appointed, by his letter of acceptance on 13.11.2003. The petitioners-NVDA challenged the jurisdiction of the arbitrator by letter dated 22.11.2003 (Annexure P-8) and on communication of the san1e, the sole arbitrator decided the challenge of his jurisdiction and decided to proceed with the arbitration and the same was communicated to the petitioners-NVDA by Annexure R-14. The consequent date of hearing and adjournments were duly communicated to the parties by the arbitrator and the award was finally passed on 10.8.2004 which was received by the petitioners-NVDA on 19.8.2004 as per the petitioners-NVDA's admission in para 5.15 of the writ petition. 14. The consequent date of hearing and adjournments were duly communicated to the parties by the arbitrator and the award was finally passed on 10.8.2004 which was received by the petitioners-NVDA on 19.8.2004 as per the petitioners-NVDA's admission in para 5.15 of the writ petition. 14. Under the circumstances, counsel for respondents submitted that if the petitioners-NVDA were dissatisfied with the award, they should have challenged the same within a period of three months under section 34 of the Arbitration & Conciliation Act, 1996 and also challenged the jurisdiction of the arbitrator as provided under section 16 (6) of the Act. The petitioners-NVDA chose to remain silent over the matter and when execution proceedings were filed by the respondents before the Executing Court after the expiry of three months from the date of passing of the award, the petitioners-NVDA also entered appearance before the Executing Court on 21.12.2004. The petitioners-NVDA also made prayer for time for compliance on 2.3.2005 and 22.3.2005 however the petitioners-NVDA did not take recourse to any remedy provided under the Arbitration & Conciliation Act, 1996. 15. The sole challenge to the award given by the petitioners-NVDA according to the counsel for respondents was that the award was nonest in law and void of merit. However, countering the same, counsel for respondents stated that the objections regarding the jurisdiction were raised before the arbitrator and rejected by him and then the petitioners-NVDA had no other recourse but to seek the remedy under section 34 of the Arbitration and Conciliation Act, 1996 as envisaged under section 16 (6) of the Act. 16. Pointing out to the dispute was only with regard to the rates of extra items/additional quantities and hence was not pertaining to any ascertained sum of money and that the decision regarding rates had been taken at the highest level by the petitioners/NVDA. The matter could not be referred for decision to any final authority under the terms of the works contract. Also referring to section 7 (B) of the M.P. Madhyastham Adhikaran Adhiniyam, 1983 that under section 2 (d) -- "the dispute means claim of ascertained money valued at Rs. 50,000/- or more relating to any difference arising out of the execution or non-execution of a works contract or part thereof;". The counsel cited the following cases in support of his contentions. 17. 50,000/- or more relating to any difference arising out of the execution or non-execution of a works contract or part thereof;". The counsel cited the following cases in support of his contentions. 17. Relying on M/s. Gautam Packaging Industries and others v. M/s. Gold Crestfinance (India) Limited [AIR 2001 2 Karnataka 501] whereby the Court held that regarding the scope of petitioner to file review against appointment of an arbitrator under section 11 of the Arbitration and Conciliation Act, 1996 could not be a subject-matter of issuance of writ certiorari, since under section 11 of the Act, the aggrieved party could raise the grievance before the very arbitrator in accordance with the provisions of the Act. Also has further relied on Shiva Carriers v. Royal Projects Ltd. and others [AIR 2000 Calcutta 133] whereby the Court held that where there was initiation of proceedings under section 9 of the Act before the civil Court by one of the parties in relation to the arbitration proceedings, then subsequent application before High Court in connection with the arbitration agreement and arbitral proceedings by other party would be hit by section 42 of the Arbitration & Conciliation Act, 1996. The Court would have no jurisdiction in view of the initiation of the proceedings under section 9 of the Act. The Court would have no jurisdiction in view of the initiation of the proceedings under section 9 of the Act. Also has further relied on Maharaja Shree Umaid Mills Ltd. & Another v. The Debts Recovery Tribunal & others [AIR 2000 Calcutta 206], Rail India T & E Services Ltd. v. M/s. Vidyawati Construction Company and others [AIR 2001 Allahabad 259], Fakir Chand v. State of Assam and others [AIR 2002 Gauhati 84] and also relied on M.P. Housing Board, Bhopal v. Satish Kumar Raizada [ 2003 (2) MPLJ 346 ] where the dispute was referred to Deputy Housing Commissioner under arbitration agreement if between parties to fix rates or works done by the contractors and the contractors' claim was not for any ascertained sum of money, this Court held that such a claim could not be submitted before the Arbitration Tribunal for its decision and finally relying on unreported judgment passed by this Court in Civil Revision No. 198/1990 in the matter of M/s. Shree Construction Company v. State of M.P. and others decided by the Division Bench at Indore, whereby their Lordships categorically held in para 17 thus: 'Thus, it is clearly indicative of the fact that fixed and ascertained amounts have got to be claimed and there should be denial of it. But seeking the relief of declaration would not be a dispute which could be granted by the Tribunal. We accordingly hold that the Tribunal has no power or jurisdiction as per the provisions of the Adhiniyam to grant the relief of declaration". 18. Counsel for respondents has also pointed out that the order of the M.P. High Court in the matter of M.P. Housing Board, Bhopal v. Salish Kumar Raizada (supra) has been upheld by the apex Court. The SLP No.712/2003 was dismissed on 22.9.2003 and thus the proposition has attained finality. 19. Considering the sum total of the submissions made by both the counsel for parties and on perusing the impugned order as well as the record, I am of the considered opinion that the arbitrator has merely fixed the rate of extra items/additional quantities and do not pertain to any ascertained sum of money as is obvious from perusal of the impugned award and hence the matter could not be termed as a dispute under section 2 (d) of the M.P. Madhyastham Adhikaran Adhiniyam, 1983. 20. 20. However, be that as it may, on considering the matter under Article 226/227 of the Constitution of India, the fact also cannot be lost sight of that the petitioners-NVDA did not actually participate in the proceedings since from the very inception the petitioners-NVDA have been protesting against the appointment of the sole arbitrator as being contrary to the provisions of law. The petitioners-NVDA may not have availed the appropriate remedy available in the law due to misconception that such an award passed would be a nullity yet they ought to have been better advised. The petitioners-NVDA being an authority of the State Government cannot plead ignorance of law. However, at the same time, the submissions of the counsel for petitioners-NVDA cannot be lost sight of or brushed aside regarding the fact that the award at the most could be termed as declaratory and cannot be executed. So also the fact remains that without participation of the other side, the sum of money awarded for the extra items/additional quantities could not have been quantified by one party alone and the public exchequer cannot be burdened for the mistake of the officials of the State Government. The proper remedy for the petitioners-NVDA would have been to file appeal under section 34 of the Arbitration and Conciliation Act, 1996 for setting aside the award. 21. In the interest of justice since it is obvious from the proceedings that the petitioners- NVDA did not participate in the proceedings at all, an opportunity may be granted to the petitioners-NVDA to challenge it the award under section 34 of the Arbitration & Conciliation Act, 1996. The delay occasioned in filing of the appeal may be condoned due to the proceedings before the Executing Court as well as this Court. 22. Thus for fair administration of justice and on principle of equity, it is therefore directed that the petitioners-NVDA may file appeal before he appropriate authority for setting aside the award within a period of one month from date of this order and till passing of the decision of the Appellate Authority, the execution proceedings shall remain in abeyance. The Appellate authorities are directed to decide the appeal preferably within a period of six months. 23. With these directions, the petition is disposed off. No order as to costs.