Research › Search › Judgment

Patna High Court · body

2006 DIGILAW 971 (PAT)

Vinod Kumar Narain Sinha v. State Of Bihar

2006-10-30

V.N.SINHA

body2006
Judgment 1. Heard Sri Abhay Kumar Singh, Senior Advocate for the petitioner and Sri Anshuman Singh, J.C. to AAG III for the Respondent Executive Engineer. 2. Petitioner is a works contractor. He entered into 22 agreements with the Respondent Executive Engineer for execution of works contract, details whereof are given in paragraph 2 of the application, but copies of only 21 of those agreements have been annexed with this application. 3. It is submitted on behalf of the petitioner that after execution of the works contract, dispute arose between the parties as regards the contents of the contract, whereafter request was made to the Executive Engineer to appoint an Arbitrator, who should resolve the dispute between the parties vide request dated 17.2.2006, Annexure-2 but the Executive Engineer did not respond to the request, whereafter present Request Case was filed annexing certified copies of 21 agreements executed between the parties praying inter alia to appoint Arbitrator to resolve the dispute between the parties. 4. Learned counsel for the Respondent Executive Engineer has opposed the prayer with reference to the averments made in the counter affidavit as also the supplementary counter affidavit. It has been stated on behalf of the Executive Engineer that the arbitration clause contained clause 23 of the agreement stood deleted by virtue of resolution of the State Government dated 18.11.1992 published in the Official Gazette dated 23.11.1992, photocopy whereof is contained in Annexures A and B to the said counter affidavit. It is further submitted that in the light of the instructions contained in the photocopy of the aforesaid resolution of the State Government, clause 23 of the agreements executed between the parties was deleted while signing the contract and in support of the said statement, the Executive Engineer has annexed photocopy of the aforesaid 21 original agreements with the supplementary counter affidavit. 5. Perusal of each of the agreements indicates that the same has been signed by the parties on every page and clause 23 has been deleted but the deletion has not been counter signed by the parties. In the circumstances, according to the learned counsel for the petitioner, this deletion cannot be acted upon as the same has been made by the Executive Engineer unilaterally sometime after signing of the agreements between the parties. 6. In the circumstances, according to the learned counsel for the petitioner, this deletion cannot be acted upon as the same has been made by the Executive Engineer unilaterally sometime after signing of the agreements between the parties. 6. Learned counsel for the petitioner submitted that even the resolution dated 18.11.1992 as published in the Gazette dated 23.11.1992, Annexures-A and B to the counter affidavit, cannot be relied upon in these proceedings as neither the original resolution nor the printed Gazette was ever produced before this Court and for failure to produce original resolution and printed Gazette the photocopy of the two documents should not be relied as it is well known that photocopy is no substitute for the original/printed copy of the two documents. He further submitted that the resolution/Gazette were never put to circulation/sale for distribution and information amongst the members of general public and mere publication in Gazette for information to the departmental authorities without any circulation/sale to the members of the public has no meaning at all as according to him publication in Gazette is meaningful only when publication is generally accessible or available to public. In this connection, he referred to a judgment of the Hon ble Supreme Court in the case of Collector of Central Excise vs. New Tobacco Co. & Others, reported in (1998)8 Supreme Court Cases 250 in which Hon ble Supreme Court having considered the meaning of the word publish, as given in legal glossary published by the Legislative Department, Ministry of Law, Justice and Company Affairs, Government of India in 1992 observed that publication is meaningful only when the publication is accessible or available to the public at large by sale or distribution. In this connection, he also referred to a Division Bench Judgment of this Court in the case of M/s McDowell & Company Ltd., Hathidah vs. The State of Bihar & Others, reported in 2000(3) PLJR 475 whereunder this Court held that mere printing in the Gazette is not a publication of the notification unless the same is circulated amongst the members of the public. 7. 7. I see substance in the argument of the learned counsel for the petitioner and, accordingly, hold that the resolution dated 18.11.1992, as published in Gazette dated 23.11.1992 original/printed copy whereof was never produced in this Court which was also not circulated amongst the members of the public, could not have been relied by the Executive Engineer while unilaterally deleting clause 23 of the agreements. I further hold that the deletion of clause 23 of the agreements without counter signature of the parties has no meaning at all. 8. In view of my findings in paragraph 7 above, I further hold that clause 23 of the agreement executed between the petitioner and the Respondent Executive Engineer was never deleted and continued to hold the field and for failure of the Executive Engineer to respond, to the request made in the notice dated 17.2.2006, Annexure-2 within 30 days of its receipts, provisions contained in sub-clause (5) of Sec.11 of the Arbitration and Conciliation Act, 1996 stood violated! In the circumstances, this Court being the nominee of Hon ble the Chief Justice, has no option but to allow the request case, which is accordingly, allowed and Hon ble Mr. Justice Radha Mohan Prasad, a retired Judge of this Court is appointed as Arbitrator to adjudicate the dispute between the parties. Parties are directed to appear before his Lordship within two weeks from the date of receipt of the certified copy of this order. His Lordship shall be at liberty to fix his own remuneration as also the procedure to be undergone in the arbitral proceedings. 9. Let a copy of this order be forwarded to Hon ble Mr. Justice Radha Mohan Prasad at his Rajiv Nagar, Patna residence at an early date.