ORDER This arbitration application under Section 11 of the Arbitration and Conciliation Act, 1996 (in short ‘the Act of 1996’) has been filed by the Applicant for appointment of an independent Sole Arbitrator for adjudication of the disputes and differences arisen between the parties in respect of the Agreement No.2/2003-2004 containing the arbitration Clause 23, of the works of construction, earthen dam, spillway, wing walls and head outlet sluice of Garada Irrigation Project. 2. The brief facts of the case are that the Applicant is registered as AA Class Contractor. The Non-applicant No.2 issued NIT No. 2/2002-03 for execution of “Construction of Earthen Dam, Spillway, Wing Walls and Head Outlet Sluice of Garada Irrigation Project” in which the Applicant submitted both technical and final bids. After evaluation of the tenders received, the tender of the applicant, being the lowest, was accepted. The Non-applicant No.2 issued work order dated 27-9-2003. The estimated cost of the work was Rs. 370657771/- and the stipulated dates of commencement and completion were 6-10-2003 and 5-10-2008 respectively. Subsequently, Agreement No. 2/2003-04 (Anx.1) was executed. The work was executed as per specifications and completed on 25-3-2010. The rates of G-Schedule were based on the BSR of Chief Engineer, Irrigation Department, Rajasthan, Jaipur effective from May, 2000 where cost of earth was not included in the rates of earth work. The earth works of embankment, road, work and other allied works were to be executed by obtaining earth from the Borrow Area specified by the department. Schedule A-4 of construction of materials in the agreement specified that charges on account of royalty is not payable on the material supplied by the Department. It is further specified under the heading SOIL from Borrow Area that soil required for construction work of dam shall be obtained from the designated Borrow Area Plan. AG Audit has raised the issue of royalty for the earth used in filling of embankment of Dam and Banas sand used for construction works without STP and imposed penalty @ 10 times on the cost of ‘royalty amounting to Rs. 3,07,05,588/- and Rs. 1,13,83,208/- for earth royalty charges and Banas River’s Sand royalty charges respectively totalling Rs. 4,20,88,796/- After discussions between the Mining and Irrigation Department, orders dated 8-10-2007 and 11-12-2007 were issued but the Non-applicant No.2 has interpreted order dated 11-12-2007 as prospective. The Non-applicants have recovered Rs. 3,07,05,588/- and Rs. 1,13,83,208/- for earth royalty charges and Banas River’s Sand royalty charges respectively totalling Rs. 4,20,88,796/- After discussions between the Mining and Irrigation Department, orders dated 8-10-2007 and 11-12-2007 were issued but the Non-applicant No.2 has interpreted order dated 11-12-2007 as prospective. The Non-applicants have recovered Rs. 49,04,187/- from the running bills of the Applicant and further intent to deduct Rs. 4,20,88,796/-. 3. The Applicant invoked arbitration agreement contained in Clause 23 by submitting application and cheque which was received on 15-12-2008 (Anx. 2) for referring the matter to the Empowered Standing Committee within a period of thirty days. The case of the Applicant was not referred to the Empowered Standing Committee within the stipulated period of thirty days. The Non-applicant No. 2 sent letter dated 1-4-2010 (Anx.3) mentioning therein that the Chief Engineer WR Zone, Kota vide No. 2565 dated 23-2-2010 referred the claim to the Committee and further denied the claim of the Applicant departmentally on merit and therefore, this arbitration application has been filed. 4. Although, the Non-applicants have raised the preliminary objection in the reply that in the Agreement executed between the Non-applicants and the Contractor Applicant, there is no arbitration clause and only Clause 23 is there for referring the dispute to the Empowered Standing Committee. Further objection was also taken in the reply that the contractor Applicant was intimated vide letter dated 31-3-2010 that his dispute was referred to the Empowered Standing Committee vide letter dated 23-2-2010 and an intimation in this regard was also given to the Contractor on 1-4-2010 and he was also asked vide letter dated 3-8-2010 for attending the meeting of the Empowered Standing Committee which was held on 6-8-2010 (Anx. R-1) and the decision was taken on the same day. Counsel for the Non-applicants was confronted by the counsel for the Applicant in his rejoinder with some of the judgments of this Court upheld by the Supreme Court also, wherein similarly worded Clause 23 has been held to be an arbitration clause. R-1) and the decision was taken on the same day. Counsel for the Non-applicants was confronted by the counsel for the Applicant in his rejoinder with some of the judgments of this Court upheld by the Supreme Court also, wherein similarly worded Clause 23 has been held to be an arbitration clause. Counsel for the Non-applicants also submitted that the Applicant is not entitled for appointment of the Sole Arbitrator by invoking Sec. 11 of the Act of 1996 as the dispute has been resolved by the Empowered Standing Committee and the only option lies with the applicant is to challenge the same under Section 34 of the Act of 1996 and raise all the objections available to him and the Applicant is not entitled to the appointment of the Sole Arbitrator, as prayed by it, therefore, counsel for the Non-applicants submitted that the present arbitration application is not maintainable and the same has become infructuous. 5. Counsel for the Applicant submitted that the present arbitration application has been filed on 29-5-2010 and prior to that, an application along with the requisite fee for seeking reference of the dispute to the Empowered Standing Committee was filed on 31-12-2008 and the same was not referred to the Empowered Standing Committee within the prescribed period of one month or till the date of filing of the present arbitration application, therefore, the Non-applicants forfeited their right of reference of the dispute to the Empowered Standing Committee. 6. In order to substantiate the aforesaid submission, counsel for the Applicant referred to certain dates mentioned in the application, the rejoinder and the application for taking additional counter-affidavit on record. In the letter dated 1-4-2010 (Anx.3), issued by the Executive Engineer, Water Resources Project, Dn. Bundi wherein it has been written that the Chief Engineer WR Zone, Kota vide No. 2565 dated 23-2-2010 referred the matter to the Committee. The photostat copy of the said letter dated 23-2-2010 has been filed by the Non-applicants as Annexure A/1 along with the Application No. 22320 dated 25-7-2012 for taking the document on record, wherein also, in the last para, the Chief Engineer, Water Resources, Zone Kota has written to the Addl. Secretary cum Chief Engineer, W. R. Deptt. Jaipur that “It is requested to kindly refer the case to the Empowered Standing Committee”, therefore, the order dated 23-2-2010 is not an order of reference. Secretary cum Chief Engineer, W. R. Deptt. Jaipur that “It is requested to kindly refer the case to the Empowered Standing Committee”, therefore, the order dated 23-2-2010 is not an order of reference. Neither the letter dated 31-3-2010 was received by the Applicant nor the same has been annexed by the Non-applicants along with the reply, replica and the application. 7. The Applicant objected to the meeting of the Empowered Standing Committee on the ground that the arbitration application has been filed and the same is pending. The signed copy of the decision dated 6-8-2010 (Anx. R-1) was never sent to the Applicant and it came to the notice of the Applicant, for the first time, on 11-8-2011 when copy of the reply submitted by the Non-applicant was received. Thus, the alleged Award saw the light of the day on 11-8-2011. 8. Counsel for the Applicant further submitted that considering the arbitration application, reply to the arbitration application, rejoinder wherein some judgments have been referred on Clause 23 and other issues, replica to the rejoinder, miscellaneous application filed by the Non-applicants for taking the documents on record, more particularly Annexure-3 dated 1-4-2010 and 23-2-2010 (Anx. A-1), no dispute was referred to the Empowered Standing Committee vide letter dated 23-2-2010 (Anx. A-1) or till the date of filing of the present arbitration application, therefore, right of the Non-applicants to refer the dispute to the Empowered Standing Committee is forfeited and the Award passed by the Empowered Standing Committee on 6-8-2010 (Anx. R-1) which has been filed along with the reply, is non est in the eye of law and without jurisdiction and the Applicant is entitled to get the appointment of the sole independent Arbitrator by this Court. 9. In support of the aforesaid submissions, counsel for the Applicant placed reliance on paras 15 and 16 of the judgment of the Supreme Court in Union of India v. Bharat Battery Manufacturing Co. (P) Ltd., 2007 (3) Arb LR 282 (SC). 10. Counsel for the Non-applicants submitted, on 26-11-2012 before this Court, that he does not dispute the fact that Clause 23 of the Agreement is an arbitration clause. (P) Ltd., 2007 (3) Arb LR 282 (SC). 10. Counsel for the Non-applicants submitted, on 26-11-2012 before this Court, that he does not dispute the fact that Clause 23 of the Agreement is an arbitration clause. However, he pressed the objection that the dispute was referred to the Empowered Standing Committee vide order dated 23-2-2010 and an intimation to this effect was given to the Applicant vide letter dated 31-3-2010, and further does not dispute that the said dated 31-3-2010 is not on record. After reference, the decision was given by the Empowered Standing Committee on 6-8-2010, therefore, the only remedy, which lies with the Applicant, is to file objection u/S. 34 of the Act of 1996. 11. Before proceeding further, it is necessary to reproduce paras 15 and 16 of the judgment of the Supreme Court in Union of India v. Bharat Battery Manufacturing Co. (P) Ltd. (supra) and the two letters dated 1-4-2010 and 23-2-2010. The same are as under: Paras 15 and 16 of Union of India v. Bharat Battery Manufacturing Co. (P) Ltd., 2007 (3) Arb LR 282 (SC). 15. As already noticed, the respondent filed Section 11(6) petition on 30-3-2006 seeking appointment of an arbitrator. The appellant, thereafter, said to have appointed one Dr. Gita Rawat on 15-5-2006 as a sole arbitrator, purportedly in terms of Clause 24 of the agreement. Once a party files an application under Section 11 (6) of the Act, the other party extinguishes its right to appoint an arbitrator in terms of the clause of the agreement thereafter. The right to appoint arbitrator under the clause of agreement ceases after Section 11(6) petition has been filed by the other party before the Court seeking appointment of an arbitrator. (Emphasis supplied) 16. We are, therefore, of the view that the order of appointment of Dr. Gita Rawat by the appellant as a sole arbitrator dated 15-5-2006 was passed without jurisdiction. Once Section 11(6) petition is filed by one party seeking appointment of an arbitrator, the other party cannot resurrect the clause of the agreement dealing with the appointment of the arbitrator, in this case Clause 24 of the agreement. (Emphasis supplied) Letter dated 1-4-2010 (Anx.3) “To, Date: M/s. Shekhar Construction Pvt. Ltd. J-1817 GF Chitranjan Park, New Delhi. Sub: Reference to Empowered Standing Committee for settlement of disputes. Ref : Your application dated 13-12-2008. (Emphasis supplied) Letter dated 1-4-2010 (Anx.3) “To, Date: M/s. Shekhar Construction Pvt. Ltd. J-1817 GF Chitranjan Park, New Delhi. Sub: Reference to Empowered Standing Committee for settlement of disputes. Ref : Your application dated 13-12-2008. On the subject it is to intimate that your application/claims submitted vide your letter under reference has been referred to the committee by Chief Engineer WR Zone Kota vide No. 2565 dated 23-2-2010. However, it is to state that several letters have been written to your firm regarding provisions of the agreement and prevailing rules in respect of points of disputes. However, regarding your claims you are replied as under: (Emphasis supplied) Claim No.1: As per provisions of agreement clause 36(A) the liability for payment of royalties lies on your part. Clause No. 36(c) of the agreement also confirm the same and states that royalty or other tax on materials issued/consumed in process of fulfilling contract will be paid by the contractor. Hence recovery of royalty on earthwork is as per provisions of agreement and as per letters issued by the Mining Department time to time. Claim No. 2: As per Rajasthan Minor Mineral Rules, obtaining of S. T. P. provision of Minerals from the mining Department is the liability of contractor, otherwise the mining Deptt. has power to levy penalty as per rules. You are further informed that this Department is not a assessing department but use to recover royalty as per provision of the rules/agreement and get them deposited to mining department. Therefore, the undersigned understand that your point of disputes is with the mining department. Hence any claim in reference to your claim is denied. Sd/- Executive Engineer Water Resources Project, Dn. Bundi. No. 3-6 Dated 1-4-2010 Copy submitted to the following for information and necessary action please : 1. Additional Secretary cum Chief Engineer WRD Raj., Jaipur. 2. Chief Engineer WR Zone, Kota. 3. Superintending Engineer, R. P. S. & J. S. Dam Circle, Kota. Sd/- Executive Engineer Water Resources Project, Dn. Bundi.” Letter dated 23-2-2010 (Anx.A-1) “Office of the Chief Engineer, Water Resources Zone, Kota No. CE/WR/I/AC/KTT/2565 Dated 23-2-2010 The Addl. Secretary cum Chief Engineer, W. R. Deptt. Rajasthan, Jaipur. Sub : Reference to the Empowered Standing Committee for settlement of disputes under Clause 23 of the conditions of contract. Ref : Letter No. 462 dated 28-1-2010 of S. E. RPS JS Dam Circle, Kota. Secretary cum Chief Engineer, W. R. Deptt. Rajasthan, Jaipur. Sub : Reference to the Empowered Standing Committee for settlement of disputes under Clause 23 of the conditions of contract. Ref : Letter No. 462 dated 28-1-2010 of S. E. RPS JS Dam Circle, Kota. Sir, In terms of clause 23 of the conditions of contract entered between the Government of Raj. through the Executive Engineer, Water Resources (Project Divn.) Bundi for execution of Main Dam of Gararda Irrigation Proj. awarded to M/s. Shekhar Construction Co. New Delhi, the Superintending Engineer, RPS and JS Dam Circle, Kota has submitted the claims of the contractor with the request to refer to the Empowered Sanding Committee for settlement of disputes. As such the same is enclosed herewith for further action please. 1. Copy of claims of the applicant - 5 sets 2. Copy of agreement 1 No. 3. Application of the applicant 1 set. 4. Correspondences made by the E. E. regarding claims 5 sets; 5. Copy of Rajasthan Minor Mineral Concession Rules, 1986 5 set 6. Columnar statement - 5 sets. It is requested to kindly refer the case to the Empowered Standing Committee.” (Emphasis supplied) Sd/- Chief Engineer, Water Resources, Zone Kota. No. CE/WR/I/AC/KTT/2566 Dated 23-2-2010 Copy to the Superintending Engineer, W. R. RPS, JS Dam Circle Kota for information & n. a. Sd/- Chief Engineer” 12. I have gone through record of the arbitration application and further considered the aforesaid submissions of the counsel for the parties. 13. There is no dispute about the fact that arbitration Clause 23 exists in the Agreement No.2/2003-2004 and further, application along with 2% fee was received in the office of the Non-applicant on 15-12-2008 for referring the matter within thirty days and the same was not referred within the said prescribed period of thirty days. Thereafter also, the letter dated 23-2-2010 cannot be said to be an order of reference as in the said letter, there is only a simple request to the Additional Secretary cum Chief Engineer to refer the matter to the Empowered Standing Committee and there is no order on record for making the reference before filing of the present arbitration application i.e. 29-5-2010. Thus, the Non-applicants have forfeited their right of reference and subsequent award dated 6-8-2010 is non est and without jurisdiction. 14. Thus, the Non-applicants have forfeited their right of reference and subsequent award dated 6-8-2010 is non est and without jurisdiction. 14. Considering the aforesaid facts of the case, I am of the view that the dispute between the parties is required to be resolved by the Sole Arbitrator and therefore, I deem it proper to appoint Mr. Justice S. S. Kothari, Former Judge of this Court as the Sole Arbitrator. 15. Accordingly, the arbitration application for appointment of the Sole Arbitrator is allowed. I, therefore, appoint Mr. Justice S. S. Kothari, Former Judge, of this Court as the Sole Arbitrator, and the matter is referred to him for resolving the disputes between the parties, arising out of the Agreement No.2/2003-2004. The Sole Arbitrator will fix his fee according to the Arbitration Manual. All objections would be open to be raised by the Non-applicants before the Sole Arbitrator. 16. A copy of this order be sent to Mr. Justice S. S. Kothari, Former Judge of this Court, A-14, Gandhi Nagar, Jaipur. Order accordingly.