JUDGMENT 1. This order shall dispose of A.A. Nos. 16 of 2013, 19 of 2013 and 21 of 2013 because there are identical agreements for similar works at different locations and different prices. For sake of convenience I take up facts from A.A. No. 16 of 2013. 2. The prayer made by the petitioner under Section 11(6) of the Jammu and Kashmir Arbitration and Conciliation Act, 1997 is for appointment of Arbitral Tribunal of three arbitrators for adjudication of the disputes arising out of the agreement. 3.1. Brief Facts of the case necessary for disposal of the controversy raised in the instant petition are that an agreement dated 08.02.2008 was executed between the petitioner-Company and Jammu and Kashmir Power Development Department (for brevity, JKPDD) with regard to execution of the project namely turnkey package TL-J/3/2008 for construction of 132 KVD/c Barn-Siot-Kalakot Transmission Line along with Lilo at Grid Station, Akhnoor (Annexure-B). The JKPDD awarded the turnkey package after necessary approval obtained from the finance department of the Jammu and Kashmir State vide order dated 28.01.2008. The contract price was approved at Rs. 2972.84 lacs. The finance department in their approval has specified that award of the turnkey project on the negotiated rates was inclusive of all taxes and duties, which is evident from Government order dated 28.1.2008 (Annexure-C). 3.2 Thereafter Letter of Intent (LOI) dated 29.01.2008 was issued by the respondent to the petitioner-contractor for the turnkey project clearly describing the scope of the work as also the contract value. The price value clause reiterates that contract value was to be Rs. 2972.84 lacs including all taxes and duties viz. excise duty, CST, packing and forwarding charges, toll tax, freight and transit insurance etc. (Annexure-D). The petitioner accepted the Letter of Intent vide communication dated 31.01.2008, which was followed by issuance of Letter of Award (LOA) No. CE/S&O/J/T-221/11067-73 dated 07.02.2008 to the petitioner which stipulates the terms and conditions of the allotment, scope of work on turnkey basis, contract price, taxes and duties etc. (Annexure-E). It contains contract price which is reflected in Clause-2 along with taxes and duties as reflected in Clause-3. During the execution of the project, the contracted quantities underwent significant change and after protracted delay the contract was amended. The amendment was issued by respondent vide letter No. CE/S&O/J/8466-69 dated 8/6/2011. According to the amendment issued, the amended value of the contract was raised to Rs. During the execution of the project, the contracted quantities underwent significant change and after protracted delay the contract was amended. The amendment was issued by respondent vide letter No. CE/S&O/J/8466-69 dated 8/6/2011. According to the amendment issued, the amended value of the contract was raised to Rs. 32,48,18,032/- (thirty two crores forty eight lacs eighteen thousand and thirty two). It is alleged that while issuing amendment some changes were unilaterally made in the terms and conditions originally accepted by both the parties (Annexure-G). The changes in the schedules have been made on account of (a) variation in quantities, (b) corrections in the rate of Work Contract Tax (from 8.4% indicated in the original price schedule to 10.5%) as per Clause 3.1 of the Letter of Award. The third change was allegedly in violation of the contract agreement. According to the petitioner, Clause 5 of the Letter of Award dealing with price adjustment had restricted the price variation to an amount of Rs. 59,13,968/-. The amendment further re-emphasized that taxes and duties were to be paid as per the provisions in the Letter of Award. 3.3. Despite several issues including delay in forest clearance, obstruction to right of way at several locations and delay in approval of rates for quantity variations etc., the petitioner completed a section of the work i.e. Barn-Akhnoor transmission line which was energized at double circuit on 12.07.2010. Rest of the line i.e. Akhnoor-Kalakot section was test charged on 17.11.2011. The petitioner has further claimed that the work stood executed by the petitioner-Company and sites have also been handed over to JKPDD (Annexure-H). It has been claimed that amendment order issued by the respondent contains certain unilateral additions/alterations which were not acceptable to the petitioner-Company. Accordingly, objections were raised by the petitioner vide letter No. EUJ/N-59/F-31/1224 dated 02.07.2011 (Annexure-J). It is in the aforesaid backdrop that the petitioner has claimed existence of dispute between both the parties, which has remained unresolved. 3.4. Clause 47 of agreement dated 08.02.2008 provides for a mechanism of pre-arbitration stage. According to the aforesaid mechanism an appeal was filed by the petitioner-Company before the Development Commissioner (Power), JKPDD as was required under Clause 47 of the general conditions of the contract. 3.4. Clause 47 of agreement dated 08.02.2008 provides for a mechanism of pre-arbitration stage. According to the aforesaid mechanism an appeal was filed by the petitioner-Company before the Development Commissioner (Power), JKPDD as was required under Clause 47 of the general conditions of the contract. This admirable mechanism is provided by Clause 47 of the General Conditions of Contract which is set out below in extenso: CLAUSE-47: ARBITRATION: Except where otherwise provided in the Contract all questions and disputes relating to the meaning of the specifications, design, drawing and instructions herein before mentioned and as to the quality to workmanship or material used on the Work or as to any other question, claim, right, matter or thing whatsoever in any way arising out of or relating to any other question, claim, right, matter or thing whatsoever in any way arising out of or relating to the Contract, designs, drawings, specifications, estimates, instructions, orders to these conditions or otherwise concerning the Works or the execution of failure to execute the same whether arising during the progress of the Work or after the cancellation, termination, completion or abandonment thereof shall be dealt with as mentioned hereinafter. (i) If the firm considers any work demanded of him to be outside the requirements of the Contract, or considers any decision of the Engineer-in-Charge on any matter in connection with or arising out of the Contract or carrying out of work to be unacceptable, he shall promptly ask the Engineer-in-Charge in writing, for written instructions or decision. There upon the Engineer-in-Charge shall give his written instructions or decision within a period of thirty days of such request. Upon receipt of the written instructions or decision, the firm shall promptly proceed without delay to comply with such instructions or decision. If the Engineer-in-Charge fails to give his instructions or decision in writing within a period of thirty days after being requested for or if the firm is dissatisfied with the instructions or decision of the Engineer-in-Charge, the firm may within thirty days after receiving the instructions or decision file a written appeal to the Development Commissioner (Power), JKPDD who will constitute a committee of three members viz. (i) Chief Engineer, Planning & Design Wing, J.&K. PDD, (ii) Chief Engineer, System & Operation Wing, Jammu/Srinagar and (iii) Superintending Engineer, Planning & Design Circle, Jammu/Srinagar. (i) Chief Engineer, Planning & Design Wing, J.&K. PDD, (ii) Chief Engineer, System & Operation Wing, Jammu/Srinagar and (iii) Superintending Engineer, Planning & Design Circle, Jammu/Srinagar. (In case Arbitration pertains to Kashmir Division, Chief Engineer, System & Operation Wing, Jammu and Superintending Engineer, Planning and Design Circle, Jammu shall be other two members and in case Arbitration pertains to Jammu Division, Chief Engineer, System & Operation Wing, Kashmir and Superintending Engineer, Planning & Design Circle Kashmir shall be other two members). Chief Engineer, Planning and Design Wing J.&K. will be the convener of the Committee to resolve the dispute. The Committee shall afford an opportunity to the firm to be heard and to offer evidence in support of his appeal within forty five days of the receipt of the appeal by the Development Commissioner (Power). The Chief Engineer, Planning and Design Wing, J.&K. PDD shall give a decision on behalf of the Committee within a period of thirty days after the firm has been heard and the firm has given evidence in support of his appeal. If the Chief Engineer, Planning and Design Wing does not give a decision within thirty days, the firm will have the right to refer the dispute to arbitration. If the firm is dissatisfied with this decision, the firm, within a period of thirty days from receipt of the decision, shall indicate his intention to refer the dispute to Arbitration failing which the said decision shall be final and conclusive. Except where the decision has become final and conclusive in terms of sub-para (i) above, disputes or difference shall be referred for adjudication through arbitration to an Arbitral Tribunal of three arbitrators appointed jointly by the Power Development Department, J.&K. (JKPDD) and the firm. Where the mandate of an Arbitrator terminates, a substitute arbitrator shall be appointed according to the rules that were applicable to the appointment of the arbitrator being replaced. The Arbitral Tribunal shall follow/be guided by the basic principles and procedure as contained in the J.&K. State Arbitration Act. All arbitrations under the contract shall be treated as domestic arbitrations. The parties shall be free to agree on a procedure for appointing the Arbitrators. Failing any agreement for appointment of Arbitrators, each party shall appoint one Arbitrator and the two appointed Arbitrators shall appoint the third Arbitrator, who shall act as the presiding Arbitrator. All arbitrations under the contract shall be treated as domestic arbitrations. The parties shall be free to agree on a procedure for appointing the Arbitrators. Failing any agreement for appointment of Arbitrators, each party shall appoint one Arbitrator and the two appointed Arbitrators shall appoint the third Arbitrator, who shall act as the presiding Arbitrator. (ii) The said Arbitrators shall have full power to open up, revise and review any decision, opinion, direction, certificate of valuation of the JKPDD. (iii) If either of the parties fail to appoint its Arbitrators in pursuance of sub-clause (i) above, within 30 days after the receipt of the notice of the appointment of its Arbitrators or the two appointed Arbitrators fail to agree on third Arbitrator within thirty days from the date of their appointment then the appointment shall be made upon request of J.&K. PDD by Chief Justice, High Court of J.&K. or any person or institutions designated by him. (iv) Neither party shall be limited in the proceedings before such arbitrators to the evidence or arguments put before any authority herein above for the purpose of obtaining its said decision. No decision given by any authority in accordance with the foregoing provisions shall disqualify it from being called as a witness and giving evidence before the arbitrators on any matters whatsoever relevant to the dispute or difference referred to the arbitrators as aforesaid. (v) to (ix)…………… 3.5. In accordance with the aforesaid Clause, the Development Commissioner (Power), JKPDD constituted three members committee to resolve the dispute by adjudicating the appeal vide order dated DC/PD/T-S/ of 2011 dated 19.08.2011 (Annexure-M). According to Clause 47, the committee of three members constituted by the Development Commissioner (Power), JKPDD was to afford opportunity of hearing to the petitioner within a period of 45 days. The Committee was constituted on 19.08.2011 but it fails to hear the appeal nor it call for adducing any evidence within the stipulated period as per Clause 47 and as per the directions given by the Development Commissioner (Power). The time is essence of Clause 47 which permeates through the whole stipulation. The use of word promptly with a time limit imposed. The Committee could not decide the appeal till the date of filing of the instant petition which has been filed on 09.05.2013. 3.6. The time is essence of Clause 47 which permeates through the whole stipulation. The use of word promptly with a time limit imposed. The Committee could not decide the appeal till the date of filing of the instant petition which has been filed on 09.05.2013. 3.6. Feeling aggrieved by failure of the admirable pre-arbitration mechanism provided by Clause 47 for resolving the disputes, the petitioner issued a legal notice to respondent on 11.08.2012 (Annexure-N) for reference of various disputes to the arbitration and appointment of Arbitral Tribunal. In the notice the petitioner has drawn attention of the respondent to their repeated failures for fulfilling the contractual obligations and has referred to various disputes, which are required to be settled by way of arbitration proceedings. The notice refers to the disputes and claims of financial losses and damages suffered on account of delay in completion of projects; on account of failure of the respondent to get timely forest clearance and obstruction to right of way at several locations; unilateral amendment in the agreed price variation clause; arbitrary and illegal recovery of alleged variation in taxes and duties from recurring payments due to the petitioner. The petitioner claimed that the contract expressly provided only variation in WCT in future to the account of respondent, cost increase in providing extended warranties due delay in project, illegal and contrary recovery of WCT from payments due to the petitioner and interest on delayed payments amongst other claims (Annexure-N). 3.7. On the basis of execution of work by supplying the material, installation of the towers, laying down of the transmission lines etc., the petitioner raised the progressive bills from time to time for the supplies made and work done, which were duly accepted, acknowledged and approved by the officials of JKPDD because the bills were raised strictly in accordance with the price schedules. However, JKPDD made payments for progressive bills as per the price schedules and WCT @ 8.4% was deducted at source. The petitioner has claimed by giving details in tabulated form that an amount of Rs. 399.38 lacs was still due to the petitioner from the respondent and the same was illegally recovered by respondent to the extent of Rs. 69.29 lacs on account of taxes and duties, which is against the agreed terms and conditions under the contract agreement. 3.8. The petitioner has claimed by giving details in tabulated form that an amount of Rs. 399.38 lacs was still due to the petitioner from the respondent and the same was illegally recovered by respondent to the extent of Rs. 69.29 lacs on account of taxes and duties, which is against the agreed terms and conditions under the contract agreement. 3.8. It has also been claimed that all the price schedules of the above-mentioned parts of the work clearly mentioned that total prices were inclusive of taxes and duties (excise, CST, toll tax). The notes appended to the price schedule again provide that total contract prices for all items in all the schedules were inclusive of work contract tax @ 8.4% which were to be deducted from each progressive bill. The aforesaid recoveries appear to have been effected by the respondent on the basis of the report submitted by Comptroller and Auditor General of India as is evident from letter bearing No. PWIT/JI/11-12/HM/12 dated 29.03.2012 (Annexure-P). The petitioner clarified that the contracts awarded to the petitioner were turnkey contracts for lump sum prices inclusive of all central taxes and duties. Therefore, the findings and observations of Audit were not acceptable to the petitioner. The findings and observations of the Audit is that the contract was in contravention with the GST Act, 1962 and that instead of deducting service tax from the contractor for providing services on the value of the work done, the department was adding WCT to arrive at the total contract value and later on deducting the same, which was resultantly burdening the department with the service tax. The aforesaid observation of the Comptroller and Auditor General of India have been answered by the petitioner by stating that the same are without appreciation of the provisions of J.&K. GST Act. It was also brought to their notice that the reliance placed by the Audit on Finance Act, 1994 was wholly misconceived because the aforesaid statute was not applicable to the State of Jammu and Kashmir. Consequently there was no occasion of any undue financial aid to the petitioner-contractor. OBJECTIONS OF RESPONDENTS 4. In the objections filed by the respondent the allegation concerning amendments without fulfilling contractual obligations have been denied. According to the respondent, all amendments were carried out keeping in view the importance of every parameter of the contract. Consequently there was no occasion of any undue financial aid to the petitioner-contractor. OBJECTIONS OF RESPONDENTS 4. In the objections filed by the respondent the allegation concerning amendments without fulfilling contractual obligations have been denied. According to the respondent, all amendments were carried out keeping in view the importance of every parameter of the contract. It has been emphasized that variations in WCT had to be taken into account which was done by effecting amendments. All the amendments have been made on the basis of price schedule, which is binding on the petitioner. Non-acceptance of revised contract price amounts to deviating the focus of the department from the issue of absolute completion of project and removal of all the anomalies as projected by the inspecting wing. Non-acceptance of revised cost is breach of the Contract on the part of the petitioner. The respondent has also claimed that it has been on the forefront in resolving any issue as well as forest clearance and there has not been any delay on their part in settling the issue. 5. I have heard learned counsel for the parties and perused the record with their able assistance. 6. A perusal of Clause 47 makes it evident that if a firm considers any work demanded of him to be outside the requirements of the contract, or considers any decision of the Engineer-in-Charge on any matter in connection with or arising out of the contract or carrying out of work to be unacceptable then such a party was to promptly ask the Engineer-in-Charge in writing for written instructions or decision. The Engineer-in-Charge was then under obligation to give his written instructions or decision within a period of thirty days of such request. After request has been made by the firm or if the firm is dissatisfied with the instructions or decision of the Engineer-in-Charge then the firm might have within thirty days after receipt of instructions or decision filed written appeal to the Development Commissioner (Power), JKPDD, who is obliged to constitute a committee of three members namely (i) Chief Engineer Planning & Design Wing J.&K. PDD, (ii) Chief Engineer System & Operation Wing Jammu/Srinagar and (iii) Superintending Engineer Planning and Design Circle, Jammu/Srinagar. It is clarified that in case arbitration pertains to Kashmir Division, Chief Engineer, System & Operation Wing Jammu and Superintending Engineer, Planning & Design Circle, Jammu were to be other two members and in case arbitration pertains to Jammu Division then they are required to be from Kashmir Division. The Chief Engineer Planning and Design Wing J.&K. was to be the convener of the committee to resolve the dispute by affording opportunity to the firm to be heard and to offer evidence in support of the appeal within 45 days of the receipt of the appeal from the Development Commissioner (Power), JKPDD. The Chief Engineer, Planning and Design Wing, J.&K. PDD is obliged to give decision on behalf of the committee within a period of thirty days after the firm has been heard and it has given evidence in support of its appeal. In case the Chief Engineer, Planning and Design Wing fails to give decision within thirty days then the firm would acquire a right to seek reference of dispute to arbitration. Even in case the decision is to be given and the firm felt dissatisfied with the decision then the firm was required within a period of thirty days from the receipt of the decision by indicating its intention to refer the dispute to arbitration failing which decision was to be regarded as final and conclusive. In case the dispute was to be referred to arbitration then it was to be referred to a Arbitral Tribunal of three arbitrators appointed jointly by the Power Development Department, J.&K.(JKPDD) and the firm. Where the mandate of an arbitrator terminates, a substitute arbitrator is required to be appointed according to the rules applicable to the appointment of arbitrator being replaced. The Tribunal is, however, bound to follow the principles and procedures as contained in the J.&K. State Arbitration Act and all arbitrations under the contract are to be regarded as domestic arbitrations. 7. The facts set out in the preceding paras show beyond any doubt that there is Clause 47 in the Contract Agreement. It has not been disputed by the parties that it provides for arbitration. It is also proved beyond any doubt that dispute exists between the petitioner-Company and respondent. Therefore, a reference to Arbitral Tribunal is required to be made. 8. It has not been disputed by the parties that it provides for arbitration. It is also proved beyond any doubt that dispute exists between the petitioner-Company and respondent. Therefore, a reference to Arbitral Tribunal is required to be made. 8. It is unfortunate that an impressive pre-arbitration mechanism unfolded by Clause 47 has failed despite the fact that the committee was constituted by the Development Commissioner (Power), JKPDD. There is no reason put forward for the committee to come to a grinding halt. It has not been disputed that in fact the committee did not call for evidence of the petitioner within a period of 45 days and additional period of thirty days have also expired. It is appropriate to mention that the committee was constituted on 19.08.2011 and it had failed to deliver its decision till the time the present petition was filed. On account of the failure the petitioner issued notice on 11.08.2012 under registered cover (Annexure-N) raising all the disputes to which reference has been made in the preceding paras. However, no arbitrator was appointed till the date of filing of the petition i.e. 09.05.2013. 9. It is well settled principle of law that an arbitrator is required to be appointed within a period of thirty days from the date of notice. The aforesaid principles are discernible from a perusal of para 19 of the judgment of Hon’ble the Supreme Court rendered in the case of Datar Switchgears Limited vs. Tata Finance Ltd. and Another, (2000) 8 SCC 151 : 2000 AIR SCW 3925. The aforesaid decision was considered, approved and applied by a 3 Judge Bench of Hon'ble the Supreme Court in the case of Punj Llyod Ltd. vs. Petronet MHB Ltd. (2006) 2 SCC 638 . These decision have further been reiterated in a number of later judgments rendered in the cases of Union of India vs. Bharat Battery Mfg. Co. Pvt. Ltd. (2007) 7 SCC 684 ; Indian Oil Corporation Limited vs. Raja Transport Pvt. Ltd. (2009) 8 SCC 520 : AIR 2009 SC (Supp) 2145 (2); Danel (Proprietary) Limited vs. Ministry of Defence, (2012) 2 SCC 759 : AIR 2012 SC 817 and Deep Trading Corporation vs. Indian Oil Corporation and Others, (2013) 4 SCC 35 : AIR 2013 SC 1479 . Therefore, it is evident that if respondent fails to appoint arbitrator within a period of thirty 30 days then the Chief Justice is clothed with the power to appoint independent arbitrator provided before application under Section 11(6) of the Act is filed no arbitrator is appointed by the respondent. In the present case notice for appointment of arbitrator was issued on 11.08.2012 and the instant petition was filed on 09.05.2013. It is, thus evident that period of thirty days has obviously expired and no arbitrator could be appointed by the date of filing of the instant petition. In the notice issued by the petitioner-Company names of three arbitrators have been proposed. Keeping in view the nature of the disputes, I hereby appoint Hon'ble Mr. Justice Ashok Bhan, former judge of the Supreme Court and Hon'ble Mr. Justice V.K. Gupta, former Chief Justice. They may nominate another member of the Arbitral Tribunal. The arbitral tribunal shall enter the reference and decide the same in accordance with law. 10. All the petitions stand disposed of accordingly. Order accordingly.