Bapi Saha v. The Superintending Engineer And ANR.
IN THE HIGH COURT AT CALCUTTA
[ CIRCUIT BENCH AT PORT BLAIR ] ...
AP/2/2022 Bapi Saha ... Petitioner Vs.
The Superintending Engineer & Another ... Respondents Mr. Tapan Kumar Das ... for the petitioner Mr.Shatadru Chakraborty Mr.Ramendu Agarwal ... for the respondents April 28, 2022 [GNC] Item No.12 The petitioner is an enlisted Class-II (Civil) Government contractor with the Andaman Public Works Department. The petitioner entered into an agreement with the Executive Engineer, North & Middle Andaman, Zilla Parishad, Mayabunder.
The petitioner prays for appointment of an Arbitrator. The dispute is with regard to the alleged nonpayment of Rs.81,01,545/-, upon completion of the work allotted to the contractor by the Zilla Parishad. The petitioner claims to have invoked the arbitration clause in terms of the CPWD, General Conditions of Contract-2014. The invocation was made in terms of Clause 25 of the Tender Form- 7/8 of the said GCC.
Mr. Das, the learned Advocate appearing on behalf of the petitioner submits that the Panchayati Raj Institution under which this contract was allegedly
completed by the petitioner, does not have the post of Chief Engineer.
Thus, the contractor demanded arbitration by a notice in writing, addressed to the Superintending Engineer, Engineering Wing, PRI Zilla Parishad, Mayabunder. The authority failed to appoint the Arbitrator within the period of 30 days. Accordingly, this application has been filed as the period mentioned under Section 11(4) of the Arbitration & Conciliation Act 1996 had expired.
Mr. Chakraborty, the learned Advocate appearing on behalf of the respondents submits that the terms and conditions of the contract in this case, is governed by GCC for CPWD and Form-7/8 of the said conditions were squarely applicable. The petitioner approached the wrong authority for appointment of an Arbitrator.
He has filed specific written instructions from the Superintending Engineer, PRI, A & N Islands dated April 27, 2022 which is quoted below for convenience: "With reference to the letter cited above, as per the General condition of contract, 2014 is a part of agreement no.EE/N&M/ZP/MB/2014-15/29, dated 27.02.2015. As per the General condition of contract, 2014 clause 25(i) Chief Engineer is competent authority to appoint Arbitrator (copy enclosed). It is also mentioned in CPWD manual 2014 (copy enclosed) As per A & N Administration's Gazette Notification dated 20th January, 2012 of Panchayati Raj Institution (amendment) Rule 2012 mentioned in 2h of schedule-I i.e. the engineers of PRI shall exercise powers as prescribed in CPWD manual except case of awarding of work to the societies (copy of PRI Act (amendment) 2012)."
According to the respondents, as per the GCC of 2014, clause 25(i) thereof, the Chief Engineer was the competent authority to appoint the Arbitrator. The relevant amended rules of Panchayati Raj Institution have been produced before this court.
Under such circumstances, the application is disposed of with the liberty to the petitioner to approach the Chief Engineer, Andaman Public Works Department, Port Blair with his prayer for appointment of an Arbitrator in terms of the letter dated April 27, 2022 and the respondents shall act and proceed in accordance with law. The written instructions of the Superintending Engineer, PRI dated April 27, 2022 handed over by Mr. Chakraborty is taken on record.
Parties to act on a server copy of this order. ( Shampa Sarkar, J. )