Bapi Saha v. The Superintending Engineer And Another
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction Appellate Side [CIRCUIT BENCH AT PORT BLAIR] ...
AP/8/2022 Bapi Saha ... Petitioner Vs.
The Superintending Engineer and another ...Respondents Mr. Tapan Kumar Das ... for the petitioner Ms. Anjili Nag ... for the respondents September 29, 2022 [SR] Item No. 1 The matter appears to have a chequered history. The petitioner invoked the arbitration agreement contained as a clause in an agreement dated 27th February, 2015 bearing No. EE/N&M/ZP/2014-2015/29 which culminated out of a Notice Inviting Tender (in short "NIT") by a letter dated 1st October, 2021. No appointment was made within 30 days from the date of such request by the appointing authority as in the agreement despite receipt of the same.
It was the case of the respondents that in the agreement Andaman Public Works Department (APWD) had been at the time of entering into substituted by the word Zilla Parishad as the Zilla Parishad was the principal and as such the Chief Engineer, APWD had no authority to appoint an Arbitrator and there is no Chief Engineer in Zilla Parishad. The petitioner, therefore, approached this Court by filing AP/2/2022 which was disposed of by an order dated 28th April, 2022 granting the petitioner liberty 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.
The petitioner thereafter approached the said Chief Engineer by a letter dated 10th May, 2022. Despite receipt of the letter, the concerned Chief Engineer did not appoint any arbitrator on the contrary by a letter dated 13th May, 2022 expressed his inability to appoint and directed the petitioner to approach the existing officers and hierarchy of Panchayat Raj Institution to ensue implementation of the order of this Court dated 28th April, 2022. Subsequently the Executive Engineer (Plg)-I, CE's Office, APWD, Port Blair by his letter dated 27th July, 2022, forwarded an order said to have been passed by the Chief Engineer, APWD.
It appears from the said order that the Chief Engineer, APWD virtually sat in appeal over the order passed by this Court on 28th April, 2022 and thereby acted in excess of this jurisdiction. It appears from the said order that without appointing an Arbitrator, the Zonal Office had itself examined the claim submitted by the petitioner in the light of the comments offered by the Executive Engineer (P), North & Middle
Andaman vide letter No.1-67/EE/N&M/ZP/MB/2022-23/88 dated 19th May, 2022. The said Chief Engineer, APWD also referred to an inference said to have been drawn as per vigilance enquiry conducted by the Anti Corruption Unit vide Deputy Secretary (Vigilance) and communicated through letter No.Panch-368/2021-Vig/481 dated 23rd May, 2022. It also appears that the vigilance enquiry has revealed that there are irregularities besides breach of agreement conditions in not executing the work as per specifications.
The question which arises in the aforesaid facts and circumstances is that the agreement contained an arbitration clause. The respondents are free to direct vigilance enquiry but on that ground cannot stall appointment of an Arbitrator after having agreed to resolve the disputes under the contract through arbitration or try to influence the arbitral proceeding at the very inception by showing vigilance enquiry report and its findings. However, at the end good sense have prevailed with the respondents and they have agreed to appointment of an arbitrator by suggesting three names to the petitioner for selecting one out of them for being appointed as an Arbitrator. The petitioner has chosen one.
By consent of the parties, G.C.Kabi, Chief Engineer (Retd.), CPWD, B-34, 1st Floor, Geetanjali Enclave, Malviya Nagar, New Delhi - 110017 is appointed as an Arbitrator particularly keeping in mind that the disputes if any arise out of an engineering contract.
The learned Arbitrator so appointed shall enter into reference and proceed with the arbitration in accordance with the provisions of Arbitration and Conciliation Act, 1996 as amended. The learned Arbitrator shall be free to decide as to his scale of fees as per the schedule of the said Act. AP/8/2022 is accordingly disposed of.
( Arindam Mukherjee, J. )