STATE OF PUNJAB Vs. AMAR NATH AGGARWAL CONST

JUDGEMENT

(1.) These appeals arise out of a common order made in appeals filed against two awards which were made decrees of the Civil Court after rejecting the objections raised by the appellant under Sections 30 and 33 of the Arbitration act against respective awards.

(2.) The Chief Engineer was appointed as an arbitrator to go into the dispute raised by the respondents in respect of two contracts to construct Sutlej Yamuna Link Canal (Irrigation) , punjab. The arbitration clause therein provided that if the office of the arbitrator becomes vacant for any reason, another sole arbitrator will be appointed. The arbitrator, who was the Chief engineer, was compulsorily retired from service on 28.5.1990 and he made an award on 9.6.1990 thus it is contended that the arbitrator had no jurisdiction to pass the award in question.

(3.) From the material on record it is clear that the arbitrator commenced the proceedings on 28.7.1989 and concluded the same by passing the award on 9.6.1990. In between these two dates several proceedings were held by him, evidence recorded and the appellant also participated in those proceedings on 4.6.1990. By an order made on 5.9.1990 the chief Engineer was reinstated by setting aside the order of compulsory retirement. The contention urged on behalf of the appellant, relying upon the decision of this Court in Khardah company Ltd. v. Raymon and Co. (India) Pvt. Ltd. (1963) 3 SCR 183 is that when the arbitrator lacks jurisdiction, mere participation in the proceedings will not confer any jurisdiction upon the arbitrator and, therefore, in the present case also even though the appellant may have participated in the proceedings held by the arbitrator on the date when he was not holding the office, the arbitrator could not be deemed to be continuing in service. We do not think the contention put forth on behalf of the appellant is tenable. What is held by this Court in Khardah Company Ltd. v. Raymon and Co. (India) Put. Ltd. (1963) 3 SCR 183. is that in the event the agreement for arbitration does not exist, then it will not be open to the arbitrator to enter into arbitration and any action taken by him will be without jurisdiction. The defect will not be cured in such an event, even by the participation of the parties in the proceedings. In the present case when the proceedings for arbitration commenced the arbitrator did have jurisdiction and when he continued the proceedings whether he could act or not, may be a question of legality of proceedings and not one of lack of jurisdiction. In that view of the matter when the arbitrator's services were reinstated and he continued in service, in must be deemed that there is no hiatus in the proceedings. In that view of the matter we find no substance in the first contention urged on behalf of the appellant.