STATE OF W.S. Vs. GOURANGALAL CHATTERLEE

JUDGEMENT

(1.) THE short and the only question of law that arises for consideration in this appeal is if an appeal was maintainable against an order passed by the learned Single Judge under section 39(1) of the Arbitration Act either under section 39(2) of the Act or under the Letters Patent jurisdiction.

(2.) FACTS are not in dispute. Since the State did not appoint any Arbitrator as provided for in clause 25 of the agreement despite letters by the respondent to the Chief Engineer, Public Works Department (P.W.D.) and the Secretary P.W.D. the respondent approached the High Court and a learned Single Judge by order dated 6th September, 1991 revoked the authority of the Chief Engineer to act as an arbitrator and directed one Shri D.K.Roy Chowdhury to act as the sole arbitrator as suggested by the respondent. Against this order the State filed an appeal which has been dismissed by the Division Bench upholding the objection of the respondent as not maintainable. It has been held that the appeal was not maintainable either under section 39(2) or under Letters Patent. It is the correctness of this view that has been assailed in this appeal.

(3.) THE learned counsel for the appellant vehemently argued that since the decision by the supreme court was in respect of an appeal directed against an order passed by a learned single Judge in exercise of appellate jurisdiction no second appeal lay but that principle could not be applied where the order of learned single judge was passed not in exercise of appellate jurisdiction but original jurisdiction. The argument appears to be without any substance as sub -section (1) of section 39 which is extracted below: