S P GUPTA Vs. STATE OF M P

JUDGEMENT

(1.) THIS is a revision under Section 19 (1) of the Madhya Pradesh Madhyastham Adhikaran Adhiniyam, 1983 for short 'the Adhiniyam') by the petitioner-contractor against the award dated 24-9-1990, passed in Reference Case No. 108/1989, by Madhya Pradesh Arbitration Tribunal, Bhopal (for short 'the Tribunal' ).

(2.) THE facts giving rise to this revision petition are thus. The petitioner's tender for the construction of box type bridge with 11 boxes at Barbata Nala in Tahsil Patan, District Jabalpur, was accepted on 30-8-1979. Time for completion of the contract was fixed as 12 months excluding rainy season. The work order was issued on 1-9-1979. The petitioner avers that after the work order, location of the bridge was shifted because of non-acquisition of the land. The bridge in its design was changed wherein on its final approval 11 boxes were reduced to a boxes. The petitioner completed the construction of the bridge as approved in September 1981. On final settlement of bills a dispute arose to certain claims which the petitioner referred under clause 29 of the Contract Agreement to the Superintending Engineer who rejected the claim vide decision Ex. P-28a, which was communicated vide Ex. P-28 dated 6-9-1984. The petitioner aggrieved of the decision preferred an appeal (Ex. P-39) in terms of clause 29 (2) of the Agreement (Article-A) to the Chief Engineer. The Chief Engineer entered into the reference and after giving due notice to the respondent/state, on receipt of reply, recorded the evidence of the parties on disputed claims and after appreciating the evidence so adduced and hearing the parties dismissed the dispute so raised by reference in shape of appeal vide Ex. P-40a/ex. D-12 of which the copy was sent to the petitioner vide letter dated 16-1-1987 (Ex. P-40 ). After the decision of the Chief Engineer, the petitioner made a reference petition under Section 7-A of the Adhiniyam which was contested by the respondents. Though a plea about the entertainability of the reference because of the first arbitration held by the Chief Engineer was not raised, but, the Tribunal on going through the record of the proceedings before the Chief Engineer and use of the words 'reference' and appeal and the effect of not writing 'arbitrator' instead of Chief Engineer, after elaborate discussion in paragraphs 11 to 22, recorded a categorical finding that in view of the clause in the Agreement, the petitioner made a reference to the Chief Engineer for arbitration, and for deciding the dispute. The Tribunal dismissed the reference petition holding that as once the arbitration had taken place which was pending prior to the commencement of the Adhiniyam and was saved in view of Section 20 (2) of the Adhiniyam, hence, the second reference for arbitration is not maintainable.

(3.) SHRI V. R. Rao, learned counsel for the petitioner contended that mere use of the word 'reference' in clause 29 (2) of the Agreement which was made against the decision of the Superintending Engineer passed under clause 29 (1) will not make the Reference so made as a statement of claim before the Arbitrator. It was an appeal which was entertained by the Chief Engineer on which he gave his decision. If the Chief Engineer intended to have entered into the Reference, and to have proceeded with the arbitration proceedings, he ought to have proceeded to give an award under Section 14 of the Arbitration Act, 1940 (for short 'the Act' ). The decision was not filed in Court to make the award as a Rule of the Court. Therefore, the use of the word 'reference' will not make the proceedings as an arbitration proceedings, in fact it was an appeal which was decided by the Chief Engineer. Hence there was no bar to approach the Tribunal after the decision of the Chief Engineer.