NIRANJAN SWAIN Vs. STATE OF ORISSA

JUDGEMENT

(1.) THE petitioner, an 'A' class contractor had undertaken construction of Distribution System of a canal in the district of Phulbani. For the said work, he entered into an agreement under the F2 contract. As disputes arose between the petitioner and the opposite parties, the petitioner requested the Department to settle the disputes and as the opposite parties did not pay any heed to the request of the petitioner, the peitioner communicated with the Chief Engineer to appoint an arbitrator for settlement of the disputes, as provided in the agreement. THE Chief Engineer was duly served with a registered notice on 23 1-1979 who received the same on 24-1-1979. Notice was also served on the concerned Executive Engineer, As no arbitrator was appointed within, the prescribed period of fifteen days, the petitioner filed the case in the court of the Subordinate Judge, Bhubaneswar for appointment of an arbitrator after expiry of the statutory period. A counter was filed by opposite party No. 3, the Executive Engineer, M.I. Division, stating that the Chief Engineer, R. E. O. had already appointed one D. Patra, Superintending Engineer, Planning & Designs, R. E. O., as arbitrator to decide the disputes and the same was communicated to the petitioner on 15-21979. After hearing both parties, the learned Subordinate Judge held that as the arbitrator had already been appointed by the opposite parties, he did not feel it expedient to cancel the appointment of the arbitrator. Accordingly, he dismissed the application of the petitioner. This revision is directed against the aforesaid order of the learned Subordinate Judge.

(2.) THE short point for consideration in this revision is if no arbitrator is appointed within the statutory period of 15 days, as provided under Section 8 of the Arbitration Act, whether the court has jurisdiction to appoint an arbitrator. In the instant case, admittedly no arbitrator was appointed within the statutory period, after service of notice by the petitioner on the opposite parties. After expiry of the statutory period, an intimation was sent to the petitioner stating that an arbitrator was appointed by the opposite parties. It is contended on behalf of the petitioner that as no arbitrator had been appointed within the statutory period, it is for the court to exercise jurisdiction under Section 8 (2) of the Arbitration Act and to appoint an arbitrator. It is apparent from the order of the learned Subordinate Judge that the order is vitiated by misconception of law. THE learned Subordinate Judge has not applied his mind to the position of law and has superficially disposed of the petition.