STATE OF ORISSA Vs. GOVINDA CHOUDHURY

JUDGEMENT

(1.) GOVINDA Chowdhury, opposite party, filed an application before the subordinate judge, Bhubaneswar, making a prayer that the petitioners (State of Orissa and the executive Engineer, Bhubaneswar Division) should be directed to file the agreement, notice under Section 8 of the Indian Arbitration Act (hereinafter. , referred to as the Act) and other papers relating to dispute, and to appoint an arbitrator for giving an award. It is not necessary to give the detailed terms of the agreement. Clause (23) of the agreement, so far as relevant, runs thus:

(2.) THE learned Government Advocate in support of the application urges that section 8 of the Act has no application to this case, and as appointment of Shri s. K. Palit was in violation of the terms of the arbitration clause the appointment is without jurisdiction, is a nullity and is to be ignored, and there is no question of reviewing the earlier order.

(3.) THERE can be hardly any doubt that the appointment of Shri S. K. Palit is in direct contravention of the arbitration clause which prescribes that a superintending Engineer of a State Public Works Department unconnected with the work as nominated by the concerned Chief Engineer can be appointed as arbitrator. Shri S. K. Palit is not a Superintending Engineer. He has already retired from service. He does not therefore satisfy the first test. He does not also satisfy the second test where-under the arbitration would be to the Chief Engineer concerned. If this were the only matter to be decided in the case, the order of the learned Subordinate Judge cannot stand.