SHARMA & ASSOCIATES Vs. STATE OF PUNJAB

JUDGEMENT

(1.) THE present writ petition is directed against communication dated 10.5.2005 whereby, Superintending Engineer, Upper Bari Doab Canal Division, Amritsar has closed an arbitration case as sought by the petitioner.

(2.) ON March 15, 1985 a contract agreement was signed between the petitioner and the respondent State for the work of Sutlej Yamuna Link Project Punjab (earth work, drainage behind lining and cement concrete lining) Reach RD 78.0 KMs to 78.5 KMs and similar adjoining works. The said work was completed by the petitioner somewhere in the year 1988. The petitioner raised a claim for extra items and loss to Executive Engineer etc. for payment on 11.3.1988. Since the dispute arose between the parties, the matter was referred to an Arbitrator at the instance of the petitioner. The award given by the Arbitrator was published on 12.6.1995. The proceedings to make the award as "Rule of the Court" is pending before this Court in Civil Revision No. 757 of 2002 filed by the State. In the claim petition in the year 1992 giving rise to said award, as Annexure P-17, the petitioner has raised dispute inter alia regarding delay in handing over exclusive clear reach uninterrupted and unimpeded, delay in handing over the exclusive site, delay in supply of basic data. The petitioner has also made grievance of non-supply of electric power, delay in making running payments as well as non-issue of cement and other materials for preliminary and enabling works. The petitioner has also made grievance of delay in payment of mobilisation and other advances, non- provision of open drain for dewatering of water on one side of canal, non- providing complete instructions for execution of work etc. raising claim of 42 items in a claim petition running into 59 pages.

(3.) THE petitioner, thereafter, sought appointment of arbitrator in terms of Clause 63 of the Contract Agreement on 17.3.2004. In the said communication addressed to Chief Engineer, Construction Division, Sutlej Yamuna Link Project (Punjab), the petitioner sought list of 3 officers of the rank of Superintending Engineer or higher so that the petitioner is able to select one of the officers to act as sole arbitrator. In response to the said letter, the Chief Engineer on 7.4.2004 communicated that the Arbitrator has already announced the award and decided all the claims and that there exist no other dispute. The petitioner was also informed that in terms of the orders of the High Court, the representation of the petitioner was considered and rejected on 12.2.2004, thus, the Arbitrator cannot be appointed under Clause 63 of the Contract Agreement and the petitioner has no right to seek appointment of the arbitrator. But on 27.4.2004, the petitioner sought selection of one of the officers out of 3 names communicated by the petitioner. The Chief Engineer, in response to the said letter on 6.5.2004 informed the petitioner that the previous arbitrator passed an award on 12.6.1995 and the appointment of another arbitrator after the lapse of 9 years is barred by limitation and in terms of the Contract Agreement another arbitrator cannot be appointed either by the respondents or by the petitioner. But the petitioner, selected and appointed Shri A.S. Sohi, Superintending Engineer as the sole arbitrator which appointed was resisted again by the Chief Engineer on 28.5.2004. It was pointed out that appointment of another arbitrator is barred by law of res judicata and law of limitation and is not in terms of the agreement. On the other hand, the Department also informed Shri A.S. Sohi, Superintending Engineer not to proceed with the arbitration sicne his appointment has been cancelled by the Chief Engineer on 4.7.2004. On 20.4.2005, the respondents informed Shri A.S. Sohi that he has not been appointed as arbitrator by the Chief Engineer nor with the consent of the Chief Engineer and therefore, the arbitration proceedings be closed immediately. It is in response of this letter, the Arbitrator Shri A.S. Sohi has closed the arbitration proceedings on 10.5.2005 which communication is being disputed by the petitioner in the present writ petition.