STATE OF BIHAR Vs. S K SAHAY

JUDGEMENT

(1.) THESE two appeals by the State of Bihar arise out of Miscellaneous Cases 84 of 1965 and 19 of 1966 of the Court of the Subordinate Judge, Hazaribagh, and are directed against the same order of the learned Subordinate Judge. They have been heard together and will be governed by this common judgment.

(2.) THE facts of the two cases are common and are as follows. Respondent S. K. Sahay was given a contract for the construction of the cattle farm building at Gauriakarma in the district of Hazaribagh. An agreement to this effect was entered into by the Executive Engineer representing the appellant with the respondent namely, agreement No. 2F2 form of 59-60 (Ex. 3). In pursuance of this agreement, the respondent received the work order on the 20th August 1959. In the month of January, 1960, when the work had only been completed in part, the respondent was directed to stop further construction. On the 4th May, 1960, the respondent was further informed by the Executive Engineer that the agreement was terminated. On the 19th March 1964, the respondent filed an application for the enforcement of Clause 23 of the agreement which provided that, in case any dispute or difference arose between the parties, the same would be referred to the Superintending Engineer of the circle and his decision would be final and binding upon the parties. On the 9th November, 1964, the Chief Engineer directed the Superintending Engineer of the circle to arbitrate in the matter. It appears from the order-sheet of the arbitrator that he entered upon the reference some time prior to the 14th July, 1965. On this date, evidently in response to the notice issued to the parties, they appeared before the arbitrator. THE respondent again appeared before him on the 5th July, and the 2nd September, 1965 and the case was heard in part. On the 1st November, 1965, the respondent filed an application before the Court below for the removal of the arbitrator on the ground that he was apprehensive that he would not get justice and fairplay at the hands of the arbitrator, namely, the Superintending Engineer of the circle. This application gave rise to Miscellaneous Case No. 84 of 1965 of the Court below out of which Miscellaneous Appeal No. 374 of 1967 of this Court arises.

(3.) MR. Sarwar Ali (Government Pleader No. 1) on behalf of the appellant has submitted that, in the instant case, the respondent had been taking part in the proceeding before the arbitrator and, as such, he is estopped from challenging the award as being illegal on the ground that it was given after the period of four months from the date on which the arbitrator entered upon the reference. Learned Counsel, in support of his submission, has drawn our attention to the recent Full Bench decision of this Court in Bokaro and Ramgur Ltd. v. Dr. Prasun Kumar Banerjee, AIR 1968 Pat 150 (FB). In that case, their Lordships distinguished the Supreme Court decision in Hari Shankar Lal's case, AIR 1962 SC 78 on the ground--