STATE OF BIHAR Vs. GAMMON INDIA LTD

JUDGEMENT

(1.) THIS petition under Article 226 of the Constitution of India has been filed by the State of Bihar challenging the order dated 28.2.2002 passed by his Lordship Hon ble Mr. Justice Nagendra Rai in Request Case no. 30 of 2000 (M/s. Gammon India Ltd. V/s. State of Bihar). On the basis of the arbitration clause of the contractual agreement between the M/s Gammon India Ltd. the respondent and the Chief Engineer, the request case was filed by M/s. Gammon India Ltd. for appointment of an arbitrator. In that request case, as usual, as per new Arbitration Act under section 11 and subsection 7 of the appointment of the arbitrators by the Chief Justice of India 'sscheme of 1996, notices were issued to the Chief Engineer and the State of Bihar. After hearing both the parties the impugned order was passed by the Hon ble Mr. Justice Nagendra Rai, the delegatee of the Hon ble the Chief Justice under the scheme appointing Hon ble Justice (Retired) Bimalendu Narayan Sinha a sole arbitrator to settle the dispute between the parties. The plea of the Chief Engineer and the State of Bihar is that for the disputed claims M/s. Gammon India Ltd. had already filed money suit and that because of non -fulfilment of the terms and conditions of the contract the M/s. Gammon India Ltd. was made a blacklisted one. A writ petition was already filed before this Court in which blacklisting has been set aside by a Hon ble Single Judge and against the order the State of Bihar has already filed LP.A. No. 1458 of 2002 and as the issues are same with regard to the appointment of arbitrator and that of blacklisting the request case ought to have been heard along with the L.P.A. The contention of the State of Bihar was rejected by the Hon ble Single Judge i.e. the delegatee of the Hon ble the Chief Justice of India by the impugned order but liberty has been given to the State of Bihar to raise all their grievances before the arbitrator as the arbitrator has got every authority and jurisdiction to hear all points involved. When contention of the State of Bihar has been rejected in the request case the present writ petition has been filed.

(2.) IT has now been held by a Constitution Bench of the Apex Court in Konkan Railway Corp. Ltd. and another V/s. Rani Construction Pvt. Ltd. as reported in (2002) 8 S.C.C. 159 [2002 (1) Arbitration L.R. 326] that the order passed under Section 11 of the New Arbitration Act is an administrative order and there is no scope of hearing the other side. When such petition has been preferred by the aggrieved party and suggestion had been given by the Full Bench of the Apex Court that subsection 7 of the Act, as mentioned above, should be deleted and it has also been held by the Full Bench that when an order has been passed in the request case the same is in the nature of an adjudicatory administrative order and the same can only be challenged by way of filing a writ petition and in that way, the present writ petition is maintainable. A Division Bench of the Allahabad High Court in Rail India Technical and Economic Services Ltd. and another V/s. Vidyawati Construction Company and others as reported in 2001(3) Arbitration L. R. 410 has gone a step further by holding that there is no scope of even filing of a writ petition against such administrative order passed in the request case as any grievance of the adverse party can be very well raised before arbitrator himself.

(3.) THIS writ petition is disposed of accordingly.