STATE OF BIHAR Vs. HARDEO SINGH

JUDGEMENT

(1.) THE State of Bihar seeks review of the judgment and order of a learned Single Judge of this Court in Miscellaneous Appeal No. 39 of 1994.

(2.) IT may be stated at the very outset that the State of Bihar has also filed a Special Leave Petition being SLP (Civil) No. 852/97, in the Supreme Court against the same very judgment and order. In the ordinary course, in view of the provisions of Order XLVII Rule 1(a) of the Civil Procedure Code I should have declined to entertain this review petition but it appears from the order of the Supreme Court dated 21.4.97 that the SLP has been adjourned sine die in view of the pendency of this review petition.

(3.) THE main ground on which the said impugned order was challenged was that the Executive Engineer was not competent to give "no objection" against the award and therefore, the court below had committed error in making the award rule of the court on that basis. It was also contended that as the agreement did not contain any arbitration clause, the Superintending Engineer was not competent to act as the Arbitrator and make the award. The learned Judge has held that the agreement in question has been signed by the Executive Engineer - on behalf of the State of Bihar and it was he who was representing the State before the Arbitrator as well as before the Court and therefore, it cannot be said that he was not competent to give no objection against the award. The learned Judge has further held that there is no material on record to show that the Executive Engineer had acted against the interest of the State in giving his no objection. The learned Judge rather observed that from the record it appears that "no objection ' ' given by the Executive Engineer was bona fide and the plea of the State that he had no authority to do so or that he did so against the interest of the State was "clearly an afterthought". The learned Judge has further observed that since the Arbitrator was none -else than the Superintending Engineer of the Department "there was no chance of his giving award against the appellants by going out of way". The learned Judge rejected the contention that in the absence of arbitration clause the Superintending Engineer cannot act as the Arbitrator holding that having participated in the arbitration proceeding without any protest, it is not open to the appellants to take such a plea.