WAGAD CONSTRUCTION CO. Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) This is an application for appointment of an Arbitrator in regard to a dispute which, according to the applicant, has arisen between him and the respondent-Department of Irrigation.

(2.) It is an admitted position that while awarding a contract to the applicant for executing earth work and lining of Tonk Distributary of RMC of Bisalpur Project, an agreement has been executed between the applicant and the respondent wherein Clause (23) envisages that in case any difference or dispute arises between the contracting parties, the dispute shall be referred to the Standing Committee for settlement of disputes. The Committee would constitute of five members, who would be, Administrative Secretary concerned, Finance Secretary, Law Secretary, Chief Engineer cum Additional Secretary and Chief Engineer concerned. The procedure thereafter has been laid down in regard to reference of dispute to the Arbitrator which states that Engineer-in-charge, on receipt of application along with non-refundable prescribed fee, which would be 2% of the amount in dispute not exceeding Rs. 1 lakh, will refer the dispute to the committee within a period of one month from the date of receipt of application.

(3.) The applicant, admittedly, did not file any application before the Department requesting for reference of a dispute in pursuance of Clause (23) of the agreement and admittedly he did not even pay the prescribed fee. However, the question of fee would have arisen if the applicant had filed any application but the applicant neither filed any application for referring the dispute to the Standing Committee as per the clause in the agreement nor deposited any fee for appointment of Arbitrator. He, however, has sought to put the cart before the horse by filing an application before this Court raising a grievance that the respondent-Department has constituted a committee of four members only which is an even number whereas the Standing Committee should consist of five members given out in the agreement which should be five, meaning thereby that the Committee should consist of five members which is an odd number. The applicant, therefore, has urged that the dispute, which has arisen, should not be referred to the Standing Committee and the Court, in terms of Section 11 of the Indian Arbitration and Conciliation Act, 1996, should appoint an Arbitrator as per the choice of the parties.