Chief Project Manager, Railway Electrification Vs. Electrical Constructions and Equipment Co. Ltd. Rep. by Manager Cum Chief Executive Shri Nm Sethia and anr.

Chief Project Manager, Railway Electrification vs Electrical Constructions and Equipment Co. Ltd. Rep. by Manager Cum Chief Executive Shri Nm Sethia

Type Court Judgment Court Andhra Pradesh Decided Dec 12, 2001

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Citation: sooperkanoon.com/446218
Court: Andhra Pradesh High Court
Judge: Ar. Lakshmanan, C.J. and ;V.V.S. Rao, J.
Decided On: Dec 12, 2001
Case Number: W.P. No. 25348 of 2001
Subject: Arbitration

Case Summary

AI-generated summary - not the official court judgment text.

Arbitration - appointment of arbitrator - Sections 11 and 11 (6) of Arbitration and Conciliation Act, 1996 and Article 226 of Constitution of India - on application Single Judge of High Court passed Order appointing arbitrator under Section 11 (6) - petitioner challenged Order - arbitrator appointed after hearing bo...

Key legal issue: Arbitration
Acts & sections: Arbitration and Conciliation Act, 1996 - Sections 11 and 11(6); Constitution of India - Article 226

Parties & Advocates

Appellant / Petitioner

Chief Project Manager, Railway Electrification

Advocate Gouri Shankar Sanghi, Adv.

Respondent

Electrical Constructions and Equipment Co. Ltd. Rep. by Manager Cum Chief Executive Shri Nm Sethia

Legal References

Acts: Arbitration and Conciliation Act, 1996 - Sections 11 and 11(6); Constitution of India - Article 226
Reported In: 2002(1)ALT111

Excerpt

.....schools (conditions of service) regulations act, 1978 [act no. 3/1978]. sections 9 & 2(21): jurisdiction of school tribunal whether a school run by cantonment board is not a recognised school within the meaning of section 2(21)? - held, the act is enacted to regulate recruitments and conditions of employees in certain private schools and provisions of the act shall apply to all private schools in the state whether receiving any grant-in-aid from the state government or not. private school is defined in section 2(2) of the act as a recognised school established or administered by a management other than the government or a local authority. recognised means recognised by director, the divisional board or state board. thus as far as the first part of the definition of being recognised is concerned, it includes, as stated above, four directors, the divisional boards and four state boards. the second part of this definition which comes after the comma refers to any officer authorised by director or by any of such boards. the question to be examined is whether school run by the cantonment board could be said to be one run by any such boards. a private school has to be recognised by the state or the divisional board or by any officer authorised in that behalf. when this phrase namely: recognised by any officer authorised by the director or by any such boards, is included in the latter part of section 2(21), such boards will be of the level of the state board or the divisional board. the boards referred to in the definition of the word recognised means the boards which deal with education at levels other than that of the level at which primary schools are operating. thus for being recognised, the school has to be recognised by the board and therefore, it has to be operating at a higher level i.e., secondary level. section 2(21) of the act defines the term recognised. the last clause therein is by any of such boards. the term such is defined in oxford dictionary as..........railways passed an order by appointing the second respondent as sole arbitrator. aggrieved by this appointment, the present writ petition has been filed.5. in our opinion, the order which is now impugned in this writ petition was passed by the learned single judge after hearing the counsel for the contractor and the counsel for the railways. it is not an ex parte order as alleged. when an order is passed by the chief justice appointing an arbitrator under section 11(6) of the act, the said order is not amenable to jurisdiction under article 226 of the constitution of india. a division bench of this court comprising of s.b. sinha, c.j., and v.v.s. rao, j., in the judgment reported in union of india v. vengamamba engineering co. juputi, krishna dist.1, has also taken the similar view and that the bench was of the opinion that the writ petition would not be maintainable when an arbitrator is appointed by the chief justice or by his nominee.since the arbitrator was appointed after hearing both parties, it is not now open to the railways to file the present writ petition questioning the correctness of the said order. we are, therefore, of the opinion that the writ petition is not maintainable under article 226 of the constitution of india.6. the arbitrator was appointed on 2.8.2001. we are told that the arbitrator has entered upon the reference. therefore, the petitioner is at liberty to move the said arbitrator and raise all objections in regard to the claim of the first respondent herein, including the counter-claim in accordance with law. the arbitrator is requested to entertain the claim to be made by the railways and dispose of the same on merits after affording opportunity to both sides. the writ petition is disposed of accordingly.

Full Judgment

ORDER

AR. Lakshmanan, C.J.

1. Chief Project Manager, Railway Electrification, Visakhapatnam is the petitioner in this writ petition.

2. In this writ petition, the order dated 2.8.2001 passed in A.A. No. 58 of 1999 appointing the second respondent, Sri Justice N.D. Patnaik, as the sole arbitrator on the application filed by the first respondent herein under Section 11(6) of the Arbitration and Conciliation Act, 1996 (for short 'the Act') is assailed.

3. The first respondent was awarded with Overhead Equipment Contract for Bellampalli (Excl) - Ballarsh (incl.) section of Vijayawada - Ballarsh Railway Line under the approval letter dated 31.1.1983 issued by the Railway Board. According to the railways, the first respondent did not complete the contract work awarded within the time stipulated and eleven extensions were given to it to complete the work. The first respondent completed all the works by March, 1989, but the extension was given to him to carry out the left over miscellaneous works, which it did complete by the end of March, 1991. Payments were made to it, which it received without protest. After the completion of the entire work by March, 1991, the first respondent made a claim for settlement of Rs.92.51 lakhs. According to the railways, the claim made by the first respondent itself was time barred. It is further submitted that as per the contract agreement, the work executed by the first respondent for which payment has been made by the petitioner and the same was received by the first respondent without any protect and that the claim of the compensation is not subject matter of contract agreement as per clause 1.2.54 of the special conditions of the contract read with clause 34 of General Conditions of Contract.

4. The first respondent, as already stated, moved this Court by filing A.A. No. 58 of 1999 to appoint an arbitrator as envisaged under Section 11 of the Act for deciding the issue. A learned single Judge of this Court after hearing the counsel for the petitioner and the Standing Counsel for the Railways passed an order by appointing the second respondent as sole arbitrator. Aggrieved by this appointment, the present writ petition has been filed.

5. In our opinion, the order which is now impugned in this writ petition was passed by the learned single Judge after hearing the counsel for the contractor and the counsel for the Railways. It is not an ex parte order as alleged. When an order is passed by the Chief Justice appointing an arbitrator under Section 11(6) of the Act, the said order is not amenable to jurisdiction under Article 226 of the Constitution of India. A Division Bench of this Court comprising of S.B. Sinha, C.J., and V.V.S. Rao, J., in the judgment reported in UNION OF INDIA v. VENGAMAMBA ENGINEERING CO. JUPUTI, KRISHNA DIST.1, has also taken the similar view and that the Bench was of the opinion that the writ petition would not be maintainable when an arbitrator is appointed by the Chief Justice or by his nominee.Since the arbitrator was appointed after hearing both parties, it is not now open to the Railways to file the present writ petition questioning the correctness of the said order. We are, therefore, of the opinion that the writ petition is not maintainable under Article 226 of the Constitution of India.

6. The arbitrator was appointed on 2.8.2001. We are told that the arbitrator has entered upon the reference. Therefore, the petitioner is at liberty to move the said arbitrator and raise all objections in regard to the claim of the first respondent herein, including the counter-claim in accordance with law. The arbitrator is requested to entertain the claim to be made by the Railways and dispose of the same on merits after affording opportunity to both sides. The writ petition is disposed of accordingly.

Same Court & Year Andhra Pradesh · 2001 Same Parties Chief Project Manager, Railway Electrification vs Electrical ... Same Subject Arbitration Same Judge Ar. Lakshmanan, C.J. and ;V.V.S. Rao, J. Acts & Sections Arbitration and Conciliation Act, 1996 - Sections 11 and 11(6...

Arbitration