Full Judgment
J.K. Mohanty, J.
1. The opposite party-contractor was entrusted with the work 'construction of distribution system of Ramguda M. I. P. in Kakudakhandi Block' as per agreement No. 4 F-2 of 1973-74, executed between him and the Executive Engineer (petitioner No. 3), Minor Irrigation Division, Berhampur, Ganjara District, on behalf of the Government of Orissa. As dispute arose between the parties, the Chief Engineer (petitioner No. 2) appointed Shri A. N. Nanda, Superintending Engineer, as Arbitrator. The opposite party filed M. J. C. No. 211/80 in the court of Subordinate Judge, Berhampur, Under Sections 5, 11 and 12 of the Arbitration Act for revolting the authority of Shri Nanda and to appoint another Arbitrator. The Subordinate Judge by his order dated 17-3-1981 revoked the authority of Shri Nanda and directed both parties to furnish list of names to be appointed as Arbitrators. Both parties submitted their lists of names and the Suborinate Judge by his order dated 16-4-1981 appointed Shri Dhaneswar Patra, Superintending Engineer, as Arbitrator in place of Shri Nanda. Thereafter the opposite party filed M. J. C. No. 115/81' for review of the order dated 16-4-1981 appointing Shri Dhaneswar Patra as Arbitrator alleging that Shri Patra was concerned with the work previously and was ill-disposed towards him. The Subordinate Judge reviewed his earlier order and by his order dated 29-8-1981 revoked the authority of Shri Patra and in hisplace appointed Shri Banabasi Patnaik, Superintending Engineer, as Arbitrator. Against the aforesaid order, the State Government (petitioner No. 1) and the two officers -- the Chief Engineer (petitioner No. 2) and the Executive Engineer (petitioner No. 3) -- have come up in revision.
2. The grounds on which the order dated 29-8-1981' is challenged are as follows :--
That the Subordinate Judge acted illegally in reviewing the order dated 16-4-1981 appointing Shri Patra as Arbitrator; that Shri Patra was selected as Arbitrator from among the names sub-milted by the parties and if there was any allegation against him, the opposite party could have pointed out the same to the learned. Subordinate Judge at the stage when his name was submitted; that the plea of the opposite party that Shri Patra was concerned with the work and was ill disposed towards him is nothing but an afterthought; and that it was not a fit case for review.
On the other hand, learned counsel for the opposite party submitted that on 16-4-1981 a panel of names was submitted by the petitioners and the opposite party also submitted a panel of names. The opposite party had no occasion to know as to the names mentioned in the list submitted by the petitioners. Having come to know that Dhaneswar Patra has been appointed as Arbitrator, on the next day, i.e. 17-4-1981, the opposite party filed the review petition on the grounds that Dhaneswar Patra was concerned with the work previously and it would be prejudicial to the interests of the opposite party if Dhaneswar Patra was appointed as Arbitrator. It is also submitted that in paragraph 3 (grounds) of the revision petition, the petitioners have admitted that Dhaneswar Patra was appointed as the Superintending Engineer of the circle while the work was in progress.
3. Section 41 of the Arbitration Act is as follows:--
'41. Subject to the provisions of this Act and of rules made thereunder -
(a) the provisions of the Code of Civil Procedure, 1908, shall apply to all proceedings before the Court and to all appeals, under this Act, and
(b) the Court shall have, for the purpose of, and in relation to, arbitration proceedings, the same power of making orders in respect of any of the mattersset out in the Second Schedule as it has for the purpose of, and in relation to, any proceedings before the Court :
Provided that nothing in Clause (b) shall be taken to prejudice any power which may be vested in an arbitrator or umpire for making orders with respect to any such matters.'
So, the omnibus nature of Clause (a) of Section 41 of the Arbitration Act makes all the provisions of the Code of Civil Procedure including those of review comprised in Section 114 and Order 47 applicable to the arbitration proceedings, subject, of course, to the overriding proviso that the provisions of the Code are not in conflict with the provisions of the Act and the rules made thereunder. A plain reading of Clause (a) of Section 41 would indicate that the Legislature meant to apply all the provisions of the Code to the arbitration proceedings subject only to one proviso, namely, that the provision of the Code sought to be availed of by a party to an arbitration proceeding was not in conflict with any provision of the Act or the rules made thereunder.
4. It is to be considered whether the Court was justified in exercising its power of review. In this case the ground taken by the opposite party is that as Dhaneswar Patra was connected with the work, he could not have been appointed as Arbitrator. The petitioners have admitted that Dhaneswar Patra was appointed as the Superintending Engineer of the circle while the work was in progress. So, he had something to do with the work though it is stated that he had no direct knowledge about the work. The names of Dhaneswar Patra along with Banabasi Patnaik, who has now been appointed as Arbitrator, and some others was submitted by the petitioners for appointment of Arbitrator from amongst them. When it came to light that Dhaneswar Patra was concerned with the work, on the application of the opposite party, the Subordinate Judge appointed Shri Banabasi Patnaik as the Arbitrator in place of Shri Patra. As the Court was satisfied that Shri Patra was for some time the Superintending Engineer when the work was in progress and his appointment as Arbitrator might prejudice the interests of the opposite party, Shri Banabasi Patnaik; whose name was also submitted by the petitioners, was appointed as the Arbitrator.
5. After hearing the argument of both sides and considering the facts andcircumstances of the case I see no reason to interfere with the order of the learned Subordinate Judge. The revision is, therefore, dismissed. In the circumstances, there would be no order as tocosts.