Calcutta High Court
Nagendra Nath Chakravorty vs State Of West Bengal And Ors. on 21 May, 1986
Equivalent citations: AIR1987CAL199, 90CWN1153, AIR 1987 CALCUTTA 199, (1986) 2 ARBI L.R. 25, (1986) 90 CAL WN 1153, (1986) 2 CAL HN 115
JUDGMENT Shyamal Kumar Sen, J.
1. This appeal is against the judgment and order dt. July 18, 1976 of the learned single Judge in the first Court whereby the learned Judge was pleased to discharge the Rule Nisi issued and dismissed the writ petition of the appellant.
2. The appellant, the writ petitioner in the first Court is a Contractor. He submitted a tender in the name Messrs. Chakraborty & Company being Tender No. 2/ESI of 1966-67 for a part of the work in the construction of a 300 bedded general hospital, excavation of a tank and for raising the site under the E.S.I. Scheme at Budge Budge in the district of 24 Parganas under the Presidency Circle. The said tender was opened in Feb. 1976. By a registered letter dt. 18th April, 1966 the respondent 5, the Executive Engineer, Eastern Circle, Public Works Department acting on behalf of the State of West Bengal accepted the appellant's tender for the above noted work at the rate of 24.5%. A registered letter dt. 25th April, 1966 was issued by the respondent 5 on behalf of the State of West Bengal the respondent No. 1 in favour of the appellant which was treated as a formal work order.
3. By a letter dt. 27th Feb. 1967 the Secretary, P.W.D., West Bengal intimated that the Governor had been pleased to sanction, inter alia, enhancement by 15% over the accepted tender including sanitary and plumbing works which had commenced earlier than the 1st April, 1966 but had not yet been completed. The sanction of enhancement by 15 per cent ensured to the benefit of the contractors who are making construction works in respect of E.S.I. hospital division under the territorial jurisdiction of the Presidency Circle. The appellant having been awarded the said work of construction of E.S.I. hospital in the Presidency Circle expected to get the advantage of the said enhancement as sanctioned. But since the appellants contract had been accepted and the work order was also issued after the 1st April, 1966 he was not allowed the said enhancement as sanctioned. The appellant made a representation to the authorities that the acceptance of tenders had been delayed by the authorities and considerable time was taken in issuing the approval of the terms and the work could have been started well ahead of 1st April, 1966 but such representation was not entertained and was refused. Clause 25 of the terms and conditions of the contract between the parties provided for arbitration and read as follows :
"Clause 25-- Except where otherwise provided in the contract all questions and disputes relating to the meaning of the specifications, designs, drawings, instructions herein before-mentioned and as to the quality of workmanship or materials used on the work or as to any other question, claim, right, drawings, specifications, estimates, instructions, orders or those conditions or otherwise concerning the works or the execution, or failure to execute the same whether arising during the progress of the work, or after the completion or abandonment whereof shall be referred to the sole arbitration of the Chief Engineer of the Department. Should the Chief Engineer before any reason unwilling or unable to act as such arbitrator such questions and disputes shall be referred to an arbitrator to be appointed by the Chief Engineer. The award of the arbitrator shall be final, conclusive and binding on all parties to this contract."
The appellant asked for arbitration in terms of the above clause in respect of his claim for enhanced rates as sanctioned and also in respect of a supplementary bill. The authority concerned referred the dispute relating to the supplementary bill to arbitration the authority concerned refused to refer the dispute arising out of the appellant's claim for enhanced rates. The appellant was intimated that the Government had carefully considered the claim but regretted its inability to refer the same to arbitration.
4. The appellant, therefore, moved this Court in its constitutional writ jurisdiction on which a Rule nisi was issued by this Court on 3rd October, 1972. Calling upon the respondents viz. the State of West Bengal, the Deputy Secretary Public Works Department, the Chief Engineer, Public Works Department, the Superintending Engineer, Eastern Circle, Public Works Department and Executive Engineer, E.S.I. Hospital, Construction Division, Public Works Department to show cause inter alia why a writ in the nature of mandamus should not be issued directing there to cancel or rescind the letter No. 2304-A, of the respondent. Deputy Secretary, Public Works Department, Government of West Bengal dt. 29th Mar., 1972 in so far as it refuses to refer the main dispute to arbitration settlement of the enhancement of tendered rates by 15 per cent on Rs. 5,28,802/- under Clause 25 of item rate tendered and contract for works as mentioned in the petition and why a writ in the nature of certiorari should not be issued setting aside, cancelling, quashing the said letter.
5. It was contended before the first Court on behalf of the appellant that referring a dispute to arbitration was a ministerial act and as such the authorities could be directed to perform the same. The case of Dhanarajmal Govindram v. Shamji Kalidas and Co. was relied upon and it was contended that the second line of Sub-section (4) of Section 20 of the Arbitrator Act, 1940 refers to the said ministerial act. The learned Judge, however, did not accept the contentions of the appellant and held that Section 20 of the Arbitration Act governed arbitration with the intervention of the Court in respect of cases where no suit is pending. The learned Judge held, all the sub-sections of Section 20 were correlated and inter-dependent with the result that if the arbitration agreement was not filed then the second limb of Sub-section (4) could not come into play. It was held that the remedy of the appellant was provided under the Arbitration Act, 1940.
6. Being aggrieved by the said decision the instant appeal has been preferred. Learned Advocate for the appellant contended before us that the learned Judge was wrong in rejecting the contention of the appellant and ought to have held that the referring a dispute to arbitration was a ministerial act, that the writ petition was maintainable and that the Rule should have been made absolute. He cited the decision of the Supreme Court Dhanarajmal v. Shamji Kalidas (supra) in support of his contention.
7. In our view, the Arbitration Act which is a Code complete itself provides for the remedy. The appellant chose a wrong forum and moved this Court in its writ jurisdiction. In this connection we note the decision of the Supreme Court Rukmanibai Gupta v. Collector of Jabalpur, where the question of maintainability of writ petition for enforcement of an award under the Arbitration Act came up before the Supreme Court. The Supreme Court observed as follows :
"The Arbitration Act, 1940 is a self contained exhaustive Code. Relief sought by the appellant by invoking extraordinary jurisdiction of the High Court under Article 226 could have been obtained by proceeding in accordance with the relevant provision of the Statute."
8. We are of the view that the appellant's right, if any, to have the dispute referred to arbitration was primarily a contractual right which could be enforced by the special provision of the Arbitration Act. The appellant we hold was not entitled to invoke the writ jurisdiction of this Court for enforcement of such right.
9. In view, of the aforesaid, we are not inclined to interfere with the judgment under appeal. The appeal is accordingly dismissed.
10. There will however be no order as to costs.
Dipak Kumar Sen, J.
11. I agree.