S.L.TALATI - (1.)The petitioner is the Board constituted under the provisions of Gujarat Water Supply Sewerage Board Act 1978 and it has come to this Court under Article 226 of the Constitution of India and by that petition the order passed by the Civil Judge (S. D.) Narol in Civil Miscellaneous Application No. 231 of 1981 dated 30-11-1981 is challenged. The order passed by respondent No. 2 the Sole Arbitrator appointed by the order of the Civil Judge Narol is also challenged and both orders are produced at annexures A and B to the petition.
(2.)The short facts which are required to be stated for the purpose of deciding this petition are as under. Some pipelines were required to be laid for Bhavnagar city somewhere in the year 1976. It was a scheme sanctioned by the state Government and known as Bhavnagar City Water Supply Scheme based on Shetrunji Dam. The work was entrusted to respondent No. 1. There were disputes between the parties and it appears that respondent No. 1 gave a notice and desired that the matter was required to be referred to the Arbitrator. There was no response and therefore respondent No. 1 filed Civil Miscellaneous Application No. 231 of 1981 in the Court of Civil Judge (S. D.) at Narol and requested the Court to appoint respondent No. 2 as a sole Arbitrator or in the alternative any other person as Sole arbitrator for resolving the disputes of the parties. The written statement was filed a copy of which is produced at annexure B. Several contentions were taken and it was urged that there was breach of condition of the agreement which was not covered by the specific condition as laid down in clause 30 of the agreement between the parties. After raising various contentions in paragraph 9 of the written statement it was stated as under:
"However subject to the aforesaid contentions the opponents would agree to the appointment of Shri G. G. Vaidya as arbitrator with specific understanding that the arbitrator shall have first to decide which of the alleged disputes set forth in the application fall within the purview of clause 30 of the agreement and then decide only those which fall within the purview of it. The opponents will not object if the appointment is made with such specific court order. "
Now therefore the present petitioner made it clear to the Judge that if Shri G. G. Vaidya respondent No. 2 was appointed as an arbitrator they had no objection but he should be appointed with specific under standing that he has first to decide which of the alleged disputes fall within the purview of clause 30 of the agreement and thereafter decide only those which fall within the purview of it. The learned Civil Judge thereafter passed order which is produced at annexure A. The order is dated 30-11-1981 and after stating the reasons the final order is passed which runs as under :
" Shri G. G. Vaidya. Rt. Supdt. Engineering Government of Gujarat is appointed as Arbitrator on concurrence of both the sites and with specific understanding that be will have first to decide which of the alleged disputes set forth in paras 8 and 10 of the application will fall within the purview of clause 30 of the agreement and then proceed to decide only those covered thereunder."

Now therefore reading paragraph 9 of the written statement and taking into consideration the fact that this order was never challenged by the petitioner in any superior Court thereafter and further fact that there after they went before Shri G. G. Vaidya and argued the matter where Shri G. G. Vaidya heard the parties on the first question as to which of the disputes set forth would fall within the meaning of clause 30 of the agreement would go to show that this order was passed in fact with concurrance of both the sides. In fact one cannot go beyond record of the court ant can never say that both parties did not agree to such a course. However in this particular case even if it is so suggested. the written statement paragraph 9 and subsequent conduct of the parties would clearly go to show that what the learned Civil Judge stated was absolutely correct in his order that both parties had agreed to this type of recourse and thereafter the order was passed.

(3.)Thereafter several meetings wore held before respondent No. 2 Shri G. G. Vaidya. The first preliminary meeting was held on 12-1-1982. Thereafter preliminary statement was filed by the claimants on 29-1-1982. The second meeting was held on 24-4-1982 and at that meeting the Managing Director and the Secretary of the petitioner together with their advocates remained present and on behalf of the other side moaning thereby the respondents side so far as the matter there was concerned (here the respondent is the petitioner) the persons who remained present wore the Superintending Engineer Executive Engineer and Deputy Engineer and the Government advocate Shri M. A. Trivedi. By that time as four months for publication of the award had expired the parties gave an undertaking to apply for extension of time They also gave undertaking that they were appearing without any objection with a condition that they would obtain necessary permission from the Court and the proceedings were resumed the arguments were heard and ultimately parties agreed to produce evidence and third meeting was held on 4-5-1982 where the representatives of the parties and their advocates remained present and the arguments were resumed. Legal opinion from learned advocate Shri N. A. Palkhiwala on the arbitrarility of the claim under sec. 30 was filed which was objected to gad the next meeting was thereafter held on 5-5-1982. It was held that the legal opinion which was produced was in general terms and it was not a claimwise opinion and the parties were at liberty to argue on each claim regarding facts and the applicability or otherwise of any of the sub-clauses which provide for arbitration.