- (1.) THE opposite party, a firm of contractors entered into a contract with the petitioner-state for some work. Differences having isen, the opposite party invoked Arbitration Clause 25 of the agreement under the terms of which the Chief Engineer of the Department being the petitioner no. 2 of a person to be appointed by him was to act as the Arbitrator. The petitioner no. 2 having not entered into and proceeded with reference as per sent a notice to him suggesting that Dr. Pratap Chandra Chunder be appointed as Arbitrator and requesting the petitioner no. 2 to concur within 15 days. The petitioner no. 2 having not intimated his concurrence within that period the O. P. petitioned the City Civil Court, Calcutta for revoking the authority of the petitioner no. 2 act or to appoint an Arbitrator and to appoint another proper person to act as Arbitrator. The petitioners opposed this petition asserting that the petitioner no. 2 had already nominated an arbitrator on 7-10-88. The learned Chief Judge, City Civil Court, Calcutta heard the petition of the opposite party ex parte allowed the said petition, revoked the authority or the petitioner no. 2 to act as or to appoint an Arbitrator and appointed Dr. Pratap Chandran Chunder as the Arbitrator. Hence , this revisional application.
(2.) BEFORE, however, the revisional application may be taken up for consideration, we have to deal with a prayer from the side of the petitioners to condone delay in filing the application under Section 5 of the limitation Act. The impugned order in this case was passed on 13-1-90. The present application for revision was, however filed on 10-1. 2-90. i. e. after delay of 205 days. The delay has been explained in para 12 to 30 of the application. It is the usual story of the file moving from this Department to that or this authority to that for taking decision, lifting certified copy, taking legal opinion, engagement of different Advocates by the L. R. , drafting of the application, approval of the same by the appropriate Authority and so forth and so on. Such delay on the part of the State due to the circumstances mentioned above is not an unheard of phenomenon. It is because of this that it has been observed that in assessing "sufficient cause" under Section 5 in a case where the Government is the petitioner, the factors peculiar to and characteristic of the functioning of the goverment resulting in procedural delay should be taken into consideration and that it would be unfair and unrealistic to put Government and private parties on the same footing in all respects in such matters; Ramagowda vs. SPLA. Officer, (1988)2 SCC 142. As it has also been observed on account of an impersonal machinery and inherited bureaucratic methodology imbued with the note-making, file pushing and passing on the back ethos, delay on the part of the State is less difficult to understand; Collector L. A. vs. Mrs. Katiji, AIR 1987 SC 1353. The State may not be a priveleged litigant but it will certainly be a great mistake to overlook the constrints under which the State machinery works which induce delay at every step in all litigations to which the State is a party. The delay in this case, though considerable has been satisfactorily explained and in view of the observations referred to above, the delay is hereby condoned.
(3.) NOW, to the Revisional application. The learned Chief Judge has not given any reason of his own for allowing the opposite party's petition. He, so it appears, adopted the reasons "amply stated in details in the relevant Misc. petition". This, therefore, so we are constrained to say, is not a complete order. Besides while appointing dr. Pratap Chandra Chunder - renowned social worker, eminent educationist, elderly statesman and ex-Central Minister for education - the learned Judge failed to consider that this was a job highly technical in nature. Reference was made from the side of the petitioners to the order passed by the Supreme Court in Civil Appeal No. 3863 of 1984 on 24-9-84 which runs in the following way : -"clause 25 of the contract between the parties provides for reference of the dispute between them to the sole abitration of the chief Engineer and if for any reasons he is unwilling or unable to act as an arbitrator, too the arbitration of a person appointed by him. The disputes between the parties involve questions of a technical nature. In view of this, we set aside the order of the High court of Calcutta dated October, 5,1983 and direct that the Chief engineer or his nominee will enter upon the reference within 6 weeks from today and publish his award within 6 months the date of entering upon the reference. ";