Pratap Kr. Ray, J. - (1.) This application under Article 227 of the Constitution of India has been filed by the claimant/petitioner challenging the judgment and order dated 31st January, 2002 passed by learned Additional District Judge, Special Court, Dakshin Dinajpur in Misc. Appeal No. 4 of 2000, reversing the judgment and order dated 17th November, 1998 passed by learned Civil Judge (Senior Division), Balurghat that in Misc. case No. 5 of 1989. Claimant/petitioner has challenged the impugned order on the question of maintainability of the appeal under Section 39 of the Arbitration Act, 1940, hereinafter for brevity referred to as said Act, on the ground that the learned Appellate Court below wrongly entertained the appeal under Section 39 of the said Act though impugned judgment and order therein passed by learned Civil Judge (Senior Division), Balurghat in Misc. Case No. 5 of 1989 was passed on exercising the power under Section 17 of the Act, since the State of West Bengal and its Officers concerned did not file any application for setting aside the award under Section 30 of the said Act within the period of 30 days limitation prescribed on application of Article 19 of the Limitation Act, 1963.
(2.) This application has been opposed by the opposite parties herein, the State of West Bengal and its Officers concerned attached with the P.W.D. (roads) Directorate as well as the department concerned, contending, inter alit, that the objection for setting aside the award under Section 30 and/or under Section 33 of the said Act was duly filed though beyond the period of 30 days and such application was entertained by the learned Civil Judge (Senior Division), Baluurghat while adjudicating the Misc. Case No. 5 of 1989 in terms of the order of Appeal Court passed in Misc. Appeal No. 6 of the 1996 on 18th September, 1998 by learned Additional District Judge, First Court, Balurghat, Distt. Dakshin Dinajpur whereby and whereunder while dismissing the appeal as pre-matured, the said Appeal Court allowed the opposite parties herein to file necessary objection for setting aside the award under Section 30 and/or under Section 33 of the said Act. Hence, the only point for consideration in this application under Article 227 of the Constitution of India is whether the Misc. Appeal under Section 39 of the said Act being Misc. appeal No. 4 of 2000 was maintainable on the factual matrix of the case and on the point of law as involved. Before, adjudicating the issue, the factual matter to be dealt with first for effective adjudication of the issue involved.
(3.) One Sri Prasun Chowdhury, learned Advocate of Balurghat Court was appointed as Arbitrator by the learned Assistant District Judge, Balurghat in connection with Misc. Case No. 5 of 1989 for adjudicating the disputes in the matter of construction of approach road (earth work and turfing) at Laskarpur side over the river Atrayee in the district of West Dinajpur. The dispute cropped up on the fact that one Ranjit Kr. Sarkar since deceased by virtue of Tender No. 5 (W) of 1973-74 at an admitted cost or Rs. 1,03,303/- was entrusted to perform the work by contractual terms but the said contractor failed to do the said work. Hence, the work order was cancelled under terms of the contract. The legal heirs of deceased contractor raised the dispute, claiming Rs. 2.30,000/- on different heads, raising the point of part performance of the work as well as on issue of non-completion of the work due to non-cooperation and latches on the part of the State Government and its officers.;