SHARMA, J. - (1.) HEARD rival submissions.
(2.) ALL these applications filed under Section 11 of the Arbitration and Conciliation Act, 1996 (for short `the Act') seeking appointment of Sole Arbitrator, raise a meaningful question related to interpretation of clause 23 of the agreement entered into between the parties. Clause 23 provides as under:- "If any question, difference or objection whatsoever shall, arise in any way in connection with or arising out this instrument or the meaning of operation of any part thereof or the rights, duties or liabilities of either party, then save in so far as the decision of any such matter as herein before provided for and been so decided, every such matter consisting a total claim of Rs. 50,000/- or above, whether its decision has been otherwise provided for and whether it has been finally decided accordingly, or whether the contract should be terminated or has been rightly terminated shall be referred for decision to the empowered standing committee which would consist of the following: (i) Administrative Secretary concerned. (ii) Finance Secretary or his nominee not below the rank of Deputy Secretary. (iii) Law Secretary or his nominee not below the rank of Joint L. R. (iv) Chief Engineer-cum-Addl. Secretary of the Concerned Department. (v) Chief Engineer concerned (Member Secretary) The Engineer-in-Charge on receipt of application along prescribed fee (the fee would be two percent of the amount in dispute not exceeding Rs. One Lakh) from the contractor shall refer the disputes to the Committee within a period of one month from the date of receipt of application." It is contended by learned counsel for the applicant that the Chief Engineer-cum-Additional Secretary of the Irrigation Department and the Chief Engineer concerned is the only one person and therefore the empowered standing committee is to function only with four members and it violates Section 10 (1) of the Act. According to Section 10 (i) of the Act the parties are free to determine the number of arbitrators but such number shall not be an even number. Single Bench of this Court in M/s. Chandi & Co. vs. State of Raj. (SB Arbitration Application No. 28/2002) decided on April 19, 2002 observed that the Chief Engineer-cum-Additional Secretary of the concerned department and the Chief Engineer concerned i. e. Member secretary as mentioned in clause 23 of the agreement is the same person and no committee of even number of persons can enter upon the arbitration. Learned Single Bench declared clause 23 as unworkable and held that in such a situation an independent arbitrator is required to be appointed.
(3.) MR. Gill, learned Additional Advocate General placed before me the order rendered in M/s. Bhawan Va Path Nirman (Bohra) & Co. vs. State of Raj. (SB Arbitration Application No. 5/2001) decided on March 15, 2002 wherein appointment of empowered standing committee under clause 23 was held valid. Contention of learned Additional Advocate General is that subsequent order passed in M/s. Chandi and Company vs. State (supra) is not based on valid reasons and it should be ignored. I find myself unable to agree with the submissions of learned Additional Advocate General. In M/s. Bhawan vs. Path Nirman (Bohra) & Co. vs. State of Raj. (Supra) provisions contained in Section 10 (1) of the Act were not taken into consideration and the learned Single Bench proceeded to decide the matter in view of the fact that since committee under clause 23 had already been appointed, no independent arbitrator was required to be appointed. I also do not find any substance in the another submission of learned Additional Advocate General that the instant applications are not maintainable without prior notice under the provisions of the Act. In Aravali Leasing Ltd. vs. Unicol Bottlers Ltd. 1998 (2) Arbitration Law Reporter 337, Delhi High Court held that filing of the petition itself amounts to notice on the respondents under Section 8 of the 1996 Act. ;