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Ase Mohd. v. State Of U.P. Thru' Secy. U.P. P.W.D. & Ors. - WRIT - C No. 49728 of 2004 [2004] RD-AH 1485 (23 November 2004)


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Civil Misc.Writ Petition No. 49728 of 2004

Hon'ble Sushil Harkauli J.

Hon'ble Sabhajeet Yadav, J.

Heard learned counsel for the petitioner.

It appears from the stated facts that there was a contract between the petitioner and the respondents in which there was an arbitration clause.

There arose some dispute regarding the payment for the work done by the petitioner under the contract.

        The petitioner has made a representation to the Executive Engineer, copy of which has been filed as Annexure-9 to this writ petition. The representation relates to the same dispute which is covered by the arbitration clause.

    By this writ petition, the petitioner has prayed for a writ of mandamus requiring the Executive Engineer to decide the representation by a reasoned order.

In substance, the said prayer made by the petitioner in this writ petition amounts to asking this Court to issue a direction substituting the arbitrator contemplated by the arbitration clause with the Executive Engineer; and also requiring the engineer to virtually adjudicate upon the dispute by a "reasoned" order.

      In our opinion, this would be violative of the contract between the parties which contains the arbitration clause.

Learned counsel for the petitioner has relied, as a precedent, upon a Judgment dated 22nd March 2004 passed by a Division Bench of this Court in Writ Petition No. 11692 of 2004. That order has issued a mandamus calling upon the respondent authority to appoint an arbitrator in terms  of the arbitration clause.

Where there is an arbitration agreement and one party fails or refuses to appoint the arbitrator : (a) under the old Arbitration Act, 1940, an application was to be made under section 20, and now (b) under the section 11(5) of the new Arbitration and Conciliation Act, 1996, the power to appoint the arbitrator in such a case has been given to the Chief Justice.

       In our opinion, it would not be appropriate for this Bench to issue a direction which would amount to taking that power away from the Chief Justice in violation of the Statute, and handing over that power to the respondent authority. Therefore, we are not inclined to issue such a mandamus as has been sought.

Because, as a ratio decidendi only the reasons given in a judgment are relevant and binding, and not the conclusion; and becaUSE no reasons are mentioned in the judgment of the Division Bench dated 22.3.2004 for its conclusion of issuing the mandamus, therefore, it is not necessary for us to disagree and refer the matter to a larger Bench.

The writ petition is misconceived and is accordingly dismissed with liberty to the petitioner to seek appointment of the arbitrator in accordance with law.

Dated 23.11.2004



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