[Cites 4, Cited by 0]
Gauhati High Court
M/S Uttar Pradesh Rajkiya Nigam Nirman ... vs Head Quarters on 3 February, 2026
Author: Soumitra Saikia
Bench: Soumitra Saikia
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GAHC010265572024
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Arb.P./51/2024
M/S UTTAR PRADESH RAJKIYA NIGAM NIRMAN LTD
OFFICE OF PROJECT MANAGER, DIBRUGARH UNIT 204/C, GATE NO.1,
ROAD-1, ASHOK NAGAR, RANCHI, JHARKHAND-834002
VERSUS
HEAD QUARTERS, CCE (ARMY) NO 1 DINJAN
POST- PANITOLA, DIST.- DIBRUGARH, ASSAM-786183
Advocate for the Petitioner : MR. S P SHARMA, K AHMED
Advocate for the Respondent : MRS. A GAYAN (C.G.C.),
BEFORE
HONOURABLE MR. JUSTICE SOUMITRA SAIKIA
ORDER
03.02.2026
Heard Mr. SP Sharma, learned counsel for the petitioner and Ms. A Gayan,
learned CGC for the respondents.
2. This is an application under Section 11 (6) of the Arbitration and
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Conciliation Act, 1996. The petitioner was awarded with a work order by
communication dated 20.08.2016 for the CA No.CCE/DIN/LIK/11 of 2016-17:
Provision of Accommodation for certain units at Likabali, Assam under CCE
(Army) No.1, Dinjan. Date of handing over of the site and date of
commencement of the work and completion of the work of different phases are
clearly mentioned in the said communication. Thereafter, an agreement was
executed by and between the petitioner and the respondent where at Clause 70
there is a clause for arbitration and in cases of disputes between the parties
arbitration can be invoked after a written notice by either party to the contract
for appointment of sole Arbitrator of an engineer/officer to be appointed by the
authority mentioned in the tender documents. Thereafter, certain differences
arose between the parties and the petitioner invoked the arbitration Clause-70
by a notice dated 31-12-2023, whereby 3 (three) names were proposed as sole
arbitrator and inviting the respondents to concur on the suggestions made on
any of the three names. The notice calling upon the respondents was replied to
by the respondents stating that the arbitration may be resorted to only after
completion of the work and at the relevant point in time, the work was not
completed and therefore, the provisions of Clause-70 could not be invoked.
3. Subsequent thereto, the petitioner completes the work on 10-05-2024 and
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by notice dated 04-06-2024, the petitioner again called upon the respondents to
appoint an arbitrator by invoking Clause-70 of the Arbitration and Consolidation
Act, 1996 and a reference was also made to the earlier communication calling
upon the respondents to concur on any of the names referred to in the first
notice. The respondents, however, reply in the second notice intimating the
petitioner that arbitration will be resorted to only upon receipt of confirmation
from the petitioner that the claims raised are the final claims. Thereafter, the
respondent authorities have proceeded to appoint an Arbitrator in terms of the
Clause-70 and concurrence for the same was forwarded to the petitioner which
the petitioner, however, did not respond to.
4. Under such circumstances, the petitioner is before the Court filing an
application under Section 11 of the Arbitration and Conciliation Act, 1996
praying for appointment of sole Arbitrator. The learned counsel for the petitioner
submits that in view of the amendment brought in by Section 12(5) of the
Arbitration and Conciliation Act, 1996, an officer falling within the categories
specified in the Seventh Schedule cannot be appointed as an arbitrator by the
respondent authority, unless there is a clear waiver by the contractor. The
petitioner has not consented to the proposal of the respondents after
considering the fact and therefore, they are agreed that the proposal for
appointment of an officer by the respondents cannot be accepted in view of the
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clear embargo under Section 12.5 of the Arbitration and Conciliation Act, 1996.
5. Learned counsel for the parties have been heard and pleadings available
on records have been carefully perused.
6. There is no dispute that the Arbitration Clause at Clause-70 proposes
arbitration before a sole arbitrator in cases of disputes. The first notice issued by
the petitioner, although before completion of the work, contained three names
suggested by the petitioner which have not been concurred upon by the
respondent.
7. Subsequent thereto, the work was completed on 10th of May, 2024, which
is not disputed by the respondents. The second notice was issued on 04-06-
2024, again calling upon the respondents to appoint an Arbitrator. The
respondents have failed to accede to the request made by the petitioner and
upon the petition being filed before the Court under Section 11 of the
Arbitration and Conciliation Act, 1996 and notices being issued and the
respondents having failed to concur, they have lost their right to appoint their
arbitrator. Consequently, the matter is before this Court for appointment of a
sole arbitrator in terms of Clause-70 of the Arbitration and Consolidation Act,
1996.
8. This Court confers its powers under Section 11 of the Arbitration and
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Consolidation Act, 1996 and therefore, proposes to appoint an Arbitrator in
terms of the Notification No. 29 dated 21-05-2024 of the Gauhati High Court,
whereby Hon'ble Mr. Justice HN Sarma, retired Judge of the Gauhati High Court
be appointed as an arbitrator and decide on the disputes arising by and
between the parties in connection with the agreement dated 20.08.2016 for the
CA No.CCE/DIN/LIK/11 of 2016-17: Provision of Accommodation for certain
units at Likabali, Assam under CCE (Army) No.1, Dinjan. This appointment is
prospective subject to furnishing of written declaration as required under
Section 12 (1)(b) of the Arbitration and Conciliation Act, 1996. A copy of this
order be marked to Hon'ble Mr. Justice HN Sarma, retired Judge of the Gauhati
High Court by the Registry of this Court. The parties are also permitted to
furnish a copy of this order and the place it before Hon'ble Mr. Justice HN
Sarma, retired Judge of the Gauhati High Court. Upon receipt of the written
declaration from the prospective arbitrator, the appointment will be confirmed
on the next date.
9. Let the matter be listed on 06.03.2026.
JUDGE
Comparing Assistant
