PROVINCE OF EAST PAKISTAN vs ABDUR RASHID

1. M. R. KHAN, J.-These two petitions on behalf of the Province of East Pakistan for special leave to appeal are inter--related and this order will dispose of both of them.

2. Civil Petition No. 80-D of 1969 is directed against the High Court's judgment refusing to interfere in revision with the decree passed by the Third Court of Subordinate Judge, Dacca, in Title Suit No. 82 of 1966. The said suit was brought by the respondent against the Province of East Pakistan under section 20 read with section 11 of the Arbitration Act, 1940 for removal of the sole arbitrator and for appointment of another arbitrator in his place.

3. The respondent entered into a contract with the Province of East Pakistan for earth filling. A dispute arose under that contract. Under the Arbitration Clause contained in the con--tract, any dispute arising out of it was to be referred to the arbitration of the sole arbitrator who was the Superintending Engineer under the Government. In terms of that clause the respondent, by his letter, dated the 21st June 1966, referred the matter for arbitration by the sole arbitrator. The arbitrator, however, remained silent and took no steps whatsoever. It was only four days before the expiry of four months from the date of the making the reference that the respondent brought the Title Suit No. 82 of 1966 praying for removal of the arbitrator under section 11 of the Arbitration Act and for appointment of another arbitrator in his place. The suit was decreed after contest and the Court, in the exercise of its power under section 11 of the Arbitra--tion Act, removed the arbitrator for his failure to enter upon the reference and making an award with reasonable dispatch.

4. Mr. Siddique Ahmed Chowdhury, learned senior Govern--ment Pleader concedes that the arbitrator did not take any steps between the date when he was called upon to enter upon the reference and the date of institution of the suit. His contention is that the negligence of the arbitrator does not warrant his removal under section 11, but such negligence fell within the mischief of section 8 (1)(b) of the Arbitration Act. Section 11 clearly confers power on the Court to remove, on the application of any party to a reference, an arbitrator who fails to use all reasonable dispatch in entering on and proceeding with the reference and making an award. In view of this express provision of section 11, it cannot be said that the arbitrator, in the instant case, was not removable under section 11. The trial Court removed the arbitrator under the said section and the High Court was justified in refusing to interfere in revision with the trial Court's decree removing the arbitrator.

5. The trial Court removed the arbitrator on the 12th September 1967. By a subsequent order, dated the 4th November 1967, the same Court appointed Mr. Habibur Rahman Sharif, an Advocate as arbitrator in this case. Civil Petition No. 81-D of 1969 is directed against the order, dated the 4th November 1967, appointing Mr. Habibur Rahman Sharif as arbitrator. The High Court refused to interfere with this order also for reasons recorded by them in their judgment.

6. The respondent has put in appearance in this case through Mr. Khondkar Mahbududdin Ahmad.

7. The learned counsel for the respondent submits that Mr. Habibur Rahman Sharif who was appointed the sole arbitrator has since made an award and the same has also been made a Rule of the Court. This fact is not disputed by the learned Senior Government Pleader. In the circumstances, we do not find any merit in either of the petitions for special leave to appeal. Both the petitions are, accordingly, dismissed.