# State of U.P. and others v. Pradhan - **Citation:** (2001) 1 ILRA 205 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2000-10-15 - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-and-others-v-pradhan-39599 - **Pages:** 3 ## Text 1All] Indian Oil Corporation Ltd. V. M /s Vidyawati Construction Co. Ltd. 205 to the contention raised in the objection filed by petitioner no.1 and has thereafter passed the order after taking into consideration the relevant factors and also the constitutional and statutory provision governing the controversy in issue. Thus, the submission of the learned counsel that the order of the State Government dated 15th October, 2000 is a non speaking and arbitrary order, cannot be accepted. 11. It may be mentioned here that in State of U.P. and others vs. Pradhan Sangh Kshettra Samiti and others (AIR 1995 SC 1512) the apex Court while considering a similar question relating to delimitation and reservation for the purpose of holding election in the Panchayats, observed as follows: "....If we read Articles 243-C, 243-K and 243-O in place of Article 327 and section 2(kk) of the Delimitatiation Act, 1950, it will be obvious that neither the delimitation of the panchayat area nor of the constituencies in the said area and the allotments of seats to the constituencies could have been challenged or the Court could have entertained such challenge except on the ground that before the delimitation no objections were invited and no hearing was given. Even this challenge could not have been entertained after the notification for holding the elections was issued...." 12. It is not the case of the petitioners that no objections were invited or they were not given any opportunity to file objection. The draft order was published by the State Government in accordance with sub-section (2) of section 32 of the Act and the petitioners were given opportunity to file objections. Thus the ground on which an order of delimitation and reservation of constituencies can be challenged, as observed by the Apex Court, is not available to the petitioners. 13. Sri Jain has also submitted that the impugned order dated October 15, 2000 of the State Government has been antedated and in fact it was not in existence till as late as October 22, 2000. This question is purely factual in nature. We have gone through the averments made in the supplementary affidavit and have also heard the learned Chief Standing Counsel on this point. On the basis of material placed before us it is not possible to hold that the impugned order dated October 15, 2000, deciding the objection filed by petitioner no. 1, has been antedated or that the same was not in existence till October 22, 2000. 14. For the reasons mentioned above, we find no merit in the writ petition and is hereby dismissed at the admission stage. $33(//$7( -85,6',&7,21 $33(//$7( -85,6',&7,21 &,9,/ 6,'( &,9,/ 6,'( '$7(' '$7(' %()25( %()25( 7+( +21 %/( 6 7+( +21 %/( 68'+,5 1$5$,1 - 8'+,5 1$5$,1 - 7+( +21 %/( .5,6+1$ .80$5 - 7+( +21 %/( .5,6+1$ .80$5 - )LUVW $SSHDO 1R RI ,QGLDQ 2LO &RUSRUDWLRQ /WG «$SSHOODQW 9HUVXV 0V 9LG\DZDWL &RQVWUXFWLRQ &RPSDQ\ /WG «5HVSRQGHQW &RXQVHO IRU WKH $SSHOODQW 6UL 5XGUDVKZDUL 3UDVDG 6UL 5* 3DGLD &RXQVHO IRU WKH 5HVSRQGHQW 6UL 3UDGHHS .XPDU INDIAN LAW REPORTS ALLAHABAD SERIES [2001 206 6UL 6. *DUJ 6UL 5DYL .DQW $UELWUDWLRQ $FW 6V DQG DV DPHQGHG E\ 83 &LYLO /DZV $PHQGPHQW $FW $SSHDO DJDLQVW RUGHU GLUHFWLQJ DSSHOODQW WR ILOH DJUHHPHQW DQG VXEPLW D SHQDO RI DUELWUDWRUV 0DLQWDLQDELOLW\ +HOG $IWHU VXEVWLWXWLRQ RI FODXVH E\ $PHQGLQJ $FW WKH DSSHDO LV PDLQWDLQDEOH RQO\ DJDLQVW DQ RUGHU PDNLQJ RU UHIXVLQJ WR PDNH UHIHUHQFH E\ WKH &RXUW 7KH &RXUW E\ WKH LPSXJQHG RUGHU GDWHG KDV RQO\ GLUHFWHG WKH DSSHOODQW WR ILOH WKH DJUHHPHQW DQG VXEPLW D SHQDO RI WKH $UELWUDWRUV 7KLV LV QRW DQ RUGHU PDNLQJ D UHIHUHQFH WR WKH $UELWUDWRU KHQFH WKH DSSHDO LV QRW PDLQWDLQDEOH DQG LV DFFRUGLQJO\ GLVPLVVHG 3DUDV DQG &DVHV UHIHUUHG $,5 $OO $:& By the Court 1. This appeal is directed against the order dated 31.5.1991 passed by the Additional District Judge, Varanasi directing the appellant to furnish the original agreement and submit a panel of Arbitrators to choose an Arbitrator by the plaintiff-respondent to decide the dispute. 2. Briefly, stated the facts, are that the Indian Oil Corporation Ltd. invited the tenders for construction of office building, road etc. for LPG bottling plant at Varanasi near Babatpur. M/s Vidyawati Construction Company Ltd.- respondent submitted its tender, which was accepted by the appellant. The respondent is alleged to have sent the agreement to the appellant which was countersigned by it. The respondent started construction work and some of the work was completed. 3. The respondent alleged that the appellant did not provide the requisite drawings and details of the construction within the time as stipulated under the agreement with the result respondent had to suffer losses. The agreement contained arbitration clause. In pursuance to the said arbitration clause, respondent filed an application before the Court below for making reference to the Arbitrator under section 20 of the Arbitration Act. The appellant filed written statement and took various pleas opposing the appointment of the Arbitrator. On 31.5.1991 the Court directed the appellant to file the original agreement and to submit the names of the panel of Arbitrators to choose an Arbitrator by the respondent. The appellant has filed the instant appeal against this order. 4. The basic question is whether the appeal is maintainable against such an order after the amendment in Section 39 (4) of the Arbitration Act by U.P. Civil Laws (Reforms and Amendment) Act No. 57 of 1976 w.e.f. 30.12.1976 (in short 1976 Act). Section 18 of this Act amended sub-section (I) (iii) (iv) of Section 20 and clause (4) of Section 39 of the Arbitration Act, 1940. Sub-section (2) to (4) of Section 20 of the Act lays down the procedure to be followed by the Court when a party files an application for appointment of an Arbitrator. After the amendment of the provisions of this Act by 1976 Act, the Court is to refer the matter to an Arbitrator. Under Sub-section (3) of Section 20 of the Act prior to the amendment, the notice is to be given to the opposite party to show cause' why the agreement should not be filed" but after 1All] U.P. Financial Corporation and another V. Neelam Sharma and others 207 the amendment the notice is given to show cause ' why a reference in accordance with the agreement should not be made'. In sub-section (4) of Section 20 of the Act by amendment the words added are," the Court shall make an order of reference to the Arbitrator appointed by the parties.' 5. Section 39 of the Arbitration Act, 1940 enumerates the appealable order which are covered by clauses (I) to (vi) of the Section. Unamended clause (iv) of sub-section (1) of Section 39 provided for filing appeal against the order 'filing or refusing to file an arbitration agreement'. This has been amended by 1976 Amendment Act and has been substituted by the words under section 20 by the words ' making or refusing to make a reference'. The appeal against the order of the Court directing to file the agreement or refusing to file the agreement was appealable as held in Fertilizer Corporation of India Ltd. Vs. M/s Domestic Engineering Installation, AIR 1970 Alld 31. After substitution of clause (4) by Amending Act, 1976 the appeal is maintainable only against an order making or refusing to make reference by the Court. This question was considered by a Division Bench of this Court in State of UP Vs. The Hindustan Construction Company Limited, Bombay, 1978 AWC 702 where the Court below had allowed the application filed by the plaintiff under section 20 of the Arbitration Act and directed both the parties to intimate the names of two Arbitrators, one to be nominated by each one of them and the Arbitrators so nominated, should select an Umpire, this Court held that after the Amending Act, 1976, the appeal was not maintainable as the Court had not made any reference to any Arbitrator. The reference can be made to the Arbitrator only after the Arbitrator is appointed by the Court 6. The Court by the impugned order dated 31.5.1991 has only directed the appellant to file the agreement and submit a panel of the Arbitrators. This is not an order making a reference to the Arbitrator hence the appeal is not maintainable and is, accordingly dismissed. 25,*,1$/ -85,6',&7,21 25,*,1$/ -85,6',&7,21 &,9,/ 6,'( &,9,/ 6,'( '$7(' $//$+$%$' 2&72%(5 '$7(' $//$+$%$' 2&72%(5 %()25( %()25( 7+( +21 %/( 65 6,1*+- 7+( +21 %/( 65 6,1*+- &LYLO 0LVF :ULW 3HWLWLRQ 1R RI 83 )LQDQFLDO &RUSRUDWLRQ DQRWKHU «3HWLWLRQHUV 9HUVXV 1HHODP 6KDUPD RWKHUV«5HVSRQGHQWV &RXQVHO IRU WKH 3HWLWLRQHUV 6KUL 9% 6LQJK 6KUL &KDQGUD 3UDNDVK &RXQVHO IRU WKH 5HVSRQGHQWV 6KUL .ULVKQD 0LVKUD .P 6XPDQ 6LURKL 6& 83 ,QGXVWULDO 'LVSXWH $FW ,QGXVWU\ :KHWKHU WKH 83 )LQDQFLDO &RUSRUDWLRQ LV ZLWKLQ WKH PHDQLQJ RI ,QGXVWU\" +HOG