The main legal point established in the judgment is that the authority to alter the terms of a contract, including the inclusion of an arbitration clause, rests with the entity specified in the contract, and not with an individual signatory or representative.

This is an application for appointment of an arbitrator based on a noting purported to have been made by the then executive engineer on the letter dated 1st November, 2013 of the petitioner seeking extension of the time to complete the work. There is no dispute that the work order does not contain any arbitration clause. The respondent no.1 is a juristic entity. The executive engineer is an appointee from the State Government. The said executive engineer was on deputation. The terms and conditions of the tender are all settled by the Zilla Parishad. No one has any right to alter the terms of the agreement without the approval of the Zilla Parishad. The Sabhadhipati has filed an affidavit in which the Sabhadhipati has categorically stated that all tenders for work are invited on the basis the terms and conditions as incorporated therein and there is no arbitration clause in any of the tender of Howrah Zilla Parishad. The Sabhadhipati is the tender accepting authority prior to which it has to be passed upon acceptance of all members in a meeting.

2. The executive engineer in his affidavit has categorically stated that he has no power to alter the printed terms and conditions nor could agree for reference to arbitration. It is categorically stated that he has only approved the proposal for extension of time. Any alteration in the terms and conditions of the contract has to emanate from the Zilla Parishad under the guidelines of Sabhadhipati, Karmadhakshya and other office bearers, without them no amendment cannot be made by him. It is stated that the endorsement made in the letter is only in respect of extension of time which has been initially granted upto 30th June, 2014. The letter dated 1st September, 2014 is only a communication of the extension of work. The arbitration agreement was never agreed upon.

3. The petitioner has relied upon the endorsement made on behalf of the letter dated 1st November, 2013 issued by the executive engineer. In the letter dated 1st November, 2013, there is an endorsement purported to have been made by the executive engineer which reads as follows:

“The proposal suggested by you in this letter is hereby accepted by me on behalf of the Howrah ZP. It is made clear that the balance work entrusted to you should be completed within eight months, i.e., within 30/06/14”

4. The said endorsement was followed by a letter dated 1st November, 2013 which reads as follows:

“The proposal suggested by you in your letter vide memo #GD/11-12/HZP-RIDF-XVI 77(A)/W-128/A Date: 1st November, 2013 under reference above is accepted on behalf of Howrah Zilla Parishad. It is made clear that the balance work entrusted to you is to be completed within 8 months, i.e. within 30th June, 2014.”

5. The basis of the argument on behalf of the petitioner is that in the last but third paragraph of the letter of the petition dated 1st November, 2013 the petitioner has categorically stated that all questions and disputes relating to the said contract shall be referred to arbitration. The petitioner submits that the said endorsement on the letter dated 1st November, 2013 was followed by a reply of the executive engineer of even date. The respondents have accepted the arbitration agreement and the disputes are now required to be resolved through arbitration. The petitioner has also referred to a similar letter dated 1st September, 2014 followed by a letter of the executive engineer of even date to argue that in the letter dated 1st September, 2014, the petitioner has, in paragraph 12, referred to an arbitration agreement and the same has been accepted by the executive engineer.

6. The said submission is based on the existing definition of an ‘arbitration agreement’ under Section 7 of the Arbitration and Conciliation Act, 1996.

7. The arbitration agreement constitutes the separate contract. The NIT followed by the contract document does not contain any arbitration clause.

8. The Clause 5 of the terms and conditions of the contract deals