M.Y. Eqbal, J.

1. All these interlocutory applications arose out of aforesaid Arbitration Application Nos. 27, 28, 35, 36 & 37 of 2004, which were disposed of on 30.3.2005. Since in all these interlocutory applications, common question of law and facts are involved, they have been heard together and are disposed of by this common order.

2. Petitioners haves filed these interlocutory applications under Section 15(2) of the Arbitration and Conciliation Act, 1996 for appointment of substituted arbitrator in place of O.P. No. 3 the Superintending Engmeer, Road Construction Department, Dhanbad, the named arbitrator.

3. Petitioners case is that pursuant to common order dated 30.3.2005 passed in Arbitration Application Nos. 27, 28, 45, 46 and 47 of 2004, the dispute and differences were referred to O.P. No.3 -Superintending Engineer for decision. It is stated that respondent No.3 -the Superintending Engineer refused and declined the appointment and refused to be arbitrator in all the cases and, therefore, according to the petitioner, the appointment of the arbitrator stood terminated and, hence a substituted arbitrator is to be appointed as contemplated under Section 15(2) of the Act.

4. I have heard Mr. N.K.Singh, learned Counsel appearing for the petitioner and Mr Manjul Prasad, learned Counsel appearing for the State.

5. the admitted facts are that the petitioners filed Arbitration Applications under Section11(6) of the Act for reference of the dispute to arbitration in terms of Clause 23 of the Contract. Those applications were registered as Arbitration Application Nos. 27, 28, 35, 36 and 37 of 2004. Despite sufficient time allowed to the respondents, no counter affidavits wore filed and those applications wore finally listed for hearing on 30,3.2005. Learned J.C. to A.G. who was appearing for the respondents, did not dispute the existence of arbitration clause, rather the only contention made was that the petitioners failed to appear before the Superintending Engineer inspite of notice given by him. This Court after hearing the parties referred the matter to the named arbitrator, namely, the Superintending Engineer, Road Construction (National Highway), Circle Dhanbad, in terms of the order dated 30.3.2005. The order reads as under:

Heard the counsel for the petitioner and learned J.C. to Advocate General.

In these request petitions filed under Section 11(6) of the Arbitration and Conciliation Act, 1996 the petitioner seeks appointment of an Arbitrator for adjudication of the dispute arisen out of a contract allotted to the petitioner by the respondents.

In these cases existence of arbitration agreement has not been denied and disputed by the respondents. Petitioners case is that the Superintending engineer, Road Construction (National high Way) Circle, Dhanbad, who is the named Arbitrator, failed to discharge his duty by not entering into reference inspite of repeated requests made, by the petitioner. The petitioner, therefore, seeks appointment of an independent Arbitrator.

On the other hand, the contention of the respondents is that the petitioner failed to appear before the Superintending Engineer inspite of notice given to him.

After hearing the counsels for the parties and considering the facts and circumstances of the case, I think it fit and proper to direct the Superintending Engineer Road Construction (National High Way) Circle, Dhanbad, who is the named Arbitrator, to enter into reference forthwith and give his award within a period of four months from the date of entering into reference.

With the above direction these request petitions are, disposed of,

6. It transpires from the record that the respondent- Executive Engineer filed statement of facts before the Superintending Engineer (Arbitrator) stating that Clause 23 has been deleted from the contract and therefore, the dispute cannot be adjudicated through arbitration. In the rejoinder filed by the petitioner before the Arbitrator, it was contended that the arbitratio