ORDER
R.M.S. Khandeparkar, J.
1. This revision application challenges the order dated 20th June 1997 passed by the Civil Judge, Senior Division, Quepem in Special Civil Suit No. 84/94/A. By the impugned order the trial Court has appointed one S.M. Nadkarni, Superintending Engineer, Irrigation Department, Colvale as the sole arbitrator to enter the reference pursuant to the dispute referred for arbitration by the trial Court by its order dated 9th September 1996. Before appointing the said Superintending Engineer as the Sole Arbitrator, the trial Court had called and invited the parties to the proceedings to propose the name of the Arbitrator and, accordingly, the petitioner as well as the respondents had submitted three names each. Upon hearing the parties, the trial Court passed the impugned order.
2. While assailing the impugned order Shri Mascarenhas, learned advocate
appearing for the petitioner, submitted that the trial Court had acted with material
irregularity in discarding the objection raised on the part of the petitioner to the person
appointed as Sole Arbitrator. According to the learned Advocate, the trial Court ought
to have considered that the person appointed as Sole Arbitrator is a person serving in
the Department of the Government and, therefore, the said appointee would be hesitant
to arrive at any decision against the respondents and, therefore, it is but natural for the
petitioner to apprehend that there is possibility of bias by the Arbitrator towards the
respondents and the apprehension being reasonable apprehension in the mind of the
petitioner, the trial Court erred in ignoring the same and appointing the Superintending
Engineer as Sole Arbitrator and thereby acting with material irregularity justifying the
interference of this Court in its revisional jurisdiction. Placing reliance on the judgment
of the Apex Court in the matter of Nandyal Co-op Spinning Mills Ltd. v. K.V. Mohan
Rao, the learned advocate submitted that the justice
must not only be done but seemingly appear to have been done and, therefore, in view
of reasonable apprehension of the petitioner as against bias in favour of the
respondents, the trial Court should not have appointed the Superintending Engineer as
the Sole Arbitrator. Further drawing my attention to the judgment of the Single Judge
of the Andhra Pradesh High Court in the matter of State of Andhra Pradesh and
another v. Chelamani Ramalinga Reddy, reported in 1990(1} Arb.L.R. 207 submitted
that a person interested cannot be entrusted with the task of deciding the matter. He
also placed reliance on the judgment of the Apex Court in the matter of State of
Karnataka v. Shree Rameshwara Rice Mills, Thirthahalli, reported in A.I.R. 1987 S.C.
1359 and submitted that the interest of justice and equity requires that a person who
is a party to a contract cannot be entrusted the task oE deciding the issue arising under
the contract between the parties. The learned advocate further submitted that the
Superintending Engineer cannot be termed as an independent person who can decide
the matter without being influenced by the respondents,
3. Shri M.S. Joshi, the learned Additional Government Advocate appearing for the
respondents, on the other hand, submitted that the trial Court after considering the
objection raised by the petitioner has rightly rejected the same and has appointed the
Superintending Engineer for the reasons disclosed in the impugned order. Placing reliance on the judgment of the Apex Court in the matter of Ranjit Thakur v. Union, of India and others, , the learned Additional Government Advocate submitted that there must be reasonable material available on record to justify the alleged bias and without such material by mere allegation on the part of the petitioner it cannot be said that the Superintending Engineer is biased and, therefore, there is no case made out for interference in the impugned order in the revisional jurisdiction of this Court.
4. Upon hearing the learned Counsel for the parties and on perusal of the
materials placed before me, it is seen that undisputedly the parties to the proceedings
before the trial Court submitted lists, each one comprising of 3 names for the
appointment of Sole Arbitrator in the said case. The list of the names submitted by the
respondents contained 3 names of Superintending Engineers of the Government and
whereas the 3 names suggested by the petitioner comprised of retired Superintending
Engineer and retired Executive Engineer. It was the case of the petitioner before the
trial Court for objecting the appointment of the person suggested by the respondents
that they are Government Servants who are still in service in the Irrigation Department
and, therefore, there is possibility of bias in favour of the respondents if any of them
is appointed. The trial Court after hearing the parties and upon arriving at the
-conclusion that the dispute relates to the work of Irrigation and that it would be
adviceable to appoint an expert from the Department of Irrigation and since there being
no personal allegation made by the petitioner against the three persons suggested by
the respondents and the apprehension in the mind of the petitioner that the persons
suggested by the respondents being Government servants may favour the respondents
having not been substantiated with materials on record, appointed Shri S.M. Nadkarni,
Superintending Engineer as the Sole Arbitrator. It is well established now that mere
apprehension expressed by a party that the authority either hearing the matter or which
may hear the matter may have bias in favour of the other party, without any reasonable
justification for the same, cannot be considered as a good ground of bias either to
dislodge the authority already appointed or which is to be appointed. The Apex Court
in the matter of International Airport Authority of India v. K.D. Bali and another,
has clearly held that
it is not every suspicion felt by a party that must lead to the conclusion that the
authority hearing the proceedings is biased. The apprehension must be judged from a
healthy, reasonable and average point of view and not on mere apprehension or on any
whimsical suspicion. In the instant case it is apparent from the impugned order that
the contention of the petitioner for objecting the appointment of the Superintending
Engineer was that he was a Government servant still in service and, therefore, the
possibility of bias in favour of the respondents. It is not disputed that no material as
such was placed before the trial Court to substantiate the said submission of the
Counsel on behalf of the petitioner. Merely because the appointed sole arbitrator
happens to be in Government service, there is no justification for apprehension that he
may favour or be biased towards the respondents. Such an apprehension without any
basis, as already held by the Apex Court, cannot be considered as a reasonable
apprehension.
5. The decision of the learned Single Judge of the Andhra Pradesh High Court, the case of the respondent therein was that the named arbitrator was directly connected with the matter in issue and, therefore, there was apprehension of bias in favour of the Government. In the matter of Nandyal Co-op. Spinning Mills Ltd. (supra) it was not in
dispute that the named person had acted on earlier occasions as the arbitrator for one of the parties to the proceedings and in that context the allegation of bias was made. Being so, the decisions in both these cases are of no assistance to the petitioner. As regards the case in the matter of State of Karnataka (supra) it lays down a broad principle that the interest of justice requires that where a party to a contract disputes the committing of any breach of conditions, the adjudication should be by an independent person or body and not by the other party to the contract. However, equally it is held therein that the parties to the Contract are not prohibited from contracting to the contrary. As regards the judgment in the matter of The Secretary to the Government, Transport Deptt., Madras v. Munuswamy Mundaliar and others, , the learned advocate for the petitioner is right in contending that the said decision was in the case of named arbitrator in the contract itself. Nevertheless, it is also held that there must be reasonable evidence to satisfy that there was a real likelihood of bias. In the case of International Airport Authority of India (supra), the Apex Court has observed that in this country in numerous contracts with the Government clauses requiring the Superintending Engineer or some official of the Government to be the arbitrator are incorporated. It cannot be said that the Superintending Engineer, as such, cannot be entrusted with the work of arbitration and that an apprehension simpliciter in the mind of the contractor, without any tangible ground, would be a justification for his removal. The Apex Court has further held therein that mere imagination of a ground cannot be an excuse for apprehending bias in the mind of the chosen arbitrator. In the instant case the impugned order ex facie discloses that the learned advocate appearing for the petitioner had submitted on mere suspicion that since the appointee happens to be in the service of the Government, therefore, there is possibility of bias in favour of the respondents. There was no material placed on record in support of such suspicion. Being so, I do not find any irregularity committed by the trial Court or error in exercise of jurisdiction in appointing Shri S.H. Nadkarni, Superintending Engineer as the Sole Arbitrator in the instant case.
6. Since no case is made out for interference in the impugned order, the revision application is liable to be rejected and is, hereby, rejected. There shall be no order as to costs.
7. Application dismissed.