Pattanaik, J. - (1.) In this batch of cases an important question arises for consideration of this Court, namely, under the provisions of Arbitration and Conciliation Act, 1996, what should be the correct approach of the Chief Justice or his nominee in relation to the matter of appointment of an arbitrator under Section 11(6) of the Act, and what is the true nature of the said order and further if a person is aggrieved by such order, can he file application in a Court and whether such an application could be entertained and if so, in which forum In Sundaram Finance Ltd. v. NEPC India Ltd., (1999) 2 SCC 479, while deciding the question as to whether under Section 9 of the Arbitration and Conciliation Act, 1996, the Court has jurisdiction to pass an interim order even before commencement of arbitration proceeding and before an Arbitrator is appointed, after analysing different provisions of Arbitration Act, 1940 and the present Act of 1996 an observation has been made to the effect "under the 1996 Act, appointment of Arbitrator is made as per the provisions of Section 11 which does not require the Court to pass a judicial order appointing Arbitrator." In Ador Samia Private Ltd. v. Peekay Holdings Limited, (1999) 8 SCC 572, this Court came to the conclusion that the Chief Justice of the High Court or his designate under Section 11(6) of 1996 Act, acts in administrative capacity, and such, an order of the Chief Justice is not passed by any Court exercising any judicial function nor is it a tribunal having the trappings of a judicial authority and it must, therefore, be held that against such order, which is administrative in nature application under Article 136 of the Constitution would not lie. Notwithstanding the aforesaid decision of this Court in Adhor Samia Pvt. Ltd. case (supra) when the present batch of cases came up for consideration before the Bench presided over by Majmudar, J. who was the author of Samia's case (supra) it was contended that the aforesaid decision requires consideration and having acceded to the request of the petitioner, the Bench passed the order to place this batch of cases before a Three Judge Bench and that is how these cases have come before us.
(2.) Two basic questions which really arise for consideration are, (1) what is the nature of the order that is passed by the Chief Justice or his nominee in exercise of power under sub-section (6) of Section 11 of the Act and, (2) even if said order is held to be administrative in nature what is the remedy open to the person concerned if his request for appointment of an Arbitrator is turned down by the learned Chief Justice or his nominee, for some reason or other
(3.) In deciding the latter question it would be necessary to find out the true intention of the legislature in substituting 1940 Act by the present Act and bearing in mind the object of enactment of the new Act what should be the approach of the learned Chief Justice or his nominee when an application for appointment of an Arbitrator is made invoking the jurisdiction under Section 11(6) of the 1996 Act.;