G.P.MATHUR, J. - (1.) This writ Petition under Article 226 of the Constitution has been filed for queshing the Order dated 17/11/2000 of Hon'ble the Chief Justice appointing an arbitrator under S. 11(5) of the Arbitration and Conciliation Act. 1996.
(2.) M/s. Vidyawati Construction Company, respondent No. 1 filed a petition under Section 11(6) of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the Act) on the grounds, inter alia, that the petitioner Rail India Technical and Economic Services Ltd. (in brief, RITES invited tenders for construction of institute building and staff quarters for Northern Regional Institute of Printing Technology, Allahabd and the tender submitted by it was accepted on May 1992. The stipulated period for completion of work was 12 months which was extended from time to time and the work was actually completed on 30/07/1995 but the RITES did not issue any completion certificate. A sum of Rs. 88,79,847.00 was due to it towards cost of construction which had not been paid. The agreement entered into between the parties contained an an arbitration clause, and it sent a letter dated 30/09/1998 requesting the Managing Director of RITES to appoint an arbitrator within 30 days of the receipt of the request but no appointment was made. It was accordingly prayed that the Chief Justice may appoint an arbitrator under Section 11(6) of the Act. The writ petitioner Rail India Technical and Economic Services Ltd. (RITES) filed a counter affidavit opposing the prayer for appointment of arbitrator. The Chief Justice by his order dated November 17, 2000 appointed Hon'ble Mr. Justice S.C. Mathur, a former Chief Justice, as the sole arbitrator under Section 11(5) of the Act, which has been assailed in the present writ petition.
(3.) The first question which requires consideration is what is the nature of the order passed by the Chief Justice under Section 11(5) of the Act and whether it is amenable to writ jurisdiction of the Court. In Sundaram Finance Ltd. v. NEPC India Ltd., (1999) 2 SCC 479 : (AIR 1999 SC 565) it was observed that appointment of arbitrator under Section 11 of the Act does not require the Court to pass a judicial order. The same view was taken in Ador Samia (P) Ltd. v. Peekay Holdings Ltd., (1999) 8 SCC 572 : (AIR 1999 SC 3246) and it was held that while exercising power under Section 11(6) of the Act the Chief Justice of the High Court or his designate acts in an administrative capacity and such an order of the Chief Justice is not passed by any Court exercising any judicial function nor it is a tribunal having the trappings of a judicial authority. The question as to what is the nature of the order passed by the Chief Justice while making appointment of an arbitrator under Section 11 of the Act was referred for consideration to a larger Bench in Konkan Rly. Corporation Ltd. v. Mehul Construction Co., (2000) 7 SCC 201 : (AIR 2000 SC 2821). After a detailed consideration of the matter it was observed as follows in paragraph 6 of the reports."The nature of the function performed by the Chief Justice being essentially to aid the constitution of the Arbitral Tribunal immediately and the legislature having consciously chosen to confer the power on the Chief Justice and not on a Court, it is apparent that the order passed by the Chief Justice or his nominee is an administrative order, as has been held by this Court in Ador Samia case and the observations of this Court in Sundaram Finance Ltd. Case also are quite appropriate and neither of those decisions require any reconsideration . . ."It may be noticed that in a subsequent decision in Konkan Railway Corporation Ltd. v. Rani Construction Ltd., (2000) 8 SCC 159 : (2000 AIR SCW 3908) the question has again been referred for reconsideration. However, the decision rendered in Konkan Railway Corporation Ltd. v. Mehul Construction Company (supra) has not been overruled so far and, therefore, it is binding on this Court. Accordingly we have to proceed on the footing that the impuned Order dated 17/11/2000 of the Chief Justice is an administrative order and, therefore, the present writ petition under Article 226 of the Constitution is maintainable.;