G.P.Mathur, J. - (1.) This writ petition under Article 226 of the Constitution has been filed for quashing the order dated August 25. 2000 of Hon'ble the Chief Justice appointing an arbitrator under Section 11 (5) of the Arbitration and Conciliation Act, 1996.
(2.) M/s. Suristh Tiwary (respondent No. 2) filed a petition under Section 11 of the Act on the grounds, inter alia, that M/s. Border Roads Organisation awarded a contract for supply of earth for construction of Varanasi-Ram Nagar-Mugalsarai Road and an agreement in that connection was executed between the parties on February 5, 1997. Due to rainy season, the work could not be completed within the stipulated period, i.e., September 27, 1997. The firm had submitted a schedule to complete the work by March 31, 1978. There was a dispute regarding the amount which was to be paid to the firm and accordingly it gave a notice on October 23, 1999 for appointment of an arbitrator but no arbitrator was appointed. It was accordingly prayed that an arbitrator may be appointed under Section 11 of the Act. The Union of India filed a counter-affidavit opposing the prayer for appointment of the arbitrator. The Chief Justice by his order dated August 25, 2000 appointed Hon'ble Mr. Justice H. N. Seth, a former Chief Justice as the sole arbitrator under Section 11 (5) of the Act which order 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. N.E.P.C. India Ltd., (1999) 2 SCC 479, 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, 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. and others v. Mehul Construction Co., (2000) 7 SCC 201. 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. and another v. Rani Construction Ltd., (2000) 8 SCC 159, 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 impugned order dated November 17, 2000 of the Chief Justice is an administrative order and, therefore, the present writ petition under Article 226 of the Constitution is maintainable. In fact initially this petition was ordered to be heard after the decision of reference but as the petitioner moved a stay application for staying proceedings before the Arbitral Tribunal, the petition has been heard.;