- (1.) M. Katju, J. This writ petition has been filed for a writ of certiorari against the impugned order, dated 8th January, 1994 Annexure-3 to the writ petition and for writ of quo-warranto against respondent No. 2 Justice Mahabir Singh, a retired Judge of this Court who is functioning as Umpire in an Arbitration proceeding between the petitioner and the respondent No. 1.
(2.) THE facts of the case are that respon dent No. 1 entered into a contract with the petitioner for construction of Barrage etc. In connection with the same certain disputes arose and respondent No. 1 invoked the arbitration clause of the contract, true copy of which is Annexure-1 to the writ petition. THE petitioner as well as respondent No. 1 appointed their Arbitrators, but since these Arbitrators could not give their award within time, the matter was referred to the Umpire Sri Ansari. However, Sri Ansari died in June, 1992 and thereafter the two Arbitrators who had been appointed earlier nominated Justice Mahabir Singh as the Umpire. It appears from a perusal of para graph 6 (c) to (t) that about seventeen dates were fixed before Justice Mahabir Singh before whom the parties (often with their counsels also) appeared and it was only on 20-12-1993 that the petitioner objected to the jurisdiction of Justice Mahabir Singh on the ground that only the court could have appointed the Umpire after Sri Ansari died. This objection of the petitionerwas rejected by Justice Mahabir Singh by his order dated 8-1-1994 Annexure-3 to the writ petition. I have heard Sri Wajahat Husain Khan learned counsel for the petitioner, Sri K. N. Tripathi, for the respondent No. 1 and Sri B. Malik for the respondent No. 2 and have perused (he impugned order. Learned counsel for the petitioner has invited my attention to the decision of the Supreme Court in K. D. Kapadia v. In dian Engineering Company, 1971 (2) SCC 706 and has referred to paragraph 19 of this case. He has particularly emphasised the last sentence in paragraph 19 which states: "if the appointed person after acceptance of office refuses to act or will not act the parties have to take recourse to the Court. "
(3.) LEARNED counsel for the petitioner submitted that the case of death of an Ar bitrator stands on the same footing as refusal by the Arbitrator to act as referred to in Section 8 (1) (b) of the Arbitration Act. Section 8 of the Arbitration Act states as follows: "8. Power of Court to appoint arbitrator or umpire - (1) In any of the following cases- (a) where an arbitration agreement provides that the reference shall be to one or more arbitrators to be appointed by consent of the parties, and all the parties do not, after differences have arisen concur in the appointment or appoint ments; or (b) if any appointed arbitrator or umpire neglects or refuses to act, or is incapable of acting, or dies, and the arbitration agreement does not show that it was intended that the vacancy should not be supplied, and the parties or the arbitrators, as the case may be, do not supply the vacancy; or (c) where the parties or the arbitrators are required to appoint an umpire and do not appoint him; any party may serve the other parties or the arbitrators, as the case may be, with a written notice to concur in the appointment or appoint ments or in supplying the vacancy. (2) If the appointment is not made within fifteen clear days after service of the said notice, the Court may, on the application of the party who gave the notice and after giving the other parties an opportunity of being heard, appoint an ar bitrator or arbitrators or umpire, as the case may be, who shall have like power to act in the refer ence and to make an award as if he or they had been appointed by consent of all parties. " A perusal of Section 8 (1) (b) with which we are concerned in this case shows that if the arbitrator or umpire dies and the arbitration agreement does not show that it was intended that the vacancy should not be supplied, and the parties or arbitrators do not supply the vacancy then a party may serve a notice on the other party to concur in the appointment in supplying the vacancy and if the appointment is not made without fifteen days, the court may appoint the ar bitrator or umpire. In my opinion, the im portant words in Section 8 (1) (b) with which we are concerned in the present case are "do not supply the vacancy. ";