General Manager, Central Organisation Railway Electrification (Core), Allahabad and Others vs M. Venka Reddy

P.S. Mishra, C.J.—Since the Arbitration and Conciliation Act, 1996 has introduced a full-fledged mechanism for an application for the appointment of arbitrator by any of the parties to the arbitration agreement, it seems to use right, when it is contended before us, that an application under Article 226 of the Constitution of India is not warranted. The scheme in Chapter-III of the above Act gives to any party to the arbitration agreement right to make an application before the Chief Justice or any person or institution designated by him and in accordance will the procedure in this behalf the Chief Justice or any person of institution designated by him could appoint Arbitrator if parties do not agreed on the appointment of Arbitrator or Arbitrators. Since scheme under the Act has been settled by this court and duly published, the petitioner-respondent could always make such an application. All that learned single Judge has said in the impugned order is a reiterated of the fact that under a specific rule in this behalf in respect of the Railway contracts there is an arbitration agreement and application for appointment of an Arbitrator is envisaged thereunder learned single Judge has accordingly directed the respondents to appointed Arbitrator as envisaged under the rule.

It is not a case, in our view, in which we shall proceed further to decide upon the question whether on the facts and in the circumstances of the case a mandamus to the above effect could have been issued. But we see no reason why, when nothing is said in reply to our queries the appellant has not appointed Arbitrator and followed the rule in Clause 64(1) of the General Conditions of Contract.

In any view learned Counsel for the petitioner stated that a petition as envisaged u/s 11(4) of the Arbitration and Conciliation Act, 1996 has to be filed and when such an application is filed appropriate order shall be passed either by the Chief Justice or any person designated by him.

The impugned order, thus, is not required to be given effect to and the writ petition is disposed of with the observation that in case of the failure of appellant herein to agree for appointment of the Arbitrator as demanded pursuant to the above conditions of contract by the petitioner-respondent it shall be open to the petitioner-respondent to make the application as envisaged u/s 11 of the Arbitration & Conciliation Act, 1996 and seek appointment of Arbitrator. The appeal and the writ petition are accordingly ordered.

Appeal allowed.