Hon'ble Surendra Kumar,J.
The present Writ Petition has been filed by the petitioners under Article 226 of the Constitution of India, inter-alia, praying for quashing the Order dated 1.4.2005 (Annexure 6 to the Writ Petition) whereby the Hon'ble The Chief Justice of this Court, in exercise of his power under Section 11 of the Arbitration and Conciliation Act, 1996, appointed a retired Judge of this Court, as an Arbitrator for adjudication of the disputes between the petitioners and the respondent no. 1 arising out of the Agreement dated 27.4.1992.
Counter Affidavit has been filed on behalf of the respondent no.1.
We have heard Shri S.K. Mishra, learned counsel for the petitioners and Shri Aashish Srivastava, holding brief for Shri Vipin Sinha, learned counsel for the respondent no.1, and perused the record.
Shri Aashish Srivastava, holding brief for Shri Vipin Sinha, learned counsel for the respondent no.1 has raised a preliminary objection that the present Writ Petition against the Order dated 1.4.2005 passed by the Hon'ble The Chief Justice, is not maintainable, and the appropriate remedy for the petitioners is to the approach the Supreme Court under Article 136 of the Constitution of India.
Shri Aashish Srivastava, holding brief for Shri Vipin Sinha, learned counsel for the respondent no.1 has referred to a decision of the Supreme Court in Rameshwar Das Agrawal & Another Vs. Kiran Agrawal & Others, 2008 AIR SCW 458.
In reply, Shri S.K. Mishra, learned counsel for the petitioners submits that in view of the aforesaid decision, the petitioners will pursue their remedy, as may be available to them under law.
We have considered the submissions made by the learned counsel for the parties.
In Rameshwar Das Agrawal case (supra), their Lordships of the Supreme Court referred to the decision of the Supreme Court in SBP & Co. vs. Patel Engineering Ltd. and another, 2005 (8) SCC 618 : 2005 AIR SCW 5932, and laid down as under (paragraph 8 of the said AIR SCW):
"8. Before analyzing the claim of both the parties, it is relevant to note that the Hon'ble Chief Justice of the Allahabad High Court passed the impugned order appointing a retired Judge of the High Court as an Arbitrator on 09.12.2005.
On 26.10.2005, a seven-Judge Bench of this Court in SBP & Co. vs. Patel Engineering Ltd. and another (supra) reviewed the entire legal position and issued various directions in the matter of appointment of Arbitrator. The larger Bench has also overruled the earlier decision in Konkan Railway Corporation Ltd. vs. Rani Construction Private Limited, (2002) 2 SCC 388. It is useful to refer to the conclusions arrived at by the larger Bench which read thus:
"47. We, therefore, sum up our conclusions as follows:
(i) The power exercised by the Chief Justice of the High Court or the Chief Justice of India under Section 11 (6) of the Act is not an administrative power. It is a judicial power.
(ii) The power under Section 11 (6) of the Act, in its entirety, could be delegated, by the Chief Justice of the High Court only to another Judge of that Court and by the Chief Justice of India to another Judge of the Supreme Court.
(iii) In case of designation of a Judge of the High Court or of the Supreme Court, the power that is exercised by the designated Judge would be that of the Chief Justice as conferred by the statute.
(iv) The Chief Justice or the designated Judge will have the right to decide the preliminary aspects as indicated in the earlier part of this judgment. These will be his own jurisdiction to entertain the request, the existence of a valid arbitration agreement, the existence or otherwise of a live claim, the existence of the condition for the exercise of his power and on the qualifications of the arbitrator or arbitrators. The Chief Justice or the designated Judge would be entitled to seek the opinion of an institution in the matter of nominating an arbitrator qualified in terms of Section 11 (8) of the Act if the need arises but the order appointing the arbitrator could only be that of the Chief Justice or the designated Judge.
(v) Designation of a District Judge as the authority under Section 11 (6) of the Act by the Chief Justice of the High Court is not warranted on the scheme of the Act.
(vi) Once the mater reaches the Arbitral Tribunal or the sole arbitrator, the High Court would not interfere with the orders passed by the arbitrator or the Arbitral Tribunal during the course of the arbitration proceedings and the parties could approach the Court only in terms of Section 37 of the Act or in terms of Section 34 of the Act.
(vii) Since an order passed by the Chief Justice of the High Court or by the designated Judge of that Court is a judicial order, an appeal will lie against that order only under Article 136 of the Constitution to the Supreme Court.
(viii) There can be no appeal against an order of the Chief Justice of India or a Judge of the Supreme Court designated by him while entertaining an application under Section 11 (6) of the Act.
(ix) In a case where an Arbitral Tribunal has been constituted by the parties without having recourse to Section 11 (6) of the Act, the Arbitral Tribunal will have the jurisdiction to decide all matters as contemplated by Section 16 of the Act.
(x) Since all were guided by the decisions of this Court in Konkan Rly. Corpn. Ltd v. Rani Construction (P) Ltd. and orders under Section 11 (6) of the Act have been made based on the position adopted in that decision, we clarify that appointments of arbitrators or Arbitral Tribunals thus far made, are to be treaded as valid, all objections being left to be decided under Section 16 of the Act. As and from this date, the position as adopted in this judgment will govern even pending applications under Section 11 (6) of the Act.
(xi) Where District Judges had been designated by the Chief Justice of the High Court under Section 11 (6) of the Act, the appointment orders thus far made by them will be treated as valid; but applications, if any, pending before them as on this date will stand transferred, to be dealt with by the Chief Justice of the High Court concerned or a Judge of that Court designated by the Chief Justice.
(xii) The decision in Konkan Rly. Corpn. Ltd. v. Rani Construction (P) Ltd. is overruled."
From the above, it is clear that the power being exercised by the Chief Justice or the designated Judge under Section 11 is not an administrative power but it is a judicial power. It is also clear that an appeal would lie against that order only under Article 136 of the Constitution of India to this Court......................................."
(Emphasis supplied) In view of the above decision, it is evident that the power exercised by the Chief Justice or the designated Judge under Section 11 of the Arbitration and Conciliation Act, 1996, is not an administrative power. It is a judicial power.
It is also evident that an Appeal would lie against that order only under Article 136 of the Constitution of India. Thus, the present Writ Petition filed by the petitioners before this Court impugning the Order dated 1.4.2005 passed by the Hon'ble The Chief Justice of this Court appointing a retired Judge of this Court as an Arbitrator, is not maintainable, and the appropriate remedy open to the petitioners is to approach the Supreme Court under Article 136 of the Constitution of India.
In view of the above discussion, the present Writ Petition filed by the petitioners is liable to be dismissed as not maintainable.
The Writ Petition is accordingly dismissed as not maintainable.
However, on the facts and in the circumstances of the case, there will be no order as to costs.
Order Date :- 12.1.2012 Ajeet