Andhra HC (Pre-Telangana)
General Manager, South Central ... vs Kotaiah And Anr. on 13 December, 2001
Equivalent citations: 2002(1)ALD594, 2002(1)ALT401
Author: A.R. Lakshmanan
Bench: Ar. Lakshmanan
JUDGMENT A.R. Lakshmanan, C.J.
1. This writ petition has been filed by the General Manager, South Central Railway and 3 others for a mandamus restraining the 2nd respondent herein, who was appointed as Arbitrator in Arbitration Application No.55 of 2001 by order dated 1-10-2001, from functioning as an Arbitrator to resolve the disputes by way of arbitration proceedings in respect of Contract Agreement No.10/ DEN/C/BG/SC/92-93 dated 3-8-1992 as his appointment is illegal, contrary to law and void as per Section 11 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as 'the Act').
2. We have perused the order passed by J. Chelameswar, J., in AA No.55 of 2001. This order was passed after hearing the Counsel for the Contractor and the learned Counsel for Railways. Since there was an arbitration agreement between the parties, which was also not in dispute, the learned Judge after hearing the Counsel appearing on either side referred the matter to be resolved by the process of arbitration. The learned Judge appointed a former Judge of this Court Sri M.Ranga Reddy, J., as the Arbitrator reserving liberty to him to fix his remuneration. The correctness of this order is questioned in this writ petition.
3. According to the learned Counsel for the petitioners, the order passed by the learned single Judge is contrary to law and void and that the appointment of the 2nd respondent as sole Arbitrator is contrary to the General Conditions of the Contract. It is also argued that the claims of the 1st respondent are inflated, fictitious and untenable and cannot be referable to arbitration. Thus it is submitted that there are no arbitrable disputes existing to refer the same for arbitration and, therefore, the order passed by the learned single Judge appointing the 2nd respondent as Arbitrator is non est in law.
4. We are unable to accept the submissions made by the learned Counsel for the petitioners. As already noticed, the order which is now impugned in this writ petition was passed by the learned single Judge after hearing the Counsel for the contractor and the Counsel for the Railways. It is not an ex parte order as contended. When an order is passed by the Chief Justice appointing an Arbitrator under Section 11 (6) of the Act, the said order is not amenable to the jurisdiction under Article 226 of the Constitution of India. A Division Bench of this Court comprising S.B. Sinha, C.J., and V.V.S. Rao, J., in the judgment reported in Union of India v. Vengamamba Engineering Company, Juputi, Krishna District, (DB), has also taken the similar view and that the Bench was of the opinion that the writ petition would not be maintainable when an arbitrator is appointed by the Chief Justice or by his nominee. In the instant case, the order was passed by the nominee Judge of the Chief Justice. Since the Arbitrator was appointed after hearing both the parties, it is not now open to the Railways to file the present writ petition questioning the correctness of the said order. We are, therefore, of the opinion that the writ petition is not maintainable under Article 226 of the Constitution of India.
5. The Arbitrator was appointed on 1-10-2001. We are told that the Arbitrator has entered upon the reference. Under such circumstances, it is always open to the Railways to raise all the issues and the contentions, which have been raised in this writ petition including the counter-claim before the Arbitrator, if the circumstances so warrant. The Arbitrator is requested to entertain the claim that may be made by the Railways including the counter-claim, if any, and decide of the same on merits after affording opportunity to both sides.
6. The writ petition is disposed of accordingly. No order as to costs.