Andhra HC (Pre-Telangana)
Union Of India And Ors. vs Vijayalakshmi Enterprises And Anr. on 13 December, 2001
Equivalent citations: 2002(1)ALD619, 2002(1)ALT106
Author: Ar. Lakshmanan
Bench: Ar. Lakshmanan
JUDGMENT Ar. Lakshmanan, C.J.
1. Union of India represented by the General Manager, South Central Railway and two others are the petitioners in this writ petition. The writ petition has been filed for a mandamus restraining the 2nd respondent herein, who was appointed as an Arbitrator in Arbitration Application No.22 of 2001 by order dated 28-8-2001, from functioning as an Arbitrator to resolve the disputes by way of arbitration proceedings in respect of Contract Agreement acceptance letter Nos.B/W.496/I/4 Zone S -3 (A)/1997-98/TI, dated 3-7-1997 and B/W 496/1/4 Zone S-3 (B)/1997-98/Tl, dated. 30-7-1997 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.22 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 parities, 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 D. Reddeppa 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, that since the Railway Arbitrator has terminated the arbitral proceedings under Section 32(2)(c) of the Act with regard to claim No.2, the contract came to end and as such, there is no existence of contract for referring the remaining claim Nos. 1, 3, 4, 5 and 6 to an independent arbitrator under Section 11(6) of the Act. It is further argued by the Learned Counsel for the petitioners that the 1st respondent cannot split up the disputes one before the Arbitrator appointed by the Railways as per the contract agreement and another for appointment of a fresh arbitrator under Section 11(6) of the Act for claim Nos. 1, 3, 4, 5 and 6. Therefore, it is submitted that the arbitration application filed by the 1st respondent is not maintainable on the ground that there must be two independent arbitration applications in view of the two independent contract Nos.S-3(A) and S-3 (B). It is also argued that the named arbitrator in the agreement between the parties should have been considered and that the qualification prescribed for the arbitrator i.e., Railway Gazetted Officers should have been considered. 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, CJ., 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 28-8-2001. 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.