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3. In order to answer the same we may have quick glance to the of this case. Respondent No. 1 M/s Kiran Construction Company was awarded construction of civil and structural works by the petitioner for its plant building and pump foundation for Indian Oil Corporation, Bhatinda Oil Terminal. The said agreement contained an arbitration clause with clear stipulation that in case of dispute the named arbitrator or his nominee will adjudicate the dispute between the parties. Dispute arose between the parties. Accordingly respondent No. 1 approached the named Arbitrator on 6th July, 1998 for entering upon reference in terms of the arbitration clause. The petitioner vide its letter dated 20th October, 1999 requested the respondent herein to specify the points of dispute. The respondent No. 1 enumerated the dispute vide its letter dated 4th December, 1999. However, when the named arbitrator did not enter upon the reference nor nominated any Arbitrator, the respondent No. 1 filed a petition under Sub-section (6) of Section 11 the Arbitration and Conciliation Act, 1996 (in short the Act). While the proceedings were pending before the learned single Judge, the named Arbitrator nominated Shri C. Ramachandran, Dy. General Manager (HR) of Indian Oil Corporation on 4th April, 2000 as the sole Arbitrator to adjudicate upon the disputes raised by the respondent No. 1. The said Shri C. Ramachandran, the sole arbitrator entered upon the reference on 28th April, 2000. He issued notices to the parties and directed the respondent No. 1 to file its statement of claim. The fact of appointment of Shri C. Ramachandran, as the sole Arbitrator, was brought to the notice of the learned single judge. however, the learned single judge by the impugned order dated 28th September, 2001 held that since the appointment of Shri C. Ramachandran was made after the expiry of 30 days, hence, the petitioner lost its right to appoint an Arbitrator. Accordingly the learned single judge vide the impugned order appointed a former Judge of this High Court as the sole arbitrator. The Arbitrator so appointed by the learned single judge entered upon the reference on 9th November, 2001. He also issued notices to the parties. Aggrieved by the impugned order dated 28th September, 2001 this writ petition has been preferred.

4. Mr. V.P. Chaudhary, Senior Advocate appearing for the has challenged the impugned order primarily on the grounds that (i) per the arbitration agreement clause No. 18 the power to nominate the arbitrator solely vested with the Managing Director, Marketing Division. That in term of Clause 18 of the agreement no person other than the Managing Director or his nominee could act as arbitrator. It is in pursuance to this Clause 18 that the respondent asked for the named arbitrator to enter upon the reference vide its letter dated 6th July, 1998. Since the disputes were not specified in the letter, therefore, the named arbitrator called for the same vide his letter dated 20th October, 1999 to which the respondent No. 1 responded only on 4th December, 1999. Mr. V.P. Chaudhary, Senior Advocate, therefore, contended that in view of the fact that matter was subjudice with the named arbitrator i.e. Managing Director, Marketing Division and there being no agreement between the parties that the named Arbitrator would enter upon reference by a specified date, hence, the respondent No. 1 without giving time to the named Arbitrator to enter upon the reference rushed to the court by way of a petition under Section 11(6) of the Act. Secondly once the Managing Director (Marketing Division) i.e. the named Arbitrator nominated Shri C. Ramachandran, Dy. General Manager (HR) who entered upon the reference on 28th April, 2001 i.e. much before the appointment of an Arbitrator by the learned single judge, the learned Single Judge ought not to have appointed an independent Arbitrator. It amounted to removing the named Arbitrator which power does not vest either with the Chief Justice or his nominee under Sub-section (6) of Section 11 of the Act.

The parties hereby agree that the courts in city of Delhi shall have jurisdiction to entertain any application or other proceeding in respect of anything arising under the agreement and any award or awards made by the sole arbitrator hereunder shall be filed in the concerned courts in the city of Delhi only.'

8. Pursuant to this clause the respondent No. 1 approached the named arbitrator to enter upon the reference. The said named arbitrator neither himself entered upon reference nor appointed an arbitral tribunal till 4th April, 2000. In the meantime respondent No. 1 requested on 19th January, 2000 the Chief Justice under Section 11(6) of the Act to appoint an independent arbitrator. This petition was decided by the impugned order dated 28th September, 2001 thereby appointing an independent arbitral tribunal. Regarding the objection pertaining to maintainability of the petition against the impugned order, Mr. Markanda placed reliance on the decision of Supreme Court in the case of Konkan Railway Corporation Ltd. and Ors. v. Mehul Construction Co. JT 2000 (9) 362. In that case the Apex Court held that the order passed by the Chief Justice or his nominee is only administrative in nature and, therefore, Special Leave Petition would not lie. Relying on the above observation Mr. Markanda contended that since SLP was dismissed, therefore, writ petition would also be not maintainable.

14. The appointment procedure admittedly has been agreed to by the parties in this case. That is what is provided in Clause 18 of the agreement. It is also an admitted fact on record that the respondent issued notice to the petitioner for entering upon reference or nominating an arbitrator and the named Arbitrator failed to enter upon reference within the prescribed period of 30 days. It is in this background that the respondent applied to the Chief Justice under Section 11(6) of the Act because the named arbitrator failed to perform the function entrusted to him under the procedure. Clause 18 of the agreement which has already been reproduced does not lay down any other procedure nor provides other means for appointment of an arbitrator. Therefore, there being no other alternative procedure provided nor providing any other means for the appointment of an arbitrator, the respondent as per the provision of the Act requested the Chief Justice. The decision of the Chief Justice or his designate is final. Contention of Mr. V.P. Chaudhry Advocate that Clause 18 does not prescribe any period by which named arbitrator should enter upon reference, to our mind, is without substance. Sub-section (6) of Section 11 itself prescribe the period within which the other party has to act, therefore, non-prescribing of the period in Clause 18 is of no relevance. Parties would be governed by the Act so far as period is concerned. Moreover, the learned Single Judge took note of the qualification and impartiality of the arbitrator so appointed by him i.e. a retired Judge of this court. Since under Section 11 notice is not required to be given to the other party nor it contemplates a response from the other party, therefore, once the nominee of the Chief Justice came to the conclusion that other party failed to appoint or enter upon reference within 30 days he appointed an independent arbitrator. That being so the impugned decision does not suffer from any infirmity. The Constitution Bench of the Apex Court has gone to the extent of observing that the Chief Justice on being requested has to make the nomination of an arbitrator only if the period of 30 days is over. In this case admittedly the period of 30 days was over when the application under Section 11(6) was filed by the respondent and even if the period of 30 days had not bene over still the decision to nominate an arbitrator by the Chief Justice would n to lead to the conclusion that the decision is adjudicatory or judicial. It still remain an Administrative order. If the arbitral tribunal has been improperly constituted or is without jurisdiction even then it would not be open to the aggrieved party to challenge by way of writ petition. His remedy would be to require the arbitral tribunal to rule on its jurisdiction. Section 16 provides for this. The arbitral tribunal will not only rule on the width of his jurisdiction but also goes to the very root of his jurisdiction. There would, therefore, be no impediment in contending before the arbitral tribunal that he had been wrongly constituted.