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2. The petitioner is a Company incorporated under the Indian Companies Act, fully owned by the State Government having its head office at Bhopal. The agreement in question was executed between the petitioner and the Respondent No.2. Upon a dispute having been arisen between them, the Respondent No.2 invoked the Arbitration Clause No.44.3 of the Concession Agreement and appointed Hon'ble Mr. Justice Vikramjit Sen, Former Judge of the Supreme Court of India as its nominee arbitrator. The petitioner instead of appointing its arbitrator, raised a dispute that the matter is required to be adjudicated by the Arbitration Tribunal constituted under the Adhiniyam of 1983. Since the petitioner failed to appoint arbitrator as per Clause 44.3.2, the International Centre for Alternative Dispute Resolution, New Delhi having been empowered under Clause 44.3.1 of the Agreement by invoking Rule 5 of the ICADR Rules, appointed Shri Amarjit Singh Chandhiok as its nominee arbitrator. Both the arbitrators then nominated Hon'ble Mr. Justice A. K. Sikri, former Judge of Supreme Court of India as the Presiding Arbitrator. The petitioner thereafter filed an application before the Arbitral Tribunal under Section 16 of the Act of 1996 contending that it has no jurisdiction to decide the dispute between the parties and also contending that since the dispute between the parties under the Concession Agreement falls within the definition of 'works contract', therefore, in view of Clause 44.4 of the Signature SAN Not Verified 

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11. Shri Ranjeet Kumar, learned Senior Counsel argued that the petitioner's argument of bad faith is completely unsubstantiated and without any merit. Neither in the writ petition nor in the rejoinder the term 'bad faith' has ever been once used by the petitioner and no pleadings regarding the same have been made. It is denied that the appointment of Arbitrator has been made without reference to the petitioner and therefore is bad in law. It is submitted that Clause 44.3.1 of the Concession Agreement provides that the arbitration shall be held in accordance with the Rules of ICADR. Rule 5 of the ICADR Rules provides that in case a party fails to appoint an arbitrator within thirty days from receipt of request from the other party, the appointment shall be made by ICADR. The Respondent No.2 issued notice invoking arbitration clause on 6.7.2020. The petitioner did not appoint any arbitrator on its behalf within thirty days and therefore ICADR exercising its power under Rule 5 appointed Shri Amarjit Singh Chandhok, Senior Advocate, as arbitrator on behalf of the petitioner. It is submitted that Clause 44.4 of the Concession Agreement clearly contemplates a future situation. Clause 44.3 and 44.4 nowhere mentions about the M.P. Madhyasthan Act or the Arbitral Tribunal constituted thereunder for resolution of the dispute between the parties. On the contrary, the parties agreed for arbitration under ICADR Rules and the Act of 1996. The learned Arbitral Tribunal by the impugned order has therefore, rightly rejected the application filed by the petitioner in this behalf. The entire funding of the project on Built, Operate and Transfer basis of the national highway is covered by the National Highways Act, 1956 relatable to Entry 23 of the Seventh Schedule of the Constitution of India and that is also the stand of the Ministry of Road, Signature SAN Not Verified

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for Alternative Dispute Resolution, New Delhi, subject to the provisions of the Arbitration Act and that the venue of such arbitration shall be at Bhopal. If despite existence of the Arbitration Tribunal under the Adhiniyam of 1983, the parties have agreed for arbitration under the aegis of ICADR in accordance with the ICADR Rules and the Arbitration Act and consciously did not mention about existence of the arbitration tribunal established under the Adhiniyam of 1983, which then was already in existence, the petitioner cannot be permitted now to raise this plea. Clause 44.4 in any case, can be interpreted to cover a future situation as is evident from its wordings that "in the event of constitution of a statutory Regulatory Authority or Commission with powers to adjudicate upon disputes between the Concessionaire and the Authority, all Disputes arising after such constitution". Had the parties while entering into the agreement wanted to refer their future disputes to the Arbitration Tribunal constituted under the Adhiniyam of 1983, they would have most certainly mentioned about the same in Clause 44.3 or Clause 44.4 rather than wording these clauses in the manner they have been formulated.