KONKAN RAILWAY CORPORATION versus M/S. MEHUL CONSTRUCTION CO.

Citation: [2000] SUPP. 2 S.C.R. 563 · Decided: 21-08-2000 · Supreme Court of India · Bench: G.B. PATTANAIK · Disposal: Dismissed
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Judgment (excerpt)

KONKAN RAILWAY CORPORATION 
A 
v. 
MIS. MEHUL CONSTRUCTION CO. 
AUGUST 21, 2000 
[G.B. PATTANAIK, DORAISWAMY RAJU AND S.N. VARIAVA, JJ.) 
B 
Arbitration and Conciliation Act, 1996, s.11(6)-Nature of the order 
passed by Chi~( Justice or nominee appointing or r~fusing to appoint 
arbitrator-Held, order passed by Chief Justice or nominee in exercise of 
powers uls. 11(6) is administrative in nature; Chief Justice does not.function 
C 
as a court or tribunal and order passed is not amenable to jurisdiction of 
Supreme Court under Article 136 of the Constitution. 
Practice and Procedure-Arbitration and Conciliation Act, 1996, s.11(6)-
Remedy available against refusal by Chi~( Justice to appoint arbitrator-Held, 
it would be a case of non-performance of duty against which the High Court 
D 
could be approached for issuance of writ of mandamus-Constitution of India, 
Article 226. 
In these special leave petitions and a writ petition nnder Article 32 
against orders by the Chief Justices of the various High Courts or their 
nominees either refusing to appoint or appointing arbitrator in exercise of 
powers under s.11(6) of the Arbitration and Conciliation Act, 1996, two 
questions arose for determination : 
(1) What is the nature of the order that is passed by the Chief Justice 
or his nominee in exercise of powers u/s. 11(6) of the Act? and 
(2) Even if said order is held to be administrative in nature what is 
the remedy open against the refusal for appointment of an arbitrator? 
Dismissing the petitions, the Court 
HELD: 1.1. The order passed by the Chief Justice or his nominee is 
an administrative order. [571-A-B] 
1.2. The nature and function performed by the Chief Justice or 
his nominee under s.11(6) being essentially to aid the constitution of 
E 
F 
G 
the arbitral tribunal cannot be held to be a judicial function as otherwise 
H 
563 
564 
SUPREME COURT REPORTS 
[2000] SUPP. 2 S.C.R. 
A 
the legislature could have used the expression 'court' or 'judicial 
authority' instead or choosing the expression 'the Chief Justice or his 
nominee'. [569-G-H] 
1.3. An order refusing to appoint an arbitrator will not be amenable 
to the jurisdiction of the Supreme Court under Article 136 of the Constitu-
B 
tion. [571-B] 
Sundaram Finance ltd. v. NEPC India ltd., [1999] 2 SCC 479 and 
Ador Samia Private Ltd. v. Peekay Holdings Limited, [1999] 8 SCC 572, 
approved. 
C 
2.1. An order refusing to appoint an arbitrator would be an act of 
non-performance of duty. The aggrieved party has a remedy ,to approach 
the High Court for issuance of a writ of mandamus. [571-C] 
2.2. The Chief Justice not having functioned as a Court or Tribunal 
and the order being administrative in nature, the observations and find-
D 
ings are not binding and will not be taken into consideration by the 
arbitral tribunal, if an objection to validity or existence of arbitration 
agreement is taken before it. Such objection, if taken, shall be decided on 
its own merits. [571-G-H] 
CIVIL APPELLATE JURISDICTION : Special Leave Petition (C) Nos. 
E 
11522-11526 of 1999. 
F 
G 
From the Judgment and Order dated 14/21.8.98 of the Bombay High 
Court in Arbitration Application Nos. 13-17 of 1996. 
WITH 
SLP(C) No. 19549/99, W.P.(C) No. 81/2000 and SLP(C) Nos. 11317/99, 
12323/99, 8563/99 and 8581/99. 
Mukul Rohtagi, Additional Solicitor General. F.S. Nariman, S.K. Dholakia, 
Rajiv Dhawan, P.C. Markande, Gopal Subramaniam, Atul Y. Chitale, Ms. 
Suchitra A. Chitale, Sushi! Kumar Jain, A.P. Dhamija, Pradeep Aggarwal, 
Subhash Sharma, A. Mishra, Mrs. Kiran Bhardwaj, B.V. Bairam Das, Sushma 
Suri, S.W.A. Qadri, T.V. Ratnam, Anil Katiyar, Guru Krishna Kumar, Sri Kala 
Guru K. Kumar, S.R. Setia, K.V. Srcckumar and V. Prasad Rao for the appear-
ing parties. 
H 
The Judgment of the Court was delivered by 
KONKAN RAILWAY CORPN. v. MEHUL CONSTRUCTION CO. [PATTANAIK, J.] 
565 
PATTANAIK, J. In this batch of cases an important question arises for 
A 
consideration of this Court, namely, under the provisions of Arbitration and 
Conciliation Act, 1996, what should be the correct approach of the Chief 
Justice or his nominee in relation to the matter of appointment of an Arbitrator 
under Section 11(6) of the Act, and what is the true nature of the said order 
and further if a person is aggrieved by such order, can he file application in 
B 
a Court and whether such an application could be entertained and if so, in 
which forum? In Sundaram Finance Ltd. v. NEPC India Ltd., [1999
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