JUDGMENT Amaresh Roy, J. This Rule was issued upon an application under Sec. 115 of the Code of Civil Procedure and was directed against an order passed by the learned Subordinate Judge of Alipore on 6th February, 1971 in Misc. Case No. 39 of 1970 dismissing Misc. case by rejecting the petition upon which it was started. That Misc. case commenced on an application filed by Messrs. A.K. Ghose and Brothers, registered firm under Sec. 8 of the Arbitration Act of 1940 praying for appointment of a suitable arbitrator over the disputes arising between the petitioner and the State of West Bengal under Cl. 25 of the conditions of a contract between parties in W. B. Form No. 2911 (ii) in respect of Tender No. 81 of 1960-61. The relevant facts are that the Superintendent Engineer, Western Circle, Public Works Department, Government of West Bengal issued an advertisement inviting tenders for construction of District Hospital at Bankura with provision for 151 beds for patients therein. In response to the advertisement the petitioner Messrs. A. K Ghose and Brothers submitted tender and deposited the requisite earnest money. That tender was accepted and the petitioner commenced and completed the work by 30th April, 1963. During the progress of the work the petitioner claimed to have executed several extra and/or additional works not mentioned and described in the original tender contract. This is said to have been done under instruction given by the Engineer-in-charge to whom the rates in respect of such extra or additional works are said to have been submitted. In October, 1966 on examining the final bill prepared by the Department the petitioner noticed that substantial portion of their claim made in supplementary tenders and/or bills were not included in the said final bill as having been disallowed. The petitioner however signed the final bill and received the amount allowed in the said final bill on 6th October, 1966. But that was without prejudice to their rights and claims. The petitioners were informed by the Executive Engineer, Bankura Division, P.W.D. by letter dated 30th September. 1967 that their claim could not be entertained It is contended that disputes having thus arisen between the parties within the meaning of Cl. 25 of the condition of contract the petitioner by letter dated 20th September, 1968 requested the Chief Engineer to refer the said dispute to his arbitration as the sole Arbitrator. 1967 that their claim could not be entertained It is contended that disputes having thus arisen between the parties within the meaning of Cl. 25 of the condition of contract the petitioner by letter dated 20th September, 1968 requested the Chief Engineer to refer the said dispute to his arbitration as the sole Arbitrator. Though he received that letter on 23rd September, 1968 the Chief Engineer did not comply with the request. The petitioners then by letter 4th June, 1969 informed the Chief Engineer that they are desirous of appointing an arbitrator from any retired Judge in the rank of the District Judge and gave notice to concur within 15 days from the date of the receipt of the letter. As no reply was received the petitioner again served upon the Chief Engineer a notice dated 23rd January 1970. But the Chief Engineer did not appoint any arbitrator within 15 days after the service of the said notice. On those allegations the petitioners filed an application on 2nd May, 1970 in the Court of the Subordinate Judge at Alipore under Sec. 8 of the Arbitration Act, 1940. That application was numbered as Misc. Judicial Case No. 39 of 1970 The application was opposed on behalf of the State of West Bengal by filing a written objection contending therein that by virtue of Cl. 25 of the condition of contract between the parties the Chief Engineer, P. W. D. has already appointed on 8th July, 1970 Shri S. N. Banerjee, Additional Chief Engineer, P.W.D. to act as the Arbitrator and opposite party had been duly informed of that appointment. For that reason the State of West Bengal contended that the application under Sec. 8 of the Arbitration Act should be rejected. 2. The learned Subordinate Judge in his order No. 13 dated 6. 2. 71 by which order he has rejected the application of the petitioners under Sec. 8 of the Arbitration Act-has noticed that the averments of the petition have not been controverted or disputed by the State of West Bengal and the proper decision of the matter depends on the true import of Cl. 25 of the Contract and also on the effect of the provision of law , in Sec. 8 of the Arbitration Act. 3. CI. 25 of the Contract and also on the effect of the provision of law , in Sec. 8 of the Arbitration Act. 3. CI. 25 is in these terms ;- "Except where otherwise provided III the contract all questions and disputes relating to the meaning of the specifications, designs, drawings and instructions hereinbefore mentioned and as to the quality of workmanship or materials used on the work or as to any other question, claim, right, matter or thing whatsoever, in any way arising out of or relating to the contract, designs, drawings,• specifications, estimates, instructions, orders or those conditions, or otherwise concerning the works, or the execution or failure to execute the same, whether arising during the progress of the work, or after the completion or abandonment thereof shall be referred to the sole arbitration of the Chief Engineer of the Deptt. Should the Chief Engineer be for any reason unwilling or unable to act as such arbitrator such questions or disputes shall be referred to an arbitrator to be appointed by the Chief Engineer. The award of the arbitrator shall be final, conclusive and binding on all parties to this contract. It is an agreement for arbitration, in case a dispute arises and it is also an agreement that by consent of parties the sole arbitrator will be the Chief Engineer or his nominee. 4. The learned Subordinate Judge appears to have proceeded on the view, and before us the contention was raised on behalf of the opposite party supporting that view, that CI. 25 bears, the meaning that by that Clause itself Chief Engineer has already been appointed an arbitrator. We cannot accept that view because existence of the dispute and consent of parties are necessary before appointment of arbitrator can be mage in fact. That clause in the contract cannot be given the meaning that when any dispute having arisen in fact and when consent of both the parties to the contract by the terms of that clause in the contract the Chief Engineer has been "ipso facto" appointed the arbitrator. 5. It is undisputed that notice was given by the petitioners to the Government of West Bengal in 1968 for signifying consent for appointment of Chief Engineer as arbitrator. That consent not having been communicated to the petitioners within 15 days of that notice, CI. (a) Sec. 8 (1) of the Act is applicable. 5. It is undisputed that notice was given by the petitioners to the Government of West Bengal in 1968 for signifying consent for appointment of Chief Engineer as arbitrator. That consent not having been communicated to the petitioners within 15 days of that notice, CI. (a) Sec. 8 (1) of the Act is applicable. The notice given by the petitioners in 1969 assumes that Chief Engineer having been appointed arbitrator was not willing to act as such, if it were so Cl. (b) of Sec. 8 (I) might be applicable. But that assumption is wrong in fact. Because Government of West Bengal not having consented the Chief Engineer was not in fact, at any time, appointed as arbitrator. 6. The learned Subordinate Judge noticed in the impugned order that the purported appointment of the Additional Chief Engineer as sole Arbitrator made by 8th July, 1970 was a delayed action. But he thought that the delay in making the appointment by the Chief Engineer should be condoned. In support of that view, the learned Subordinate Judge referred to a decision of the Punjab High Court in the case of Union of India v Messrs. New India Construction, New, Delhi reported in A.I.R. 1955 Punjab at 172. It is true that it has been held in that case that the words in CI. (2) of Sec. 8 of the Arbitration Act saying that "the Court may appoint" does not mean that the Court must appoint an arbitrator and the use of the word "may" imply that the discretion is given to that Court and that discretion has to be exercised properly and not arbitrarily. In the case before us however no question under sub-sec (2) of sec. 8 of the Arbitration Act is arising. The present case really comes within Cl. (a) of sub-sec. 1 of sec. 8 and the terms of Cl. 25 of the contract. The consent that is necessary under CI. 25 has never been given by the State of West Bengal and that being so what is wanting is a consent by the State of West Bengal to appoint Chief Engineer or his nominee according to the Agreement in CI. 25. So no question of condoning delay arises in the present case. The consent that is necessary under CI. 25 has never been given by the State of West Bengal and that being so what is wanting is a consent by the State of West Bengal to appoint Chief Engineer or his nominee according to the Agreement in CI. 25. So no question of condoning delay arises in the present case. Even if it would be relevant the delay in the present case being more than two years could not and should not be properly condoned as a matter of judicial discretion. 7. Even at that, the appointment of the Additional Chief Engineer as the sale arbitrator as sought to be made by the Chief Engineer and relied on by the opposite party before us was only on 8th July, 1970 which was long after the application to Court had been made by the petitioners in Feb. 1970. That application having been made and the Misc. Judicial case having been registered the Court was in seisin under sec. 8 of the Arbitration Act' and has jurisdiction to make order under that section. That jurisdiction cannot be taken away or affected in any manner by the action of the Chief Engineer in July, 1970 whether that action was purposefully or inadvertently after long delay. 8. For these reasons we hold that the Learned Subordinate Judge has failed to exercise his jurisdiction under sec. 8 of the Arbitration Act. He has also acted illegally in exercise of his jurisdiction under sec. 8 in so far as he has assumed that by CI. 25 of the Agreement itself the Chief Engineer had been appointed as arbitrator and his omission to reply to the notice or letters would be construed to mean that he declined to act as arbitrator which is necessary to bring the case within Cl. (b) of sub-sec. (2) of sec. 8. Not only, so, the learned Subordinate Judge has not exercised discretion judicially because by condoning what he thought to be mere delay he has subordinated jurisdiction of the Court under sec. 8 of the action of the Chief Engineer long after the Court was in seisin of the judicial matter. This is therefore a fit case in which revisional powers of this Court should be exercised by setting aside the order of the learned Subordinate Judge. 9. The Rule is therefore made sub-solute. 8 of the action of the Chief Engineer long after the Court was in seisin of the judicial matter. This is therefore a fit case in which revisional powers of this Court should be exercised by setting aside the order of the learned Subordinate Judge. 9. The Rule is therefore made sub-solute. The order of the learned Subordinate Judge rejecting the application and dismissing the Misc. Case is set aside. The learned Subordinate Judge will proceed to dispose of that application according to law in the light of the observations made above. The parties will be at liberty to take such action as they may be advised under CI. 25 of the Contract between them. There will be no order as to costs in this Rule. Ajoy Kumar Basu, J. :- I agree