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2002 DIGILAW 328 (KAR)

Secretary to Government of India v. Vivekananda

2002-05-29

R.GURURAJAN

body2002
ORDER R. Gururajan, J.--The Government of India, is for a change, the Petitioner in this case and it is challenging the order dated 16/22.3.2001 passed in CMP No. 75 of 2000 by this Court appointing Sri B.S. Ramakanth, a retired District Judge as a sole arbitrator in place of Sri B.R. Prabhakara appointed vide GO dated 25th May/7th June, 2000 vide Annexure-G1 and Notification dated 5.8.2000 vide Annexure-H. The Government also seeks a declaration declaring that the appointment of an arbitrator in terms of an order dated 25th May/7th June, 2000 is valid and legal in terms of the National Highways Act, 1956 (for short 'the Act'). The facts in brief are as under: 2. The Petitioner, Vivekananda is the owner of commercial land bearing Sy. No. 81/A of Ayodhya Village in Hubli Taluk, Dharwad District. His lands were acquired under the National Highways Act for building, maintenance and operation of Bypass road between Hubli and Dharwad. The Special Land Acquisition Officer, Dharwad passed an award awarding a compensation of Rs.70,000/- per gunta for 1-11-31/2 acres. An agreement was entered into between the Petitioner and the Special Land Acquisition Officer on 7.4.1999 under which pending passing of the award for the compensation for the acquired land possession was delivered to the Union of India. The Petitioner reserved liberty to refer the matter to the Arbitrator, in case the owner is dissatisfied with the determination of the amount by the Competent Authority. 3. As mentioned earlier, an award has been passed by the Arbitrator and the Petitioner was dissatisfied with the same. On 9.3.2000, M/s. Nandi Highway Developers Limited, wrote a letter to the Government of India seeking appointment of an arbitrator to reduce the compensation. The Government of Karnataka in terms of a letter dated 12.5.2000 recommended the appointment of an arbitrator on the basis of M/s. Nandi Highway's letter. On 17.5.2000, two names were suggested by the Government of India in the order of priority. On 25.5.2000, the Government of Karnataka addressed a letter to B.R. Prabhakara conveying the approval to appoint him as an arbitrator. On 10.6.2000, the Petitioner-Sri Vivekananda Gabbur through his Counsel sought for appointment of an arbitrator for enhancing the compensation of the land acquired. On 11.10.2000, the Petitioner filed CMP 75 of 2000 under Section 11(5) of the Arbitration Act. On 25.5.2000, the Government of Karnataka addressed a letter to B.R. Prabhakara conveying the approval to appoint him as an arbitrator. On 10.6.2000, the Petitioner-Sri Vivekananda Gabbur through his Counsel sought for appointment of an arbitrator for enhancing the compensation of the land acquired. On 11.10.2000, the Petitioner filed CMP 75 of 2000 under Section 11(5) of the Arbitration Act. On 5.12.2000, the Government of India wrote a letter to the Counsel stating that it has approved the name of B.R. Prabhakara as an Arbitrator. On 10.8.2000 a Gazette Notification was issued appointing B.R. Prabhakara, as an Arbitrator. 4. The Petitioner as mentioned earlier, moved this Court on 11.10.2000, admittedly, after the notification dated 10.8.2000 appointing Sri B.R. Prabhakara as an Arbitrator. Proceedings were also held before him and the jurisdictional issue was also raised and the same was rejected by him. 5. The Petitioner as mentioned earlier filed CMP No. 75 of 2000 seeking for appointment of a sole Arbitrator from among the members in the panel of Arbitrators of Indian Council of Arbitration, New Delhi or any other person from the list enclosed in the interest of justice and equity. 6. Notice was issued in C.M.P. and the Respondents entered appearance. They have filed a statement of objection. They say that the lands were taken possession in terms of an agreement dated 7.4.1999. They refer to a representation on 10.6.2000, Annexure 'R1'. Government of India, according to them appointed an Arbitrator on 19.5.2000, in terms of Annexure 'R2'. State Government issued an order on 5.8.2000 appointing an Arbitrator in terms of Annexure 'R3'. Communication was sent to the Petitioner by the Government on 5.12.2000. They say that the Petitioner's grievance has been satisfied. They also refer to the proceedings on 30.10.2000 in this regard. They wanted the petition to be dismissed. 7. The nominee of the Chief Justice (A learned Judge of this Court) heard the matter and after hearing, he has now passed an order dated 16th March, 2001. In the said order, the nominee of the Chief Justice has ruled that the appointment of an Arbitrator is unsustainable in law in terms of Section 3(G)5. The nominee has also ruled that Annexure 'R2', a letter dated 19.5.2000 is merely a letter from the Central Government approving for an appointment of an Arbitrator from the two names. The State Government has appointed an Arbitrator on 6.8.2000. The nominee has also ruled that Annexure 'R2', a letter dated 19.5.2000 is merely a letter from the Central Government approving for an appointment of an Arbitrator from the two names. The State Government has appointed an Arbitrator on 6.8.2000. A letter dated 5.12.2000 is long after the filing of the petition on 10.10.2000. According to the learned nominee in terms of Section 11, the Government ceases to have power and therefore the nominee has jurisdiction to appoint an Arbitrator. In this view of the matter, the nominee of the Chief Justice (A learned Judge of this Court) has appointed Sri B.S. Ramakanth, a Retired District Judge as an Arbitrator. 8. Aggrieved by this order, the Petitioner is before this Court. They have filed several Annexures along with the petition. They say in the petition that the order of the nominee requires my interference. They say that the said order runs counter to an appointment already made by the Government. They also say in terms of Section 11, the Court could not have interfered with the matter. 9. Notice was issued in Writ Petition pursuant to which the Respondents have entered appearance. They have filed a detailed statement of objection in Writ Petition and they say that the order is fully justified on the facts of this case. They refer to Section 11 in particular, to contend that the Government having failed to appoint within the stipulated period, the nominee has every power and jurisdiction to appoint an Arbitrator. They further say that the contentions as raised by the Petitioner in this petition can as well be raised before the Arbitrator. 10. The Petitioner in Writ Petition is represented by Sri N. Devadas, learned Senior Counsel appearing for Union of India. He took me through the pleadings to contend that the order passed in the case on hand require my interference. His primary argument is that Section 11(6) has to be read along with other provisions of the Act. A reading of the entire provision of Section 11 along with the material documents would show that no case is made out by the Respondents for appointment of an Arbitrator. He also says that the Respondents have already suffered an order at the hands of an Arbitrator. A reading of the entire provision of Section 11 along with the material documents would show that no case is made out by the Respondents for appointment of an Arbitrator. He also says that the Respondents have already suffered an order at the hands of an Arbitrator. He also refers to the material documents to contend that there is a valid appointment in terms of the Act and that order is not challenged by the Respondent. 11. Per contra, the Counsel for the Respondents, with equal vehemence contends that the facts of the case would show that the Court (learned nominee) rightly appointed the Arbitrator. They refer to the provisions of Section 11 to contend that the order is perfectly justified on the facts of this case. They further say that a remedy of writ is not available to the Petitioner. They refer to several judgments. This Court places on record its appreciation with regard to the interesting arguments advanced by both the Counsels for several days. Both the Counsels have taken this Court through various provisions in respect of their contentions. 12. In the light of the contentions of the parties, according to me, three questions emerge for my consideration. They are: 1. Writ remedy. 2. Jurisdiction of this Court. 3. Scope of Section 11(6) I. Writ Remedy The Arbitration and Conciliation Act of 1996 is a subsequent development of the earlier Arbitration Act, 1940. The new Act has come into force in the light of the United Nations Commission on International Trade Law and the subsequent adoption of the UNCITRAL Conciliation Rules. The General Assembly of the United Nations has recommended the use of the said Rules in cases where a dispute arises in the context of international commercial relations. The preamble states that it is expedient to make law respecting arbitration and conciliation, taking into account, the aforesaid Model Law and Rules. Chapter I provides for General Provision. Chapter II provides for an agreement. Chapter III provides for Composition of Arbitral Tribunal. Jurisdiction of an Arbitral Tribunals is available in Chapter IV and, Conduct of Arbitral Proceedings can be noticed in terms of Chapter V. Chapter VI deals with Making an Arbitral award and termination of proceedings and, Chapter VII naturally deals with the Recourse against Arbitral award. Appeal remedy is also shown in Chapter IX. Miscellaneous is shown in Chapter X. 13. Appeal remedy is also shown in Chapter IX. Miscellaneous is shown in Chapter X. 13. A reading of these provisions of the Act would show that it is a self contained Act. Court providing for arbitration in the light of the subsequent developments in the arbitration matters. In the case on hand, we are concerned only with regard to the composition of arbitrator. 14. Section 11 provides for appointment of Arbitrators. In terms of Sub-section (4) of Section 11, if the appointment procedure in Sub-section (3) applies, if a party fails to appoint an Arbitrator within 30 days, the appointment can be made upon a request of a party by the Chief Justice or any person or Institution designated by him. (underlining is mine). Sub-section (5) provides for appointment of an Arbitrator by the Chief Justice or any person or authority designated by him. These Sub-sections deals with appointment procedure in this regard. Sub-section (7) provides for a decision of the nominee of the Chief Justice of India finally in the matter. 15. In the case on hand, the Hon'ble Chief Justice has nominated one of the learned Judges of this Court as a nominee in terms of the Act. The nominee of the Chief Justice has now passed an order appointing Sri B.S. Ramakanth as an Arbitrator instead of Sri B.R. Prabhakar. There were difference of opinion with regard to the scope of the power of this Court under Article 226 of the Constitution of India in the matter of arbitration proceedings. 16. The Constitution Bench of 5 learned Judges of the Supreme Court in the famous case of Konkan Railway Corporation Ltd. and Another Vs. Rani Construction Pvt. Ltd., AIR 2002 SC 778 , has categorically ruled in unmistakable terms that the order of the Hon'ble Chief Justice (A learned Judge of this Court) under Section 11 nominating an Arbitrator is not an adjudicatory order and the Chief Justice or his designate is not a Tribunal. Such an order cannot properly be made the subject of a petition specially to appeal under Article 136 of the Constitution. They have confirmed the earlier three Judges Bench in Konkan Railway Corporation's case. In the earlier Konkan Railway Corporation case, the Apex Court has ruled that writ is a remedy in such cases. Such an order cannot properly be made the subject of a petition specially to appeal under Article 136 of the Constitution. They have confirmed the earlier three Judges Bench in Konkan Railway Corporation's case. In the earlier Konkan Railway Corporation case, the Apex Court has ruled that writ is a remedy in such cases. In the light of the judgment of the Supreme Court in Konkan Railway Corporation writ is a remedy in such cases. In the light of the judgment of the Supreme, it cannot be said that a writ petition does not lie against an order passed by the nominee appointing an Arbitrator in terms of Section 11(6) of the Act. Therefore, I have no hesitation in holding that the petition filed by the Respondents is maintainable. The question as to whether this Court can grant a relief or not is considered in the subsequent paragraphs. II. Scope of Section 11(6): 17. To understand the scope of Section 11, it is necessary to quote the very provision. Appointment of arbitrators.- (1) A person of any nationality may be an arbitrator, unless otherwise agreed by the parties. (2) Subject to Sub-section (6), the parties are free to agree on a procedure for appointing the arbitrator or arbitrators. (3) Failing any agreement referred to in Sub-section (2), in an arbitration with three arbitrators, each party shall appoint one arbitrator, and the two appointed arbitrators shall appoint the third arbitrator who shall act as the presiding arbitrator. (4) If the appointment procedure in Sub-section (3) allies and- (a) a party fails to appoint an arbitrator within thirty days from the receipt of a request to do so from the other party; or (b) the two appointed arbitrators fail to agree on the third arbitrator within thirty days from the date of their appointment; the appointment shall be made, upon the request of a party, by the Chief Justice or any person or institution designated by him. (5) Failing any agreement referred to in Sub-section (2), in an arbitration with a sole arbitrator, if the parties fail to agree on the arbitrator within thirty days from receipt of a request by one party from the other party to so agree the appointment shall be made, upon request of a party, by the Chief Justice or any person or institution designated by him. (6) Where, under an appointment procedure agreed upon the parties, (a) a party fails to act as required under that procedure; or (b) the parties, or the two appointed arbitrators, fail to reach an agreement expected of them under that procedure; or (c) a person, including an institution, fails to perform any function entrusted to him or it under that procedure; a party may request the Chief Justice or any person or institution designated by him to take the necessary measure, unless the agreement on the appointment procedure provides other means for securing the appointment. (7) A decision on a matter entrusted by Sub-section (4) or Sub-section (5) or Sub-section (6) to the Chief Justice or the person or institution designated by him is final. (8) The Chief Justice or the person or institution designated by him, appointing an arbitrator, shall have due regard to- (a) any qualifications required of the arbitrator by the agreement of the parties; and (b) other considerations as are likely to secure the appointment of an independent and impartial arbitrator. (9) In the case of appointment of sole or third arbitrator in an international commercial arbitration, the Chief Justice of India or the person or institution designated by him may appoint an arbitrator of a nationality other than the nationalities of the parties where the parties belong to different nationalities. (10) The Chief Justice may make such scheme as he may deem appropriate for dealing with matters entrusted by Sub-section (4) or Sub-section (5) or Sub-section (6) to him. (11) Where more than one request has been made under Sub-section (4) or Sub-section (5) or Sub-section (6) to the Chief Justices of different High Courts or their designates, the Chief Justice or his designate to whom the request has been first made under the relevant Sub-section shall alone be competent to decide on the request. (12) (a) where the matters referred to in Sub-sections (4), (5), (6), (7), (8) and (10) arise in an international commercial arbitration, the reference to "Chief Justice" in those Sub-sections shall be construed as a reference to the "Chief Justice of India". (12) (a) where the matters referred to in Sub-sections (4), (5), (6), (7), (8) and (10) arise in an international commercial arbitration, the reference to "Chief Justice" in those Sub-sections shall be construed as a reference to the "Chief Justice of India". (b) Where the matters referred to in Sub-sections (4), (5), (6), (7), (8) and (10) arise in any other arbitration, the reference to "Chief Justice" in those Sub-sections shall be construed as a reference to the Chief Justice of the High Court within whose local limits the principal Civil Court referred to in Clause (e) of Sub-section (1) of Section 2 is situate and, where the High Court itself is the Court referred to in that clause, to the Chief Justice of that High Court. 18. In the case on hand, what is required to be seen is as to whether a proper petition is filed in terms of Section 11(4), (5) and (6) of the Arbitration and Conciliation Act. As mentioned earlier, Sub-section (4) and Sub-section (6) refers to an appointment procedure between the parties. In the case on hand, an agreement dated 7th April, 1999 provides for Clause 4 with regard to the Arbitration. The said clause reads as under: The owner/s shall be at liberty to refer the matter to the arbitrator in case the owner/s is/are not satisfied with the amount determined in terms of the compensation. 19. It is mentioned before me that there are two Arbitration matters. From the materials available on record it is seen that M/s. Nandi Highways sought for an appointment of an Arbitrator under Sub-section (5) of Section 3G. It is also seen that the competent authority had passed an award in the month of February, 2000. Thereafter, on 14th March, 2000, M/s. Nandi Highways has made a letter to the Government with regard to the appointment of an Arbitrator under Section 3(G)5. The Government of India in terms of a letter dated 5th May, 2000 has requested the Director General to appoint an Arbitrator. On 11.5.2000, the Government of India sought for views of the State Government. Government of Karnataka has suggested appointment of an Arbitrator already suggested by M/s. Nandi Highways Developers Limited, Government of India has approved Sri Guruswamy and Sri B.R. Prabhakara to be the Arbitrators. On 11.5.2000, the Government of India sought for views of the State Government. Government of Karnataka has suggested appointment of an Arbitrator already suggested by M/s. Nandi Highways Developers Limited, Government of India has approved Sri Guruswamy and Sri B.R. Prabhakara to be the Arbitrators. Thereafter, the Government of Karnataka has written a letter on 7th June to Sri B.R. Prabhakara stating that the Government of India has conveyed its approval to appoint him as an Arbitrator. Thereafter, the State Government has issued a notification dated 5th August, 2000. Proceedings have also been held before the authorities. The Government also has clarified that it has already appointed Sri B.S. Prabhakar on 19.5.2000. From the facts placed before this Court, what is clear to this Court is that the Central Government has taken a decision to appoint Sri B.R. Prabhakar as an Arbitrator. In fact, the proceedings were also held before him and these very objections were raised before him and the same has been rejected in terms of Annexure 'N'. The nominee of the Chief Justice in the impugned order has ruled that the Central Government has not appointed any arbitrator in terms of Annexure 'R2'. Even with regard to the appointment of Sri Prabhakar, the learned nominee holds that it is not with reference to the Petitioner's case. A letter dated 5.12.2000 is long after 10.10.2000. According the learned nominee, if a party fails to appoint within 30 days, the Chief Justice can nominate in terms of Section 11(5). To notice the correctness of this finding, let me see as to whether a procedure in terms of Section 11 is followed or not by the parties. 20. A reading of Section 11 would show that subject to Sub-section (6), parties are free to agree on a procedure for appointing an arbitrator. Sub-section (3) refers to an agreement referred to in Sub-section (2). The agreement is referable with regard to the procedure for appointment of an arbitrator. Sub-section (4) again refers to an appointment procedure in Sub-section (3), as I see from the provision. In the event of the failure to appoint an arbitrator within 30 days in terms of the procedure a request can be made by a party to the Chief Justice. Sub-section (5) again deals with an agreement as referred to in Sub-section (2). Sub-section (4) again refers to an appointment procedure in Sub-section (3), as I see from the provision. In the event of the failure to appoint an arbitrator within 30 days in terms of the procedure a request can be made by a party to the Chief Justice. Sub-section (5) again deals with an agreement as referred to in Sub-section (2). Sub-section (6) again refers to an appointment procedure agreed upon by the party and a failure to act as required under that procedure would result in a request to the Chief Justice for appointment of an Arbitrator. Sub-section (6) again refers to an appointment procedure. A combined reading of these provisions would show that only in the event of failure to act in terms of the procedure as agreed upon by the parties, in terms of an agreement, a party gets a right to move the Chief Justice for appointment of an Arbitrator. 30 days limitation would also be available only if an appointment procedure applies to the facts of this case. The thrust of the provision is an appointment procedure, in terms of the agreement. Logically speaking, there is some relevance with regard to the appointment procedure. Arbitration is always by mutual agreement. Only when there is a failure, parties are to avail a remedy in terms of Section 11. A reading of Section 11 would show that a remedy under Section 11 is not available to a party in the event of no appointment procedure in terms of the Act. The period of limitation of 30 days also is not applicable providing for a jurisdiction to the nominee of the Chief Justice (A learned Judge of this Court). In the case on hand, let me see as to whether any appointment procedure is available to the parties and let me see as to whether any party has failed to act in accordance with that procedure. Parties have filed an agreement and parties do agree that the said agreement provides for arbitration. A reading of the agreement would show that no procedure is prescribed under the agreement. Therefore, in the absence of any appointment procedure in terms of an agreement, a right to move the Chief Justice in terms of Section 11 is not available to a party in such cases. A reading of the agreement would show that no procedure is prescribed under the agreement. Therefore, in the absence of any appointment procedure in terms of an agreement, a right to move the Chief Justice in terms of Section 11 is not available to a party in such cases. In the case on hand, in the impugned order, the learned Judge has allowed the application on the ground of failure to appoint within 30 days in terms of Section 11 of the Act. As I mentioned earlier, the very jurisdiction of this Court is not available in the absence of an appointment procedure in terms of an agreement to the Respondent. Consequently, 30 days time is also not available to the Respondent in this case. The entire order is based on the failure to appoint within 30 days resulting in setting aside the appointment already made by the Central Government. This finding in my view runs counter to the principles enunciated in terms of Section 11 of the Act. Therefore, the order of the learned Nominee Judge of this Court requires an interference. Moreover, the Respondents could not have invoked the jurisdiction in the absence of any failure to follow the appointment procedure in terms of an agreement. Therefore, Sri Devadas, learned Counsel, is right in his submission that the impugned order requires my interference in terms of the Act. In this connection, it is relevant to notice the judgment cited by Sri Devadas, learned Counsel on behalf of the Central Government. The Supreme Court in the case of Tata Engineering and Locomotive Co. Ltd. Vs. The State of Bihar and Anr., (2001) 1 BLJR 245 , has considered the principles of interpretation of Statute. The Supreme Court in para 15 has ruled as under: Statutes, it is often said, should be construed not as theorems of Euclid but with some imagination of the purposes which lie behind them and to be too literal in the meaning of words is to see the skin and miss the soul. The method suggested for adoption, in cases of doubt as to the meaning of the words used is to explore the intention of the legislature through the words, the context which gives the colour, the context, the subject-matter, the effects and consequences or the spirit and reason of the law. The method suggested for adoption, in cases of doubt as to the meaning of the words used is to explore the intention of the legislature through the words, the context which gives the colour, the context, the subject-matter, the effects and consequences or the spirit and reason of the law. The general words and collocation or phrases, howsoever wide or comprehensive in their literal sense are interpreted from the context and scheme underlying in the text of the Act. The decision in Utkal Contractors and Joinery (Private) Limited, case also emphasises the need to construe the words in a provision in the context of the scheme underlying the other provisions of the Act as well, which ultimately was considered to be in tune with the object set out in the statement of the Objects and Reasons and in the Preamble. Apart from the fact that the observations contained in the decision have to be understood in the light of the issue raised and exercise undertaken by the Court therein, the fallacy in the submission on behalf of the Appellant lies though not in the principles of construction to be adopted but in the assumption of the Counsel to confine or restrict and construe the law in question to be one made to regulate the trade of sawing, contrary to the very Preamble which reads, to make provisions for regulating in the public interest the establishment and operation of sawmills and saw-pits and trade of sawing for the protection and conservation of forest and the environment. 21. The object of the Act, as I see from the preamble is to consolidate and amend the law relating to domestic arbitration, international commercial arbitration etc. The object is to see that parties themselves appoint an arbitrator in terms of an agreement. Only failure would result in approaching this Court. The intention of the Legislature in the light of the appointment procedure at several places in Section 11 would indicate that only when there is a failure to act in terms of an appointment procedure a remedy of an application to this Court is available. Since in the case on hand, there is no procedure, in terms of the agreement and hence a petition under Section 11 could not have been entertained by this Court. Since in the case on hand, there is no procedure, in terms of the agreement and hence a petition under Section 11 could not have been entertained by this Court. Looking from any angle, in the light of the principle of statutory interpretation, the object of the act and the relevant wordings in the section, the very petition filed by the Respondent is not maintainable. Therefore, the impugned order providing for Sri Ramakanth as an Arbitrator on the ground of lapse of 30 days require my interference and I do so in the case on hand. 22. It is necessary to observe that in the event of the Petitioner- Government not appointing the Arbitrator, parties have a remedy of a writ to this Court for compelling the Government to act in terms of the Act as rightly argued by Sri Devadas, learned Counsel. Relief: 23. Sri Subba Rao, learned Counsel contends before me that a relief is available to the Petitioner under the Act. According to the Counsel, this Court must direct the Government to raise these pleas before the Arbitrator appointed by the nominee in terms of various decisions. According to the Counsel, though a writ may be available still discretion has to be exercised against the Petitioner. He relies on several judgments. 24. The Supreme Court in the case of Konkan Railway Corporation Limited and Ors. Vs. Mehul Construction Co., has confirmed the judgment of the M/s. Konkan Railway Corpn. Ltd. and Anr. Vs. M/s. Rani Construction Pvt. Ltd., 2000 (7) SCALE 211 , the Supreme Court has ruled that the order passed by the Chief Justice or his nominee is an administrative order and a writ is maintainable. The Counsel for the Respondents relies on Smt. Rukmanibai Gupta Vs. Collector Jabalpur and Others, AIR 1981 SC 479 , Rail India Technical and Economic Services Ltd. and another Vs. Vidyawati Construction Co. and others, AIR 2001 All 259 , Union of India and another Vs. Chief Justice of High Court of Judicature at Allahabad and others, AIR 2001 All 267 and M/s. Konkan Railway Corpn. Ltd. and Anr. Vs. M/s. Rani Construction Pvt. Ltd., 2000 (7) SCALE 211 . 25. Smt. Rukmanibai Gupta Vs. Collector Jabalpur and Others, AIR 1981 SC 479 the Supreme Court in para 10 has ruled that the Arbitration Act of 1940 is a self contained and exhaustive code. Ltd. and Anr. Vs. M/s. Rani Construction Pvt. Ltd., 2000 (7) SCALE 211 . 25. Smt. Rukmanibai Gupta Vs. Collector Jabalpur and Others, AIR 1981 SC 479 the Supreme Court in para 10 has ruled that the Arbitration Act of 1940 is a self contained and exhaustive code. Relief sought by the Appellant by invoking extraordinary jurisdiction of the High Court under Article 226 could have been obtained by proceeding in accordance with the relevant provisions of the Arbitration Act. If the High Court declined to entertain the petition, no exception can be taken to it. The writ jurisdiction of the High Court under Article 226 is not intended to facilities avoidance of obligation voluntarily incurred. This judgment is not applicable to the facts of this case. In that case, the Supreme Court was considering a Writ Petition filed by one Sri Rukmanibai Guptha under Article 226 notwithstanding availability of arbitration proceedings. In the context of those facts, the Supreme Court ruled that writ remedy is not available to the Petitioner in that case. The present facts of this case stand on a different footing. Moreover, the Supreme Court in the subsequent judgment in Konkan Railways has categorically ruled that against an order passed by the nominee, writ can be entertained. 26. Datar Switchgears Ltd. Vs. Tata Finance Ltd. and Anr., 2000 (7) SCALE 204 is a case that arose under Section 11(6) of the 1996 Arbitration Act. In the case on hand, I have already ruled that no appointment procedure is available and therefore, the party cannot move this Court under Section 11 of the Act. The said judgment is distinguishable on facts. 27. Allahabad High Court in two judgments reported in AIR 2000 All 259 and Union of India and another Vs. Chief Justice of High Court of Judicature at Allahabad and others, AIR 2001 All 267 has ruled that in the event of an appointment of an arbitrator party can as well raise all pleas before the arbitrator and discretion is not to be exercised in such matters. In the normal circumstances, the discretion could not have been exercised but when the very application filed by a party is without jurisdiction, this Court can certainly entertain a petition, the appointment of an arbitrator by the learned Nominee is a nullity in terms of Section 11. In the normal circumstances, the discretion could not have been exercised but when the very application filed by a party is without jurisdiction, this Court can certainly entertain a petition, the appointment of an arbitrator by the learned Nominee is a nullity in terms of Section 11. Therefore, the argument of raising this objection before the Arbitrator is of no consequence in the light of my finding Point No. 2. 28. In these circumstances, I am unable to accept the argument of the Respondents that notwithstanding lack of jurisdiction, this Court has to refuse to exercise the discretion. Therefore, this argument of the Respondent is rejected. 29. In the case on hand, it is also to be noticed that the Respondent himself has appeared before Sri Prabhakar, learned Counsel and has raised objections with regard to his appointment of an arbitrator by the Central Government and an adverse order has been obtained. That order remains not challenged. By the impugned order the earlier order of the Arbitration remains and it would result in unnecessary confusion. This is also a fact that requires consideration by this Court. 30. In these circumstances, and on the peculiar facts and circumstances of this case, I allow this petition and set aside the order passed by the nominee of this Court. Liberty is reserved to agitate their respective contentions not considered by me in accordance with law and in a manner known to law. 31. Ordered accordingly. No costs.