JUDGMENT Ashok Bhushan, J.—Heard Sri P. N. Rai learned counsel for the petitioner. 2. By this writ petition the petitioners have prayed for quashing the order dated 3.10.2004 passed by the sole Arbitrator disposing the application dated 22.5.2004 filed by the petitioners questioning the jurisdiction of the Arbitrator to proceed with the adjudication of the dispute between the parties. 3. Brief facts necessary for deciding the controversy raised in the writ petition are : U.P. State Bridge Corporation issued a tender notice inviting quotation/tenders for supply of Tor Steal Bars. The respondent No. 1 submitted his tender in response to the notice. By an order dated 12.11.1999 rate contract was given to the respondent No. 1 on the terms and conditions contained in the letter. After execution of the contract orders were given on behalf of the petitioners in pursuance of which respondent No. 1 supplied the materials for which certain payments were also made. Clause 15 of the terms and conditions under which the rate contract was awarded provided : "15. In case of any dispute arising out of the agreement or relative to any matter thereto whether during or after the expiration of the agreement, the same will be referred to sole arbitration of any person nominated by the Managing Director, U.P. State Bridge Corporation and the award of sole arbitrator given in such reference shall be final and binding to the parties to this agreement." 4. On 24.9.2000 respondent No. 1 wrote a letter requesting for payment of damages due to heavily reduced quantum of supply against the order. The copy of the letter dated 24.9.2000 has been annexed as Annexure-3 to the writ petition. After the receipt of the letter dated 24.9.2000 a letter dated 9.1.2001 was sent by the petitioners to respondent No. 1 asking the respondent No. 1 to confirm his willingness. The letter further request the respondent to deposit Rs. 2,00,000 (two lacks) as security along with the willingness in the form of demand draft. After letter dated 17.1.2001 was issued by the petitioners to the respondent No. 1 informing that since the respondent No. 1 has not deposited the security amount nor any thing has been indicated hence it is presumed that the respondent No. 1 is not interested to supply the steel as communicated by respondent No. 1 earlier. After letter dated 17.1.2001 was issued by the petitioners to the respondent No. 1 informing that since the respondent No. 1 has not deposited the security amount nor any thing has been indicated hence it is presumed that the respondent No. 1 is not interested to supply the steel as communicated by respondent No. 1 earlier. The respondent No. 1 made an application being Arbitration Application No. 35 of 2001, under Section 11 of the Arbitration and Conciliation Act, 1996 (hereinafter referred as "the Act") before the Honble the Chief Justice of this Court praying for appointment of an arbitrator for adjudicating the dispute between the parties. The petitioners also appeared in arbitration application and filed their counter-affidavit. The Honble the Chief Justice vide his order dated 17.10.2003 after hearing the learned counsel for the parties appointed Justice D. S. Sinha, the former Chief Justice of Gujarat High Court as a sole Arbitrator to go into the dispute raised by the parties including the question whether the arbitration clause exist in the agreement between the parties or not. The petitioner thereafter moved an application to review the order dated 17.10.2003 which review application was rejected by the following order dated 5.3.2004 of the Honble the Chief Justice : "This is an application for review/recall of my order dated 17.10.2003 passed in Arbitration Application No. 35 of 2001. After hearing the learned counsel for the parties and after perusing the materials available on the record including the order dated 17.10.2003 I do not find any merit in this application. Accordingly this application is rejected. Moreover, it is made clear that the applicant will be at liberty to raise all such questions having been raised in the instant application before the Arbitrator. There will be no order as to costs. Sd/-” 5. The petitioner thereafter moved an application before the arbitrator dated 22.5.2004, a copy of which has been filed as Annexure-7 to the writ petition. In the application the jurisdiction of the arbitrator to proceed on basis of the order of the Honble the Chief Justice dated 17.10.2003 was challenged. It was stated in the application that the jurisdiction to depute the arbitrator under clause 15 vests in the Managing Director of the U.P. State Bridge Corporation. In the application the jurisdiction of the arbitrator to proceed on basis of the order of the Honble the Chief Justice dated 17.10.2003 was challenged. It was stated in the application that the jurisdiction to depute the arbitrator under clause 15 vests in the Managing Director of the U.P. State Bridge Corporation. The petitioners in the application stated that the filing of the arbitration application under Section 11 by the respondent No. 1 was wrong and ought to have been rejected. The sole arbitrator vide his order dated 3.10.2004 after hearing both the parties, disposed of the application dated 26.5.2004. The arbitrator took the view that the respondent No. 1 has rightly filed an application before the Honble the Chief Justice who had full jurisdiction to pass the order dated 17.10.2003 appointing him as the sole arbitrator. The application dated 26.5.2004 was, therefore, rejected. This writ petition has been filed challenging the order dated 3.10.2004. 6. Sri P. N. Rai, learned counsel for the petitioner challenging the order raised following submissions : (i) that the application filed by the respondent No. 1 before the Honble the Chief Justice for appointment of the arbitrator under Section 11 of the Act was not maintainable since the jurisdiction to appoint the sole arbitrator vests with the Managing Director of the U.P. State Bridge Corporation. (ii) The letter dated 24.9.2000 submitted by the respondent No. 1 raising the claim for payment of damages against the petitioner was replied by the petitioners vide letter dated 9.1.2001 and 17.1.2001 hence there was no occasion for appointment of an arbitrator. Learned counsel for the petitioners has also placed reliance on the judgment of the Apex Court in D. D. Sharma v. Union of India, 2004 AIR SCW 2514. 7. I have considered the submissions raised by the counsel for the petitioners and perused the record. 8. It is the case of the petitioner that notice inviting tender was issued by the petitioners in response to which tender was given by the respondent No. 1 who was awarded the rate contract by the letter dated 12.11.2001, copy of which has been filed as Annexure-2 to the writ petition. Annexure-1 to the writ petition is the tender notice filed by the petitioners which contained clause 15 which has been quoted above. A perusal of clause 15 above makes it clear that there is arbitration agreement between the parties. Annexure-1 to the writ petition is the tender notice filed by the petitioners which contained clause 15 which has been quoted above. A perusal of clause 15 above makes it clear that there is arbitration agreement between the parties. The petitioner has also not disputed the existence of the arbitration agreement either before this Court or before the arbitrator. The submission raised by the counsel for the petitioners is that the jurisdiction to appoint the arbitrator vests with the Managing Director under clause 15 and the Honble the Chief Justice could not have appointed the arbitrator. 9. Both the submissions raised by the counsel for the petitioners being interconnected, are being considered together. Before considering the submissions raised by the counsel for the petitioners it is relevant to look into the relevant provisions of the Act. Relevant provisions for purposes of this case are Section 11 and Section 16 of the Act. Section 11 sub-section (1) to sub-section (7) and Section 16 of the Act are quoted below : "11. 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) applies 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 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 of a party, by the Chief Justice or any person or institution designed 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 of a party, by the Chief Justice or any person or institution designed by him. (6) Where, under the appointment procedure agreed upon by 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. 16. Competence of arbitral Tribunal to rule on its jurisdiction.—(1) The arbitral Tribunal may rule on its own jurisdiction, including ruling on any objections with respect to the existence or validity of the arbitration agreement and for that purpose,— (a) an arbitration clause which forms part of a contract shall be treated as an agreement independent of the other terms of the contract ; and (b) a decision by the arbitral Tribunal that the contract is null and void shall not entail ipso jure the invalidity of the arbitration clause. (2) A plea that the arbitral Tribunal does not have jurisdiction shall be raised not later than the submission of the statement of defence ; however, a party shall not be precluded from raising such a plea merely because that he has appointed, or participated in the appointment of, an arbitrator. (3) A plea that the arbitral Tribunal is exceeding the scope of its authority shall be raised as soon as the matter alleged to be beyond the scope of its authority if raised during the arbitral proceedings. (4) The arbitral Tribunal may, in either of the cases referred to in sub-section (2) or sub-section (3), admit a later plea if it considers the delay justified. (4) The arbitral Tribunal may, in either of the cases referred to in sub-section (2) or sub-section (3), admit a later plea if it considers the delay justified. (5) The arbitral Tribunal shall decide on a plea referred to in sub-section (2) or sub-section (3) and, where the arbitral Tribunal takes a decision rejecting the plea, continue with the arbitral proceedings and make an arbitral award. (6) A party aggrieved by such an arbitral award may make an application for setting aside such an arbitral award in accordance with Section 34." 10. From the perusal of the above quoted provisions it is clear that if a party 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. The letter dated 24.9.2000 submitted by the respondent No. 1 has been brought on the record as Annexure-3 to the writ petition. The submission of counsel for the petitioners is that the said letter cannot be treated to be a letter requesting for appointment of an arbitrator but by the said letter damages were claimed by the respondent No. 1 and further said letter was duly replied by the petitioners by letters dated 9.1.2001 and 17.1.2001. A perusal of the letter dated 24.9.2000 makes it clear that the said letter has been issued in continuation of the order of the Corporation to supply the Tor Steel Bars with regard to which damages were claimed. Paragraph 24 of the letter is relevant for the purpose which is quoted below : "24. That consequent to the same we have suffered a loss of Rs. 36,35,082.00 as identified above and request that the same be paid within a period of one month from the date of receipt of this letter. In case you do not wish to pay the above sums of money it would mean that a dispute has arisen and we request you to appoint a sole arbitrator for resolving the dispute in terms of clause 15. In case you do not wish to pay the above sums of money it would mean that a dispute has arisen and we request you to appoint a sole arbitrator for resolving the dispute in terms of clause 15. This may also be treated as a notice if any required under the law to the effect that if you do not pay us the losses or appoint an arbitrator it will mean that you are not willing either to pay the losses or to get the same settled through arbitration and we will be left with no choice but to approach the Honble Court for doing the needful in the matter by appointing an arbitrator for resolution of dispute. We will invoke the provisions of law to enforce the provisions of clause 15 without any waiting." 11. In the above paragraph of the letter specific request has been made for appointment of the sole arbitrator for resolving the dispute and it was further stated that the letter be treated as notice and the respondent No. 1 will be left with no choice but to approach the Honble Court for doing the needful in the matter of appointment of the sole arbitrator for resolving the dispute. In the last paragraph of the letter a request was made to settle the matter immediately to avoid unnecessary litigation. From the aforesaid it is clear that a request was made by the respondent No. 1 to the petitioner for appointment of the arbitrator. It is not the case of the petitioner that any arbitrator was appointed by the Managing Director in response to the letter dated 24.9.2000 submitted by the respondent No. 1. In the impugned order the arbitrator has observed that failure on the part of the respondent to act in conformity with the agreed procedure for appointment of the arbitrator as is stipulated in clause 15 of the NIT (Notice inviting tender) furnished legitimate grounds for the claimants to approach the Honble the Chief Justice of the High Court invoking his jurisdiction conferred by Section 11 of the Act for appointment of the arbitrator. The counsel for the petitioner has much emphasized on the order passed by the Honble the Chief Justice on the review application filed by the petitioner which according to the petitioner permitted him to raise all questions before the arbitrator. The counsel for the petitioner has much emphasized on the order passed by the Honble the Chief Justice on the review application filed by the petitioner which according to the petitioner permitted him to raise all questions before the arbitrator. According to the scheme of the Act as contained in Section 16 of the Act party to the arbitration proceedings had jurisdiction to challenge the very jurisdiction of arbitrator to proceed with the adjudication. The arbitral Tribunal is fully competent to rule on its jurisdiction. Constitution Bench of this Court in Konkan Railway Corporation Ltd. and another v. Rani Construction Pvt. Ltd., 2001 (1) AWC 59 (SC) : (2002) 2 SCC 388 , the Apex Court considered the scheme of the Act including Section 16 of the Act and laid down following in paragraph 21 : "21. It might also be that in a given case the Chief Justice or his designate may have nominated an arbitrator although the period of thirty days had not expired. If so, the arbitral Tribunal would have been improperly constituted and be withoug jurisdiciton. It would then be open to the aggrieved party to require the arbitral Tribunal to rule on its jurisdiction. Section 16 provides for this. It states that the arbitral Tribunal may rule on its own jurisdiction. That the arbitral Tribunal may rule "on any objections with respect to the existence or validity of the arbitration agreement" shows that the arbitral Tribunals authority under Section 16 is not confined to the width of its jurisdiction, as was submitted by learned counsel for the appellants, but goes to the very root of its jurisdiction. There would, therefore, be no impediment in contending before the arbitral Tribunal that it had been wrongly constituted by reason of the fact that the Chief Justice or his designate had nominated an arbitrator although the period of thirty days had not expired and that, therefore, it had no jurisdiction." 12. From the scheme of Section 16 as well as the law laid down by the Apex Court in the above Constitution Bench judgment it is explicit that the Tribunal has every jurisdiction to rule out about its jurisdiction to proceed. From the scheme of Section 16 as well as the law laid down by the Apex Court in the above Constitution Bench judgment it is explicit that the Tribunal has every jurisdiction to rule out about its jurisdiction to proceed. Despite the order of the Honble the Chief Justice under Section 11 appointing the arbitrator, the arbitrator still has jurisdiction to rule out that there is no arbitration clause or according to the arbitration agreement and agreed procedure, there was no ground for the appointment of the arbitrator by the Honble the Chief Justice and the mere fact that the Honble the Chief Justice has appointed the arbitrator does not denude the jurisdiction of the arbitrator to rule out regarding its constitution or competency to proceed. Thus, when the application was filed by the petitioner dated 26.5.2004 the Tribunal had every jurisdiction to consider the application and decide the same. 13. Now it has to be seen as to what were the grounds raised by the petitioner in the application for ruling out by the arbitrator that it has not been properly constituted or it has no jurisdiction to proceed. The grounds which appear from the application dated 26.5.2004 are follows : (1) The parties will first move an application before the Managing Director of the corporation who will appoint the arbitrator who will become the sole arbitrator and both parties will be bound by the decision of the arbitrator. (2) The claimant moved the application before the authority concerned by its letter dated 24.9.2000 but not regarding arbitrator but for supply of the material regarding his loss. (3) The application of the petitioner dated 24.9.2000 has already been decided by the letter dated 9.1.2001 and 17.1.2001 but ignoring the material fact the claimant filed an application under Section 11 of the Act. (4) After reply of the letter dated 24.9.2000 no further request was made by the claimant. 14. There cannot be any dispute that according to clause 15 of the NIT a party first has to move before the Managing Director for appointment of the arbitrator. The contention raised by the petitioner is that the application dated 24.9.2000 cannot be treated to be an application for appointment of the arbitrator. 14. There cannot be any dispute that according to clause 15 of the NIT a party first has to move before the Managing Director for appointment of the arbitrator. The contention raised by the petitioner is that the application dated 24.9.2000 cannot be treated to be an application for appointment of the arbitrator. The contents of the letter dated 24.9.2000 has already been noted above and specifically in paragraph 24 of the application which makes it clear that prayer for appointment of the arbitrator was specifically made. The submission of the counsel for the petitioner that the letter dated 24.9.2000 cannot be treated to be a request for appointment of arbitrator, cannot be accepted. The mere fact that the reply was given of the above letter by the petitioner cannot dilute the request made in the said letter dated 24.9.2000 for appointment of the arbitrator. According to Section 11 of sub-section (6) a party has every jurisdiction to move to the Honble the Chief Justice for appointment of the arbitrator under Section 11. In above view of the matter it cannot be said that the constitution of the arbitrator was not in accordance with arbitration agreement and the procedure envisaged in the agreement for appointment of the arbitrator. It is also relevant to note that any order passed by the arbitrator on issue raising a jurisdiction of the arbitral Tribunal under Section 16 can also be a ground for challenging the award under Section 34 of the Act. According to Section 16, sub-section (5) the scheme further contemplate that in the event the arbitral Tribunal rejected the plea he will continue with the arbitral proceedings and make an award. 15. Now coming to the judgment relied by the counsel for the petitioner in D. D. Sharmas case (supra) the said judgment was a case pertaining to Section 30 of the Arbitration Act, 1940. The application was filed challenging the award given by the arbitrator. The said case has no application in the facts of the present case. 16. In view of the foregoing discussions I do not find any error in the order dated 3.10.2004 rejecting the application filed by the petitioner dated 26.5.2004. The writ petition lacks merit and is summarily rejected.