Judgment :- (1.) This is an application challenging the orders dated 25th September, 1998, 16th November, 1998 and 6th December, 1999. The order dated 25th September, 1998 was passed by the Honble Justice N. K. Mitra as His Lordship then was. The order dated 16th November, 1998 was passed by the then Honble Acting Chief Justice and the order dated 6th December, 1999 was passed by a Division Bench of this Court presided over by the Honble Justice V. K. Gupta and Honble Justice P.K. Sen as Their Lordships then were. By the above order dated 16th November, 1998 the then Honble Acting Chief Justice in exercise of power under Section 11 of the Arbitration and Conciliation Act, 1996 passed an order appointing Mr. Justice N. K. Bhattacharyay, a retired Judge of this Court an arbitrator in 109 several matters; Mrs. Justice Manjula Bose, a retired Judge of this Court an arbitrator in respect of 21 matters. Mrs. Justice Padma Khastagir, a retired Judge of this Court since deceased in respect of 4 several matters and Mrs. Justice Prativa Banerjea a retired Judge of this Court, in respect of 10 matters and Mr. Justice Amulaya Kr. Nandi, another restired Judge of this Court, in respect of one matter. In sum and substances by the order dated 16th November, 1998 the then Honble Acting Chief Justice appointed 5 former Judges of this Court to arbitrate in respect of 145 matters. The request of appointment of arbitrator or arbitrators made by the respondent Nos. 3 to 10 was heard by the Honble Mr. Justice N. K. Mitra as His Lordship the then was. His Lordship allowed the application. The request of appointment of arbitrator or arbitrators made by the respondent Nos. 3 to 10 was heard by the Honble Mr. Justice N. K. Mitra as His Lordship the then was. His Lordship allowed the application. The operative portion of the judgment reads as follows :-"referred to the Honble Chief Justice for appointing 5 several sole arbitrators one for each of the five Courts viz., Howrah, Burdwan, Bolpur, Suri and this Honble Court in accordance with the Apex Courts order dated August 21, 1995 and in terms of Section 11(5) of the Arbitration and Conciliation Act, 1996." (2.) Aggrieved by the order dated 25th September, 1998 passed by the Honble Justice Mitra, the petitioner proposed to prefer an appeal but in the mean time the matter was taken up by the then Honble Acting Chief Justice when the order dated 16th November, 1998 appointing five former Judges of this Court was passed in respect of 145 matters without prejudice to the rights and contention of the petitioner. The appeal subsequently filed was dismissed by the order dated 6th December, 1995. These are the three orders which are under challenge in this writ petition wherein a writ in the nature of certioran has been prayed for quashing the aforesaid orders. The facts of the case briefly stated are as follows : (3.) 144 several title suits under Section 20 of the Arbitration Act, 1940 were filed by the respondent Nos. 3 to 10 during the period between the years 1991 and 1993 in four different District Courts of the State of West Bengal claiming an order for filing arbitration agreement and for appointment of arbitrators. The said respondents subsequently applied under Clause 13 of the Letters Patent read with Section 24 of the Code of Civil Procedure for transfer of the said 144 title to this Court and for appointment of arbitrator under Section 8 of the Arbitration Act of 1940 which culminated in an order dated 23rd February, 1994 passed by the Honble Justice S. K. Hazari, as His Lordship then was by which all the 144 suits were transferred to this Court and were simultaneously referred to two former Judges of this Court in the ratio of 72 cases each. The petitioner preferred an appeal against the order dated 23rd February, 1994 which was disposed of by an order dated 3rd October, 1994 allowing the appeal and setting aside the order passed by the learned Single Judge on 23rd February, 1994. The said respondents preferred a special leave petition before the Apex Court which culminated in an order dated 21st August, 1995 passed by the Apex Court which reads as follows:- "Heard counsel for the parties. We are not inclined to interfere with the order passed by the Division Bench. Mr. Verma learned Senior Counsel appearing for the respondent-Railway states that arbitrators shall be appointed in respect of different agreements entered into between the petitioners and the respondent-Railway to adjudicate the dispute in question. He also stated that if within the jurisdiction of one particular Court there are more than one dispute. Which have to be fulfilled for arbitration then one arbitrator shall be appointed for all such disputes. The petitioners shall be at liberty to give suggestions on the above lines within two weeks. The respondent shall appoint arbitrators within eight weeks from the date of suggestions which are furnished to them by the petitioners. The special leave petition is disposed of." (4.) The arbitration agreement provides that where a dispute is to be referred to two arbitrators the Arbitral Tribunal shall consist of a nominee of the petitioner and a nominee of the contractor. Two arbitrators are to be appointed in the cases of a complicated nature or where the claim is above Rs. 5 lakh. Whether the claim is of a complicated nature is to be decided by the General Manager of the Railways. The arbitration agreement further provides as follows:-"It is a term of this contract that no person other than a Gazetted Railway Officer should act as an Arbitrator/Umpire and if for any reason that is not possible, the matter is not to be referred to arbitration at all." (5.) The respondent Nos. 3 to 10 by a letter dated 30th August, 1995 suggested names of 15 arbitrators comprising of five retired Judges of this Court and ten officers of the Railways. It would appear from the order of the Apex Court already quoted above that the dispute pending before each district was to be referred to one arbitrator. 3 to 10 by a letter dated 30th August, 1995 suggested names of 15 arbitrators comprising of five retired Judges of this Court and ten officers of the Railways. It would appear from the order of the Apex Court already quoted above that the dispute pending before each district was to be referred to one arbitrator. In this case 144 disputes were pending before 4 several District Courts and one dispute was pending in the original side of this Court. The General Manager of the Eastern Railways by five several letters all dated 6th November, 1995 referred the disputes. In respect of disputes pending before each of the District Courts two arbitrators were appointed by him of whom one was the nominee of the respondent Nos. 3 to 10 nominated by their letter dated 30th August, 1995 and one was appointed by the General Manager. In respect of the dispute which was pending in the original side of this Court the dispute was referred to a sole arbitrator namely Shri S.M. Sikdar. (6.) The respondent Nos. 3 to 10 filed a contempt application before the Apex Court alleging that the order dated 21st August, 1995 had been violated inasmuch as the General Manager had appointed two arbitrators to respect of the disputes pending before four District Courts whereas the order dated 21st August, 1995 provided for appointment of one arbitrator. The petitioner filed an application before the Apex Court for clarification of the order dated 21st August, 1995. Both the applications filed by the petitioner and the respondent Nos. 3 to 10 were dismissed by the Apex Court by an order dated 23rd September, 1997. The order dated 23rd. September, 1997 reads as follows:- "We are satisfied that there is no case made for entertaining this contempt petition especially in the background of the effect (effort?) made in this Court to sort out the controversy, the offer made on behalf of Railways to appoint two officers exclusively for this work and yet the reluctance of the applicants to accept any thing which was offered to them. The contempt petition is, therefore, dismissed. IA 2 is also dismissed." (7.) The respondent Nos. The contempt petition is, therefore, dismissed. IA 2 is also dismissed." (7.) The respondent Nos. 3 to 10, in the circumstances, by three several letters all dated 1st December, 1997 requested the three sets of arbitrators to appoint an umpire and to issue necessary directions to both the parties By this time however most of the arbitrators had retired from service and refused to arbitrate any further consequent to their retirement from service. (8.) The General Manager by his letter dated 21st January, 1998 requested the respondent Nos. 3 to 1C to appoint fresh nominees. The respondent Nos. 3 to 10 by their letter dated 2nd February, 1998 replied by stating that the arbitrators in substitution of those who retired from service should have been appointed by the General Manager from out of the list dated 30th August, 1995 submitted by the respondents which the General Manager had failed to do and therefore the question of submitting a panel of the arbitrators to be nominated by the respondents did not arise. It was further contended that the Arbitration and Conciliation Act, 1996 had already came into existence and that arbitrators could in the changed circumstances be appointed only under the new Act and they therefore called upon the General Manager to appoint four arbitrators for disputes pending in four districts and one arbitrator for disputes pending in the Original Side of this High Court within 30 days after receipt of the letter. The petitioner replied by its letter dated 19th February, 1998 disputing the contention of the respondent Nos. 3 to 10. The petitioner ruled out applicability of the Act of 1996 altogether and contended that the dispute could only be resolved under the Arbitration Act, 1940 in terms of the order dated 21st August, 1995 passed by the Apex Court. The respondent Nos. 3 to 10 however applied for appointment of arbitrators under Sections 10 and 11 of the Arbitration and Conciliation Act, 1996. Such application was made on 7th April, 1998. The application was registered as A.P. No. 161 of 1998. The application came up before the Honble Justice Mitra as His Lordship then was. His Lordship agreeing with the contention of the respondent Nos. 3 to 10 referred the application to the Honble Acting Chief Justice for appointment of arbitrators. On 16th November, 1998 the arbitrators were appointed. The application was registered as A.P. No. 161 of 1998. The application came up before the Honble Justice Mitra as His Lordship then was. His Lordship agreeing with the contention of the respondent Nos. 3 to 10 referred the application to the Honble Acting Chief Justice for appointment of arbitrators. On 16th November, 1998 the arbitrators were appointed. The appeal preferred by the petitioner against the order dated 25th September, 1998 passed by the Honble Justice Mitra was dismissed by an order dated 6th December, 1999 holding that "the appeal is held not maintainable." The petitioner appears to have filed special leave petition against all the aforesaid three orders which was disposed of by the following order:- "The learned Solicitor General seeks to withdraw the special leave petitions in view of the judgment of this Court in Konkan Railways Corporation Ltd. and Ors. v. M/s. Mehul Construction Co., 2000 (6) SCALE 71 and for permission to move the High Court. So ordered." (9.) In view of the permission granted by the Apex Court the present writ petition was filed Mr. P.K. Roy learned Senior Advocate appearing for the petitioner submitted that the order appointing arbitrator or arbitrators dated 16th November, 1998 passed by the then Honble Acting Chief Justice is an act without jurisdiction and therefore a writ in the nature of certiorari should be issued quashing the order dated 16th November, 1998. With regard to the orders dated 25th September, 1998 and 6th December, 1999 he submitted that these are the orders passed in aid of the order appointing arbitrators dated 16th November, 1998 and should also be quashed. He submitted that the disputes sought to be referred by the order dated 16th November, 1998 were subject-matters of 144 title suits pending before four several Districts Courts and one suit pending before this Court in its Original Side which had already been referred pursuant to the order dated 21st August, 1995 passed by the Apex Court, the effect whereof was to finally dispose of the suits under Section 20 of the Arbitration Act, 1940 and which had further been acted upon by both the parties. Therefore, the Act of 1996 had no manner of application and the appointments made thereunder are clearly without jurisdiction calling for interference by the Writ Court. (10.) Mr. Therefore, the Act of 1996 had no manner of application and the appointments made thereunder are clearly without jurisdiction calling for interference by the Writ Court. (10.) Mr. Roy in support of his submission relied on a judgment of the Apex Court in the case of Shettys Constructions Co. Pvt. Ltd. v. Konkan Railways Construction and Another reported in 1998 (5) SCC 599 wherein Their Lordship laid down the law as follows :- "A mere look at sub-section (2) (a) of Section 85 shows that despite the repeal of Arbitration Act, 1940, the provisions of the said enactment shall be applicable in relation to arbitration proceedings which have commenced prior to the coming into force of the new Act. The new Act came into force on 26.1.1996. The question therefore, arises whether on that date the arbitration proceedings in the present four suits had commenced or not. For resolving this controversy we may turn to Section 21 of the new Act which lays down that unless otherwise agreed to between the parties, the arbitration suit in respect of arbitration dispute commenced on the date on which the request for referring the dispute for arbitration is received by the respondents. Therefore, it must be found out whether the requests by the petitioner for referring the disputes for arbitration were moved for consideration of the respondents on and after 26.1.1996 or prior thereto. If such request were made prior to that date, then on a conjoint reading of Section 21 and Section 85(2) (a) of the new Act, it must be held that these proceedings will be governed by the old Act. As seen from the afore noted factual matrix, it at once becomes obvious that the demand for referring the disputes for arbitration was made by the petitioners in all these cases months before 26.1.1996, in March and April 1995 and in fact thereafter all the four arbitration suits were filed on 24 8.1995. These suits were obviously filed prior to 26.1.1996 and hence they had to be decided under the old Act of 1940 This preliminary objection, therefore, is answered by holding that these four suits will be governed by the Arbitration Act, 1940 and that is how the High Court in the impugned judgments has impliedly treated them." (11.) Mr. Das learned Senior Advocate appearing for the respondent Nos. Das learned Senior Advocate appearing for the respondent Nos. 3 to 10 made the following submissions :- a) Orders dated 25th September, 1998, 16th November, 1998 and 6th December, 1999 have been challenged in this writ petition. Except for the order dated 16th November, 1998 rest of the orders are not amenable to writ jurisdiction. b) The writ petition shall not lie even against the order dated 16th November, 1998 became the law laid down by the Apex Court in that the writ petition can be maintainable only against an order refusing to make an appointment and not when an appointment has actually been made. He relied on a judgment of the Apex Court in the case of Konkan Railway Corporation Ltd. and Another v. Rani Construction Pvt. Ltd. reported in 2002 (2) SCC 388 . c) The contention advanced by Mr. Roy is wholly without any merit. The controversy as to non-application of the Act of 1996 or application of the Act of 1940 to the facts and circumstances of the case has finally been set at rest by the judgment of the Division Bench passed on 6th December, 1999 and therefore the issue has now become resjudicata. In the alternative he submitted that adequate reasons have been given by the Division Bench as to why the Act of 1996 should apply to the facts and circumstances of the case. Reasons according to him assigned by the Division Bench are impeccable. d) There was nothing pending before any Court of Law on the date when an application under Section 11 of the Arbitration and Conciliation Act, 1996 was filed. It is, therefore, he added, fallacious to submit that the Act of 1996 has no manner of application to the present case. He submitted that the judgments reported in 1998 (5) SCC 599 and judgment in the case of Milkfood Ltd. v. GMC Ice Cream (P) Ltd. reported in AIR 2004 SC 3145 have no manner of application because in both the aforesaid cases the arbitration had actually commenced but in the present case the arbitration had not commenced and therefore the question of either of the aforesaid two judgments having any application to the facts of the case would not arise. e) Lastly Mr. e) Lastly Mr. Das submitted that the question as to whether the arbitrator have been validly appointed can be urged before the learned Arbitrators themselves which according to him is equally efficacious alternative remedy and this Court should therefore refrain from exercising its power in the writ jurisdiction. In support of his submission he relied on a judgment in the case of Sfafe of Orissa and Others v. Gokulnanda Jena reported in 2003 (6) SCC 465 Para 8, the judgment in the case of Secur Industries Ltd. v. Godrej and Boyce Mfe. Co. Ltd and Another reported in 2004 (3) SCC 447 and a judgment in the case of Angang Group I. Trade Corporation v. P. Railway Corporation Ltd. reported in 2003 (10) SCC 51 . (12.) He concluded by saying that the petition should be dismissed and the parties should be left to sort out their disputes before the arbitrators. (13.) Mr. Basu, learned Senior Advocate in reply submitted that under Section 37 of the Arbitration Act of 1940 the arbitration is deemed to have commenced when one party to the arbitration agreement service notice to the others requiring the appointment of an arbitrator. He relied on sub- section 3 of Section 37 of the Arbitration Act, 1940 which reads as follows :- "Sub-section (3)-For the purposes of this section and of the Indian Limitation Act, 1908 an arbitration shall be deemed to be commenced when one party in the arbitration agreement service on the other parties thereto, a notice requiring the appointment of an arbitrator, or where the arbitration agreement provides that the reference shall be to a person named or designated in the agreement requiring that the difference be submitted to the person so named or designated." (14.) He submitted that not only notice requiring appointment of arbitrators in respect of the 145 cases were issued by the respondent Nos. 3 to 10 but, they also filed 145 suits under Section 20 of the Arbitration Act which stood disposed of by the order dated 21st August, 1995 and thereafter arbitrators were appointed in terms thereof. Subsequent vacancy should have been filled up in accordance with the order dated 21st August, 1995 and not by a separate proceeding altogether under a different Act (of 1996) which has no manner of application to this case judged in the light of Sections 21 and 85 thereof. Subsequent vacancy should have been filled up in accordance with the order dated 21st August, 1995 and not by a separate proceeding altogether under a different Act (of 1996) which has no manner of application to this case judged in the light of Sections 21 and 85 thereof. (15.) With regard to the submission that the order dated 25th September, 1998 and 6th December, 1999 were not amenable to the writ jurisdiction, he submitted that these two orders are in aid of the order dated 16th November, 1998. If the principal order dated 16th November, 1990 is amenable to writ jurisdiction these two orders are equally amenable to the writ jurisdiction. (16.) Finally he submitted that the arbitration agreement provides that if an officer or officers of the Railways cannot arbitrate then there shall be no arbitration at all. He submitted that the Apex Court considering an arbitration agreement of this nature has held in the case of A Mohammad Yunus (Dead) by Lrs. v. Food Corporation of India and Another reported in 2000 (2) Arbitration Law Reporter 2 that "Recourse to arbitration could not leave been taken contrary to the agreed stipulation. (17.) He accordingly submitted that an order as prayed for in the writ petition should be passed Mr. Das in his reply to the new case cited by Mr. Basu submitted that this is a point which should be urged before the arbitrators and not before this Court. (18.) The Apex Court in the case of Konkan Railways v. Mertul Construction Co. reported in 2000 (7) SCC 201 has held that an order under Section 11 of the Arbitration and Conciliation Act, 1996 is an administrative order rather than an adjudicatory order. It was accordingly held that a writ petition may he but Article 136 of the Constitution shall not be attracted became it is not an adjudicatory order. reported in 2000 (7) SCC 201 has held that an order under Section 11 of the Arbitration and Conciliation Act, 1996 is an administrative order rather than an adjudicatory order. It was accordingly held that a writ petition may he but Article 136 of the Constitution shall not be attracted became it is not an adjudicatory order. It may be apposite to notice Paragraph 6 of the judgment which reads as follows :-"The nature of the function performed by the Chief Justice being essentially to aid the Constitution of the Arbitration Tribunal immediately and the legislature having consciously chosen to confer the power on the Chief Justice and not a Court, it is apparent that the order passed by the Chief Justice or his nominee is an administrative order, as has been held by this Court in Ador Samia case and the observations of this Court in Sundaram Finance Ltd. case also are quite appropriate and neither of those decisions require any reconsideration. This being the position, even as order refusing to appoint an arbitrator will not be amenable to the jurisdiction of this Court under Article 136 of the Constitution. Needless to mention such an order refusing to appoint an arbitrator after deciding the contentious issues would be an act of non-performance of duty and in view of what has been stated earlier the authority concerned could be directed by mandamus to perform its duty." (19.) This judgment was affirmed by a larger Bench in the case of Konkan Railway v. Rani Constuction reported in 2002 (2) SCC 388 . (20.) The order dated 25th September, 1998 passed by the Honble Justice N. K. Mitra as His Lordship then was, is essentially an act in aid of the exercise of power under Section 11 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the act). The practice followed in this Court has always been that an application under Section 11 for appointment of arbitrator is placed before a Single Judge so that the opposite party may get an opportunity of hearing before the matter is finally placed before the Honble Chief Justice for naming an Arbitrator. The practice followed in this Court has always been that an application under Section 11 for appointment of arbitrator is placed before a Single Judge so that the opposite party may get an opportunity of hearing before the matter is finally placed before the Honble Chief Justice for naming an Arbitrator. If the function of the Chief Justice in the matter of appointing an arbitrator is administrative in nature then the role played by the learned Single Judge is equally administrative because it is a preliminary step which culminates in an appointment or refusal to make an appointment. Therefore, the order dated 25th September, 1998 is clearly amenable to the writ jurisdiction. The order dated 6th December, 1999 passed by the Appellate Court has two limbs: (a) it was held that the appeal was not maintainable and (b) that the Act of 1996 and not the Act of 1940 applied to the facts of the case. The finding that the appeal is not maintainable is in consonance with the view expressed by the Apex Court that an order under Section 11 of the Act is not adjudicatory. Once the Division Bench held that the appeal was not maintainable its jurisdiction to examine the matter on merit caused to exist. The finding recorded by the Division Bench with regard to applicability of the Act of 1996 to the facts of the case became an obiter and has no binding force. Even if it is assumed that it has any, then also it would at the highest remain in the realm of an administrative order being in aid of exercise of power under Section 11 of the Act and would still remain amenable to the writ jurisdiction of this Court. The first point urged by Mr. Das is thus disposed of. (21.) I now propose to consider the third and the fourth point together. The second and the fifth point shall be considered thereafter. (22.) The submission that the question as to whether the 1940 Act applies or the 1996 Act applies to the facts of the case has become res judicata by reason of the order, of the Division Bench, dated 6th December, 1999 has not impressed me for the reasons already indicated. Before a plea of res judicata can be advanced the party is obliged to show that the point has already been judicially decided. Before a plea of res judicata can be advanced the party is obliged to show that the point has already been judicially decided. The proceeding referred to by Mr. Das was administrative and not adjudicatory. Therefore this point is not acceptable. (23.) With regard to the desirability of interfering with the view that the Arbitration Act, 1940 had no manner of application to the facts of the case, it can at once be pointed out that the Division Bench in entertaining the aforesaid view overlooked the judgment in the case of Shettys Constructions Co. Pvt. Ltd. v. Konkan Railway Construction and Another reported in 1998 (5) SCC 599 (supra) which was and is the law of the land under Article 141 of the Constitution of India. That judgment was reaffimed in the case of Milkfood v. GMC reported in AIR 2004 SC 3145 . In that case one of the parties to the arbitration agreement filed a suit. The other party applied for stay under Section 34 of the Arbitration Act, 1940. The suit was stayed on 3.8.1995 with a direction that the matter could be referred. On 14.9.1995 the party applying for stay appointed an arbitrator and notified the plaintiff to either concur in the appointment of the arbitrator made by the defendant or to appoint its own nominee. In the meantime after an unsuccessful appeal the plaintiff went up before the High Court in revision which was disposed of on 6th May, 1997 by a consent order appointing arbitrators. Question arose as to whether the arbitration shall be governed by the 1940 Act or by the 1996 Act. In the meantime after an unsuccessful appeal the plaintiff went up before the High Court in revision which was disposed of on 6th May, 1997 by a consent order appointing arbitrators. Question arose as to whether the arbitration shall be governed by the 1940 Act or by the 1996 Act. Their Lordships held that under Section 37 of the Arbitration Act, 1940 commencement of arbitration proceeding is not only "for the purpose of limitation but it in effect and substance will also be the purpose for determining as to whether the 1940 Act or the 1996 Act would apply." "Keeping in view the fact that in all the decisions, referred to hereinbefore, this Court has applied the meaning given to the expression commencement of the arbitral proceeding as contained in Section 21 of the 1996 Act for the purpose of applicability of the 1940 Act having regard to Section 85 (2) (a) thereof, we have no hesitation in holding that in this case also, service of a notice for appointment of an arbitrator would be the relevant date for the purpose of commencement of the arbitration proceeding. In this case, the learned Munsif by an order dated 7.8.1995 i.e. before the 1996 Act came into force not only stayed further proceedings of the suit but also directed that in the meanwhile the matter be referred to arbitration. The matter was referred to arbitration as soon as the notice dated 14.9.1995 was issued and served on the other side. It may be true that before the High Court apart from Shri H.L. Agrawal, Shir Uday Sinha also came to be appointed; but the change in the Constitution of the arbitral tribunal is irrelevant for the purpose of determining the question as to when the arbitration proceeding commenced within the meaning of Section 21 of the 1996 Act. The purported reference of the dispute to the arbitrator was merely a reference to new arbitral tribunal which concept is separate and distinct from that of commencement of arbitration proceeding......." (24.) Their Lordship in the facts of the Milkfood case concluded, "We are of the view that in this case the 1940 Act shall apply and not the 1996 Act." (25.) The Milkfood case is in my view on all fours of the case in hand. Not only that the suits for referring the disputes under Section 20 of the Arbitration Act, 1940 were filed but those suits stood disposed of Arbitrators were appointed prior to the Act of 1996 coming into operation. Objection to such appointment raised by the respondent Nos. 3 to 10 before the Apex Court was dismissed. The respondents thereafter by their letter dated 1.12.1997 requested the arbitrator to proceed with the matter. Can it still be said that the arbitration had not started? The answer is bound to be in the negative. The Arbitration commenced under the Act of 1940 according to the judgments of the Apex Court in the case of Shettys Construction and Milk food (supra) and the Division Bench overlooked at least the judgment in the case of Shettys Construction. This disposes of the third and the fourth point of Mr. Das. (26.) The second point urged by Mr. Das noted hereinabove has not impressed me either. In the case of Rani Construction reported in 2002 (2) SCC 388 at Page 399 Their Lordships were answering a hypothetical question. "If a contingency arose where the Chief Justice or his designate refused to make an appointment, the party seeking the appointment was not without remedy. An intervention was possible by a Court in the same way as an intervention was possible against an administrative order of the executive." The question raised in this writ petition was not before Their Lordships. Their Lordships had thus no occasion to express any view with regard thereto. (27.) What is of significance, decided in the case of Mehul Construction (supra) as well as Rani Construction, is that an order passed under Section 11 of the 1996 Act is administrative and not adjudicatory. The jurisdiction of the High Court to issue a writ in the nature of certionari lay, at one point of time it was thought, only against an order passed by an inferior Court. Law expanded in course of time and the executive orders also came within the sweep of the aforesaid remedy both in England and in India. The jurisdiction under Section 11 of the 1996 Act is vested in the Chief Justice. The order passed in exercise of power under Section 11 is administrative and is, therefore, amenable to Writ Jurisdiction. Law expanded in course of time and the executive orders also came within the sweep of the aforesaid remedy both in England and in India. The jurisdiction under Section 11 of the 1996 Act is vested in the Chief Justice. The order passed in exercise of power under Section 11 is administrative and is, therefore, amenable to Writ Jurisdiction. Whether an order issuing a writ in the nature of certiorari shall be passed depends upon the facts and circumstances of each case. But, there is no logic nor any reason to suppose that intervention is possible in the one case and not in the other as submitted by Mr. Das. Law in this regard is well settled. In the case of R. v. Paddington reported in 1949 (1) All E.R 720 Lord Goddard held as follows :-"In considering whether there has been a valid reference by the local authority, it is necessary, in our opinion, to consider whether on the facts of this case there has been a valid and bona fide exercise of the powers conferred by Parliament on them. That the Court can interfere with the exercise of powers by local authorities is not, we think, open to doubt. In Biddulph v. St. Georges Hanover Square (2), TURNER, L.J., said (3 De G.J. and Sm. 502) : "............I am far from thinking that this Court has not power to interfere with public bodies in the exercise of powers which are conferred on them by Act of Parliament. I take it that it would be within the power and the duty of this Court so to interfere in cases where there is not a bona fide exercise of the powers given by Parliament; and I should be very sorry to be supposed to entertain the notion that public bodies, under the general powers given to them by Act of Parliament, can do whatever they think right." The question also incidentally arose in Dormer v. Newcastle- upon-Tyne Corpn. (3). In that case under a local Act the Corporation were authorised to place and maintain in any street any posts, rails, or other fence for the protection of passengers and traffic. (3). In that case under a local Act the Corporation were authorised to place and maintain in any street any posts, rails, or other fence for the protection of passengers and traffic. The Court of Appeal held that there had been a perfectly proper use of the corporations powers, but, in dealing with an argument which was advanced that, unless some limitation were put on their powers, the Corporation could erect a high close-boarded fence in front of private premises, I said 1940 (2) All E.R. 527. "if, in the exercise, or purported exercise, of that power, the Corporation put up a close-boarded fence ten or twelve feet high along the edge of the path, it might very well be that the front agers........could say : This is not the sort of thing which Parliament ever intended that you should have the right to do. It is not an exercise of the powers which have been given to you, because, while you are purporting to exercise that power, in fact you are doing something entirely different." The second point urged by Mr. Das is thus disposed of (28.) The last submission that there is equally efficacious alternative remedy is also not acceptable to me. In the case of Angang Group I. Trade Corporation v. P. Railway Corporation Ltd. reported in 2003 (10) SCC 51 , cited by Mr. Das, in disposing of an objection to the appointment of an arbitrator the following observations were made. "Considering ah facts and circumstances and the contentions raised by the respective parties, it is to be noted that it is not one of those clear-cut cases as contended, in which it could be said that there is no contract at all between the parties, on the face of it The matter is such that it may require probe and enquiry into the objections raised by the respondent and it is only feasible and appropriate that the arbitrator himself may embark upon any such enquiry in case any objection or issue is raised by the respondent before the arbitrator regarding existence of an agreement between the parties." (29.) In the aforesaid case in exercise of power under Section 11 it was held that where the contention raised, in opposition to a request for appointment, required a probe, the matter should be left to the Arbitrator. But the matter would not have been left to the arbitrator if the matter had not required any probe. (30.) In the case of Gokulnanda Jena reported in 2003 (6) SCC 465 the objection to the appointment, raised were on merits and therefore they were left to be decided by the arbitrator. Their Lordships held that ground available for challenge in such a petition (under Article 226) is limited because of the alternative remedy available under the Act itself."Mr. Das would contend that where there is alternative remedy there is no ground available which obviously is not the law. It is one thing to say that the grounds are limited and quite different to say that there is no ground". (31.) The last judgment cited by Mr. Das in this regard is the case of Godrej reported in 2004 (3) SCC 447 wherein statutory arbitration under the provisions of the Act of 1996 was sought to be cut short by filing a suit. The order staying the arbitration was passed by the High Court in appeal arising out of refusal to pass an order of injunction. Their Lordships vacated the injunction holding that under Section 5 of the 1996 Act no Court could intervene in the Arbitration proceedings except to the extent prescribed under the 1996 Act." (32.) The jurisdiction to issue a writ in the nature of certiorary is conferred by the Constitution of High Court which cannot be taken away by any ordinary statute because that would amount to interfering with the basic tenents of the Constitution of India. (33.) I already have held that the Act of 1996 had no manner of application to the facts of this case and therefore the order appointing arbitrators was clearly without jurisdiction. In a case like this a writ in the nature of certiorari shall be issued Ex debito Justice unless however special circumstances are shown to exist. Law in this regard was laid down by the Court of Appeal in the case of Rex v. Stafford Justice reported in 1940 (2) KB 33 CA at Page 43 as follows:-"Now, in my opinion the order for the issue of the Writ of Certiorari is, except in cases where it goes as of course, strictly in all cases a matter of discretion. It is perfectly true to say that if no special circumstances exist, and if all that appears is a clear excess of jurisdiction, then a person aggrieved by that is entitled ex debito justice to his order." (34.) No special circumstances are even alleged to have been in existence in this case. On the contrary there is an .... insistence on the part of the respondent Nos. 3 to 10 to have their disputes resolved otherwise than in accordance with the agreement entered into between the parties. The application under Section 11 of the Act of 1996 was an attempt to get rid of the orders of the Apex Court, dated 21st August, 1995 and 23rd September, 1997, which is reprehensible to say the least. (35.) This application, therefore, succeeds but it succeeds posthumously. I say posthumously because the hearing of this application was concluded on 11th January, 2005. Mr. P.K. Roy, learned Senior Advocate, a distinguished member of the Bar and above all a noble soul who argued the matter on behalf of the petitioner, unfortunately passed away on 12th January, 2005. The prayer of Horatio at the fall of Hamlet"... flights of angels sing thee to thy rest" rings in my ears. For myself I say "Ameu". There shall be an order in terms of prayer (a). The respondent Nos. 3 to 10 shall pay costs to the petitioner assessed at Rs. 10,000.00.