Judgment Rajesh Balia, J.-This appeal is directed against the Judgment of learned Single Judge dated 19.04.2004 dismissing the writ petition filed by the appellant. 2. The facts leading to this case are that the Respondent Nathdwara Temple Board is constituted under the Nathdwara Temple Act, 1959 for administering the affairs of Nathdwara Temple. It being a Board constituted under the Statute as a statutory body is a State within the meaning of Article 12 of the Constitution of India. It is also empowered to enter into contract necessary for such administration. The petitioner is stated to be a proprietary firm, whose sole proprietor is Abid Hussain son of Shri Noor Mohammed, through whom the writ petition was filed. 3. The Board had invited tenders for construction of auditorium near Nathdwara Goverdhan Senior Secondary School. Its estimated cost was Rs. 1,12,33038/-at the time of inviting tenders dated 17.02.2001. Petitioners tender being lowest, after negotiation, work contract was given to the petitioner firm for completing the work at an estimated cost of Rs. 99,97,404/-. For the aforesaid work, an agreement Annexure-2 was executed between the parties which included Clause 23 as an arbitration clause in the following terms:- “Arbitration Clause 23: If any question, difference or objection whatsoever shall arise in any way in connection with or arising out of this instrument or the meaning of operation of any part thereof or the rights, duties or liabilities of either party, then save in so far as the decision of any such matter as herein before provided for and been so decided, every such matter constituting a total claim of Rs. 50,000/-or above, whether its decision has been otherwise provided for and whether it has been finally decided accordingly, or whether the contract should be terminated or has been rightly terminated and as regards the rights or obligations of the parties as the result of such termination shall be referred for decision to the empowered standing committee which would consist of the following:- 1. Chief Executive Officer, Nathdwara Temple Board, Nathdwara. 2. Manager Finance, Nathdwara Temple Board, Nathdwara. 3. Legal Advisor, Nathdwara Temple Board, Nathdwara. 4. Executive Engineer, Nathdwara Temple Board, Nathdwara. 5. Manager Administration, Nathdwara Temple Board, Nathdwara. Chief Executive Officer, Nathdwara Temple Board, Nathdwara. 2. Manager Finance, Nathdwara Temple Board, Nathdwara. 3. Legal Advisor, Nathdwara Temple Board, Nathdwara. 4. Executive Engineer, Nathdwara Temple Board, Nathdwara. 5. Manager Administration, Nathdwara Temple Board, Nathdwara. The Engineer incharge on receipt of application alongwith prescribed fee (the fee would be two percent of the amount in dispute not exceeding to one lac) from the contractor shall refer the disputes to the committee within a period of one month from the date of receipt of application.” In connection with the execution of aforesaid work, a dispute has arisen between the parties. However, the petitioner instead of invoking the arbitration clause referred to above, has chosen to file writ petition before this Court alleging Clause 23 itself to be invalid on the two folds grounds. Firstly, all the named members of the Arbitral Tribunal are directly connected with the allotment and execution of work in question and, therefore, they are incompetent to act as an arbitrators individually or collectively as Arbitral Tribunal, hence the agreement is void or at least had become incapable of performance in terms of Clause 23 and secondly that the term requiring deposit of 2% of the amount in dispute subject to maximum of Rs. 1 lac alongwith application for referring the dispute to arbitration is void as it is against the public policy. The respondent being State it cannot collect any money without authority of law from others. The amount of deposit being not part of consideration for execution of contract nor it has any connection with the cost of arbitration it remains in the nature of fees required to be paid by the petitioner to the respondent who is State within the meaning of Article 12 for getting his matter adjudicated through Arbitral Tribunal. This being in the nature of tax cannot be levied through a contract but needs legislative sanction. This being in the nature of tax cannot be levied through a contract but needs legislative sanction. Assuming it not to be in the nature of tax, the amount has been required to be deposited unilaterally by one party to the dispute for adjudication of dispute through voluntarily set up arbitral Tribunal remains a price to be charged by one of the parties to a dispute for agreeing to refer the matter to arbitration, which the other party is under obligation to refer, being contrary to very fundamental rule of law that one party to dispute cannot charge price for allowing other party to litigate his rights and claims. 4. The respondents have raised a preliminary objection that writ petition is not maintainable for wriggling out of a contractual obligation undertaking voluntarily by a party to a contract, which is in the nature of private contract. 5. On merits of the issue, it has been stated by the learned Counsel for the Board that so far as the alleged bias of the members of the Arbitral Tribunal having interest in the subject matter of dispute is directly covered by Sections 12 and 13 of the Arbitration and Conciliation Act, 1996, which provides for a procedure where the allegation of bias or prejudice is levelled against the sole Arbitrator or Arbitral Tribunal constituted of multiple members. The manner in which this objection is to be raised and is to be dealt with has been provided under Section 12 of the Act, 1996. Such an objection cannot be raised in any other form by any other procedure. 6. So far as the second contention as to how the amount received with the application will be dealt with, it was clearly stated by the learned Counsel for the respondents before the Court on 10.05.2006, as under:- “During the course of arguments, learned Counsel for the Respondent No. 1 made a statement that the respective fees, required to be deposited by the contractor for referring the dispute to arbitration, towards the cost of arbitration is required to be adjusted at the end of arbitration proceedings, in terms of award of the cost and the amount deposited is less than the cost to be borne by the contractor. The excess amount deposited in the bank by him is to be returned to the concerned person and in case the cost exceeds than the amount has been deposited, then the balance amount is required to be paid by him." In other words, learned Counsel for the respondents stated that amount charged under the aforesaid clause 23 of the agreement is to be adjusted against cost of arbitration, when the matter is required to be referred to the arbitrator, otherwise same is refundable to the applicant. No part of such deposit is to be retained by the Board. 7. Learned Single judge has dismissed the writ petition on the ground that under the scheme framed under the Act, there is a bar to judicial intervention. Further under Section 8 of the Act, an application can always be moved to the concerned authority or judicial authority for seeking appropriate relief . However, under Section 16 an Arbitral Tribunal can judge its own competence and the petitioner can make an application to the Tribunal and the question of deposits also can be determined under Section 38 of the Act by the Arbitral Tribunal, if at all any intervention is sought by any party. With reference to the above provisions, the learned Single Judge further opined that coming to the Court under Article 226 of the Constitution is not considered a proper remedy. 8. Learned Counsel for the appellant has urged before us that since he has challenged the legality of the arbitration agreement, the Arbitral Tribunal is not competent to decide on the validity of the arbitration agreement. Whether the arbitration agreement is valid or not has to be decided before the Arbitral Tribunal has been appointed where one of the parties challenges the validity of the arbitration agreement itself being in violation of public policy or on other grounds as may be available under law notwithstanding that the existence of contract is not denied and is not the subject which can be decided by the Arbitral Tribunal before it has been set up. In these circumstances, jurisdiction of civil Court is not ousted. In these circumstances, jurisdiction of civil Court is not ousted. It was also contended by the learned Counsel for the appellant that the respondent being a Board set up under a statute is a State within the meaning of Article 12 of the constitution and every contract entered into it in furtherance of its obligation, with which it has been entrusted, has a public element in it and, therefore, whenever any contract with statutory authority is challenged as invalid, it can be challenged independent of arbitration proceedings, both by way of civil suit or by way of approaching the High Court under Article 226 of the Constitution of India inter alia on the ground that such agreement is arbitrary and unjust and goes at the root of equality clause. The entry to the portal cannot be denied merely on the ground of falling in the realm of contractual obligation. For the purpose of this contention, learned Counsel for the appellant placed reliance on a decision of Supreme Court in case of LIC of India & Anr. vs. Consumer Education & Research Centre & Ors., reported in 1995 (5) SCC 482 . 9. On merits, the arguments were on the same lines as noticed above with emphasis that a Tribunal, which is biased on the face of it, cannot be permitted to assume the role of Arbitrator. The appellant has shown his willingness for adjudication by any Arbitrator independently appointed. He has also not disputed for deposit of any amount towards provisional cost of arbitration. However, he submitted that there is no such provision as per the terms of agreement that amount required to be deposited for seeking reference to the Arbitral Tribunal is to be adjusted against cost of arbitration and on the face value it appears to be a money to be appropriated by the respondents from the disputant party to the contract for entertaining his application and making reference to the Arbitral Tribunal when the dispute is raised, which is obligatory. 10. 10. There being no clear purport stated in the agreement for which the amount required to be deposited by a disputant party, it becomes a question of interpreting said clause but the learned Counsel having stated at bar the purpose for which the deposit is required to be made by a disputant party alongwith an application, in our opinion brings an end to the apprehension of the appellant regarding appropriation of amount by the respondents independent of the cost of arbitration. 11. Had the Board taken a different stand, serious question as to constitutional validity of such agreement putting fetters on free approach to any adjudicating tribunal whether set up by State or by volition would have arisen requiring consideration. In such event the portals of extra ordinary jurisdiction could not have been closed on the ground of obligation being contractual. 12. Section 38 of the Act of 1996 empowers the Arbitral Tribunal to require the parties to the dispute to deposit certain sums as provisional cost of arbitration. Therefore, there is nothing against public policy, if the party to the agreement containing arbitration clause agrees to the term that in case dispute arises and the manner for appointing Arbitral Tribunal, that party raising dispute shall deposit certain sum in terms of the agreement to be adjusted towards the cost of arbitration. In view of the statement made by the learned Counsel for the respondent Board, it must be taken that the amount required to be deposited under the aforesaid clause is required to be adjusted against the cost of arbitration, if the matter is ultimately referred to arbitration and in case matter is not referred, the amount will be refunded. This being the position, we need not further examine the case on the issue that amount required to be deposited is to be appropriated by one of the disputant parties, but otherwise it certainly required probe into the question whether such an agreement can at all be considered to be within the domain of opposed to public policy and where one of the parties is State and requiring money from the disputing party for the purpose of permitting him to raise dispute in getting its adjudication through Arbitral Tribunal does involve a question in which public element is there. In such circumstances, it would be a serious question to be probed and answered whether petition under Article 226 of the Constitution would be avoided at the threshold. 13. Coming to the first contention about the alleged bias of Arbitral Tribunal, we are of the opinion that existence of bias is a fact which could be assumed preexisting before constitution of the Tribunal under agreement and can be dealt with properly under Section 12, which reads as under:- "12. Grounds of challenge .(1) when a person is approached in connection with his possible appointment as an arbitrator, he shall disclose in writing any circumstances likely to give rise to justifiable doubts as to his independence or impartiality. .(2) Anarbitrator, from the time of his appointment and throughout the arbitral proceedings, shall, without delay, disclose to the parties in writing any circumstances referred to in Sub-section (1) .unless they have already been informed of them by him. .(3) An arbitrator may be challenged only if- .(a) circumstances exist that give rise to justifiable doubts as to his independence or impartiality, or .(b) he does not possess the qualification agreed to by the parties. .(4) Aparty may challenge an arbitrator by him, or in whose appointment he has participated, only for reasons of which he becomes aware after the appointment has been made." Aforesaid provision clearly betrays that there is no absolute anathema under the Act, 1996 against a person having interest in the dispute or a disputant party to act as an Arbitral Tribunal. If parties to the agreement knowing interest of arbitrator in the dispute and agree to appoint him as an arbitrator without objection as to misconduct of arbitrator on the basis of his interest, the disputant party cannot challenge the award on the basis of misconduct of arbitrator. On the other hand, if such bias, prejudice or interest on the part of arbitral tribunal as a whole or some of its members is not known before entering into an agreement or its appointment, a party is required to raise objection before the Arbitral Tribunal as soon as existence of such interest, bias, or prejudice on the part of Arbitral Tribunal comes to its notice. On raising such objection, arbitrator or Arbitral Tribunal is to decide whether it wants to continue as Arbitral Tribunal. On raising such objection, arbitrator or Arbitral Tribunal is to decide whether it wants to continue as Arbitral Tribunal. If in spite of raising such an objection, the arbitral tribunal continues with arbitration proceedings, the arbitration proceedings are not required to be suspended for that reason alone. It only provides for a ground to impeach the award on the ground of misconduct of Arbitral Tribunal. 14. We may further notice that it is obligatory on the part of sole arbitrator or any member of arbitral Tribunal where it consists of multiple members to disclose the existence of its interest in the subject matter before entering upon reference of the dispute or if such interest comes into existence during arbitration proceedings, soon thereafter. Such interest, if later on, comes to light may provide a ground of challenge of an award but that by itself does not impose any impediment in continuing with the arbitral proceedings. 15. In view of the aforesaid, when the Arbitral Tribunal was constituted by agreement and when it was known to the parties earlier when they entered into the contract, they cannot be allowed to raise this objection now. On the other hand, after entering into the agreement because of the active involvement of all or any of the members of the Arbitral Tribunal in execution of work and matter connected therewith then such an objection can be raised at the time of referring the matter to the Arbitral Tribunal and on receiving such objection, it will be for the member of the Arbitral Tribunal to take a decision whether to withdraw from the Arbitral Tribunal so that another person can be substituted or to continue with the proceedings. In case the member of Arbitral Tribunal decides to continue with the proceedings despite raising objection of having actively connected with the execution work in respect of which dispute has arisen, it is open for the appellant to raise all objections while impinging the award on that ground. However, it does not give a valid cause to challenge the agreement on that ground alone. 16. We are prima facie of the view that if a party challenges the validity of the arbitration agreement apart form being its existence, he cannot be held to be remedyless. However, it does not give a valid cause to challenge the agreement on that ground alone. 16. We are prima facie of the view that if a party challenges the validity of the arbitration agreement apart form being its existence, he cannot be held to be remedyless. Ordinarily in absence of any specific prohibition, the arbitration agreement being a contract, it is open to challenge like any other contract where its validity can be impeached. We are unable to see substance in the contention that the jurisdiction conferred on Arbitral Tribunal gives it jurisdiction to entertain objection as to validity of the arbitration agreement itself . Since, the Arbitral Tribunal is the creation of that agreement, it cannot go into the validity of that agreement. However, within that agreement whether the Tribunal can entertain a dispute is the question affecting the jurisdiction of the Arbitral Tribunal constituted under the valid agreement and that objection can certainly be entertained under Section 16. 17. Section 8 of the Act, 1996 only provides for making or continuance of arbitral proceedings under an existing arbitration agreement notwithstanding that proceedings are pending in civil Court. However, Section 8 by itself does not clarify what are the pending proceedings relating to the contract between the parties or which proceedings can be entertained by the civil Court and which cannot be. However, that being not the question necessary to be decided presently, we need not further probe into this question. Accordingly, the appeal is dismissed.