Hon'ble ASOPA, J.—This is an arbitration application u/s 11 of the Arbitration and Conciliation Act, 1996 for appointment of the Sole Arbitrator for deciding the dispute arising out of contract dated 13.8.2004 executed between the parties, for supply of different type of papers, which contained Clause 6 wherein it has been mentioned that all the disputes arising out of the contract and interpretation thereof shall be decided by the Board of Directors / Administrator and his decision would be final. 2. Counsel for the Applicant submits that the aforesaid Clause 6 is an arbitration clause and even if this Court comes to the conclusion that the said Clause No.6 is not an arbitration clause, a direction may be issued to the respondent to decide the claim of the applicant as early as possible as has been done by the Supreme Court in Para 6 of Nav Bharat Construction Co. V. State of Rajasthan and others (1996) 7 SCC 89 ) after holding in para No.5 that Clause 23 of the agreement in question in that case that the decision of the Chief Engineer to be final, is not arbitration clause. 3. Counsel for the Non-applicant submits that the aforesaid Clause 6 is not an arbitration clause as in the said clause, no right of reference has been given to the Applicant and further, no duty has been cast upon the Board of Directors or the Administrator to act either judicially or quasi-judicially while deciding the dispute. Counsel for the Non-applicant also submits that there is no obligation upon the Board of Directors / Administrator to take evidence and after hearing the application to decide the said dispute and further, both the parties are bound by the said decision and the same must be enforceable in law. In support of his aforesaid contention, counsel for the Non-applicant has placed reliance on the Supreme Court judgment in State of Orissa and others V. Bhagyadhar Dash (2011 (2) WLC (SC) Civil 517, more particularly Paras 3, 3.2, 3.3, 3.4, 3.5 and 3.6. In support of his aforesaid contention, counsel for the Non-applicant has placed reliance on the Supreme Court judgment in State of Orissa and others V. Bhagyadhar Dash (2011 (2) WLC (SC) Civil 517, more particularly Paras 3, 3.2, 3.3, 3.4, 3.5 and 3.6. It would also be appropriate to mention here that under the heading before Para No.6 the Supreme Court has also prescribed the tests applied to find out whether they could be termed as arbitration agreement and similar term where the Superintending Engineer was given right to decide the dispute about the rate of contract, was held to be not an arbitration clause from paras 15 to 17. 4. Before proceeding further, it would be relevant to reproduce, Clause 6 of the contract dated 13.8.2004, Paras 3, 6 to 10 and paras 15 to 17 of the aforesaid judgment of the Supreme Court in State of Orissa and others V. Bhagyadhar Dash, and Paras 5 and 6 of Nav Bharat Construction Co. V. State of Rajasthan and others (supra),which are as under: Clause 6 of the Contract dated 13.8.2004 ^^bl vuqcU/k ls mRiUu gksus okys lHkh fookn ,oa vuqcU/k ds fuokZpu ls lacaf/kr lHkh iz'u eqnz.kky; ds lapkyd eaMy@iz'kkld }kjk r; fd;s tkosaxs ,oa mlesa eqnz.kky; ds lapkyd eaMy@iz'kkld dk fu.kZ; vafre gksxkA** Paras 3, 6 to 10 and paras 15 to 17 of the aforesaid judgment of the Supreme Court in State of Orissa and others V. Bhagyadhar Dash cited by the counsel for the Non-applicant “The essentials of an arbitration agreement 3. In K.K.Modi vs. K.N.Modi ( 1998 (3) SCC 573 ) this Court enumerated the following attributes of a valid arbitration agreement: (1) The arbitration agreement must contemplate that the decision of the Tribunal will be binding on the parties to the agreement. (2) that the jurisdiction of the Tribunal to decide the rights of parties must derive either from the consent of the parties or from an order of the Court or from a statute, the terms of which make it clear that the process is to be an arbitration. (3) the agreement must contemplate that substantive right of parties will be determined by the agreed tribunal. (4) that the tribunal will determine the rights of the parties in an impartial and judicial manner, with the tribunal owing an equal obligation of fairness towards both sides. (3) the agreement must contemplate that substantive right of parties will be determined by the agreed tribunal. (4) that the tribunal will determine the rights of the parties in an impartial and judicial manner, with the tribunal owing an equal obligation of fairness towards both sides. (5) that the agreement of the parties to refer their disputes to the decision of the Tribunal must be intended to be enforceable in law and lastly, (6) the agreement must contemplate that the tribunal will make a decision upon a dispute which is already formulated at the time when a reference is made to the Tribunal.” (emphasis supplied by me by under-lining the paras) Following K.K.Modi and others cases, Bihar State Mineral Development Corporation V. Encon Builders (IP) Ltd. 2003(2) WLC (SC) Civil 576 : 2003 (7) SCC 418 , this court listed the following as the essential elements of an arbitration agreement: “(i) There must be a present or a future difference in connection with some contemplated affair; (ii) There must be the intention of the parties to settle such difference by a private tribunal; (iii) The parties must agree in writing to be bound by the decision of such tribunal; and (iv) The parties must be ad idem.” Cases where the tests were applied to different clauses to find out whether they could be termed as 'arbitration agreement' 6. In K.K.Modi, the clause that arose for consideration was as under: “9. Implementation will be done in consultation with the financial institutions. For all disputes, clarification etc. in respect of implementation of this agreement, the same shall be referred to the Chairman, IFCI or his nominees whose decisions will be final and binding on both the groups”. This Court held that the said clause was not an arbitration agreement on the following reasoning: “Therefore our Courts have laid emphasis on (1) existence of disputes as against intention to avoid future dispute; (2) the tribunal or forum so chosen is intended to act judicially after taking into account relevant evidence before it and the submissions made by the parties before it; and (3) the decision is intended to bind the parties. Nomenclature used by the parties may not be conclusive. Nomenclature used by the parties may not be conclusive. (emphasis supplied) (emphasis supplied by me by under-lining the paras) The purport of Clause 9 is to prevent any further disputes between Groups A and B. Because the agreement requires division of assets in agreed proportions after their valuation by a named body and under a scheme of division by another named body. Clause 9 is intended to clear any other difficulties which may arise in the implementation of the agreement by leaving it to the decision of the Chairman, IFCI. This clause does not contemplate any judicial determination by the Chairman of the IFCI.... Thus, clause 9 is not intended to be for any different decision than what is already agreed upon between the parties to the dispute. It is meant for proper implementation of the settlement already arrived at. A judicial determination, recording of evidence etc. are not contemplated ...” (emphasis supplied) 7. In State of Uttar Pradesh vs. Tiper Chand – 1980 (2) SCC 341 , the following clause fell for consideration: “Except where otherwise specified in the contract the decision of the Superintending Engineer for the time being shall be final, conclusive and binding on all the parties to the Contract upon all questions relating to the meaning of the specifications, design, drawing and instructions hereinbefore mentioned. The decision of such Engineer as to the quality of workmanship, or materials used on the work, or as to any other question, claim, right, matter or things whatsoever, in any way arising out of or relating to the contract, designs, drawing specifications, estimates, instructions, orders or these conditions, or otherwise concerning the works, or the execution or failure to execute the same, whether arising during the progress of the work, or after the completion or abandonment of the contract by the Contractor, shall also be final, conclusive and binding on the Contractor.” The High Court held that the clause was not an arbitration agreement, as it merely conferred power on the Superintending Engineer to take a decision on his own and did not authorise parties to refer any matter to his decision. This Court clarified that in the absence of a provision for reference of disputes between parties for settlement, clause merely stating that the "decision of the Superintending Engineer shall be final" was not an arbitration agreement. This Court clarified that in the absence of a provision for reference of disputes between parties for settlement, clause merely stating that the "decision of the Superintending Engineer shall be final" was not an arbitration agreement. This Court clarified that an arbitration agreement can either be in express terms or can be inferred or spelt out from the terms of the clause; and that if the purpose of the clause is only to vest in the named Authority, the power of supervision of the execution of the work and administrative control over it from time to time, it is not an arbitration agreement. It also held that the clause did not contain any express arbitration agreement, nor spelt out by implication any arbitration agreement as it did not mention any dispute or reference of such dispute for decision. (emphasis supplied) (emphasis supplied by me by under-lining the para) 8. In State of Orissa vs. Damodar Das ( 1996(2) SCC 216 ), a three Judge Bench of this court considered whether the following clause is an arbitration agreement: “25. Decision of Public Health Engineer to be final.—Except where otherwise specified in this contract, the decision of the public health Engineer for the time being shall be final, conclusive and binding on all parties to the contract upon all questions relating to the meaning of the specifications, drawings and instructions hereinbefore mentioned and as to the quality of workmanship or material use on the work, or as to any other question, claim, right, matter or thing, whatsoever in any way arising out of, or relating to, the contract, drawings, specifications, estimates, instructions, orders or these conditions, or otherwise concerning the works or the execution of failure to execute the same., whether arising during the progress of the work or after the completion or the sooner determination thereof of the contract.” Following the decision in Tipper Chand, this Court held that the said clause did not amount to an arbitration agreement, on the following reasoning: “It would, thereby, be clear that this Court laid down as a rule that the arbitration agreement must expressly or by implication be spelt out that there is an agreement to refer any dispute or difference for an arbitration and the clause in the contract must contain such an agreement. We are in respectful agreeent with the above ratio. We are in respectful agreeent with the above ratio. It is obvious that for resolution of any dispute or difference arising between two parties to a contract, the agreement must provide expressly or by necessary implication, a reference to an arbitrator named therein or otherwise of any dispute or difference and in its absence it is difficult to spell out existence of such an agreement for reference to an arbitration to resolve the dispute or difference contracted between the parties.” (emphasis supplied) (emphasis supplied by me by under-lining the para) 9. In Bharat Bhushan Bansal vs. Uttar Pradesh Small Industries Corporation Ltd., Kanpur( 1999 (2) SCC 166 ), the following clauses fell for consideration of this Court: “Decision of the Executive Engineer of the UPSIC to be final on certain matters Except where otherwise specified in the contract, the decision of the Executive Engineer shall be final, conclusive and binding on both the parties to the contract on all questions relating to the meaning, the specification, design, drawings and instructions hereinbefore mentioned, and as to the quality of workmanship or materials used on the work or as to any other question whatsoever in any way arising out of for relating to the designs, drawings, specifications, estimates, instructions, orders or otherwise concerning the works or the execution or failure to execute the same whether arising during the progress of the work, or after the completion thereof or abandonment of the contract by the Contractor shall be final and conclusive and binding on the Contractor. Decision of the MD of the UPSIC on all other matters shall be final Except as provided in Clause 23 hereof, the decision of the Managing Director of the UPSIC shall be final, conclusive and binding on both the parties to the contract upon all questions relating to any claim, right, matter or thing in any way arising out of or relating to the contract or these conditions or concerning abandonment of the contract by the Contractor and in respect of all other matter arising out of this contract and not specifically mentioned herein". This Court held that the said clauses did not amount to arbitration agreement on the following reasoning: “In the present case, reading Clauses 23 and 24 together, it is quite clear that in respect of questions arising from or relating to any claim or right, matter or thing in any way connected with the contract, while the decision of the Executive Engineer is made final and binding in respect of certain types of claims or questions, the decision' of the Managing Director is made final and binding in respect of the remaining claims. Both the Executive Engineer as well as the Managing Director are expected to determine the question or claim on the basis of their own investigations and material. Neither of the clauses contemplates a full-fledged arbitration covered by the Arbitration Act". (Emphasis supplied) This Court while noting the distinction between a 'Preventer of disputes' and an 'adjudicator of disputes', observed that the Managing Director under Clause 24 of the agreement, was more in the category of an expert who will decide claims, rights, or matters in any way pertaining to the contract and the object of his decision is to avoid disputes and not decide disputes in a quasi-judicial manner. This Court also referred to an illustration given in Hudson on 'Building and Engineering Contracts' (11th Edn., Vol. II, para 18.067) stating that the following clause was not an arbitration clause and that the duties of the Engineer mentioned therein were administrative and not judicial: (emphasis supplied by me by under-lining the para) “(E)ngineer shall be the exclusive judge upon all matters relating to the construction, incidents and the consequences of these presents, and of the tender specifications, schedule and drawings of the Contract, and in regard to the execution of the works or otherwise arising out of or in connection with the contract, and also as rgards all matters of account, including the final balance payable to the contract, and the certificate of the engineer for the time being, given under his hand, shall be binding and conclusive on both parties.” 10. We may next refer to the three decisions of this Court relied on by the Respondents, where on interpretation, clauses though not descry-bed as 'arbitration clauses', were held to be arbitration clauses, by applying the tests as to what constitute an arbitration agreement. We may next refer to the three decisions of this Court relied on by the Respondents, where on interpretation, clauses though not descry-bed as 'arbitration clauses', were held to be arbitration clauses, by applying the tests as to what constitute an arbitration agreement. In Rukmanibai Gupta vs. Collector, Jabalpur 1980(4) SCC 566, this Court considered whether the following clause amounted to an arbitration agreement: 15. Whenever any doubt, difference or dispute shall hereafter arise touching the construction of these presents or anything herein contained or any matter or things connected with the said lands or the working or non-working thereof or the amount or payment of any rent or royalty reserved or made payable hereunder the matter in difference shall be decided by the lessor whose decision shall be final. This Court held that Arbitration agreement is not required to be in any particular form. What is required to be ascertained is whether the parties have agreed that if disputes arise between them in respect of the subject-matter of contract such dispute shall be referred to arbitration; and if the answer was in the affirmative, then such an arrangement would spell out an arbitration agreement. Applying the said test, this Court held that the aforesaid clause is an arbitration agreement, as it (a) made a provision for referring any doubt, difference or dispute to a specified authority for decision and (b) it made the "decision" of such authority final. While we respectfully agree with the principle stated, we have our doubts as to whether the clause considered would be an arbitration agreement if the principles mentioned in the said decision and the tests mentioned in the subsequent decision of a larger bench in Damodar Das are applied. Be that as it may. In fact the larger bench in Damodar Das clearly held that the decision in Rukmanibai Gupta was decided on the special wording of the clause considered therein. "The ratio in Rukmanibai Gupta vs. Collector does not assist the Respondent. From the language therein this Court inferred, by implication, existence of a dispute or difference for arbitration." 15. We may next examine whether the last sentence of the proviso to Clause 10 could be considered to be an arbitration agreement. It does not refer to arbitration as the mode of settlement of disputes. It does not provide for reference of disputes between the parties to arbitration. We may next examine whether the last sentence of the proviso to Clause 10 could be considered to be an arbitration agreement. It does not refer to arbitration as the mode of settlement of disputes. It does not provide for reference of disputes between the parties to arbitration. It does not make the decision of the Superintending Engineer binding on either party. It does not provide or refer to any procedure which would show that the Superintending Engineer is to act judicially after considering the submissions of both parties. It does not disclose any intention to make the Superintending Engineer an arbitrator in respect of disputes that may arise between the Engineer-in-Charge and the contractor. It does not make the decision of the Superintending Engineer final on any dispute, other than the claim for increase in rates for non-tendered items. It operates in a limited sphere, that is, where in regard to a non-tendered additional work executed by the contractor, if the contractor is not satisfied with the unilateral determination of the rate therefor by the Engineer-in-Charge the rate for such work will be finally determined by the Superintending Engineer. It is a provision made with the intention to avoid future disputes regarding rates for non-tendered item. It is not a provision for reference of future disputes or settlement of future disputes. The decision of superintending Engineer is not a judicial determination, but decision of one party which is open to challenge by the other party in a court of law. The said clause can by No. stretch of imagination be considered to be an arbitration agreement. The said clause is not, and was never intended to be, a provision relating to settlement of disputes. (emphasis supplied by me by under-lining the para) 16. That Clause 10 was never intended to be an arbitration agreement is evident from the contract itself. The said clause can by No. stretch of imagination be considered to be an arbitration agreement. The said clause is not, and was never intended to be, a provision relating to settlement of disputes. (emphasis supplied by me by under-lining the para) 16. That Clause 10 was never intended to be an arbitration agreement is evident from the contract itself. It is relevant to note the Standard Conditions of Contract of the state government, as originally formulated consisted a provision (Clause 23) relating to settlement of disputes by arbitration, which is extracted below: Except where otherwise provided in the contract, all questions and disputes relating to the meaning of the specifications, designs, drawings and instructions herein before mentioned and as to the quality of workmanship, or materials used on the work, or as to any other question, claim, right, matter or thing whatsoever, in any way arising out of or relating to the contract, designs, drawing, specifications, estimates, instructions, orders or these conditions, or otherwise concerning the work, or the execution, or failure to execute the same, whether arising during the progress of the work or after the completion or abandonment thereof shall be referred to the sole arbitration of a Superintending Engineer of the State Public Works Department unconnected with the work at any stage nominated by the Chief Engineer concerned. If there be No. such Superintending Engineer, it should be refereed to the sole arbitration of Chief Engineer concerned. It will be No. objection to any such appointment that the arbitrator so appointed is a government servant. The award of the arbitrator so appointed shall be final, conclusive and binding on all parties to this Contract. The said clause was deleted by the State Government from the Standard Conditions of Contract by official Memorandum dated 24.12.1981. Contracts entered by the State Government thereafter did not have the said arbitration clause, though the other Conditions of Contract remained the same. The contracts in all these cases are of a period subsequent to 24.12.1981 and the Conditions of Contract forming part of these contracts do not contain the arbitration clause. When the State Government has consciously and intentionally deleted the provision for arbitration from its contracts, it will be a travesty of justice to read another clause in the contract providing for execution of non-tendered items and the method of determination of the rates therefor, as a provision for arbitration. When the State Government has consciously and intentionally deleted the provision for arbitration from its contracts, it will be a travesty of justice to read another clause in the contract providing for execution of non-tendered items and the method of determination of the rates therefor, as a provision for arbitration. 17. In fact, in Executive Engineer RCO vs. Suresh Chandra Panda (1999 (9) SCC 92, this Court considered the effect of the said clause relating to execution of non-tendered items, vis-a-vis Clause 23 in a pre-1981 contract. This Court held that the said Clause (then numbered as Clause 11, numbered as Clause 10 in subsequent contracts) was a provision which excluded the issue relating to finality of rates, from the scope of arbitration agreement contained in Clause 23 on the following reasoning: “Under Clause 11 of the contract, there is an elaborate provision dealing with the power of the Engineer-in Charge to make any alterations or additions to the original specifications, drawings, designs and instructions. It, inter alia, provides that if for such alterations or additions No. rate is specified in the contract, then the rates which are entered in the sanctioned schedule of rates of the locality during the period when the work is being carried out, would be paid. However, if this class of work, not provided for in the sanctioned schedule of rates then the contractor has the right, in the manner specified in that clause, to inform the Engineer-in-Charge of the rate at which he intends to carry out that work. If the Engineer-in-Charge does not agree to this rate he is given the liberty to cancel his order and arrange to carry out such class of work in such manner as he may consider advisable. The clause further provides that if the contractor commences such additional work or incurs any expenditure in respect of it before the rate are determined as specified in that clause, then the rate or rates shall be as fixed by the Engineer-in-Charge. In the event of a dispute, the decision of the Superintendent Engineer of the circle will be final. Under Clause 23, except as otherwise provided in the contract, all disputes are arbitrable as set out in that clause. In the event of a dispute, the decision of the Superintendent Engineer of the circle will be final. Under Clause 23, except as otherwise provided in the contract, all disputes are arbitrable as set out in that clause. The finality of rates, therefore, under Clause 11 is a provision to the contrary in the contract which is excluded from Clause 23.” Thus, even when the Standard Conditions of Contract contained a provision for arbitration (vide Clause 23), Clause 10 was considered to be a provision dealing with a matter excepted from arbitration. Be that as it may. The proviso to Clause 10, which provides that the decision of the Superintending Engineer is 'final', merely discloses an intention to exclude the rates for extra items decided by the Superintending Engineer from the scope of arbitration, as an excepted matter, when there was an arbitration agreement (Clause 23) in the contract. When the arbitration agreement was deleted, provision dealing with non-tendered items can not be described as an arbitration agreement. Be that as it may.” Paras 5 and 6 of Nav Bharat Construction Co. vs. State of Rajasthan and others (1996) 7 SCC 89 (Cited by counsel for the Applicant) “5. Having said this, we are of the view that the Chief Engineer in the present case ought to have decided the matter as per the terms of clause 23 of the agreement. He may not decide it as an arbitrator under the Arbitration Act, since he has not been appointed as such under the said clause. But he was duty bound to decide the firm's claims after hearing it. As provided for in the said clause 23, whatever decision he gives is binding on the parties. 6. While dismissing these appeals we, therefore, direct the Chief Engineer of the State to decide the claims made by the appellant as early as possible, provided the claims are made within four months from today. In the circumstances of the case there will be no order as to costs. The penalty proceedings which are adopted by the State shall be subject to the final outcome of the decision of the Chief Engineer in all the claims that the appellants will make before the Chief Engineer. The stay granted by this Court in civil appeals shall stand vacated.” (emphasis supplied by me) 5. The penalty proceedings which are adopted by the State shall be subject to the final outcome of the decision of the Chief Engineer in all the claims that the appellants will make before the Chief Engineer. The stay granted by this Court in civil appeals shall stand vacated.” (emphasis supplied by me) 5. I have gone through record of the arbitration application and further considered the aforesaid judgments along with rival submissions of counsel for the parties. 6. On consideration of the aforesaid arbitration Clause 6 and para 3, more particularly paras 3.2, 3.3, 3.4 and 3.5, I am of the view that Clause 6 of the Agreement dated 13.8.2004 (Anx.1) is not an arbitration clause as the Applicant has not been given any right of reference to decide the substantive rights of the parties in an impartial and judicial / quasi judicial manner and further both the parties are not bound by the Board of Directors / Administrator as the said decision is not intended to be enforceable in law, therefore, Clause 6 is not an arbitration clause and no independent Arbitrator can be appointed. However, the role of the Board of Directors / Administrator is the rule of adjudicator of the dispute who will decide the claims, rights or matter in any way pertaining to contract and object of his decision is to avoid the dispute and not decide the dispute in a quasi judicial manner and the same is further not enforceable in law. 7. The arbitration application is dismissed. However, the Applicant had submitted an application raising his grievance before the Board of Directors / Administrator on 30.6.2009 which still remained undecided therefore, the Board of Directors / Administrator is directed to decide the said dispute within a period of four months from the date of receipt of this order.