1. The instant petition under Section 11 of the Jammu and Kashmir Arbitration and Conciliation Act, 1997 prays for appointment of Arbitrator by this Court for adjudicating the dispute which has arisen between the parties. 2. Facts in brief would be necessary to appreciate the controversy. The petitioner had earlier filed AA no. 38/2005 which was allowed by this Court on 04.04.2008 (annexure A). This Court rejected the objections, that the matter was not referable to the arbitration as they fall within the purview of 'excepted matters' under Clause 64 of the general conditions of the contract and proceeded to hold that the General Manager Northern Railways was competent to appoint arbitrator. Accordingly, direction was issued to the General Manager to appoint arbitrator/arbitrators for resolving the disputes raised by the petitioner, leaving it open to the arbitrator/arbitrators to decide as to what claims may fall within the 'excepted category'. A period of 30 days from the date of receipt of that order was fixed by this Court to appoint the arbitrator. However, till the filing of the instant petition,, filed on 02.04.2009 no steps were taken by the General Manager lo appoint the arbitrator. 3. The petitioner had claimed that two arbitrators were required to be appointed as per Clause 64 (3) (b) of the General Conditions as the amount involved is more than Rs. 5 Lacs. The submission now made is that General Manager, Northern Railways has lost the right to appoint the arbitrator as he failed to do so within the prescribed period and, before filing of application by the petitioner. It is appropriate to mention that in the petition A A no. 38/2005 several claims were raised and the petitioner requested that those claims to be referred to the arbitrator. Reference was made to the arbitration clause contained in the agreement, namely, clause 64 of the general conditions of the contract agreement, which is set out below in extenso:- "64. (3) (b) For the purpose of appointing "two arbitrators" as referred to in sub-clause (a)(ii) above the Railway will send a panel of more then three names of Gazetted railway officers of one or more departments of the Railway to the Contractor who will be asked to suggest to the General Manager one name out of the list for appointment as the Contractor's nominee. The General Manager, while so appointing the Contractors nominee, will also appoint a second arbitrator as the Railways nominee either from the panel or from outside the panel, ensuring that one of the two arbitrators so nominated is invariably from the Accounts Department. Before entering upon the reference the two Arbitrators shall nominate an Umpire who shall be a Gazetted Railway Officer to whom the case will be referred to in the event of any difference between the two arbitrators. Officers of the Junior Administrative grade of the Accounts Department of the Railways shall be considered as of equal status to the officers in the intermediate administrative grade of other departments of the Railway for the purpose of appointment as arbitrator. 4. Further after filing the instant petition, namely, AA no. 7/2009 on 02.04.2009 and receipt of notice thereof for 22.04.2009, the respondent-Railways filed Special Leave to Appeal (Civil) no. CC 16922/2009. The SLP was dismissed having been found without merit leaving it open to the respondents to raise the plea that certain matters were excepted matters, before the arbitrator. Even thereafter the General Manager did not appoint the arbitrator which led the petitioner to file CMP no. 05/2010 praying for interim directions, restraining the respondent- General Manager from appointing any arbitrator/arbitrators and/or insisting on the petitioner to suggest the names of any such arbitrator till the decision is made in the instant petition, namely, AA no. 07/2009. On 01.06.2010 learned counsel for the respondent gave an assurance that the arbitration would not proceed any further until next date of hearing. Accordingly, no proceedings have been taken up. 5. In the objections filed by the respondents the prayer of the petitioner for appointment of an independent arbitrator has been opposed by alleging that the petitioner did not cooperate despite various letters (annexure R1 to R5), which are dated 22.01.2010, 12.02.2010, 24.02.2010, 29.03.2010 and 04.03.2010. The respondents has suggested a panel of 4 gazetted Railway Officers based in New Delhi and the petitioner was to suggest two names out of the four so as to enable the respondents to appoint one of them as arbitrator being the contractors nominee. The respondents has suggested a panel of 4 gazetted Railway Officers based in New Delhi and the petitioner was to suggest two names out of the four so as to enable the respondents to appoint one of them as arbitrator being the contractors nominee. In para 4 of the objections it has been pleaded that if Railways fails to make decision within 120 days the petitioner-contractor was required to present its claims on disputed matters after 120 days but within 180 days in writing, highlighting the dispute or differences referable to the arbitrator. In para no. 5 of the objections the dispute highlighted in AA no. 38/2005, culminating into passing of order dated 04.04.2008, has been admitted. 6. Mr. Gandotra, learned counsel for the petitioner has argued that after expiry of period of 30 days given by this Court and till filing of the present AA no. 07/2009 on 02.04.2009, the respondents have lost the right to nominate any arbitrator. According to Mr. Gandotra the petitioner became entitled to appointment of an independent arbitrator by this Court. In support of his submissions learned counsel has placed reliance on the observations made by Hon'ble the Supreme Court in Datar Switchgears Ltd v. Tata Finance Ltd. And Anr. (2000) 8 SCC 151 and argued that if a party having the responsibility to appoint an arbitra tor, fails to do so within 30 days specified in the order then the right to make appointment can still be availed but only before the other party moves the Court under Section 11. It is only after the other party has moved the Court that the right to make appointment by the respondents would cease to exist. Learned counsel has also placed reliance on another judgment of Hon'ble the Supreme Court rendered in the case of Union of India v. M/S Singh Builders Syndicate, (2009) 4 SCC 523 and argued that their Lordships of the Supreme Court have held that the appointment of an arbitrator named in the arbitration agreement is not mandatory yet efforts should be adherence to the arbitration agreement and this should be given effect as closely as possible. The Chief Justice or his designate should first ensure that the remedies, as provided in the agreement, are exhausted but at the same time the twin requirements of sub-section (8) of Section 11 of the Act have to be kept in view. The Chief Justice or his designate should first ensure that the remedies, as provided in the agreement, are exhausted but at the same time the twin requirements of sub-section (8) of Section 11 of the Act have to be kept in view. It has also been pointed out that the names of the officers mentioned in the communications (Rl to R5) would show that all of them are based in New Delhi and would be subjected to frequent transfers. 7. Mr. H. H. Singh, learned counsel for the respondents, has, however, argued that the right to appoint the arbitrator continues to vest in the General Manager and the same cannot be for feited. According to the learned counsel the respondents have been making efforts to secure the consent of the petitioner for approving two names out of the Panel of four so that one of them could be appointed as arbitrator as the contractors nominee. Learned counsel has also submitted that Hon'ble the Supreme Court has upheld the order in AA no. 38/2005. 8. Having heard the learned counsel for the parties and perusing the record with their able assistance I am of the considered view that this petition merits acceptance and the same deserves to be accepted. It has come on record that contract was awarded to the petitioner on 03.03.2000. A dispute arose which led to issuance of notice for appointment of arbitrator on 16.04.2004 and 29.07.2005. On the failure of the respondents to appoint the arbitrator within 30 days the petitioner filed AA no. 38/2005 on 24.11.2005 which was decided by this High Court on 04.04.2008 granting 30 days time to the General Manager, Northern Railways to appoint the arbitrator. However, no arbitrator was appointed within the period prescribed which compelled the petitioner to file AA no. 07/2009 on 02.04.2009. This High Court issued notice on 15.04.2009. At this stage, after service of notice the respondents resorted to the remedy of filing SLP (AA) no. CC 16922/2009 which was dismissed on 09.11.2009 as having no merit although delay was condoned. Even thereafter it took more than two months for the respondents to propose the Panel of arbitrators. 9. The contention raised by Mr. Gandotra merits acceptance in the light of observations made by Hon'ble the Supreme Court in Datar Switchgears's case (supra). CC 16922/2009 which was dismissed on 09.11.2009 as having no merit although delay was condoned. Even thereafter it took more than two months for the respondents to propose the Panel of arbitrators. 9. The contention raised by Mr. Gandotra merits acceptance in the light of observations made by Hon'ble the Supreme Court in Datar Switchgears's case (supra). In that case their Lordships of the Supreme Court held that if appointment of an arbitrator is not made within the stipulated period the right to appoint the arbitrator is not forfeited unless it is intercepted by an application by the aggrieved party under Section 11 of the Act. This observation occurs in para 18 and 19 of the judgment. Mr. Gandotra has rightly placed reliance on another judgment which is nearer home as it interprets arbitration Clause 64 of the respondent-Northern Railways General Clauses. In that case their Lordships upheld the appointment of an independent arbitrator, rejecting the claim of the Railways that the appointment of the arbitrator should be in accordance with Clause 64 of the general terms and conditions. In that case the petition of the contractor under Section 11 was allowed and direction was issued on 11.11.2002 for constitution of an arbitration Tribunal in terms of Clause 64. Before the proceedings could commence one of the arbitrators was transferred and consequently he resigned which led to filing of another application to provide a fresh panel as the Railway had failed to nominate another officer. A new officer was nominated and even he was transferred which again led to filing of another application by that contractor with a prayer that an independent sole arbitrator be appointed. Upholding the appointment of a former Judge as the sole arbitrator their Lordships of the Supreme Court proceeded to observe in para nos. 11, 12, 13, 14, 15, 16 and 17 as under:- 11. The question that arises for consideration in this appeal by special leave is whether the appointment of a retired Judge of the High Court as sole arbitrator should be set aside and an Arbitral Tribunal should again be constituted in the manner provided in terms of Clause 64. 12. 11, 12, 13, 14, 15, 16 and 17 as under:- 11. The question that arises for consideration in this appeal by special leave is whether the appointment of a retired Judge of the High Court as sole arbitrator should be set aside and an Arbitral Tribunal should again be constituted in the manner provided in terms of Clause 64. 12. Dealing with a matter arising from the old Act (the Arbitration Act, 1940), this Court, in Union of India v. M.P. Gupta held that appointment of a retired Judge as sole arbitrator contrary to Clause 64 (which requiring serving gazetted railway officers being appointed) was impermissible. 13. The position after the new Act came into force, is different, as explained by this Court in Northern Railway Admn., Ministry of Railway v. Patel Engg. Co. Ltd. This Court held that the appointment of arbitrator(s) named in the arbitration agreement is not mandatory or a must, but the emphasis should be on the terms of the arbitration agreement being adhered to and/or given effect, as closely as possible. 14. It was further held in Northern Railway case that the Chief Justice or his designate should first ensure that the remedies provided under the arbitration agreement are exhausted, but at the same time also ensure that the twin requirements of sub-section (8) of Section 11 of the Act are kept in view. This would mean that invariably the court should first appoint the arbitrators in the manner provided for in the arbitration agreement. But where the independence and impartiality of the arbitrator(s) ap-pointed/noihinated in terms of the arbitration agreement is in doubt, or where the Arbitral Tribunal appointed in the manner provided in the arbitration agreement has not functioned and it becomes necessary to make fresh appointment, the Chief Justice or his designate is not powerless to make appropriate alternative arrangements to give effect to the provision for arbitration. 15. The object of the alternative dispute resolution process of arbitration is to have expeditious and effective disposal of the disputes through a private forum of the parties' choice. 15. The object of the alternative dispute resolution process of arbitration is to have expeditious and effective disposal of the disputes through a private forum of the parties' choice. If the Arbitral Tribunal consists of serving officers of one of the parties to the dispute, as members in terms of the arbitration agreement, and such tribunal is made non-functional on account of the action or inaction or delay of such party, either by frequent transfers of such members of the Arbitral Tribunal or by failing to take steps expeditiously to replace the arbitrators in terms of the arbitration agreement, the Chief Justice or his designate, required to exercise power under Section 11 of the Act, can step in and pass appropriate orders. 16. We fail to understand why the General Manager of the Railways repeatedly furnished panels containing names of officers who were due for transfer in the near future. We are conscious of the fact that a serving officer is transferred on account of exigencies of service and transfer policy of the employer and that merely because an employee is appointed as arbitrator, his transfer cannot be avoided or postponed. But an effort should be made to ensure that officers who are likely to remain in a particular place are alone appointed as arbitrators and that the Arbitral Tribunal consisting of serving officers, decides the matter expeditiously. 17. Constituting Arbitral Tribunals with serving officers from different far-away places should be avoided. There can be no hard-and-fast rule, but there should be a conscious effort to ensure that the Arbitral Tribunal is constituted promptly and arbitration does not drag on for years and decades." 10. The aforesaid principles would fairly apply to the case of the petitioner. The dispute in the present case is pending since 2004 and already a period of nine years has gone by. Even otherwise the officers who are in the panel are based at New Delhi, who are likely to be subjected to transfers. In the facts and circumstances of the case I am of the considered view that an independent arbitrator deserves to be appointed in the present case. 11. Accordingly I appoint Shri Justice O. P. Sharma (Retd.) as the sole arbitrator. He shall enter upon the reference after issuing notice to the parties. He would be entitled to a fixed fee of Rs. 11. Accordingly I appoint Shri Justice O. P. Sharma (Retd.) as the sole arbitrator. He shall enter upon the reference after issuing notice to the parties. He would be entitled to a fixed fee of Rs. 10,000/- per every effective hearing subject to a maximum of Rs. 1.50 Lacs plus clerkage which should be shared equally by the parties.