JUDGMENT : (Sunita Agarwal, CJ.) 1. This petition raises an interesting question relating to applicability of Section 12 and 14 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as ‘the Act, 1996’ for short) to assert that nomination made by the respondent No. 1 – original claimant is contrary to the provisions of Section 12(5) of the Act, 1996. The person sought to be appointed as an Arbitrator by respondent No. 1 has a previous involvement in the very same case and the appointment, as such, is hit by the Section 12(5) read with item No. 16 of the Seventh (‘VII’) Schedule. 2. Though in the petition, various averments have been made of the appointment being contrary to the provisions of Section 11(6) of the Act, 1996, but all the stated points have not been pressed during the course of arguments. This Court, is called upon to answer the only questions whether the Arbitrator appointed by respondent No. 1 is incapacitated or ineligible to act as an Arbitrator ? Whether disqualification in Seventh (‘VII’) Schedule, pressed into service by the petitioner would be attracted in the facts of the instant case ? 3. It may be noted that owing to some disputes and differences between the parties, a three member Arbitral Tribunal was constituted comprising of two party – nominated Arbitrators and one Presiding Arbitrator. The tribunal was later reconstituted on account of the sudden demise of the Presiding Arbitrator. While the arbitration proceedings were at the stage of final hearing, one of the nominee Arbitrator for respondent No. 1 had recused himself. In light of the recusal, the reconstituted tribunal by the procedural order dated 11.08.2023 had adjourned the matter sine die with the liberty to get the matter revived on the nominations of the Arbitrator, by respondent No. 1. 4. It is contended that the nomination of the Arbitrator by e-mail dated 16.09.2023 sent by respondent No. 1, falling within the instances of the Seventh (‘VII’) Schedule of the Act, 1996, inasmuch as, the nominated Arbitrator had been involved in the present dispute in his capacity as a sitting Judge of this Court. A copy of the e-mail dated 16.09.2023 sent by respondent No. 1 addressed to the members of the Arbitral Tribunal with the request to revive the proceeding, appended with the petition has been placed before the Court. 5. A copy of the e-mail dated 16.09.2023 sent by respondent No. 1 addressed to the members of the Arbitral Tribunal with the request to revive the proceeding, appended with the petition has been placed before the Court. 5. While intimating the appointment of Arbitrator by e-mail dated 16.09.2023, it was also intimated by the respondent No. 1 therein that the orders passed by the Arbitral Tribunal under Section 17 of the Act, 1996 on 04.12.2017 and 23.12.2017 were challenged before the Commercial Court, Rajkot by preferring two appeals, which came to be dismissed on 09.03.2018. The common order dated 09.03.2018 passed by the Commercial Court as also the interim order passed under Section 17 by the erstwhile Arbitral Tribunal was challenged before the High Court by respondent No. 1 namely Deendayal Port Trust by filing Special Civil Application No. 4753 of 2018 and Special Civil Application No. 4759 of 2018. By common judgment dated 12.06.2018, Special Civil Application No. 4753 of 2018 had been dismissed, whereas Special Civil Application No. 4759 of 2018 came to be allowed, while setting aside the order dated 23.12.2017 of the Tribunal on the ground that the same was passed without hearing the parties. The matter was relegated keeping it open for the Tribunal to pass order after hearing the parties. 6. It is pointed out that the learned Arbitrator nominated by respondent No. 1 was a member of the Division Bench of this Court which had passed the judgment and order dated 12.06.2018. Placing the above noted order of the Division Bench in the aforesaid writ petitions, it is submitted by the learned Senior Counsel for the petitioner that since the nominated Arbitrator has been involved in the instant case for the dispute which was dealt by him at the previous point of time, he has become ineligible, inasmuch as, there are sufficient grounds to give rise to justifiable doubts as to the independence and impartiality of the Arbitrator. 7. Item No. 15 and 16 as contained in Fifth (‘V’) Schedule as also in Seventh (‘VII’) Schedule are placed before the Court to submit that the nominated Arbitrator cannot enter into the dispute, as he has become ineligible by virtue of sub-section (5) of Section 15 of the Act, 1996, being related to the subject matter of the dispute. 8. Item No. 15 and 16 as contained in Fifth (‘V’) Schedule as also in Seventh (‘VII’) Schedule are placed before the Court to submit that the nominated Arbitrator cannot enter into the dispute, as he has become ineligible by virtue of sub-section (5) of Section 15 of the Act, 1996, being related to the subject matter of the dispute. 8. Reliance is placed on the decision of the Apex Court in the case of Perkins Eastman Architects DPC and Another versus HSCC (India) Ltd. reported in (2020) 20 SCC 760 , to argue that independence and impartiality of the Arbitrator are the hallmark of any arbitration proceedings. Rule against bias is one of the fundamental principles of natural justice which duly applies to all judicial and quasi-judicial proceedings. The relationship between the parties to the arbitration and the arbitrators themselves are contractual in nature and the source of an arbitrator’s appointment is deduced from the agreement entered into between the parties, but the instance of non-independence and non-impartiality of such arbitrator would render him ineligible to conduct the arbitration. The genesis behind this rational is that even when an arbitrator is appointed in terms of contract and by the parties to the contract, he is independent of the parties. Functions and duties require him to rise above the partisan interest of the parties and not to act in, or so as to further, the particular interest of either parties. 9. Reference has been also made to the decision in case of Voestapline Schienen Gmbh v. Delhi Metro Rail Corpn. Ltd. reported in (2017) 4 SCC 665 , to place the above points. It was contended that the Arbitrator having adjudicatory role to perform, must be independent of parties as well as impartial. It is argued that independence and impartiality may be ascertained by the parties at the outset of the arbitration proceedings in light of the circumstances disclosed by the Arbitrator. It is imperative that healthy arbitration environment is created. 10. It was contended that the Arbitrator having adjudicatory role to perform, must be independent of parties as well as impartial. It is argued that independence and impartiality may be ascertained by the parties at the outset of the arbitration proceedings in light of the circumstances disclosed by the Arbitrator. It is imperative that healthy arbitration environment is created. 10. Learned counsel appearing for the respondent, on the other hand, referred to the decision of the Apex Court in the case of HRD Corporation (Marcus Oil and Chemical Division) versus GAIL (India) Limited (Formerly Gas Authority of India Ltd.) reported in (2018) 12 SCC 471 , to submit that ineligibility goes to the root of the appointment, in as much as, Section 12(5) read with Seventh (‘VII’) Schedule makes it clear that if the Arbitrator falls in any of the categories specified in the Seventh (‘VII’) Schedule, he becomes ineligible to act as an Arbitrator. Once, he becomes ineligible, by virtue of Section 14(1)(a) of the Act, 1996 he becomes de jure unable to perform his functions. Inasmuch as, in law, he is regarded as “ineligible”. However, in a challenge where grounds stated in the Seventh (‘VII)’ Schedule are disclosed, which give rise to justifiable doubts as to the independence and impartiality of the Arbitrator, such doubts as to the independence or impartiality have to be determined as a matter of fact in the facts of the particular challenge by the Arbitral Tribunal under Section 13. If a challenge is not successful and the Arbitral Tribunal decides that there are no justifiable doubts as to the independence and impartiality of the Arbitrator, the Arbitral Tribunal must then continue the arbitral proceedings under Section 13(4) and make an award. It is only after such award is made, that the party challenging the arbitrator’s appointment on grounds contained in the Seventh (‘VII’) Schedule may make an application for setting aside the arbitral award in accordance with Section 34 on the aforesaid grounds. 11. As regards, the grounds enumerated in Fifth (‘V’) and Seventh (‘VII’) Schedule, the Apex Court in HRD Corporation (Marcus Oil and Chemical Division) (supra), has noted that the said grounds have been taken from the IBA Guidelines, which consists of three members. The Red List consisting of non-waivable and waivable guidelines, covers situations which are “more serious” and “serious”, the “more serious” objections being non-waivable. The Red List consisting of non-waivable and waivable guidelines, covers situations which are “more serious” and “serious”, the “more serious” objections being non-waivable. The Orange List, on the other hand, is a list of situations that may give rise to doubts as to the arbitrator’s impartiality or independence, as a consequence of which the arbitrator has a duty to disclose such situations. The Green List is a list of situations where no actual conflict of interest exists from an objective point of view, as a result of which the arbitrator has no duty of disclosure. These guidelines were first introduced in Part-1 of the Arbitration Act and general standards regarding impartiality, independence and disclosure are set out. As to the guidelines on conflict of interest, it was noted therein that : - “(2) Conflicts of Interest (a) An arbitrator shall decline to accept an appointment or, if the arbitration has already been commenced, refuse to continue to act as an arbitrator, if he or she has any doubt as to his or her ability to be impartial or independent. (b) The same principle applies if facts or circumstances exist, or have arisen since the appointment, which, from the point of view of a reasonable third person having knowledge of the relevant facts and circumstances, would give rise to justifiable doubts as to the arbitrator’s impartiality or independence, unless the parties have accepted the arbitrator in accordance with the requirements set out in General Standard 4. (c) Doubts are justifiable if a reasonable third person, having knowledge of the relevant facts and circumstances, would reach the conclusion that there is a likelihood that the arbitrator may be influenced by factors other than the merits of the case as presented by the parties in reaching his or her decision. (d) Justifiable doubts necessarily exist as to the arbitrator’s impartiality or independence in any of the situations described in the Non-Waivable Red List.” 12. In the said case, the challenge to the appointment of two Arbitrators, the members of the Tribunal, was raised on the ground that one had been an adviser to one of the parties in another unconnected matter, whereas another Arbitrator had previously rendered an award between the same parties in earlier arbitration concerning the same dispute, but for an earlier period. For both the eventualities, it was argued that item No. 15 and 16 of the Seventh (‘VII’) Schedule are makes the Arbitrators ineligible, as such eventualities, were attracted in the facts of the said case. 13. The item No. 16 occurring in Seventh (‘VII’) Schedule and Fifth (‘V’) Schedule has been noted and elaborated therein. Item No. 16 of the Fifth (‘V’) Schedule as also Seventh (‘VII’) Schedule (pari materia) is relevant to be extracted hereinunder : - “16. The arbitrator has previous involvement in the case.” 14. It was held by the Apex Court in the case of HRD Corporation (Marcus Oil and Chemical Division) (supra), that on a reading of the aforesaid guideline and reading the heading which appears with Item 16 i.e. “Relationship of the arbitrator to the dispute”, it is obvious that the arbitrator has to have a previous involvement in the very dispute contained in the present arbitration. Item No. 16 cannot be read as including previous involvements in another arbitration on a related issue involving one of the parties. The language of Item No. 16 shows proposed Arbitrator must be a person who has had previous involvement in the case in some other avatar. Item No. 16 refers to previous involvement in an advisory or other capacity in the very dispute, but not as arbitrator. It was, thus, held that the providing an expert opinion as occurring in Item No. 15, advice to a party covered, would not include legal advise given as it would include only a situation where Arbitrator had been an Adviser insofar as the source of business of a party to the arbitration. In case of any professional relationship or business relationship between the Arbitrator and one of the party would dis-entitle him to act as an Arbitrator. The legal advice given to the party in any other issue would not be a reason to hold the Arbitrator ineligible. 15. In light of the above, this Court may note that instances incorporated in the Fifth (‘V’) and Seventh (‘VII’) Schedule, based on the ground of reasonable likelihood of bias, would render an Arbitrator to be ineligible in a subsequent arbitration related to the same matter. 16. 15. In light of the above, this Court may note that instances incorporated in the Fifth (‘V’) and Seventh (‘VII’) Schedule, based on the ground of reasonable likelihood of bias, would render an Arbitrator to be ineligible in a subsequent arbitration related to the same matter. 16. In the instant case, it may be noted, a perusal of the judgment and order passed by the Division Bench of this Court (on record) of which the nominated Arbitrator had been a member, indicates that challenge in the said case was to a common order passed by the Commercial Tribunal on a challenge to the interim order passed by the Arbitral Tribunal. The Division Bench while dealing with the merits of the interim order noted that insofar as the challenge to the interim order dated 04.12.2017 passed by the Arbitral Tribunal, the petitioner, i.e. the original claimant therein accepted the said order unconditionally and deposited the entire amount in compliance without any demur. Clarificatory orders dated 19.12.2017 and 23.12.2017 were passed thereafter and the petitioner did not raise any challenge. It was, thus, not open for the petitioner therein to challenge the interim order dated 04.12.2017, which was passed considering the relevant clauses of the concession agreement and correspondences between the parties. It was held that the tribunal was justified in passing the interim order dated 04.12.2017, which was subject to the award finally to be made by the tribunal. The Court, thus, refused to interfere with the order dated 04.12.2017 which was passed by way of an interim measure. 17. As regards the subsequent order dated 23.12.2017, it was noted that the said order in the nature of clarification was passed without hearing any of the parties, on a communication made by the lender namely State Bank of India. Forming an opinion with regard to the concerned parties who have been heard by the tribunal before passing of the order dated 23.12.2017, it was held that the said order came to be passed in breach of principles of natural justice, and therefore, deserves to be set aside. The liberty was granted to the tribunal to pass appropriate order after giving opportunity to the concerned parties. 18. The liberty was granted to the tribunal to pass appropriate order after giving opportunity to the concerned parties. 18. Having gone through the order passed by this Court in Special Civil Application No. 4753 of 2018 and Special Civil Application No. 4759 of 2018 filed by the Board of Trustees of Deendayal Port Trust namely the respondent No. 1 herein, in the writ petition arising out of the proceedings before the Arbitral Tribunal in the instant case, this Court may note that the above noted decision of the Division Bench (in which the nominated Arbitrator was a member) would not fall within the meaning of Item No. 16 “that Arbitrator has previous involvement in the case” both occurring in the Fifth (‘V’) Schedule or the Seventh (‘VII’) Schedule of the Arbitration and Conciliation Act, 1996. By the mere fact that the nominated Arbitrator had been a member of the Bench of this Court, which had decided the validity of the interim order passed by the then Arbitral Tribunal, it cannot be held that the “Arbitrator has previous involvement in the case”. 19. The proposed Arbitrator or the nominated Arbitrator, who had decided the issue before him in the capacity of a Judge of this Court, cannot be said to have any involvement in the case. The only ground taken by the petitioner to raise doubt as to the independence and impartiality of the nominated Arbitrator, would not fall within the meaning of “justifiable doubts”. The nominated Arbitrator cannot be held to be ineligible under Section 12(5) of the Act, 1996. 20. Further contention of the learned counsel for the petitioner is that as there occur justifiable doubts in the mind of the petitioner and the Arbitrator though may not be ineligible under Section 12(5), but in view of the Fifth (‘V’) Schedule item No. 16, it is imperative that the Arbitrator either may rescue himself or the Court may replace him. 21. As noted hereinabove, from the facts of the instant case, it cannot be accepted that the nominated Arbitrator who once serving as a Judge of this Court dealt with the issue as to the validity of an interim order passed by the previous Arbitral Tribunal, would be disqualified under Item No. 16 of the Fifth (‘V’) Schedule as contained in Part-1 of the Act, 1996. The apprehension raised by the petitioner about the independence and impartiality of the nominated Arbitrator, not falling within the meaning of “justifiable doubts” as occurring in Fifth (‘V’) Schedule and Seventh (‘VII’) Schedule, cannot be said to be justifiable and as such is unsustainable. 22. For the above, the present petition seeking to declare the Arbitrator nominated by the respondent no. 1 as disqualified and replace the said Arbitrator is dismissed as misconceived. 23. Any pending Civil Application(s) shall also stand disposed of, accordingly.