JUDGMENT
Khan, J.
1. Petitioners are the real brothers of R-1. They
are involved in a dispute regarding division of the
estate left by their mother one Madhu Rekha Sarin. They
first sought the intervention of some family elders to
resolve it but failed. Meanwhile, they are said to have
executed an agreement on 28.9.1999 for referring their
disputes to the arbitration of two relatives which,
though referred, could not be taken to the logical end.
2. Petitioners thereafter filed AA 662/99 for
appointment of a retired Judge as an arbitrator on the
basis of one document dated 28.9.1999, claimed by them
to be the arbitration agreement. Their sister (R-1)
contested this and disputed that this document did not
amount to an arbitration agreement. The designated
authority (Ld.Single Judge) on this passed order dated
20.10.2000 framing some issues in the matter on taking
the view that existence of arbitration agreement was
disputed.
3. Petitioners filed a review petition (RA
44/2000) against this on the plea that the Authority
could not embark upon a judicial enquiry on the
existence or otherwise of the arbitration agreement in
the face of Supreme Court judgments in Konkan Railway
Corporation Ltd. v. Mehul Construction Company , Nimet Resources Inc. v. S.R. Steel , Malaysian Airlines Systems v. Stic Travels
(2000) 7 SCALE 724, Wellington Associates Limited v.
Kirti Mehta and Konkan Railway
Construction Ltd. v. Rani Construction Pvt. Ltd.
2002 (1) SCALE 465. But this writ petition was
dismissed by order dated 9.10.2001 on the ground that
petitioners had not disclosed any “new and important
matter”, as contemplated by Order 47 Rule 1 CPC.
4. Petitioners challenge this and praying for
quashing of the impugned orders dated 20.10.2000 and
9.10.2001 passed by the Designated Authority and for
appointment of a retired Judge as an arbitrator. Their
case is that these ran counter to the terms of Supreme
Court judgments in Konkan Railway Corporation and other
cited cases above. Their counsel Dr. Singhvi argued that
the Designated Authority was only exercising an
administrative power and not any adjudicatory power
while appointing an arbitrator and, therefore, could not
examine the terms of any document to find out whether it
amounted to an arbitration agreement or not. He also
contended that the Authority had fallen in error by
declining to review its first order which contravened
the terms of Supreme Court judgment amounting to an
apparent error on the face of record.
5. It is no more res integra that the order passed
by the Designated Authority under Section 8/11 of the
Arbitration & Conciliation Act 1996 was an
administrative order and not an adjudicatory one and
that the Authority was not competent to entertain or
decide any contentious issue between the parties in
this. That being so, it becomes unnecessary to quote
extensively from the judgments cited at the bar to prove
the obvious. However, it should suffice to quote from
one of these judgments in Konkan Railway Construction
Ltd. v. Rani Construction Pvt. Ltd:-
“There is nothing in Section 11 that
requires the party other than the party making the
request to be noticed. It does not contemplate a
response from that other party. It dies not
contemplate a decision by the Chief Justice or his
designate on any controversy that the other party
may raise, even in regard to its failure to appoint
an arbitrator within the period of thirty days.
That the Chief Justice or his designate has to make
the nomination of an arbitrator only if the period
the thirty days is over does not lead to the
conclusion that the decision to nominate is
adjudicatory.”
6. Even so, the approach adopted by the Authority
at the relevant time could not be held to be wholly
unjustified as the legal position was in the flux at the
relevant time. Therefore, adopting a via media to the
mutual satisfaction of the parties, we deem it
appropriate to dispose of this petition by the following
order:-
“Designated Authority is requested to
reconsider petitioners’ AA No.662/99 in the light
of the judgments of Supreme Court in Konkan
Railways Corporation Ltd. v. Rani Construction
Pvt. Ltd. and Wellington Associates Ltd. v.
Kirti Mehta and any other judgment on the subject
matter and pass appropriate orders for appointment
or otherwise of an arbitrator within one month from
the date of first appearance of the parties
disregarding the two impugned orders dated
20.10.2000 and 9.10.2001.”
7. Parties to appear before the Authority on 8th
January, 2003 and Registry to post AA 662/99 on that
date.