Arbitration Act, 1940: Ss. 8, 20 and 21/The Arbitration and Conciliation Act, 1996; Ss. 2(h), 2(h), 7, 9, 11, 16 and 34/Code of Civil Procedure, 1908:

Functions performed by the Chief Justice of Supreme Court/Chief Justices of High Courts under Section 11 of the 1996 Act - Administrative or Judicial - Held: Judicial.

Held, Per majority:

Once a statute creates an authority, confers on it powers to adjudicate and makes its decision final, the decision cannot be termed as purely administrative decision - The ground of ensuring minimum judicial interference by itself is not a ground to hold the power so conferred is only an administrative power - When the power is conferred so as to decide on the existence of the conditions justifying appointment of an arbitrator/arbitral tribunal and is conferred on judicial authority/Chief Justice unless shown otherwise, the Chief Justice has to act judicially - When Chief Justice is called upon to decide on the existence of arbitration agreement/appointment of arbitrator/constitution of tribunal and confronted with two different points of view contended for by the rival parties in deciding so he cannot be said to be performing administrative function - Issuance of Notice to opposite party cannot be construed to be merely an intimation but it really gives an opportunity of being heard - Since the Chief Justice has necessarily to apply his mind before coming to a conclusion to appoint/not to appoint an arbitrator, the decision so arrived at could appropriately be termed as judicial decision.

Chief Justice exercising power to appoint an arbitrator/constitute arbitral tribunal-Interference by the tribunal - Held: Tribunal cannot go behind the decision of the Chief Justice and rule on its own jurisdiction.

Conferment of power on Chief Justice to appoint an arbitrator - Characteristics of - Held: It cannot be termed as persona designata as it is conferred on a class and not on an individual-Since the intention of the legislature is to entrust the power to the highest judicial authorities in the State/country, the Chief Justice could designate other judge of the same Court but he cannot designate a District Judge to perform the functions in terms of Section 11, sub-section (6) of the Act. 

Order of the arbitral tribunal-Challenge under Article 226/227 of the Constitution - Held: Not permissible.

Words and Phrases:

'Court' - Meaning of.

Held per minority:

When an appropriate authority after applying its mind in terms of the circumstances enumerated in the Act arrived at a decision, the decision cannot be considered on that basis as judicial/quasi judicial and not administrative - The Chief Justice arrives at a decision of appointing an arbitrator after satisfying itself to the existence of an arbitration agreement and failure on the part of one of the parties to approve appointment of an arbitrator - Such decision is merely of prima facie in nature and by passing such order he does not decide lis nor contentious issues between the parties - Thus performing of such functions does not make the function of the Chief Justice as judicial/quasi judicial - The power to appoint an arbitrator is given to the Chief Justice to ensure fairness, integrity and impartiality but that does not mean that the Chief Justice is exercising judicial/quasi judicial powers - By appointing an arbitrator, the Chief Justice is performing administrative functions, as he is not under the obligation to act judicially - But he is under obligation/duty to act fairly and therefore requires to issue notice to other party before taking a decision to appoint an arbitrator - Constitution of India, 1950 - Articles 226 and 227.

Power of Chief Justice - Delegation - Held: Not permissible.

Power of Chief Justice to constitute arbitral tribunal/appoint an arbitrator - Interference - Jurisdiction of the High Court - Held: Aggrieved party could invoke the jurisdiction of High Court against an order passed by the Chief Justice, however, the writ court will be circumspect in entertaining a petition and in exercising extraordinary jurisdiction in such cases.

Doctrines:

Doctrine of 'fairness' - Applicability of.

Doctrine of 'Kompetenz - Kompetenz' - Applicability of.

In the case of Konkan Rly. Corpn. Ltd. v. Mehul Construction Co., [2000] 7 SCC 201, three Judge Bench of this Court has taken the view that the function performed by the Chief Justice under Section 11 (6) of the Arbitration and Conciliation Act is purely an administrative function; that it is neither judicial or quasi-judicial and the Chief Justice or his nominee while performing such function cannot decide any contentious issue between the parties. The decision/view was affirmed by the Constitution Bench in Konkan Railways Corporation Ltd. & Anr. v. Rani Construction Pvt. Ltd., [2002] 2 SCC 388. The correctness of the view is questioned in these appeals. The question which arose for consideration in these appeals was about the nature of the functions performed by the Chief Justice or his designate under Section 11 of the arbitration and Conciliation Act, 1996.