High Court

disposed of vide order dated 5.4.2022. Thereafter, the applicant moved another representation dated 21.4.2022 to the Regional Manager, Ayodhya Region, UPSRETC compliance of order dated 5.4.2022. On moving the said representation, the respondent authorities orally apprised the applicant to appear before the arbitration proceedings, wherein the applicant appeared before the arbitration committee and the grievance of the applicant is still un-redressed. Thereafter the applicant moved representations dated 17.8.2024 and 1.10.2024 to the respondents for appointment of the sole arbitrator as per Section 12(5) of the Arbitration and Conciliation Act. However, there was no response to the said letters. Consequently, the petitioner approached this Court by filing the instant petition. Shri Akhilesh Kumar Srivastava, learned counsel for the respondents has opposed the aforesaid submissions and has urged that upon the representation given by the petitioner himself, the department had constituted a committee to resolve the dispute and the said committee is termed as "Arbitration Committee". It is also urged that once the Arbitration Tribunal had already been constituted by the department, the instant petition cannot survive hence it deserves to be dismissed. The court has heard learned counsel for the parties and also perused the material on record. The sole question that requires consideration is whether after the amendment in the Act of 1996, in the year 2015, whether the department had the right to appoint a departmental Arbitrator. It would be apposite to refer to Section of the Act of 1996 as well as Schedule V & VII which has been appended to the Act of 1996 and it clearly creates an embargo on the department to appoint any arbitrator who falls within the degree of relationship as mentioned in Schedule V & VII of the Act of 1996. From perusal of Schedule V and VII, it would reveal that if the proposed arbitrator is having some link with any of the parties to the extent of the degree mentioned in the said Schedule, then the said person becomes ineligible to be appointed as Arbitrator. It would be worthwhile to notice that the Apex Court has held that even a departmental person is not entitled to be an arbitrator cannot even delegate or appoint the Arbitrator. In the light of the aforesaid, the contention raised by the learned counsel for the respondent that arbitration committee has been constituted and the petition must fail, cannot be countenanced. Learned counsel for the respondents could not dispute that the aforesaid arbitration committee comprises of serving departmental officers. Apparently, the said committee cannot gain acceptance in the light of the Section 12 readwith Schedule V and VII of the Act of 1996 which has been referred hereinabove and it also cannot be treated as a bar for the petitioner to approach this Court for seeking the appointment of an independent arbitrator in terms of Section 11(6) of the Act of 1996. A specific query was put to learned counsel for the respondents regarding the letters which have been filed by the petitioner calling upon the respondents to appoint an independent arbitrator as to whether any action was taken on the same to which it has been indicated that as per his instructions, the said letters were never responded and it was never informed in writing to the petitioner that in pursuance of these letters, the arbitration committee has been constituted. Considering the aforesaid, the objections raised by the respondents cannot be sustained. Now this Court finds that it is not disputed between the parties that an agreement was entered between the petitioner and the respondent Corporation. The said agreement did contain the arbitration clause, however, since the said clause falls fouls of provisions of Section 12 (5) of the Act of 1996, hence it cannot be given effect to. Thus, the committee as constituted by the respondent cannot be treated to be formed as per law and any proceedings before it legally de- hors the law and is according ignored by the law as being non- est. The court is of the view that the arbitration clause stands admitted and despite demand, the respondents did not respond to appoint an independent arbitrator. Thus, it is a fit case for appointment of a sole arbitrator. Accordingly, the court proposes the name of Shri Sharda Prasad Tiwari, Retd. Addl. District Judge, resident of 2/146A, Vishesh Khand, Gomti Nagar, Lucknow to act as sole Arbitrator to resolve the dispute arisen between the parties. Learned counsel for the petitioner shall provide a complete copy of the paper book of the instant petition in the office which shall forward the same to the proposed arbitrator to seek his consent in terms of Section 12 (5) of the Act of 1996, within a week from today. List this matter on 5.8.2025. Order Date :- 4.7.2025 Shukla

disposed of vide order dated 5.4.2022. Thereafter, the applicant moved another representation dated 21.4.2022 to the Regional Manager, Ayodhya Region, UPSRETC compliance of order dated 5.4.2022. On moving the said representation, the respondent authorities orally apprised the applicant to appear before the arbitration proceedings, wherein the applicant appeared before the arbitration committee and the grievance of the applicant is still un-redressed. Thereafter the applicant moved representations dated 17.8.2024 and 1.10.2024 to the respondents for appointment of the sole arbitrator as per Section 12(5) of the Arbitration and Conciliation Act. However, there was no response to the said letters. Consequently, the petitioner approached this Court by filing the instant petition. Shri Akhilesh Kumar Srivastava, learned counsel for the respondents has opposed the aforesaid submissions and has urged that upon the representation given by the petitioner himself, the department had constituted a committee to resolve the dispute and the said committee is termed as "Arbitration Committee". It is also urged that once the Arbitration Tribunal had already been constituted by the department, the instant petition cannot survive hence it deserves to be dismissed. The court has heard learned counsel for the parties and also perused the material on record. The sole question that requires consideration is whether after the amendment in the Act of 1996, in the year 2015, whether the department had the right to appoint a departmental Arbitrator. It would be apposite to refer to Section of the Act of 1996 as well as Schedule V & VII which has been appended to the Act of 1996 and it clearly creates an embargo on the department to appoint any arbitrator who falls within the degree of relationship as mentioned in Schedule V & VII of the Act of 1996. From perusal of Schedule V and VII, it would reveal that if the proposed arbitrator is having some link with any of the parties to the extent of the degree mentioned in the said Schedule, then the said person becomes ineligible to be appointed as Arbitrator. It would be worthwhile to notice that the Apex Court has held that even a departmental person is not entitled to be an arbitrator cannot even delegate or appoint the Arbitrator. In the light of the aforesaid, the contention raised by the learned counsel for the respondent that arbitration committee has been constituted and the petition must fail, cannot be countenanced. Learned counsel for the respondents could not dispute that the aforesaid arbitration committee comprises of serving departmental officers. Apparently, the said committee cannot gain acceptance in the light of the Section 12 readwith Schedule V and VII of the Act of 1996 which has been referred hereinabove and it also cannot be treated as a bar for the petitioner to approach this Court for seeking the appointment of an independent arbitrator in terms of Section 11(6) of the Act of 1996. A specific query was put to learned counsel for the respondents regarding the letters which have been filed by the petitioner calling upon the respondents to appoint an independent arbitrator as to whether any action was taken on the same to which it has been indicated that as per his instructions, the said letters were never responded and it was never informed in writing to the petitioner that in pursuance of these letters, the arbitration committee has been constituted. Considering the aforesaid, the objections raised by the respondents cannot be sustained. Now this Court finds that it is not disputed between the parties that an agreement was entered between the petitioner and the respondent Corporation. The said agreement did contain the arbitration clause, however, since the said clause falls fouls of provisions of Section 12 (5) of the Act of 1996, hence it cannot be given effect to. Thus, the committee as constituted by the respondent cannot be treated to be formed as per law and any proceedings before it legally de- hors the law and is according ignored by the law as being non- est. The court is of the view that the arbitration clause stands admitted and despite demand, the respondents did not respond to appoint an independent arbitrator. Thus, it is a fit case for appointment of a sole arbitrator. Accordingly, the court proposes the name of Shri Sharda Prasad Tiwari, Retd. Addl. District Judge, resident of 2/146A, Vishesh Khand, Gomti Nagar, Lucknow to act as sole Arbitrator to resolve the dispute arisen between the parties. Learned counsel for the petitioner shall provide a complete copy of the paper book of the instant petition in the office which shall forward the same to the proposed arbitrator to seek his consent in terms of Section 12 (5) of the Act of 1996, within a week from today. List this matter on 5.8.2025. Order Date :- 4.7.2025 Shukla