Judgment

R.M. SAHAI, J.

(1) THE short and the only question of law that arises for consideration in this appeal is if an appeal was maintainable against an order passed by the learned Single Judge under Section 39(1 of the Arbitration Act either under Section 39(2 of the Act or under the Letters Patent jurisdiction

(2) FACTS are not in dispute. Since the State did not appoint any arbitrator as provided for in Clause 25 of the agreement despite letters by the respondent to the Chief Engineer, Public Works Department (PWD) and the secretary, PWD the respondent approached the High court and a learned Single Judge by order dated 6/09/1991 revoked the authority of the Chief Engineer to act as an arbitrator and directed one shri D.K. Roy Chowdhury to act as the sole arbitrator as suggested by the respondent. Against this order the State filed an appeal which has been dismissed by the division bench upholding the objection of the respondent as not maintainable. It has been held that the appeal was not maintainable either under Section 39(2 or under Letters Patent. It is the correctness of this view that has been assailed in this appeal.

(3) SECTION 39 of