ORDER

1. The appellants and the respondent herein entered into a written agreement on 17-8-1994 for execution of work for supplying and staking hand-broken (hard stone) ballast conforming to Northern Railway, Chief Engineers Circular No. 170/P.Way along cess/toe from km 1/0 to km 50/0 and in ballast depot at Mandor as per Northern Railway Standard Specifications and Special Tender Conditions in connection with JU-JSM BG Conversion Project. It appears disputes and differences arose between the parties in relation thereto as a result whereof the respondent herein filed an application under Section 20 of the Arbitration Act, 1940 for appointment of the arbitrator in terms of clause 64 of the agreement. A learned Single Judge

of the High Court allowed the said application and appointed Justice P.K. Bahri as the sole arbitrator. It was an ex parte order. Aggrieved, the appellantspreferred an appeal before the Division Bench of the High Court, which was dismissed. Against the said judgment and order, the appellants are in appeal before us.

2. Shri N.N. Goswami, learned Senior Counsel appearing for the appellants urged that in view of clause 64 of the agreement which provides that only two gazetted railway officers of equal status are to be appointed as f arbitrators, no person other than the two specified persons could be appointed

as arbitrator. We find merit in this submission.

3. The relevant part of clause 64 runs as under:

"64. Demand for arbitration.- * * *

(3)(a)(ii) Two arbitrators who shall be gazetted railway officers of equal status to be appointed in the manner laid in clause 64(3)(b) for allclaims of Rs 5,00,000 (Rupees five lakhs) and above, and for all claims irrespective of the amount or value of such claims if the issues involved are of a complicated nature. The General Manager shall be the sole judge

to decide whether the issues involved are of a complicated nature or not.

In the event of the two arbitrators being undecided in their opinions, thematter under dispute will be referred to an umpire to be appointed in the manner laid down in sub-clause (3)(b) for his decision.

(3)(a)(iii) It is a term of this contract that no person other than a

gazetted railway officer should act as an arbitrator/umpire and if for any reason, that is not possible, the matter is not to be referred to arbitration at all."

4. In view of the express provision contained therein that two gazetted railway officers shall be appointed as arbitrators, Justice P.K. Bahri could notbe appointed by the High Court as the sole arbitrator. On this short ground alone, the judgment and order under challenge to the extent it appoints Justice P.K. Bahri as sole arbitrator is set aside. Within 30 days from today, the appellants herein shall appoint two gazetted railway officers as arbitrators. The two newly appointed arbitrators shall enter into reference within a period of another one month and thereafter the arbitrators shall make their award within a period of three months.

5. The appeal is allowed in part and to the extent indicated above. There shall be no order as to costs.