JUDGMENT - B.H. MARLAPALLE, J.:---Heard learned Counsel for the respective parties.

2. Rule.

3. Respondents waive service. Rule taken up for final hearing forthwith by consent of parties.

4. This petition assails the order passed by the learned Single Judge as a Judge designated by the learned Chief Justice under section 11(6) of the Arbitration and Conciliation Act , 1996 (hereinafter referred to as "the Act" for short) in Miscellaneous Civil Application No. 8 of 1999.

5. On 2-11-1994 an agreement was signed between the Executive Engineer, Central Public Works Division and the respondent for carrying out construction of "C/O CTC-III for C.R.P.F. at Mudkhed and SH : C/O II Nos type III Quarters, and one number stilt and two numbers type IV quarters I/C internal W/S-SI and drainage". Accordingly, work order came to be issued for a contractual value of Rs. 35,22,925/- and it was to be carried out within a period of 13 months i.e. by 31-12-1995. The contractor failed to maintain this deadline and the respondent completed the work on 3-7-1996 as per the completion certificate but the work was found to be defective. Even though the buildings were handed over to the Central Reserve Police Force on 1-4-1998 and 4-7-1998, they were not found to be useful and another agency was employed to rectify the defects. Consequently, on 12-4-1999 the petitioner issued notice to the respondent contractor informing him that inspite of reminders he failed to rectify those defects in the contractual work and, therefore, an amount of Rs. 6,83,105/- would be deducted. The respondent applied for final bill on 26th May 1999 and a copy of the said bill was issued to him on the same day. On 16-7-1999, the respondent approached the petitioner No. 1 for appointment of an Arbitrator as per Clause No. 25 of the agreement. Consequent to the notice dated 12-4-1999 for deduction of Rs. 6,83,105/- the petitioner No. 1 called upon the respondent to submit documentary evidence in support of his claim. It is alleged that without complying with these requirements the respondent approached this Court on 25-8-1999 and filed Miscellaneous Civil Application No. 8 of 1999 praying for appointment of arbitrator. The petitioners filed reply opposing the application and it was stated that the petitioner No. 1 had already appointed an arbitrator on 7-10-1999 and the said arbitrator was from the Urban Development Department of the Government of India with his office at Mumbai, resultantly the Miscellaneous application filed by the respondent did not survive. However, by the impugned order dated 25-2-2000 the learned Single Judge of this Court allowed the application, declared the appointment of arbitrator by petitioner No. 1 vide his order dated 7-10-1999 as null and void and appointed an arbitrator under section 11(6) of the Act.

6. Shri Naik, learned Counsel appearing with Shri K.B. Choudhari for the petitioners, submitted that the order passed by the learned Single Judge as a designatee of the learned Chief Justice is manifestly erroneous and once the petitioner No. 1 had appointed an arbitrator under Clause No. 25 of the agreement, pursuant to the demand made by the respondent, the application filed by him did not survive and the learned Judge failed to apply his mind to this legal position. He also submitted that the reliance of the learned Single Judge on the order of this Court in the case of (Naginbhai C. Patel v. Union of India)1, 1992 (2) Bom.C.R. 189 is erroneous and the order passed by the learned Judge was not only administrative but it was a judicial order inasmuch as, the learned Judge proceeded to observe that the order passed by the petitioner No. 1 appointing an arbitrator on 7-10-1999 was null and void. In support of these contentions, the learned Counsel has relied upon an unreported order passed by the Supreme Court in the case of (Union of India and others v. M/s. Decon India Private Limited)2, Civil Appeal Nos. 2362 and 2363 of 1999 (arising out of S.L

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