The Chief Justice or the person designated by him has to make the appointment of an arbitrator himself under sub-section (6) of Section 11 of the Arbitration and Conciliation Act, 1996, and cannot merely order the recalcitrant party or appointing authority to act.

Dr. B. P. Saraf, J. - This is an application under sub-section (6) of Section 11 of the Arbitration and Conciliation Act, 1996 ("Act") for appointment of an arbitrator to decide the dispute and differences between the parties arising out of contract dated 16th June, 1997 for construction of Drawing Hall Electrical Lab of Technical High School at Diu. The arbitration agreement is contained in Clause 25 of the contract which reads as follows:

"Except where otherwise provided in the contract all questions and disputes relating to the meaning of the specifications, designs, drawings and instructions hereinbefore mentioned and as to the quality of workmanship or material used on the work or as to any other question, claim, right, matter or thing whatsoever in any way arising out of or relating to the contract, designs drawing, specifications estimates, instructions, orders or these conditions or otherwise concerning the works or the execution or failure to execute the same whether arising during the progress of the work or after the completion of abandonment thereof shall be referred to the sole arbitration of the person appointed by the Secretary, P.W.D. in charge of the work at the time of dispute or if there by no Secretary, the administrative head of the said P.W.D. at the time of such appointment. It will be no objection to any such appointment that the arbitrator so appointed is a Government servant, that he had to deal with the matters to which the contract relates and that in the course of his duties as Government servant he had expressed views on all or any of the matters in dispute or difference. The arbitration to whom the matter is originally referred being transferred or vacating his office or being unable to act any reason. Such Chief Engineer or administrative head as aforesaid at the time of such transfer vacation of office or inability of act, shall appoint another person to act as arbitrator in accordance with the terms of the contract. Such persons shall be entitled to proceed with the reference from the stage at which it was left by his predecessor. It is also a term of this contract that no person other than a person appointed by such Secretary or administrative head of the P.W.D. as aforesaid should act as arbitrator and if for any reason, that's not possible, the matter is not be referred to arbitration at all. In all cases where the amount of the claim in dispute is Rs. 75,000/- (Seventy five thousand) and above, the arbitrator shall give reasons for the award. Subject as aforesaid, the provisions of the Arbitration Act, 1940, or any statutory modification or re-enactment thereof and the rules made thereunder and for the time being in force shall apply to the arbitration proceeding under this clause. It is a term of the contract that the party invoking arbitration shall specify the dispute or disputes to be referred to arbitration under this clause together with amount or amount claimed in respect of each such dispute. It is also a term of the contract that if the contractor (s) do/does not make any demand for arbitration in respect of any claim (s) in writing within 90 days of receiving the intimation from the Govt. that the bill is ready for payment, the claim of the contractor (s) will be deemed to have been waived and absolutely barred and the Govt. shall be discharged and released of all liabilities under contract in respect of these claims. The arbitrator (s) may from time to time with consent of the parties enlarge the time, for making and publishing the award. The decision of the Superintending Engineer regarding the quantum of reduction as well as justification thereof in respect of rates for sub-standard work which may be decided to be accepted will be final and would not be open to arbitration."

Disputes and differences having arisen out of the contract, the petitioner, by his letter dated 20th July, 1998 (Ex. 'C' to the application) made a demand for arbitration in respect of the claims