The Arbitral Tribunal is empowered to rule on its own jurisdiction, including the validity of the arbitration agreement.

JUDGMENT

Anil S. Kilor, J. - Heard.

2. RULE. Rule made returnable forthwith. Heard finally by consent of the learned counsel for the parties.

3. By this petition the petitioners are seeking issuance of directions to the respondent No.l to proceed with resolution of disputes raised by petitioners No.l, through Arbitration in accordance with the "Settlement of Disputes" clause in the contract and also in the Circular dated 7th April 2017, issued by Respondent No. 3, Coal India Ltd. (CIL).

4. Brief facts for appreciation of the grievance enunciated in this petition, are as follows:

5. The Respondent No.l-Western Coalfields Limited awarded a work for crushing of ROM Coal by hired Semi Mobile crusher, discharging (-100 mm size) crushed coal at radial stacker including supply, installation, erection, commissioning, maintenance & operation of Semi Mobile crusher suitable for -100 mm size output crushed coal to be installed at BG Siding of Pench Area, vide 'Work Order' Dated 09/05/2018, to the petitioner No.l, a Private Limited Company.

6. It is the grievance of the petitioners that the respondent Nos. 1 and 2 deliberately and falsely represented that the respondent No.l would provide a total quantity of 31000 tons of coal with minimum daily quantity of 3000 tons of coal crushing. Whereas, during the course of three years since the issuance of the Work Order, merely an average of approximately 188.42 tons of coal per day was provided, resultantly the manpower and crusher of the petitioner No.l remained largely unutilized, causing heavy financial losses. It was thus, requested by the petitioner for foreclosure of the contract or settlement of dispute as per the clause under NIT or by any other machinery for dispute settlement including arbitration as provided in the circular dated 7th April 2017, issued by CIL. However, the respondent Nos. 1 and 2 did not reply to any of the correspondence/ representations, which led the petitioner to file the present petition.

7. Respondent Nos. 1 and 2 filed their submissions, opposing the present petition on the ground that in view of Section 12(5) of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as "the Act of 1996") the arbitration clause in the circular is inoperative as the said circular states that no person other than the person appointed by Competent Authority of CIL /CMD of Subsidiary Company should act as an Arbitrator.

8. It is further contended that, a question whether Arbitration Agreement exists or not is to be decided by the Court while dealing with the matter of appointment of the Arbitrator as provided by subsection (6A) of Section 11 of the Act of 1996 and as a result the petition is not maintainable.

9. We have heard the learned counsel for the respective parties.

10. On maintainability of writ petition under Article 226 of the Constitution of India, Shri Aney learned Senior Advocate submitted that the respondent No. 3-Coal India Limited issued the circular dated 7th April 2017, addressing its subsidiaries including the respondent Nos. 1 and 2 herein, providing thereby mechanism for settlement of disputes, differences arising out of the contract with the contractors other than the government agencies through arbitration. It is submitted that the interpretation of the aforesaid circular is necessary for the reason that, if this Court holds the arbitration clause invalid as claimed by the WCL, the petitioners would be free to take steps as available under the law for resolution of their grievances. However, if it is held as valid, the only question as to who will be the Arbitrator, will remain for which a remedy under Section 11(6) of the Act, 1996, would be availed. It is submitted that, otherwise the petitioner will require to run from pillar to post for the aforesaid purpose and to avoid this the present petition has been filed.

11. It is argued that right to arbitration survives even if one part of the arbitration agreement goes away as in such cases Doctrine of Severa