The court has the power to appoint an arbitrator under Section 20 (4) of the Arbitration Act, 1940, where the Chief Engineer, who is designated to appoint the arbitrator, refuses to do so.

( 1 ) THE plaintiff Ved Prakash Mittal entered into an agreement for the construction of Government Higher Secondary School (Scheme II-A) at Tulsi Nagar, Phase II. The agreement contained the following arbitration clause: "clause 25 :

"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 or workmanship of materials 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, drawings, 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 or abandonment thereof shall be REFERRED TO to the sole arbitration of the person appointed by the Chief Engineer, Central Public Works Department, in charge of the work at the time of dispute or if there be no Chief Engineer, the administrative head of the said Central Public Works Department at the time of such appointment. It will be no objection to any such appointment that 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 bad expressed views on all or any of the matters in disputes or difference. The arbitrator to whom the matter is originally REFERRED TO being transferred or vacating his office or being unable to act for any reason, such Chief Engineer or administrative head as aforesaid at the time of such transfer, vacation of office or inability to act, shall appoint another person to act as arbitrator in accordance with the terms of the contract. Such person 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 Chief Engineer or administrative head of the C. P. W. D. , as aforesaid should act as arbitrator and if for any reason, that is not possible, the matter is not to be REFERRED TO to arbitration at all. In all cases where the amount of the claim in dispute is Rs. 50,000. 00 (Rs. Fifty 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 to arbitration under this clause together with the amount or amounts 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 Government that the bill is ready for payment, the claim of the contractors) will be deemed to have been waived and absolutely barred and the Government shall be discharged and released of all liabilities under the 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. "

( 2 ) DISPUTES arose between the parties. The plaintiff issued a notice under Section 4 read with Section 8 (1) of the Arbitration Act, 1940 (the Act) invoking the arbitration clause and requiring the Chief Engineer to appoint an arbitrator in accordance with the clause. The Chief Engineer did not appoint the arbitrator. The contractor thereupon made an application under Sections 8 and 20 of the Act on 3rd May, 1982 against the Union of India and the Chief Engineer. He prayed that the agreement may be filed and the disp