The court has the authority to terminate the mandate of the arbitrator and appoint a substitute arbitrator with the consent of the parties.

MANMOHAN SINGH, J.

1. The petitioner has filed the petition being O.M.P. (T) (COMM.) No. 5/2016 under Section 12 read with Section 14 of the Arbitration and Conciliation Act, 1996 seeking to terminate the mandate of Mr. M.K.S. Menon, Advocate, to conduct the arbitration proceedings between the parties as the Sole Arbitrator and appoint a substitute arbitrator, preferably a retired Judge of this Court to adjudicate upon the disputes between the parties.

2. Prior to that, the same very petitioner has filed an appeal being Arbitration Appeal No. 31/2015, under Section 37(2)(b) of the Act against the orders dated 9th March, 2015, 9th April, 2015, 14th April, 2015 and 9th May, 2015 passed by the above said Arbitral Tribunal, wherein on 16th December, 2015 the learned Predecessor Court had passed certain directions to the respondent. The extract of the said order reads as under:-

“Having considered the contentions of the learned counsel, the Court is of the view that the respondents argument that the contract is unworkable is untenable, because the respondent knew fully well what the contract entailed and willingly entered into it without any coercion. The Cluster-bus Scheme is supposed to provide public bus services in terms of the Agreement. The Court does not find its terms excessive or otherwise unreasonable. The intention of the appellant to now induct semi-low floor buses can neither be considered as a change in policy nor an abandonment by the appellant of its policy to induct low floor buses in certain parts of Delhi.

The one basic principle which must guide the Court is that there is always a presumption that Governmental action is reasonable and in public interest and it is for the party challenging its validity to show that is wanting in reasonableness or is not in form with public interest.

This burden is a heavy one and it has to be discharged to the satisfaction of the Court by proper and adequate material. The Agreement is comprehensive and akin to a complete code in itself. It provides, in detail, the manner in which the induction of buses is to be undertaken, it prescribes the remuneration for each kilometre run by the Cluster buses. The Concessionaire has been running buses on the roads of Delhi for the last five years, it is bound by the terms of the Agreement and its complaints are without basis.

Indeed, a proposition of law is no longer res integra that individual interest or, for that matter, smaller public interest must yield to the larger public interest. Inconvenience of some should be bypassed for a larger interest or cause of the society.

The respondent has to induct fresh buses in Delhi for the provision of mass public transport. It is not in dispute that as per the initial Letter of Intent in 2010, the respondent had desired to purchase 80 buses after already having inducted the 120 buses in 2011. Of the 80 buses which the respondent has to now induct, orders for 30 buses were placed by them through a communication on or about 26th June, 2013 to Tata Motors to the effect that they would be purchasing another 30 buses. Later, however, they placed an order for only 10 buses. The respondent has made part payments towards the purchase of these 10 buses which are to be inducted by them by 31st January, 2016. Based on the earlier communication from the respondents, Tata Motors has already manufactured 30 buses and they have asked the respondent to take delivery of all the 30 buses instead of only the 10 buses for which they have made payments. The list of buses manufactured by Tata Motors and available for induction is indicated in the appellant’s rejoinder. The vehicle numbers are also duly indicated therein. Accordingly, the Court directs that the remaining 20 buses, which are available with Tata Motors and ready for delivery also be inducted by 15th February, 2016.

Because adequate bus space was not made available to the respondent, the induction penalty prima facie could not have been levied upon