Honble ASOPA, J.–This is a Division Bench Civil Writ Petition against the order dated 6.4.2005 passed in S.B. Arbitration Application No. 34/2004, by the learned Single Judge while exercising the administrative delegated power of the Honble Chief Justice whereby the matter has been referred to the standing committee for arbitration, despite the forfeiture of right of reference of dispute for arbitration to said Standing Committee, was upheld by her.

(2). The-short but important question of law involved in the matter is ``whether even after the forfeiture of the right to refer the dispute to the arbitrator i.e., Standing committee, can still the same arbitrator be appointed by the learned Single Judge while exercising her administrative delegated power.

(3). Briefs stated the relevant facts of the case are that a dispute arose between the appellant-petitioner-contractor (hereinafter referred to as `the Contractor and the department whether the amount of sales-tax in regard to the goods supplied and manufactured is payable by the contractor or by the respondent-State? When the Government failed to refer the dispute within 30 days despite the service of the notice and payment of fee as required by the arbitration agreement, the appellant petitioner came out with a case that the respondents have forfeited their right to adjudicate upon the dispute, through the Standing Committee, therefore, the sole arbitrator may be appointed by the Court.

(4). The learned Single Judge while exercising the administrative powers came to the conclusion that the right of adjudication through Standing Committee has been forfeited but the Court in its discretion under Section 11 of the Arbitration and Conciliation Act 1996 (for short `the Act) can appoint the same committee. The relevant portion of the order of learned Single Judge reads as under:–

``It is no doubt true that if one of the contracting parties has failed to appoint an arbitrator in terms of the agreement, the power lies with the Court in view of Section 11 of the Indian Arbitration and Conciliation Act 1996 to appoint a suitable person as arbitrator to adjudicate upon the dispute and therefore, in the instant matter too, this power is vested with the Court due to the inaction alleged against the respondent- defendant. The Court, in exercise of its jurisdiction, and discretion therefore, cannot be precluded from referring the dispute to the Department itself in a given set of circumstances or if the situation so warrants also in the case at hand, where the mode and manner of payment of sales tax is prescribed in the deed of agreement itself under Clause 36 D quoted herein before which is sufficiently clear. The same can therefore be decided by the Standing Committee itself. In fact the application had himself submitted to the jurisdiction of the Department in regard to the liability of payment of sales tax in view of specific Clause 36D which prima facie specifies the liability and the same has to be held binding on the party which is liable, after an opportunity of hearing is granted to the applicant and the respondent to submit their stand before the Standing Committee which is appointed as on arbitrator.

Hence, this Court in exercise of its jurisdiction and discretion under Section 11 of the Act of 1996 is appointing the Standing Committee of the Department of State to decide the dispute specifying the reasons for passing the award. The Standing Committee therefore shall arbitrate upon the existing dispute between the parties and decide the matter in terms of the agreement which had been executed between them as this Court does not consider it fit and proper to appoint a new arbitrator under the existing facts and circumstances of this matter as this Court under Section 11 of the Act 1996, cannot be compelled to necessarily appoint a new arbitrator to the exclusion of the standing committee of the Department in absence of any malafide or malicious motive attributed against the Standing Com

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