Vide Government Order No.Rev/Haj and Auqaf-6/85 dated 18.01.1999 the Chief Engineer (R&B) Department Jammu allotted contract for construction of Haj House at Rail Head Complex, Jammu to the respondents. Agreement was executed between the Government of Jammu and Kashmir and the respondents. As claimed respondents completed construction work of plinth area, two storyed building and shuttering up to 3rd storey block A and half footing for the block B. Because of alleged non-disbursement of payments dispute arose between the appellant and the respondents and in sequel thereto a legal notice was issued by the respondents for reference of the dispute to the sole arbitrator in terms of clause 35 of the Special Condition forming part of the contract. The legal notice did not evoke any response and resultantly the respondents approached the Hon’ble Chief Justice of this Court under Section 11(6) of the Jammu and Kashmir Arbitration and Conciliation Act, 1997 (for short the Act ) for appointment of an Arbitrator. Sh. K.K.Gupta, (Retired) Chief Engineer was appointed as Arbitrator. The order of appointment of aforementioned Arbitrator was modified and in terms of order dated 23.11.2007, Sh. S.K.Gupta was appointed as Arbitrator. The Arbitrator passed an award on 31.01.2010. The appellant filed application under Section 34 of the Act, wherein prayer was made for setting aside the award. Respondents filed application seeking dismissal of the application filed under Section 34 of the Act on the ground that arbitrator having been appointed by Chief Justice, the application seeking setting aside of award, in view of mandate contained in Section 42 of the Act was to be filed before High Court, and District Court lacked jurisdiction to entertain and hear the same. Learned Additional District Judge, Jammu vide its order dated 10.01.2012 allowed the application of the respondents and dismissed the application of the appellants filed under Section 34 of the Act. It is this order which is called in question in this appeal.

Mr. V. Bhat, learned counsel for the appellant submitted that the order impugned in the appeal is illegal and warrants to be set aside. Learned counsel submitted that in terms of Section 2(e) of the Act, the Court of Additional District Judge is competent to try and hear the application filed under Section 34 of the Act. Learned counsel further submitted that the High Court of J&K is a Court of original civil jurisdiction and the Court of District Judge/Additional District Judge is also the Court of original civil jurisdiction. Learned counsel submitted that the application for setting aside the award in terms of Section 34 of the Act is required to be filed in the Court. Learned counsel submitted that the application has been filed in the proper Court and dismissal of same by the Court of Additional District Judge is illegal. Learned counsel further submitted that the Chief Justice or his nominee is not Court in terms of the provisions of the Act, as such, application for setting aside the award is not to be filed before the Chief Justice or his nominee and/or before High Court, as that is not the mandate of Section 42 of the Act. Learned counsel accordingly prayed for setting aside of the impugned order.

Mr. R.K.Gupta, learned counsel for the respondents submitted that the Chief Justice while appointing an Arbitrator is discharging judicial functions and as such is Court, thus, application under Section 34 of the Act has to be filed before the Chief Justice/High Court as the initial application for appointment of Arbitrator was filed before the said judicial authority. Learned counsel submitted that this is mandate of Section 42 of the Act. Learned counsel in order to bring home his point, besides referring to the various provisions of the Act, also referred to and relied upon the judgment of the Hon’ble Supreme Court titled Jindal Vijaynagar Steel (Appellant) v. Jindal Prazair Oxygen Co. Ltd, reported in 2006(11) SCC 521, case t

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