M.Y. Eqbal, J.

1. Heard the counsel for the parties on the question of maintainability of this writ application.

2. In the instant writ application filed under Article 226 of the Constitution of India the petitioner-State of Jharkhand seeks issuance of a writ directing respondent No. 2 retired Chief Engineer, not to proceed with the arbitration proceeding referred to him by respondent No. 1 in respect of the alleged dispute arose out of an agreement dated 12.3.1986 and also for quashing the entire arbitration proceeding initiated by respondent No. 2.

3. The facts of the case lie in a narrow compass :

Petitioners case is that by virtue of an agreement being No. L.C. B/3/85-86 dated 12.3.1986 entered into between the petitioner and respondent No. 1, work order was allotted to respondent No. 1 for excavation of Galudih Right Bank, Main Canal. The work was to be completed within 24 months i.e. by 13.3.1988. The period for completion of the work was time to time extended upto 30.6.1993. Petitioners further case is that the value of the work was Rs. 262.80 lacs and as against that, respondent No. 1 paid 318. 17 lacs but the work was not completed. Petitioners case is that inspite of several letters and reminders sent to the respondent-Contractor for execution of the work, the work was not completed. The Executive Engineer, therefore, made final measurement in June, 2003 and the agreement was closed. Thereafter, respondent No. 1 illegally ad arbitrarily invoked Clause 51 of the agreement by letter dated 13.4.2003 making excessive and inflated claim and by letter dated 20.5.2004 purported to appoint arbitrator for adjudicating the alleged dispute.

4. This Court on 4.10.2004, after hearing the counsel for the petitioner, passed the following order :

"Issue notice to respondents in the admission matter for which requisite etc. by registered post must be filed within one week failing which this application shall stand rejected without further reference to a Bench.

The question of maintainability of the writ the application shall be considered on the next date.

Pending hearing of this writ applications, respondent No. 2 shall not proceed with the matter."

5. Learned counsel appearing for respondent 1 argued at the length on the question of maintainability of the writ petition. Learned counsel drawn may attention to relevant provisions of the Arbitration and Conciliation Act, 1996 (in short the said Act) and submitted that neither the writ Court nor the Civil Court can be approached to challenge the jurisdiction of the arbitrator or arbitration proceeding. According to the learned counsel the petitioner can challenge the jurisdiction of the arbitrator only in the arbitration proceeding.

6. Mr. S. Akhtar, learned counsel appearing on behalf of the petitioner- State, on the other hand, submitted that the writ applications have been filed for restraining the arbitrator from proceeding with the ar bitration proceeding. According to the learned counsel the Arbitrator and the Arbitral Tribunal are the authorities under the Act and, therefore, writ petition under Article 226 of the Constitution is maintainable. Learned counsel relying upon a decision of the Supreme Court reported in AIR 1989 SC 1607 submitted that bar under Article 226 of the Constitution is confined to the State authorities and the instrumentalities of the State Government, rather, writ can be issued to any person or authority performing public duty.

7. Section 5 of the said Act reads as under:

"Extent of judicial intervention.-Notwithstanding anything contained in any other law for the time being in force, in matters governed by this part, no judicial authority shall intervene except where so provided in this part."

8. For the aforesaid provision, it is clear that the matters governed by this Part (Sections 7 to 43) no judicial authority shall interfere except the authority provided in this Part.

9. Section 13 of the said Act is also worth to be quoted herebelow :

"Challenge procedure