An arbitral tribunal's constitution is void when an arbitrator is unilaterally appointed by an interested party. Such ineligibility can only be waived through an explicit, post-dispute written agreement. Mere participation in arbitral proceedings does not constitute a valid waiver of the mandatory requirement for independence and neutrality.

JUDGEMENT (ORAL)

HARISH VAIDYANATHAN SHANKAR, J.

1. The present Petition has been filed under Section 34 of the Arbitration and Conciliation Act, 1996¹Act, seeking to challenge the Arbitral Award dated 25.10.2023, as corrected on 13.11.2023²Impugned Award, rendered by the learned Arbitrator, Mr. Kamlesh Kumar (Former ADG, CPWD), in arbitral proceedings titled “M/s Tewatia Construction Private Limited and Union of India”.

2. By way of the Impugned Award, the Public Works Department [“PWD”] (Government of NCT of Delhi, Education West Division (N)³Petitioner, has been directed to pay to M/s Tewatia Construction Private Limited⁴Respondent, an amount of approximately Rs. 2.5 Crore along with interest.

3. Learned counsel appearing on behalf of the Petitioner, at the outset, raises a primary and foundational issue that strikes at the very root of the validity and subsistence of the arbitral proceedings and the resultant Award.

4. It is submitted by the learned counsel for the Petitioner that the appointment of the learned Arbitrator, who subsequently entered upon the reference and rendered the Impugned Award, was void ab initio, as it was effected through a unilateral appointment mechanism in clear contravention of the mandatory provisions of Section 12(5) of the Act. Consequently, it is contended that such an appointment is legally unsustainable, thereby vitiating the entire arbitral process and rendering the Impugned Award liable to be set aside.

5. Learned counsel for the Petitioner, in support of the aforesaid proposition, places reliance upon the decision of the Hon’ble Supreme Court in Bhadra International (India) Pvt. Ltd. & Ors. v. Airports Authority of India⁵(2026) SCC OnLine SC 7, to submit that any appointment of an Arbitrator by an interested party, PWD herein, or its controlling authority stands vitiated in law, and any Award rendered pursuant thereto is rendered unsustainable and liable to be set aside.

6. Learned counsel appearing on behalf of the Petitioner, to substantiate the plea of unilateral appointment, draws the attention of this Court to Paragraph No. 1 of the Impugned Award, to submit that the learned Arbitrator himself records therein that the appointment was made by the Chief Engineer (Projects), PWD, Government of N.C.T. Of Delhi⁶Chief Engineer, thereby leaving no ambiguity as to the source and nature of appointment.

7. Learned counsel for the Petitioner further draws the attention of this Court to the letter dated 10.06.2022⁷Letter of Appointment, whereby the Chief Engineer addressed a communication to, inter alia, the Respondent, appointing Mr. Kamlesh Kumar as the Arbitrator to adjudicate upon the disputes inter se the parties. Learned counsel submits that the said communication itself demonstrates that the appointment emanated solely from the designated authority of the Petitioner Department.

8. Learned Counsel for the Petitioner, while summing up the contention that the appointment of the learned Arbitrator was unilateral, further draws the attention of this Court to Clause 25 of the General Conditions of Contract⁸GCC, particularly Sub-clause (ii) thereof, to submit that the power exercised by the Chief Engineer vide the Letter of Appointment traces its origin entirely to the contractual stipulation contained in the GCC.

9. Learne