The appointment of an arbitrator must be in strict accordance with the arbitration agreement, and any deviation from the agreed procedure renders the appointment illegal and without jurisdiction.

JUDGMENT :

S. Acharya, J. - The Petitioner has filed this revision against the order dated 8-8-1978 passed by the Subordinate Judge, Bhubaneswar in Misc. Case No. 387 of 1977 (A). That Misc. Case arose out of a petition filed under Sections 5 and 12(2) of the Arbitration Act (hereinafter referred to as the 'Act') for revocation of the authority of the arbitrator appointed in the case and to appoint another arbitrator in his place.

2. Mr. Rath, the learned Counsel for the Petitioner, contended that in accordance with Clause (23) of the F-2 agreement between the parties it was only the Chief Engineer, Roads & Buildings, Orissa who was to appoint the arbitrator in that case, but as the Additional Chief Engineer, and not the Chief Engineer, appointed the arbitrator, the latter had no authority or jurisdiction to proceed with the arbitrator of the dispute between the parties.

Admittedly, the Chief Engineer, Roads & Buildings, Orissa, was to appoint the arbitrator in accordance with Clause (23) of the F-2 agreement between the parties, but the arbitrator in this case was appointed by the Additional Chief Engineer of the department. Mr. Mohapatra, the learned Additional Government Advocate, could not produce anything to show that at the relevant time the Additional Chief Engineer, who appointed the arbitrator, was acting as the Chief Engineer of the department or was in overall charge of the said department.

A copy of the letter from the Secretary to the Government of Orissa, Works Department, dated the 10th May, 1977 to the Chief Engineer, Roads & Buildings, Orissa and a copy of the letter from the Under Secretary to Government of July, 1961 were shown to me at the hearing of this revision petition by the learned Additional Government Advocate. These letters do not solve the problem. The first letter is of 10th May, 1977, it had no retrospective effect, and so it did not apply to the appointment of the arbitrator made on the 9th May, 1977. The other letter of July, 1961 only shows that the Additional Chief Engineers were discharging certain functions of the Chief Engineers as Heads of Department and so he was declared as such under the relevant rules. There is nothing in the said letters to show that on the 9th May, 1977, when the arbitrator was appointed, the Additional Chief Engineer. Roads & Buildings, was acting or had the authority to art for all intents and purposes the Chief Engineer of that department or that he had at least authority to appoint arbitrators in such case's. The second letter rather shows that the Additional Chief Engineer did not have all the powers of the Chief Engineer.

The agreement is the foundation of the arbitration, and if the appointment of the arbitrator is not done in strict accordance, with the arbitration agreement, the arbitrator would suffer from want of jurisdictional; his appointment cannot be sustained and consequently the arbitration proceeding before him or the award given by him would be a nullity.

The above view gets support from the decisions reported in Khardah Company Ltd. v. Raymond & Company (India) Private Ltd. AIR 1962 S.C. 1810, Waverly Jute Mills Co. Ltd. Vs. Raymon and Co. (India) Private Ltd. The Union of India (UOI) Vs. Shri Om Prakash, and Sunil Mukherjee Vs. Union of India (UOI), .

Section 4 of the Act provides that the parties to an arbitration agreement may agree that any reference thereunder shall be to an arbitrator or arbitrators to be appointed by a person designated in the agreement either by name or as the holder, for the time being, of any office or appointment. That being so, if by the arbitration agreement a particular person was designated in the agreement to appoint an arbitrator, no person other than that person can appoint the arbitrator.

3. Mr. Mohapatra, the learned Additional Government Advocate, urged that the Petitioner never challenged the appointment of the arbitrator on the above ground, nor did it urge such appointment in the Court below. So it is estopped fr