- 1 - NC: 2025:KHC:8866 WP No. 68 of 2025 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF FEBRUARY, 2025 BEFORE THE HON'BLE MR JUSTICE R DEVDAS WRIT PETITION NO. 68 OF 2025 (GM-RES) BETWEEN: 1. BRUHATH BANGALORE MAHANAGARA PALIKE CORPORATION BUILDINGS, HUDSON CIRCLE, N.R. SQUARE, BANGALORE -560 002 REPRESENTED BY ITS CHIEF COMMISSIONER. 2. THE EXECUTE ENGINEER PROJECT CENTRAL -06 BRUHATH BANGALORE MAHANAGRA PALIKE, N.R. SQUARE, BANGALORE - 560 002. …PETITIONERS (BY SRI. SATYANAND B S., ADVOCATE) AND: 1. THE INDIAN COUNCIL OF ARBITRATION FEDERATION HOUSE, TANSEN MARG NEW DELHI -110 001 REPRESENTED BY ITS REGISTAR. 2. MR. MADAN MOHAN BHATIA APPONITED AS ARITRATOR FORMER DIR. GEN. (MES) MILITARY ENGR.SERVICE (MES) Digitally signed by JUANITA THEJESWINI Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:8866 WP No. 68 of 2025 B-502, NAGARJUNA GREEN RIDGE, 19TH MAIN, 27TH CROSS, S ECTOR 2,HSR LAYOUT, BANGALORE -560 102. 3. M/S. PRN INFRATECH (P) LTD. HAVING ITS OFFICE AT NO.34, BRUNDHAVAN LAYOUT VIDYANAGAR, HUBLI -580 021. BY ITS GPA HOLDER MR. RAGHAVENDRA SHRINIVAS GINDI. 4. STATE OF KARNATAKA BY ITS PRINCIPAL SECRETARY URBAN DEVELOPMENT DEPARTMENT, VIKAS SOUDHA, BANGALORE -560 001. …RESPONDENTS (BY SRI.H.S. DWARAKANTH., ADVOCATE FOR R3 SRI. SHAMANTH NAIK., HCGP FOR R4 R2 SERVED - UNREPRESENTED) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE COSNTITUTION OF INDIA PRAYING TO CALL FOR THE ENTIRE RECORDS FROM THE R-1 PERTAINING TO THE APPOINTMENT OF THE R-2 AS AN ARBITRATOR AT ANNX-A, IN ICA/0502/ADHOC-0059 DTD. 03.12.2024. AND QUASH THE UNILATERAL APPOINTMENT OF AN ARBITRATOR BY THE R-1 VIDE LETTER BEARING NO. ICA/0502/ADHOC-0059 DTD. 03.12.2024 ANNX-A CONSEQUENTLY ALLOW THIS WRIT PETITION AND ETC. THIS PETITION, COMING ON FOR RELIMINARY HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: - 3 - NC: 2025:KHC:8866 WP No. 68 of 2025 CORAM: HON'BLE MR JUSTICE R DEVDAS ORAL ORDER The petitioner-BBMP is aggrieved of the action of the first responded-ICA in appointing a Sole Arbitrator unilaterally, at the instance of the third respondent to decide the lis between the parties in terms of Clause 39 of the tender document. 2. Learned Counsel for the petitioner submits that although it is true that the first respondent is one of the 7 Organizations, which finds place in the list in terms of the ‘General Conditions’ of contract at Clause 24 and ‘Special Conditions’ at Clause 39, nevertheless, it is pointed out from the impugned order at Annexure-A that no notice was issued to the petitioner before the first respondent could proceed to appoint the sole Arbitrator to decide the lis. Attention of this Court is drawn to Rule 23 of the ICA Rules of Domestic and Commercial Arbitration, dated 02.03.2024 that before proceeding to appoint the Arbitrator, the Council was required to issue notice in - 4 - NC: 2025:KHC:8866 WP No. 68 of 2025 writing calling upon the parties to the dispute to forward the name of an agreed Arbitrator from amongst the panel of Arbitrators. It is submitted that no such notice was issued to the petitioner. 3. Per contra, learned Counsel for the contesting third respondent submits that the writ petition itself is not maintainable, since there is an alternative remedy available for the petitioner, if it is aggrieved of the appointment of an Arbitrator. It is further pointed out from Annexure-R1 filed along with the statement of objections that the first respondent had issued such a notice on 14.11.2024 before the impugned order could be passed on 03.12.2024. 4. However, on going through Annexure-R1, it does not animate such issuance of notice to the petitioner before the Council could proceed to appoint a sole Arbitrator. - 5 - NC: 2025:KHC:8866 WP No. 68 of 2025 5. Learned Counsel for the petitioner has rightly pointed out to a recent decision of this Court in W.P.No.19317 of 2024 clubbed with W.P.No.2015 of 2025 dated 17th of February 2025, where this Court considered similar objections raised at the ends of the respondents that a writ petition in this regard is not maintainable. This Court found that the Hon’ble Supreme Court in the case of NARAYAN PRASAD LOHIA VS. NIKUNJ KUMAR LOHIA AND OTHERS, reported in (2002) 3 SCC 572 and BHAVEN CONSTRUCTION VS. EXECUTIVE ENGINEER, SARDAR SAROVAR NARMADA NIGAM LIMITED AND ANOTHER, reported in (2022) 1 SCC 75, the Hon’ble Supreme Court considered Section 16(2) of the Arbitration and Conciliation Act, 1996, and held that the avenue open for a person regarding the jurisdiction of the Arbitral Tribunal/ Arbitrator would vest with the Arbitral Tribunal itself and the Arbitral Tribunal is mandated to consider such objections which goes to the root of its jurisdiction. This Court, therefore remanded matter back to the Arbitration Tribunal to consider such an objection that could be raised - 6 - NC: 2025:KHC:8866 WP No. 68 of 2025 by the aggrieved party/institution regarding the jurisdiction. 6. In the present case, the grievance raised by the petitioner though not regarding the jurisdiction of the first respondent Council, however, it is regarding the non- compliance of the basic requirements of having to issue notice to the other party before proceeding to appoint an Arbitrator. 7. In that view of the matter, this Court proceeds to pass the following: ORDER (i) The writ petition is partly allowed. (ii) The impugned order at Annexure-A, dated 03.12.2024 pass by the first respondent- Indian Council of Arbitration, is hereby quashed and set aside. (iii) The matter stands remitted back to the first respondent to afford an opportunity of hearing to the petitioner to have its say in - 7 - NC: 2025:KHC:8866 WP No. 68 of 2025 the matter of appointment of the sole Arbitrator. (iv) Needless to observe that such opportunity is required to be given to both the parties who are before the first respondent. (v) The parties are hereby directed to appear before the first respondent through video conference on 10.03.2025 at 11:00 a.m. (vi) The first respondent shall also make necessary arrangements for enabling the parties to appear through video conference and have their say in the matter of appointment of the sole Arbitrator. Ordered accordingly. 8. Pending I.As., if any, stand disposed of. Sd/- (R DEVDAS) JUDGE DL CT: JL