State
of Orissa & Ors Vs. Gokulananda Jena
[2003] Insc 331 (30
July 2003)
N.Santosh
Hegde & B.P.Singh.
(Arising
out of SLPŠ No.478 of 2003) With C.A.No 5314/2003 @ SLPŠNo.592/2003) SANTOSH
HEGDE,J.
Leave
granted.
Heard
learned counsel for the parties.
State
of Orissa in this appeal has challenged the
order of the High Court of Orissa at Cuttack dated 8.4.2002 made in O.J.C.No.1483 of 2002. In the said writ
petition, the State of Orissa had challenged the validity of an order made by
the Judge designated by the Chief Justice of the said court for appointing an
Arbitrator under Section 11(6) of the Arbitration and Conciliation Act, 1996
(the 'Act').
The
High Court after referring to a judgment of this Court delivered by a
Constitution Bench in the case of M/s. Konkan Railways Corporation Ltd. & Anr.
vs. M/s. Rani Construction Pvt. Ltd. (2002 2 SCC 388) came to the conclusion
that a writ petition under Article 226 of the Constitution of India questioning
the correctness of an order made by the Designated Judge under Section 11(6) of
the Act is not maintainable because the said order is an administrative order
and this Court in the case of M/s. Konkan Railway (supra) has held that such an
order cannot be challenged before this Court under Article 136 of the Constitution
of India.
Drawing
an analogy from the said judgment, the High Court came to the conclusion that
even a writ petition under Article 226 of the Constitution of India will not be
maintainable.
We
think this view of the High Court as to the non- maintainability of a writ
petition against an order made by the Designated Judge under Section 11(6) of
the Act cannot be sustained.
It is
to be noted that an administrative order is amenable to the writ jurisdiction
under Article 226 of the Constitution of India and we find such an order made
by the Designated Judge under Section 11(6) of the Act is not an exception to
this rule.
The
power of the High Court under Article 226 to entertain a writ petition cannot
be equated with the power of the Supreme Court to entertain an appeal under
Article 136 of the Constitution of India. The power of the High Court to
entertain a writ petition is an original power while power of this Court while
entertaining an appeal under Article 136 of the Constitution is an appellate
power.
The
Constitution Bench in the case of M/s. Konkan Railway (supra) itself has held
that an order which is the subject of the petition for special leave to appeal
under Article 136 must be an adjudicatory order, that is, an order which has
adjudicated upon the rival contentions of the parties. In that context, this
Court in M/s.Konkan Railways case has held that an order made by the Designated
Judge under Section 11(6) of the Act is not an order in which the Designated
Judge adjudicates parties rights, hence, it is in the nature of an
administrative order against which an appeal under Article 136 does not lie.
This Court in that judgment has not stated that an order being an
administrative order, same cannot also be challenged under Article 226 of the
Constitution for good and valid reasons. Therefore, in our opinion, the High
Court was wrong in coming to the conclusion that an order made by the
Designated Judge under Section 11(6) of the Act is not amenable to the writ
jurisdiction of the High Court.
However,
we must notice that in view of Section 16 read with Sections 12 and 13 of the
Act as interpreted by the Constitution Bench of this Court in the M/s. Konkan
Railway (supra) almost all disputes which could be presently contemplated can
be raised and agitated before the Arbitrator appointed by the Designated Judge
under Section 11(6) of the Act. From the perusal of the said provisions of the
Act, it is clear that there is hardly any area of dispute which cannot be
decided by the Arbitrator appointed by the Designated Judge. If that be so,
since an alternative efficacious remedy is available before the Arbitrator,
writ court normally would not entertain a challenge to an order of the
Designated Judge made under Section 11(6) of the Act which includes considering
the question of jurisdiction of the Arbitrator himself. Therefore, in our view
even though a writ petition under Article 226 of the Constitution is available
to an aggrieved party ground available for challenge in such a petition is
limited because of the alternative remedy available under the Act itself.
Having
come to the conclusion that a writ petition under Article 226 is maintainable
as against the order made by the Designated Judge under Section 11(6) of the
Act on limited grounds, we will now consider whether such grounds are available
to the petitioner to challenge the order of the designated court in the case in
hand. For this purpose, we have noticed the grounds raised in the said writ
petition, a copy of which has been enclosed with this petition.
The
challenge of the appellant in the writ petition against the order of the
Designated Judge is based on the following facts :
(i)
The contract between the parties was executed before the Act came into force,
hence, the act does not apply;
(ii)
Dispute is a stale one having arisen nearly 20 years ago.;
(iii)
Clause 23 of the agreement contemplates the adjudication of a dispute by a
company arbitrator.
(iv)
No person other than an arbitrator nominated in Clause 23 of the argument has any
jurisdiction to entertain the disputes.
All
these grounds of attack, in our opinion, can very well be raised before the
Arbitrator appointed by the Designated Judge, hence, on the facts of the case,
we find the writ petition of the appellant was liable to be dismissed by the
High Court.
For
this reason, we do not think it appropriate to remand the matter back to the
High Court. Therefore, we dismiss this appeal permitting the appellant to raise
all its contentions before the Arbitrator appointed by the Designated Judge.
C.A.No
./2003
(Arising out of SLPŠNo.592/2003).
Leave
granted Heard learned counsel for the parties.
The
issues involved in this appeal both on facts and in law being identical with
the issues involved in the C.A.No
./2003 @ SLPŠNo.478/2003, this appeal is
also liable to be dismissed for the reasons mentioned in the said civil appeal.
The appeal is dismissed.
No
costs.
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