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Report No. 176

2.8.7 Order of Chief Justice of India

Now, an administrative order of the Chief Justice of India or his nominee or an administrative order of the Chief Justice of the High Court or his nominee can as a matter of law, be subjected to judicial review under Art. 226. May be, an administrative order of a Judge cannot be straightaway challenged under Art. 136 but it can be challenged under Art. 226.

But in Konkan Railway Case 1 it was accepted that if an arbitrator was not appointed, the parties could seek a writ of mandamus under Art. 226. In fact, before a mandamus is issued, the order of the Chief Justice has to be set aside and removed from the scene. Unless initially the administrative order not appointing an arbitrator is quashed or set aside, the question of issuing a mandamus does not arise.

If the order of the Chief Justice of India or the Chief Justice of the High Court is an order of an 'administrative authority', then sec. 5 of the Act which prohibits any 'judicial authority' from intervening in the proceedings will not be attracted because the orders are passed by the Judge under sec. 11 on the administrative side. In any event, sec. 5 cannot prohibit an application under Art. 226. A single Judge's judgment in a writ petition can be questioned before a Bench of two learned Judges and then the matter can go to the Supreme Court under Art. 136.

Thus, after an order under sec. 11 by the Judge in the Supreme Court or the High Court, on the administrative side, there can be litigation starting with an application under Art. 226, going through three levels. What is the position if these orders under sec. 11 are to be passed by the Court on the judicial side rather than by the Judge on the administrative side? Is it more advantageous?

Taking the case of an order under. Sec. 11 in an international arbitration,- if the order is to be passed on the judicial side by the 'Supreme Court' (and not by the Chief Justice of India or his nominee on the administrative side), i.e., by a Bench of two or more Judges, there is no question of any writ petition under Art. 226 being thereafter filed in the High Court. In fact, the order of the 'Supreme Court' will become final and binding once for all. Obviously, the three levels of litigation, which are possible if the order is on the administrative side, are all avoided at once.

This is certainly a better alternative. Likewise, if as under the ICC Model, in the sec. 11 applications, the preliminary issues are to be decided on the judicial side, rather than on the administrative side, the decision of the Supreme Court on the jurisdictional issues will also become final at the sec. 11 stage itself and the three stages of further litigation against such orders before a single Judge under Art. 226, then before a Bench and then under Art. 136 are clearly avoided.



The Arbitration and Conciliation (Amendment) Bill, 2001 Back




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