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CASE NO.: Appeal (civil)  5313 of 2003

PETITIONER: State of Orissa & Ors.                                   

RESPONDENT: Vs. Gokulananda Jena                                                 

DATE OF JUDGMENT: 30/07/2003

BENCH: N.Santosh Hegde & B.P.Singh.

JUDGMENT: J U D G M E N T

               (Arising out of SLP© No.478 of 2003)

With C.A.No 5314/2003  @ SLP©No.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

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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.

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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.Noâ\200¦â\200¦â\200¦./2003 (Arising out of SLP©No.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.Noâ\200¦â\200¦â\200¦./2003 @ SLP©No.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.