Case: State Of Orissa  Vs. Gokulananda Jena

3. 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).4. 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. and 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.

Reasoning: 7. 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 is 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.8. 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.9. 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.