1999 JTR(SC) 901
1999 AIR(SC) 3246 ; 1999 AIR(SCW) 3220 ; 1999 6 ALD(SC) 5 ; 2000 1 AllCJ 368 ; 1999 4 AllMR(SC) 186 ; 1999 6 ALT(SC) 16 ; 1999 3 ArbLR 185 ; 2003 Supp BomCR(SC) 955 ; 1999 4 CompLJ 37 ; 1999 3 CTC 276 ; 1999 4 ICC 259 ; 1999 6 JT 194 ; 1999 3 KLT(SN) 43 ; 2000 1 MhLJ(SC) 391 ; 1999 4 MLJ 5 ; 2000 1 MPLJ 190 ; 1999 3 RAJ 145 ; 1999 4 RCR(Civ) 64 ; 1999 5 Scale 157 ; 1999 8 SCC 572 ; 1999 22 SCL 80 ; 1999 SCR 658 ; 1999 2 UJ 1386 ; 1999 KHC 747 ; 1999 7 Supreme 309
1999(7) Supreme 309
Supreme Court of India
(From Bombay High Court)
S.B. Majmudar & D.P. Mohapatra, JJ.
Ador Samia Pvt. Ltd. -Petitioner
versus
Peekay Holdings Ltd. & Ors. -Respondents
Special Leave Petition (C) No. 10792 of 1999
Decided on 20-8-1999
Counsel for the Parties :
For the Petitioner : Rajiv Dutta, Advocate.
Very Important Point
Orders passed by the learned Chief Justice under Section 11(6) of the Arbitration and Conciliation Act being of an administrative nature cannot be subjected to any challenge directly under Article 136 of the Constitution of India.
Act
Referred
:ARBITRATION AND CONCILIATION ACT : S.11(6)
CONSTITUTION OF INDIA : Art.136
(A) The Arbitration and Conciliation Act, 1996, Section 11(6), read with Article 136 of the Constitution, governs the appointment of arbitrators and the scope of judicial review. Section 11(6) contemplates an administrative process for appointing an arbitrator, where the designated authority acts in an administrative rather than a judicial capacity. Article 136, which permits special leave to appeal, is available only against orders of a judicial or quasi-judicial nature. The interplay between these provisions determines whether an order under Section 11(6) is amenable to direct challenge via a Special Leave Petition.
(B) Orders passed under Section 11(6) of the Arbitration and Conciliation Act, 1996, are administrative in nature and not judicial or quasi-judicial orders. Such orders, therefore, do not fall within the scope of Article 136 of the Constitution. The authority designated under Section 11(6) does not exercise judicial functions, and consequently, its orders cannot be challenged directly under Article 136.
Facts of the case:
A Special Leave Petition was filed under Article 136 of the Constitution challenging an order of the Chief Justice or designated authority under Section 11(6) of the Arbitration and Conciliation Act, 1996, in an arbitration matter.
Findings of Court:
The Bench held that Section 11(6) orders are administrative and not judicial or quasi-judicial. It is well settled that Article 136 applies only to judicial or quasi-judicial orders, and an administrative order passed under Section 11(6) is not maintainable under Article 136.
Issues:
Whether an order passed by the designated authority under Section 11(6) of the Arbitration and Conciliation Act, 1996, is a judicial or quasi-judicial order within the meaning of Article 136 of the Constitution.
Ratio Decidendi:
Since the function performed under Section 11(6) is administrative and not judicial, the order passed therein does not attract the jurisdiction conferred by Article 136, and a Special Leave Petition challenging such an order is not maintainable.
Result:
The Special Leave Petition is dismissed as not maintainable.
(A) The Arbitration and Conciliation Act, 1996, Section 11(6), read with Article 136 of the Constitution, governs the appointment of arbitrators and the scope of judicial review. Section 11(6) contemplates an administrative process for appointing an arbitrator, where the designated authority acts in an administrative rather than a judicial capacity. Article 136, which permits special leave to appeal, is available only against orders of a judicial or quasi-judicial nature. The interplay between these provisions determines whether an order under Section 11(6) is amenable to direct challenge via a Special Leave Petition.
(B) Orders passed under Section 11(6) of the Arbitration and Conciliation Act, 1996, are administrative in nature and not judicial or quasi-judicial orders. Such orders, therefore, do not fall within the scope of Article 136 of the Constitution. The authority designated under Section 11(6) does not exercise judicial functions, and consequently, its orders cannot be challenged directly under Article 136.
Facts of the case:
A Special Leave Petition was filed under Article 136 of the Constitution challenging an order of the Chief Justice or designated authority under Section 11(6) of the Arbitration and Conciliation Act, 1996, in an arbitration matter.
Findings of Court:
The Bench held that Section 11(6) orders are administrative and not judicial or quasi-judicial. It is well settled that Article 136 applies only to judicial or quasi-judicial orders, and an administrative order passed under Section 11(6) is not maintainable under Article 136.
Issues:
Whether an order passed by the designated authority under Section 11(6) of the Arbitration and Conciliation Act, 1996, is a judicial or quasi-judicial order within the meaning of Article 136 of the Constitution.
Ratio Decidendi:
Since the function performed under Section 11(6) is administrative and not judicial, the order passed therein does not attract the jurisdiction conferred by Article 136, and a Special Leave Petition challenging such an order is not maintainable.
Result:
The Special Leave Petition is dismissed as not maintainable.
Order
This Special Leave Petition under Article 136 of the Constitution of India is moved by the petitioner challenging an order of the learned Chief Justice of the High Court of Bombay in Arbitration Petition No. 288 of 1998 moved before him under Section 11 sub-section (6) of the Arbitration and Conciliation Act, 1996 (‘the Act’ for short).
2. It has been held by a Bench of this Court in the case of Sundaram Finance Ltd. v. NEPC India Ltd.1 that orders under Section 11 of the Act are not judicial orders. The relevant observations are found in paragraph 12 of the Report as under :
“Under the 1996 Act, appointment of arbitrator/s is made as per the provision of Section 11 which does not require the court to pass a judicial order appointing arbitrator/s. The High Court was, therefore, wrong in referring to these provisions of the 1940 Act while interpreting Section 4 of the new Act.”
3. It is now well settled that petition under Article 136 can lie for challenging a judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India. As the learned Chief Justice or his designate under Section 11(6) of the Act acts in administrative capacity as held by this Court in the aforesaid decision it is obvious that this order is not passed by any court exercising any judicial function nor it is a tribunal having trappings of a judicial authority. Question of mainatainability of such a petition under Article 136 is decided since long by a Constitution Bench of this Court in the case of Indo-China Steam Navigation Co. Ltd. v. Jasjit Singh, Additional Collector of Customs & Ors.2 .
In the said decision at page 601 the Constitution Bench of this Court speaking through Gajendragadkar, CJ., has made the following pertinent observations :
“It is settled by decisions of this Court that the Customs Officer who initially acts under Section 167(12A) is not Court or Tribunal, though it is also settled that in adjudicating upon the question as to whether Section 52A has been contravened by any ship and by lsuch contravention the said ship has made itself liable to confiscation under Section 167(12A), the Customs Officer has to act in a quasi-judicial manner.”
At page 603 it has been further observed as under :
“The result, therefore, is that it is no longer open to doubt that the Customs Officer is not a Court or Tribunal, though in adjudicating upon matters under Section 167 of the Act, he has to act in a judicial manner. It may be conceded that neither the Central Board of Revenue, nor the Central Government is a Court within the meaning of Article 136.”
At page 603 it has been further observed as under :
“It is clear that before an appeal can be entertained in this Court under Article 136, two conditions have to be satisfied; the order impugned must be an order of a judicial or quasi-judicial character and should not be purely an administrative or executive order; and the said order should have been passed either by a Court or a Tribunal in the territory of India.”
4. In view of this settled legal position, therefore, there is n escape from the conclusion that orders passed by the learned Chief Justice under Section 11(6) of the Act being of an administrative nature cannot be subjected to any challenge directly under Article 136 of the Constitution of India. Only on this short ground and without expressing any opinion on the merits of the controversy between the parties this Special Leave Petition is disposed of as not maintainable.
5. Whatever other remedy is available to the petitioner for challenging this order will obviously remain untouched by the present order.
(C.R.) SLP dismissed.
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