Writ jurisdiction and arbitration bye-law challenge: section 16 orders are not awards, so remedy lies under section 37(2).

The article examines a writ challenge to Bombay Stock Exchange Bye-law 274A and the scope of remedies under the Arbitration and Conciliation Act, 1996. It states that writ jurisdiction was maintainable because the challenge went to the appellate forum's competence and the bye-law's validity, and that the existence of statutory remedies did not bar constitutional review. It further explains that Bye-law 274A was read as allowing an optional second arbitration tier and was not inconsistent with the Act. However, an order under section 16 was treated as an order, not an award, so no appeal lay under the bye-law; the proper remedy was under section 37(2).

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Issues: (i) Whether the writ petition challenging the appellate tribunal's jurisdiction and the validity of Bye-law 274A was maintainable. (ii) Whether Bye-law 274A of the Bombay Stock Exchange was ultra vires the Arbitration and Conciliation Act, 1996. (iii) Whether an appeal under Bye-law 274A lay against an order passed under section 16 of the Arbitration and Conciliation Act, 1996, or whether the proper remedy was under section 37(2) of that Act.

Issue (i): Whether the writ petition challenging the appellate tribunal's jurisdiction and the validity of Bye-law 274A was maintainable.

Analysis: The petition did not merely assail an appellate order in isolation, but also questioned the very competence of the appellate forum and the validity of the bye-law itself. Since the stock exchange was treated as state for constitutional purposes and the challenge included enforceability of the bye-law, the availability of the writ jurisdiction was not excluded. The existence of remedies under the Arbitration and Conciliation Act, 1996 did not bar constitutional review where the challenge went to jurisdiction and vires.

Conclusion: The writ petition was maintainable.

Issue (ii): Whether Bye-law 274A of the Bombay Stock Exchange was ultra vires the Arbitration and Conciliation Act, 1996.

Analysis: The bye-law was construed as permitting an optional second submission to arbitration rather than as a mandatory appellate hierarchy overriding the statute. A distinction was drawn between an award, an order, and a second arbitration under contractual bye-laws. The statutory scheme of the Arbitration and Conciliation Act, 1996 did not prohibit parties from agreeing to such a second tier, and the bye-law was capable of being harmoniously read with the Act. The bye-laws of the stock exchange were treated as having statutory flavour, but not as legislation overriding the parent statute.

Conclusion: Bye-law 274A was not ultra vires the Arbitration and Conciliation Act, 1996.

Issue (iii): Whether an appeal under Bye-law 274A lay against an order passed under section 16 of the Arbitration and Conciliation Act, 1996, or whether the proper remedy was under section 37(2) of that Act.

Analysis: An order under section 16 rejecting or accepting a jurisdictional objection was held to be an order and not an award. Bye-law 274A contemplated an appeal only from an award, whereas the impugned order arose at the threshold under section 16. The appellate tribunal, therefore, lacked jurisdiction to entertain the matter as an appeal under the bye-law. The appropriate remedy against such an order lay under section 37(2) of the Arbitration and Conciliation Act, 1996.

Conclusion: The appeal under Bye-law 274A was not maintainable against the section 16 order, and the proper remedy was under section 37(2).

Final Conclusion: The petition succeeded to the extent that the appellate order remitting the dispute for arbitration was set aside, while the validity of the bye-law and the maintainability of the writ petition were upheld.

Ratio Decidendi: A contractual or bye-law-based second submission to arbitration is not, by itself, inconsistent with the Arbitration and Conciliation Act, 1996, but an order deciding a section 16 jurisdictional objection is not an award and cannot be taken in appeal under a bye-law confined to awards; the remedy lies under section 37(2).

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