2003 (7) TMI 588

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....f 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 Konkan Railways Corpn. Ltd. v. Rani Construction (P.) 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 ....

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....has adjudicated upon the rival contentions of the parties. In that context, this Court in Konkan Railways Corpn. Ltd.'s case (supra) 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 amen....

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....ced the grounds raised in the said writ petition, a copy of which has been enclosed with this petition. 10. 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 appoint....