CASE NO.: Special Leave Petition (civil) 10792 of 1999 PETITIONER: ADOR SAMIA PRIVATE LIMITED RESPONDENT: PEEKAY HOLDING LIMITED AND ORS, DATE OF JUDGMENT: 20/08/1999 BENCH: S.B. MAJMUDAR & D.P. MOHAPATRA JUDGMENT:
JUDGMENT
1999 Supp. (1) SCR 658
The following Order of the Court was delivered :
This Special Leave Petition under Article 136 of 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).
It has been held by a Bench of this Court in the case of Sundaram Finance
Ltd. v. NEPC India Ltd., [1999] 2 SCC 479 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.” It is now well settled that petition under Article 136 can
lie for challenging a judgment, decree, determination, sentence or order in
any cause of 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 maintainability 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 and Ors., [1964] 6 SCR 594.
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 a 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 such 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
matter 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.”
In view of this settled legal position therefore, there is no 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 disopsed of as not maintainable.
Whatever other remedy is available to the petitioner for challenging this
order will obviously remain untouched by the present order.