JUDGMENT
B. Sudershan Reddy, C.J.
1. The appellant filed Writ Petition (C) No. 5378/2002 invoking the extra ordinary jurisdiction of this court under Article 226 of the Constitution of India with a prayer to quash the order dated 4.6.2002 passed by the learned Chief Justice of the Gauhati High Court in Arbitration Petition No. 14/2002 appointing arbitrator to settle disputes between the appellant and the respondent. The said order was passed by the learned Chief Justice at the instance of the sole respondent Assam State Weaving and Manufacturing Company Limited.
2. Learned Single Judge after an elaborate consideration of the matter found no merit in the writ petition filed by the appellant herein and accordingly dismissed the same. It is not necessary to notice the nature of the controversy between the parties leading to the order passed by the learned Chief Justice appointing arbitrator to resolve the dispute in view of the authoritative pronouncement of the Supreme Court in SBP & Company v. Patel Engineering Ltd. and Anr. (2005) 8 SCC 618.
3. The Supreme Court in SBP & Company (supra) having considered the nature and the function of the Chief Justice or his designate under Section 11 of the Arbitration and Conciliation Act, 1996 (for short, ‘the Act’) held – “conferment of the power on the Chief Justice of the High Court and on the Chief Justice of India as Presiding Judges of the High Court and the Supreme Court and the exercise of the power so conferred, is exercise of judicial power/authority as Presiding Judges of the respective courts”. The court while construing the provision, further observed – “the reasons for specifying the authority as the Chief Justice, could be that if it were merely the conferment of the power on the High Court, or the Supreme Court, the matter would be governed by the normal procedure of that court, including the right of appeal and Parliament obviously wanted to avoid that situation, since one of the objects was to restrict the interference by courts in the arbitral process.”
4. The Apex Court while considering the question as to whether a writ would lie against the order of the Chief Justice made under Section 11(6) of the Act observed – “It is also somewhat incongruous to permit the order of the Chief Justice under Section 11(6) of the Act being subjected to scrutiny under Article 226 of the Constitution at the hands of another Judge of the High Court. In the absence of any conferment of an appellate power, it may not be possible to say that a certiorari would lie against the decision of the High Court in the very same High Court.” The Supreme Court accordingly held – (i) The power exercised by the Chief Justice of the High Court or the Chief Justice of India under Section 11(6) of the Act is not an administrative power. It is a judicial power; (ii) There can be no appeal against an order of the Chief Justice of India or a Judge of the Supreme Court designated by him while entertaining an application under Section 11(6) of the Act; and (iii) Since an order passed by the Chief Justice of the High Court or by the designated Judge of that Court is a judicial order, an appeal will lie against that order only under Article 136 of the Constitution to the Supreme Court. The Apex Court accordingly overruled the decision in Konkan Railway Corporation Ltd v. Rani Construction (P.) Ltd. .
5. It is, therefore, clear that a proceeding under Article 226 of the Constitution initiated to challenge the order passed by the Chief Justice of the High Court or by the designated Judge of that court is not maintainable. The order passed by the Chief Justice of the High Court or by the designated Judge of that court is not an administrative order, nor a quasi-judicial one and, therefore, a writ of certiorari does not lie. The only remedy available to the aggrieved party is to prefer appeal against that order under Article 136 of the Constitution to the Supreme Court. For the above reason we hold that this writ appeal preferred by the appellant challenging the order passed by the Chief Justice appointing arbitrator to resolve the dispute between the parties is not maintainable in law.
6. Shri A.S. Choudhury, learned senior counsel, however, relying on the observation made in SBP & Company (supra) contended that only such of the order passed by the Chief Justice after the pronouncement of the judgment alone would not be amenable to be reviewed under Article 226 of the Constitution of India and the orders passed prior to the judgment would be governed by the law declared by the Apex Court in Konkan Railway Corporation Ltd. v. Rani Construction (R) Ltd. We do not find any merit in this submission for the simple reason for what we are required to determine as on today is as regards the validity of the order passed by the Chief Justice of this Court under Section 11(6) of the Act, which is held to be a judicial order. This appeal is nothing but re-hearing of the writ petition filed by the appellant challenging the order passed by the learned Chief Justice appointing arbitrator under Section 11(6) of the Act. We accordingly hold that this writ appeal is not maintainable in law.
7. Be that as it may, the impugned judgment and order under appeal does not suffer from any errors requiring our interference in this appeal. We accordingly hold that even on merits, the appellant did not make out any case for our interference. The appeal fails and shall accordingly stand dismissed. We, however, make no order as to cost.