The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK AFR W.P.(C) No.31034 of 2022 In the matter of an application under Articles 226 & 227 of the Constitution of India. ……………… M/s. H.M. Constructions Company, West Bengal …. Petitioner -versus- Power Grid Corporation of India Ltd., New Delhi & Others …. Opposite Parties For Petitioner : M/s.S.S.Rao & S.E. Haque For Opp. Parties : Mr.A.N.Das, N.Sarkar & E.A.Das. PRESENT: THE HONBLE JUSTICE BIRAJA PRASANNA SATAPATHY ----------------------------------------------------------------------------- Date of Hearing:14.12.2022 and Date of Judgment:06.01.2023 ----------------------------------------------------------------------------- Biraja Prasanna Satapathy, J. 1. This Writ Petition has been filed to quash the order dated 11.11.2022 passed by the learned Arbitrator under Annexure-4 and with a further prayer to direct the learned Arbitrator to accept the petition for amendment and to proceed with the case by accepting the documents in accordance with law. // 2 // 2. The factual background giving rise to filing of the present writ petition is that with regard to the dispute arising out of a contract for Package-F site preparation, leveling and grading for 400 KV Buy Extension at 765/400 KV Angul Pooling Station Span No. ODP/BB/C7M-1077/1- 442, the Petitioner when approached this Court in ARBP Proceeding No.26/2020, the present Opposite Party No.5 was appointed as the sole Arbitrator as per the order passed by this Court on 22.01.2021. After such appointment of the sole Arbitrator, the dispute was registered vide Arbitration Proceeding No.9/2021 and the Arbitration Proceeding commenced from 05.03.2021. During pendency of the matter before the sole Arbitrator, the Petitioner filed a petition on 19.10.2022 under Annexure-1, with a prayer to allow the proposed amendment. Similarly, the Petitioner also filed another petition under Order-13, Rule-1 of the C.P.C for acceptance of the documents, which are proposed to be included by way of amendment. Learned Arbitrator when rejected both the Petitions vide the impugned order dated 11.11.2021 under Annexure-4, the present Writ Petition was filed challenging the order and with the further prayer to allow Page 2 of 28 // 3 // the amendment as prayed for with the acceptance of the documents so indicated in the proposed amendment. 3. It is the main contention of the learned counsel appearing for the Petitioner that during course of hearing, the Opposite Party-Company herein when adjusted an amount of Rs.9,02,959.64/- paisa vide letter dated 23.02.2022 and also returned the 7th R.A Bills with the plea that same is defective one, the Petitioner was compelled to file the Petition for amendment in order to bring on record, the communication dated February, 23, 2022 and the documents in support of his claim for settlement of the 7th R.A bills. 3.1. It is contended that unless the proposed amendment is allowed by accepting the documents enclosed to the amendment petition, the Petitioner will be seriously prejudiced and non-admission of those documents will jeopardize his claim. But the learned Arbitrator on the ground that the facts noted in the proposed amendment and the documents sought to be introduced were all within the knowledge and possession of the petitioner at the time of filing of the claim petition they were never filed earlier during course of the proceeding rejected both the prayers Page 3 of 28 // 4 // vide the impugned order. At the fagend of the proceeding, when the matter is fixed for argument, these new facts and documents are being introduced to patch up the lacunae in the pleadings and the evidence of the petitioner for improving its case.
Legal Reasoning
3.2. It is contended that learned Arbitrator while rejecting the petition vide the impugned order under Annexure-4 failed to appreciate the prejudice that will be caused to the petitioner, if the documents sought to be introduced by way of amendment are not taken on record. Accordingly, it is contended that the impugned order is not legally sustainable and is liable for interference of this Court. 3.3. Learned counsel for the Petitioner in support of his aforesaid contention relied on the decision of the Hon’ble Apex Court in the case of Industrial Credit and Investment Corporation of India Ltd. Vs. Grapco Industrial Ltd., reported in (1999) 4 SCC-710. 3.4. Learned counsel for the Petitioner also relied on another decision of the Hon’ble Apex Court in the case of Allahabad Bank, Calcutta vs. Radha Krishna Maity and others reported in AIR 1999 SC-3426 and the Page 4 of 28 // 5 // decision in the case Lekh Raj vs. Munilal & Others reported in (2001) 2 SCC-762. 3.5. Learned counsel for the Petitioner also relied on another decision of this Court in the case of Smt. Satyabati Pradhan vs. Shyamsundar Nayak & Others reported in (2010) 1 OLR-963 and another decision in the case of Surendranath Dhal & Another vs. Bhaba Das & Others reported in (2014) Supp-1 OLR-1113. 4. Mr. A.N.Das, learned counsel appearing for the Opposite Parties through Caveat made his submission basing on the stand taken in their preliminary counter affidavit as well as the objection filed to the interim application. 4.1. It is the main contention of the learned counsel appearing for the Opposite Parties that the Arbitration Proceeding filed by the Petitioner under the Arbitration and Conciliation Act, 1996 seeking multifarious claims in connection with the agreement dated 6.3.2017. After commencement of the proceeding before the learned Arbitrator on 05.03.2021, the Opposite Parties filed their defence statement and in the meantime after closure of evidence from both the sides, the matter is fixed for Page 5 of 28 // 6 // argument. In order to delay the proceeding, the Petitioner filed the petition for amendment as well as the petition with a prayer to accept the documents, which are reflected in the amendment petition. 4.2. Learned counsel for the Opposite Parties vehemently contended that the present writ petition is not maintainable under Articles-226 & 227 of the Constitution of India against an order passed and arising out of a proceeding initiated under the Arbitration and Conciliation Act, 1996. Since the Arbitration and Conciliation Act, 1996 is a complete Code by itself, the proceeding is ought to be proceeded with and governed as per the provision prescribed in the said act. Therefore, the Writ Petition against the impugned order is not maintainable in the eye of law. 4.3. It is also contended that the impugned order dated 11.11.2022 passed by the learned Arbitrator under Annexure-4 is an appelable one under Section-37 of the Arbitration and Conciliation Act, 1996. The Petitioner earlier had also taken recourse to the said provision, while filing an appeal against the order dated 10.02.2022 passed by the learned sole Arbitrator in the present proceeding. Page 6 of 28 // 7 // 4.4 It is also contended the evidence from both the sides was closed on 20.09.2022 and the matter was posted for hearing and for oral submission to 29.09.2022. Accordingly, it is contended that the present writ petition against the impugned order is not maintainable and the Petitioner can avail the benefit of alternate remedy of appeal as provided under Section-37 of the Arbitration and Conciliation Act, 1996. 4.5. It is also further contended that the document sought to be incorporated by the Petitioner by way of amendment were very much available with the petitioner while filing the claim statement after initiation of the proceeding before the Arbitrator on 05.03.2021. Therefore, no illegality or irregularity has been committed by the learned Arbitrator in rejecting the prayer for amendment as well as the prayer for acceptance of the document vide the impugned order at Annexure-4. Not only that it is also contended that since the Petitioner against the order passed by the sole Arbitrator on 10.02.2022 has already preferred an appeal under Section-37 of the Act before the competent Court, this Court is not required to interfere with the impugned order and Petitioner may prefer an appeal against the impugned order. Page 7 of 28 // 8 // 4.6. Mr. Das in support of the aforesaid submission relied on the decision of the Hon’ble Apex Court in the case of Bhaven Construction through authorized Signatory Premjibhai K.Shah vs. Executive Engineer, Sardar Sarovar Narmada Nigam Limited & Another reported in (2022) 1 SCC-75 and another decision in the case of N.N.Global Mercantile Private Limited vs. Indo Unique Flame Limited & Others reported in (2021) 4 SCC-379. 4.7. Hon’ble Apex Court in the decision in Bhaven Construction, in Para-11 to 17, 20 and 22 has held as follows:- “11. Having heard both parties and perusing the material available on record, the question which needs to be answered is whether the arbitral process could be interfered under Article 226/227 of the Constitution, and under what circumstance? 12. We need to note that the Arbitration Act is a code in itself. This phrase is not merely perfunctory, but has definite legal consequences. One such consequence is spelled out under Section 5 of the Arbitration Act, which reads as under “Notwithstanding anything contained in any other law for the time being in force, in matters governed by this Part, no judicial authority shall intervene except where so provided in this Part.” The non-obstante clause is provided to uphold the intention of the legislature as provided in the Preamble to adopt UNCITRAL Model Law and Rules, to reduce excessive not contemplated under the Arbitration Act. interference which judicial is 13. The Arbitration Act itself gives various procedures and forums to challenge the appointment of an arbitrator. The framework clearly portrays an intention to address most of the issues within the ambit of the Page 8 of 28 // 9 // Act itself, without there being scope for any extra statutory mechanism to provide just and fair solutions. 14. Any party can enter into an arbitration agreement for resolving any disputes capable of being arbitrable. Parties, while entering into such agreements, need to fulfill the basic ingredients provided under Section 7 of the Arbitration Act. Arbitration being a creature of contract, gives a flexible framework for the parties to agree for their own procedure with minimalistic stipulations under the Arbitration Act. 15. If parties fail to refer a matter to arbitration or to appoint an arbitrator in accordance with the procedure agreed by them, then a party can take recourse for court assistance under Section 8 or 11 of the Arbitration Act. 16. In this context, we may state that the Appellant acted in accordance with the to procedure unilaterally appoint a sole arbitrator, without Respondent No. 1 mounting a judicial challenge at that stage. Respondent No. 1 then appeared before the sole arbitrator and challenged the jurisdiction of the sole arbitrator, in terms of Section 16(2) of the Arbitration Act. laid down under the agreement 17. Thereafter, Respondent No. 1 chose to impugn the order passed by the arbitrator under Section 16(2) of the Arbitration Act through a petition under Article 226/227 of the Indian Constitution. In the usual course, the Arbitration Act provides for a mechanism of challenge under Section 34. The opening phase of Section 34 reads as 34. Application for setting aside arbitral award.- (1)‘Recourse to a Court against an arbitral award may be made only by an application for setting aside such award in accordance with sub-section (2) and sub section (3)’. The use of term ‘only’ as occurring under the provision serves two purposes of making the the enactment a complete code and procedure”. lay down xxx xxx xxx 20. In the instant case, Respondent No. 1 has not been able to show exceptional circumstance or ‘bad faith’ on the part of the Appellant, to invoke the remedy under Article 227 of the Constitution. No doubt the ambit of Article 227 is broad and pervasive, however, the High Court should not have used its inherent power to Page 9 of 28 // 10 // interject the arbitral process at this stage. It is brought to our notice that subsequent to the impugned order of the sole arbitrator, a final award was rendered by him on merits, which is challenged by the Respondent No. 1 in a separate Section 34 application, which is pending. xxx xxx xxx 22. The High Court did not appreciate the limitations under Articles 226 and 227 of the Constitution and reasoned that the Appellant had undertaken to appoint the an arbitrator unilaterally, Respondent No. 1 remediless. However, a plain reading of the arbitration agreement points to the fact that the Appellant herein had actually acted in accordance with the procedure laid down without any mala fides”. thereby rendering 4.8. Similarly, Hon’ble Apex Court in the decision in N.N.Global Mercantile Private Limited, in Para-52 and 53 has held as follows:-
Decision
“52. We are of the view that the Writ Petition filed by the Respondent No. 1 to challenge the Order dated 18.01.2018 passed by the Special Commercial Court / District Judge-I in Commercial Dispute No. 62/2017 was not maintainable, since a statutory remedy under the amended Section 37 of the Arbitration Act is available. Section 37(1) has been amended by Act 3 of 201649. Section 37(1)(a) provides for an appeal to be filed against an Order refusing to refer the parties to arbitration. Section 37(1)(a) reads as : “37. Appealable orders. – (1) An appeal shall lie from the following orders (and from no others) to the Court authorised by law to hear appeals from original decrees of the Court passing the order, namely: (a) Refusing to refer the parties to arbitration under section 8; ” 53. Since the judgment and order of the Commercial Court dated 18.01.2018 refusing to refer the parties to arbitration was an appealable order under Section 37(1)(a) of the Arbitration Act, the Writ Petition was not maintainable. The appeal would the Commercial Appellate Division of the High Court under lie before Page 10 of 28 // 11 // Section 13(1A) of the Commercial Courts Act, 2015. Section 13(1A) read as : “13. Appeals from decrees of Commercial Courts and Commercial Divisions.–(1) Any person aggrieved by the judgment or order of a Commercial Court below the level of a District Judge may appeal to the Commercial Appellate Court within a period of 60 days from the date of judgment or order. (1A) Any person aggrieved by the judgment or order of a Commercial Court at the level of District Judge exercising original civil jurisdiction or, as the case may be, Commercial Division of a High Court may appeal to the Commercial Appellate Division of that High Court within a period of sixty days from the date of the judgment or order: Provided that an appeal shall lie from such orders passed by a Commercial Division or a Commercial Court that are specifically enumerated under Order XLIII of the Code of Civil Procedure, 1908 (5 of 1908) as amended by this Act and Section 37 of the Arbitration and Conciliation Act, 1996 (26 of 1996).” In view of the availability of a statutory remedy, the judgment of the High Court passed under Articles 226 and 227 of the Constitution is liable to be set aside on the ground of maintainability”. 5. I have heard Mr. S.S.Rao, learned counsel appearing for the Petitioner and Mr. A.N.Das, learned counsel appearing for the Opposite Parties. On their consent, the matter was taken up for final disposal at the stage of admission. 6. This Court after going through the materials available on record and the submissions made by the learned counsel for the Parties finds that the proceeding under the Arbitration and Conciliation Act, 1996 was initiated before the learned Arbitrator in Arbitration Proceeding No.9/2021 Page 11 of 28 // 12 // w.e.f.05.03.2021. This Court finds that the amendment application filed by the Petitioner under Annexure-1 was necessitated in course of the proceeding as the opposite parties vide letter dated 23.02.2022 adjusted a sum of Rs.9,02,964.64 paisa. Similarly, though the dispute also includes the claim made by the Petitioner towards the 7th R.A bills, but in course of the proceeding when the said 7th R.A bill was returned by the Opposite Parties by holding the same as a defective one, the Petitioner in support of his claim towards such 7th R.A bill proposed to include certain documents by way of amendment and all those documents were enclosed to the petition for amendment. The Petitioner also filed the other petition for acceptance of all those documents, as the evidence prior to filing of the petition, from both the side was already closed. But since learned counsel for the Opposite Parties at the first instance raised the question of maintainability and the jurisdiction of this Court to entertain such a petition by exercising the power under Article-226 & 227 of the Constitution of India, this Court feels it proper to decide the said issue at the first instance. 6.1. Learned counsel appearing for the Opposite Parties though vehemently contended that as against the Page 12 of 28 // 13 // impugned order, the present writ petition is not maintainable in exercise of the power under Articles 226 and 227 of the Constitution of India but in the case of Bhaven Construction as cited (supra). Hon’ble Apex Court in Para-17 to 19 of the said judgment has held as follows:- “17. In any case, the hierarchy in our legal framework, mandates that a legislative enactment cannot curtail a Constitutional right. In Nivedita Sharma v. Cellular Operators Association of India, (2011) 14 SCC 337, this Court referred to several judgments and held: "11.We the have considered respective arguments/submissions. There cannot be any dispute that the power of the High Courts to issue directions, orders or writs including writs in the nature of habeas corpus, certiorari, mandamus, quo warranto and prohibition under Article 226 of the Constitution is a basic feature of the Constitution and cannot be curtailed by parliamentary legislation L. Chandra Kumar v. Union of India, (1997) 3 SCC 261. However, it is one thing to say that in exercise of the power vested in it under Article 226 of the Constitution, the High Court can entertain a writ petition against any order passed by or action taken by the State and/or its agency/instrumentality or any public authority or order passed by a quasi-judicial body/authority, and it is an altogether different thing to say that each and every petition filed under Article 226 of the Constitution must be entertained by the High Court as a matter of course ignoring the fact that the aggrieved person has an effective alternative remedy. Rather, it is settled law that when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation 18. In any case, the hierarchy in our legal framework, mandates that a legislative enactment cannot curtail a Constitutional right. In Nivedita Sharma v. Cellular Operators Association of India, (2011) 14 SCC 337, this Court referred to several judgments and held: “11. We respective arguments/submissions. There cannot be any dispute considered have the Page 13 of 28 // 14 // that the power of the High Courts to issue directions, orders or writs including writs in the nature of habeas corpus, certiorari, mandamus, quo warranto and prohibition under Article 226 of the Constitution is a basic feature of the Constitution and cannot be curtailed by parliamentary legislation - L. Chandra Kumar v. Union of India, (1997) 3 SCC 261. However, it is one thing to say that in exercise of the power vested in it under Article 226 of the Constitution, the High Court can entertain a writ petition against any order passed by or action taken by the State and/or its agency/ instrumentality or any public authority or order passed by a quasijudicial body/authority, and it is an altogether different thing to say that each and every petition filed under Article 226 of the Constitution must be entertained by the High Court as a matter of course ignoring the fact that the aggrieved person has an effective alternative remedy. Rather, it is settled law that when a statutory forum is created by law for redressal of grievances, a writ petition should not be the statutory dispensation. entertained (emphasis supplied). ignoring It is therefore, prudent for a Judge to not exercise discretion to allow judicial interference beyond the procedure established under the enactment. This power needs to be exercised in exceptional rarity, wherein one party is left remediless under the statute or a clear ‘bad faith’ shown by one of the parties. This high standard set by this Court is in terms of the legislative intention to make the arbitration fair and efficient. 19. In this context we may observe M/s. Deep Industries Limited v. Oil and Natural Gas Corporation Limited, (2019) SCC Online SC 1602, wherein interplay of Section 5 of the Arbitration Act and Article 227 of the Constitution was analyzed as under: states 5 which in Section “16. Most significant of all is the non- obstante clause contained that notwithstanding anything contained in any other law, in matters that arise under Part I of the Arbitration Act, no judicial authority shall intervene except where so provided in this Part. Section 37 grants a constricted right of first appeal against certain judgments and orders and no others. Further, the statutory mandate also provides for one bite at the cherry, and interdicts a second appeal being filed (See Section 37(2) of the Act). Page 14 of 28 // 15 // 17. This being the case, there is no doubt whatsoever that if petitions were to be filed under Articles 226/227 of the Constitution against orders passed in appeals under Section 37, the entire arbitral process would be derailed and would not come to fruition for many years. At the same time, we cannot forget that Article 227 is a constitutional provision which remains untouched by the non-obstante clause of Section 5 of the Act. In these circumstances, what is important to note is that though petitions can be filed under Article 227 against judgments allowing or dismissing first appeals under Section 37 of the Act, yet the High Court would be extremely circumspect in interfering with the same, taking into account the statutory policy as adumbrated by us herein above so that interference is restricted to orders that are passed which are patently lacking in inherent jurisdiction.” 6.2. In the case of Deep Industries (supra) Hon’ble Apex Court in Para- 16, 17 & 18 has held as follows:- states 5 which in Section “16. Most significant of all is the non obstante clause contained that notwithstanding anything contained in any other law, in matters that arise under Part I of the Arbitration Act, no judicial authority shall intervene except where so provided in this Part. Section 37 grants a constricted right of first appeal against certain judgments and orders and no others. Further, the statutory mandate also provides for one bite at the cherry, and interdicts a second appeal being filed [see Section 37(2) of the Act]. XXX XXX XXX 17. This being the case, there is no doubt whatsoever that if petitions were to be filed under Articles 226/227 of the Constitution against orders passed in appeals under Section 37, the entire arbitral process would be derailed and would not come to fruition for many years. At the same time, we cannot forget that Article 227 is a constitutional provision which remains untouched by the non obstante clause of Section 5 of the Act. In these circumstances, what is important to note is that though petitions can be filed under Article 227 against judgments allowing or dismissing first Page 15 of 28 // 16 // appeals under Section 37 of the Act, yet the High Court would be extremely circumspect in interfering with the same, taking into account the statutory policy as adumbrated by us hereinabove so that interference is restricted to orders that are passed which are patently lacking in inherent jurisdiction. XXX XXX XXX 18. In Nivedita Sharma v. COAP, this Court referred to several judgments and held: (SCC pp. 343-45, paras 11-16) the “11. We have considered respective arguments/submissions. There cannot be any dispute that the power of the High Courts to issue directions, orders or writs including writs in the nature of habeas corpus, certiorari, mandamus, quo warranto and prohibition under Article 226 of the Constitution is a basic feature of the Constitution and cannot be curtailed by parliamentary legislation- L Chandra Kumar v. Union of India'. However, it is one thing to say that in exercise of the power vested in it under Article 226 of the Constitution, the High Court can entertain a writ petition against any order passed by or action its agency/instrumentality or any public authority or order passed by a quasi- judicial body/authority, and it is an altogether different thing to say that each and every petition filed under Article 226 of the Constitution must be entertained by the High Court as a matter of course ignoring the fact that the aggrieved person has an effective alternative remedy. Rather, it is settled law that when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation. the State and/or taken by 12. In Thansingh Nathmal v. Supt. of Taxes, this Court adverted to the rule of self-imposed restraint that the writ petition will not be entertained if an effective remedy is available to the aggrieved person and observed: (AIR p. 1423, para 7) ‘7. ... The High Court does not therefore act as a court of appeal against the decision of a court or tribunal, to correct errors of fact, and does not by assuming jurisdiction under Article 226 trench upon an alternative remedy provided by statute for obtaining relief. Where it is open to the aggrieved petitioner to in another move another tribunal, or even jurisdiction for obtaining redress the manner provided by a statute, the High Court normally will not permit by entertaining a petition under Article 226 of itself in Page 16 of 28 // 17 // the Constitution the machinery created under the statute to be bypassed, and will leave the party applying to it to seek resort to the machinery so set up.’ 13. In Titaghur Paper Mills Co. Ltd. v. State of Orissa", this Court observed: ‘11. It is now well recognised that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of. This rule was stated with great clarity by Willes, J. in Wolverhampton New Waterworks Co. v. Hawkesford10 in the following passage: (ER p. 495) “… There are three classes of cases in which a liability may be established founded upon a statute..... But there is a third class viz. where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it…. the remedy provided by the statute must be followed, and it is not competent to the party to pursue the course applicable to cases of the second class. The form given by the statute must be adopted and adhered to." The rule laid down in this passage was approved by the House of Lords in Neville v. London Express Newspapers Ltd.11 and has been reaffirmed by the Privy Council in Attorney General of Trinidad & Tobago v. Gordon Grant & Co. Ltd. 12 and Secy of State v. Mask & Co.13 It has also been held to be equally applicable to enforcement of rights, and has been followed by this Court throughout. The High Court was therefore justified in dismissing the writ petitions in limine.’ 14. In Mafatlal Industries Ltd. v. Union of India, B.P. Jeevan Reddy, J. (speaking for the majority of the larger Bench) observed: ‘77. … So far as the jurisdiction of the High Court under Article 226 or for that matter, the jurisdiction of this Court under Article 32 is concerned, it is obvious that the provisions of the Act cannot bar and curtail these remedies. It is, however, equally obvious that while exercising the power under Article 226/Article 32, the Court would certainly take note of the legislative intent manifested in the provisions of the Act and would exercise their jurisdiction consistent with the provisions of the enactment." Page 17 of 28 // 18 // v. 15. In the judgments relied upon by Shri Vaidyanathan, which, by and large, reiterate the proposition laid down in Baburam Prakash Chandra Maheshwari Parishad, Antarim Muzaffarnagaris, it has been beld that an alternative remedy is not a bar to the entertaining of writ petition filed for the enforcement of any of the fundamental rights or where there has been a violation of the principles of natural justice or where the order under challenge is wholly without jurisdiction or the vires of the statute is under challenge. Zila laid down the proposition 16. It can, thus, be said that this Court has recognised some exceptions to the rule of alternative remedy. However, in Thansingh Nathmal v. Supt. of Taxes and other similar judgments that the High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy the aggrieved person or the statute under which the action itself contains a complained of has been taken mechanism for redressal of grievance still holds the field.” is available to 6.3. In the case of Radhey Shyam (supra) Hon’ble Apex Court in Para- 25 and 26 has held as follows:- “25. It is true that this Court has laid down that technicalities associated with the prerogative writs in England have no role to play under our constitutional scheme. There is no parallel system of King's Court in India and of all the other courts having limited jurisdiction subject to the supervision of the King's Court. Courts are set up under the Constitution or the laws. All the courts in the jurisdiction of a High Court are subordinate to it and subject to its control and supervision under Article 227. Writ jurisdiction is constitutionally conferred on all the High Courts. Broad principles of writ jurisdiction followed in England are applicable to India and a writ of certiorari lies against patently erroneous or without jurisdiction orders of tribunals or authorities or courts other than judicial courts. There are no precedents in India for the High Courts to issue writs to the subordinate courts. Control of working of the subordinate courts in dealing with their judicial orders is exercised by way of appellate or revisional powers or power of superintendence under Article 227. Orders of the civil court stand on different footing from the orders of authorities or tribunals or courts other than judicial/civil courts. While appellate Page 18 of 28 // 19 // or revisional jurisdiction is regulated by the statutes, power of superintendence under Article 227 is constitutional. The expression "inferior court" is not referable to the judicial courts, as rightly observed in the referring order! in paras 26 and 27 quoted above. XXX XXX XXX 26. The Bench in Surya Dev Rai also observed in para 25 of its judgment that distinction between Articles 226 and 227 stood almost obliterated. In para 24 of the said judgment distinction in the two articles has been noted. In view thereof, observation that scope of Articles 226 and 227 was obliterated was not correct as rightly observed by the referring Bench in para 32 quoted above. We make it clear that though despite the curtailment of revisional jurisdiction under Section 115 CPC by Act 46 of 1999, jurisdiction of the High Court under Article 227 remains unaffected, it has been wrongly assumed in certain quarters that the said jurisdiction has been expanded. Scope of Article 227 has been explained in several decisions including Waryam Singh v. Amarnath45, Ouseph Mathai v. M. Abdul Khadir, Shalini Shyam Shetty v. Rajendra Shankar Patil and Sameer Suresh Gupta v. Rahul Kumar Agarwals In Shalini Shyam Shetty7 this Court observed: (SCC p. 352, paras 64-67) "64. However, this Court unfortunately discerns that of late there is a growing trend amongst several High Courts to entertain writ petition in cases of pure property disputes. Disputes relating to partition suits, matters relating to execution of a decree, in cases of dispute between landlord and tenant and also in a case of money decree and in various other cases where disputed questions of property are involved, writ courts are entertaining such disputes. In some cases the High Courts, in a routine manner, entertain petitions under Article 227 over such disputes and such petitions are treated as writ petitions. 65. We would like to make it clear that in view of the law referred to above in cases of property rights and in disputes between private individuals writ court should not interfere unless there is any infraction of statute or it can be shown that a private individual is acting in collusion with a statutory authority. 66. We may also observe that in some High Courts there is a tendency of entertaining petitions under Article 227 of the Constitution by terming them as writ petitions. This is sought to be justified on an erroneous appreciation of the ratio in Surya Dev and in view of Page 19 of 28 // 20 // the recent amendment to Section 115 of the Civil Procedure Code by the Civil Procedure Code (Amendment) Act, 1999. It is urged that as a result of the amendment, scope of Section 115 CPC has been curtailed. In our view, even if the scope of Section 115 CPC is curtailed that has not resulted in expanding the High Court's power of superintendence. It is too well known its jurisdiction, High Court must follow the regime of law. in exercising reiterated to be that 67. As a result of frequent interference by the Hon'ble High Court either under Article 226 or 227 of the Constitution with pending civil and at times criminal cases, the disposal of cases by the civil and criminal courts gets further impeded and thus causing serious problems in the administration of justice. This Court hopes and trusts that in exercising its power either under Article 226 or 227, the Hon'ble High Court will follow the time-honoured principles discussed above. Those principles have been formulated by this Court for ends of justice and the High Courts as the highest courts of justice within their jurisdiction will adhere to them strictly.” 6.4. In the case of Shalini Shyam Shetty (supra) Hon’ble Apex Court in Para 37, 43, 48 & 49(d) to (o) has held as follows:- “37. The Constitution Bench in Nagendra Nath, unanimously speaking through B.P. Sinha, J. (as His Lordship then was) pointed out that High Court's power of interference under Article 227 is not greater than its power under Article 226 and the power of interference under Article 227 of the Constitution is limited to ensure that the tribunals function within the limits of its authority. (emphasis supplied) XXX XXX XXX 43. In a rather recent decision of the Supreme Court in Surya Dev Rai v. Ram Chander Rai, a two-Judge Bench of this Court discussed the principles of interference by the High Court under Article 227. Of course in Surya Dev Rai this Court held that a writ of certiorari is maintainable against the order of a civil court, subordinate to the High Court (SCC p. 688, para 19 of the Report). The correctness of that ratio was doubted by another Division Bench of this Court in Radhey Shyam v. Chhabi Nath and a request to the Page 20 of 28 // 21 // Hon'ble Chief Justice for a reference to a larger Bench is pending. But insofar as the formulation of the principles on the scope of interference by the High Court under Article 227 is concerned, there is no divergence of views. XXX XXX XXX is there 48. The jurisdiction under Article 226 normally is exercised where a party is affected but power under Article 227 can be exercised by the High Court suo moto as a custodian of justice. In fact, the power under Article 226 is exercised in favour of persons or citizens for vindication of their fundamental rights or other statutory rights. The jurisdiction under Article 227 is exercised by the High Court for vindication of its position as the highest judicial authority in the State. In infringement of certain cases where fundamental right, the relief under Article 226 of the Constitution can be claimed ex debito justitiae or as a matter of right. But in cases where the High Court exercises jurisdiction under Article 227, such exercise is entirely discretionary and no person can claim it as a matter of right. From an order of a Single Judge passed under Article 226, a letters patent appeal or an intra-court appeal is maintainable. But no such appeal is maintainable from an order passed by a Single Judge of a High Court in exercise of power under Article 227. In almost all the High Courts, rules have been framed for regulating the exercise of jurisdiction under Article 226. No such rule appears to have been framed for exercise of High Court's power under Article 227 possibly to keep such exercise entirely in the domain of the discretion of High Court. its XXX XXX XXX 49. On an analysis of the aforesaid decisions of this Court, the following principles on the exercise of High Court's the Constitution may be formulated: jurisdiction under Article 227 of (d) The parameters of interference by High Courts in exercise of their power of superintendence have been repeatedly laid down by this Court. In this regard the High Court must be guided by the principles laid down by the Constitution Bench of this Court in Waryam Singh and the principles in Waryam Singh have been repeatedly followed by subsequent Constitution Benches and various other decisions of this Court. (e) According to the ratio in Waryam Singh', followed in subsequent cases, the High Court in exercise of its Page 21 of 28 // 22 // jurisdiction of superintendence can interfere in order only to keep the tribunals and courts subordinate to it, "within the bounds of their authority". (f) In order to ensure that law is followed by such tribunals and courts by exercising jurisdiction which is vested in them and by not declining to exercise the jurisdiction which is vested in them. interfere in exercise of (g) Apart from the situations pointed in (e) and (). High Court can its power of superintendence when there has been patent perversity in the orders of the tribunals and courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted. (h) In exercise of its power of superintendence High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or courts subordinate to it, is a possible view. In other words the jurisdiction has to be very sparingly exercised. (i) The High Court's power of superintendence under Article 227 cannot be curtailed by any statute. It has been declared a part of the basic structure of the Constitution by the Constitution Bench of this Court in L. Chandra Kumar v. Union of India and therefore abridgment by a constitutional amendment is also very doubtful. (j) It may be true that a statutory amendment of a rather cognate provision, like Section 115 of the Civil Procedure Code by the Civil Procedure Code (Amendment) Act, 1999 does not and cannot cut down the ambit of High Court's power under Article 227. At the same time, it must be remembered that such statutory amendment does not correspondingly expand the High Court's jurisdiction of superintendence under Article 227. (k) The power is discretionary and has to be exercised on equitable principle. In an appropriate case, the power can be exercised suo motu. (l) On a proper appreciation of the wide and unfettered power of the High Court under Article 227, it transpires that the main object of this article is to keep strict administrative and judicial control by the High Court on the administration of justice within its territory. (m) The object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in Page 22 of 28 // 23 // such a way as it does not bring it into any disrepute. The power of interference under this article is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and courts subordinate to the High Court. (n) This reserve and exceptional power of judicial intervention is not to be exercised just for grant of relief in for individual cases but should be directed promotion of public confidence in the administration of justice in the larger public interest whereas Article 226 individual grievance. is meant Therefore, the power under Article 227 may be unfettered but its exercise is subject to high degree of judicial discipline pointed out above. for protection of (0) An improper and a frequent exercise of this power will be counterproductive and will divest this extraordinary power of its strength and vitality.” 6.5. In the case of Punjab Agro Industries (supra) Hon’ble Apex Court in Para 7 and 9 has held as follows:- “7. The Act does not provide for an appeal against the order of the Chief Justice or his designate made under sub-section (4) or sub-sections (5) and (6) of Section 11. On the other hand, sub-section (7) of Section 11 makes it clear that a decision of the designate under sub- sections (4), (5) or (6) of Section 11 is final. As no appeal was maintainable against the order of the designate and as his order was made final, the only course available to the appellant was to challenge the order, even if it is a judicial order, by a writ petition under Article 227 of the Constitution of India. XXX XXX XXX 9. We have already noticed that though the order under Section 11(4) is a judicial order, having regard to Section 11(7) relating to finality of such orders and the absence of any provision for appeal, the order of the Civil Judge was open to challenge in a writ petition under Article 227 of the Constitution. The decision in SBP [(2005) 8 SCC 618] does not bar such a writ petition. The observations of this Court in SBP [(2005) 8 SCC 618] that against an order under Section 11 of the Act, only an appeal under Article 136 of the Constitution would lie, is with reference to the orders made by the Chief Justice of a High Court or by the Page 23 of 28 // 24 // designate Judge of that High Court. The said observations do not apply to a subordinate court functioning as designate of the Chief Justice.” 6.6. Not only that since it is fairly admitted in the bar that the impugned order is not appealable one, if this Court accepts the submission of the learned counsel for the Opposite Parties that the present Writ Petition is not maintainable under Articles-226 & 227 of the Constitution, then the Petitioner as per the considered view of this Court will be rendered remediless. Therefore, in view of the decision of the Hon’ble Apex Court in the case of the Sunil Vasudeva & Others vs. Sundar Gupta & Others reported in (2019) 17 SCC-385, this Court is competent to decide the issue raised by the Petitioner. 6.7. Hon’ble Apex Court in Para-31 of the decision in Sunil Vasudeva has held as follows:- this was the purported defence of “31. In the given facts and circumstances, we are not inclined to dilate the issues on merits raised in the Writ Petition No. 18500(w) of 1985 filed at the instance of the respondents before the High Court of Calcutta, but if the civil suit was not maintainable as alleged in view of Section 293 of the Income Tax Act and the respondents and of the Income Tax Department and consequential effect the Order dated 8th September, 1965 of which a reference has been made by us, no party could be left remediless and whatever the grievance the party has raised before the Court of law, has to be examined on its own merits. In our considered view, there appears no error being committed by the High Court in passing the impugned judgment dated 24th September, 2014 in exercise of its review jurisdiction and that needs no interference by this Court”. to Page 24 of 28 // 25 // 6.8. Not only that the Hon’ble Apex Court in the case of Bhaven Construction as cited (supra) has followed the view of the Hon’ble Apex Court rendered in the case of Deep Industries Limited. 6.9. Therefore, in view of the decision rendered in the case of Bhaven Construction as well as Deep Industries Limited and other decisions as cited (supra), it is the considered view of this Court that the present Writ Petition is maintainable before this Court. Not only that since the impugned order is not appelable one, in view of the decision rendered in the case of Sunil Vasudeva as cited (supra), the petitioner cannot be rendered remediless and this Court is competent to decide the points raised by the Petitioner. Hon’ble Apex Court in another decision in the case of Srei Infrastructure Finance Limited vs. Tuff Drilling Private Limited reported in (2018) 11 SCC 470. In Para-13, 14 and 17 has held as follows:- “13. The law of Arbitration was earlier governed by the Arbitration Act, 1940. The Law Commission of India and several other organizations expressed opinion that the 1940 Act needs extensive amendments to make it more responsive to contemporary requirements. In the wake of rise litigation both at domestic and international level, a need was felt for a comprehensive law to deal the subject. The United Nations Organization on International Trade Law (UNCILTRAL) adopted a Model Law on International Commercial Arbitration in the year 1985. Taking into consideration domestic arbitration in commercial Page 25 of 28 // 26 // international as well as commercial arbitration, Parliament enacted the Arbitration and Conciliation Act, 1996. Main objective for introducing the legislation was to make provision for an arbitral procedure which is fair, efficient and capable of meeting the needs of the specific arbitration. In Section 2 of the Act, arbitral tribunal has been defined to mean a sole arbitrator or a panel of arbitrators. The arbitral tribunal was entrusted with various statutory functions, obligations by the enactment. the provisions of 14. Arbitration is a quasi judicial proceeding, equitable in nature or character which differs from a litigation in a Court. The power and functions of arbitral tribunal are statutorily regulated. The tribunals are special arbitration with institutional mechanism brought into existence by or under statute to decide dispute arising with reference to that particular statute or to determine controversy referred to it. The tribunal may be a statutory tribunal or tribunal constituted under the Constitution of India. Section 9 of the Civil Procedure Code vests into the Civil Court jurisdiction to entertain and determine any civil dispute. The constitution of tribunals has been with intent and purpose to take out different categories of litigation into the special tribunal for speedy and effective determination of disputes in the interest of the society. Whenever, by a legislative enactment jurisdiction exercised by ordinary civil court is transferred or entrusted to tribunals such tribunals are entrusted with statutory power. The arbitral tribunals in the statute of 1996 are no different, they decide the lis between the parties, follows Rules and procedure the conforming adjudication has finality subject to remedy provided under the 1996 Act. Section 8 of the 1996 Act obliges a judicial authority in a matter which is a subject of an agreement to refer the parties to arbitration. The reference to arbitral tribunal thus can be made by judicial authority or an arbitrator can be appointed in accordance with the arbitration agreement under Section 11 of the 1996 Act”. the principle of natural justice, to xxx xxx xxx 17. Section 19 of the Act provides for determination of rules of procedure. Sub-clause (1) of Section 19 provides that the arbitral tribunal shall not be bound by the Code of Civil Procedure, 1908 or the Indian Evidence Act, 1872. The words “arbitral tribunal shall not be bound” are the words of amplitude and not of a restriction. These words do not prohibit the arbitral tribunal from drawing sustenance from the fundamental principles underling the Civil Procedure Code or Indian Evidence Act but the tribunal is not bound to observe the provisions of Code with all of its rigour. As per sub-clause (2) of Section 19 Page 26 of 28 // 27 // the parties are free to agree on the procedure to be followed by the arbitral tribunal its proceedings”. in conducting 7. In view of the decision in Srei Infrastructure Finance Limited as cited (supra), as per the considered view of this Court, though the Arbitral Tribunal is not bound by rules of procedure contained in Civil Procedure Code and Evidence Act, but it is not incapacitated in drawing sustenance from those rules. But the learned Arbitrator has not followed the decision contained in Srei Infrastructure Finance Limited while considering the matter with passing of the impugned order. 7.1. Therefore, this Court taking into account the decisions rendered in Bhaven Construction as well as Deep Industries Limited and other decisions as cited (supra) not only held the writ petition is maintainable, but also in view of the decision rendered in the case of Sunil Vasudeva as well as Srei Infrastructure Finance Limited held that the Petitioner cannot be rendered remediless. 8. After due consideration of the grounds taken in the petition under Annexures-1 & 2, it is the view of this Court that the documents proposed to be incorporated by the Petitioner are relevant for proper adjudication of the lis and unless the same are accepted, the Petitioner will be seriously prejudiced. Page 27 of 28 // 28 // Taking into account the above discussions, this Court is inclined to quash the order dated 11.11.2022 and while quashing the same directs the learned Arbitrator to allow the amendment as prayed for by the Petitioner in its petition dated 19.10.2022 under Annexure-1 as well as the other Petition at Annexure-2. The Writ Petition accordingly succeeds and allowed. However, there shall be no order as to costs. Orissa High Court, Cuttack Dated the 6th of January, 2023/Subrat (Biraja Prasanna Satapathy) Judge Page 28 of 28