ROHITASH PRASAD versus SAIFUDDIN

High Court of Rajasthan

Indian Supreme Court Cases / Judgements / Legislation

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ROHITASH PRASAD v SAIFUDDIN - CW Case No. 3959 of 2001 [2006] RD-RJ 255 (27 February 2006)

S.B.CIVIL WRIT PETITION NO.3959/2001

Rohitash Prasad & Ors. v.

Saifuddin & Ors. 27th February, 2006

Date of Order ::

HON'BLE MR.JUSTICE GOVIND MATHUR

Mr. R.R.Nagauri ]

Mr. Sajjan Singh] for the petitioners.

Mr. D.R.Bhandari, for the respondents. ....

This petition for writ is preferred giving challenge to the order dated 16.2.2001 passed by learned Additional District Judge No.2, Udaipur rejecting an application under Section 11 of the

Arbitration and Conciliation Act, 1996 (hereinafter referred to as "the Act of 1996").

A preliminary objection is raised by counsel for the respondents with regard to maintainability of this petition on the count that powers under Section 11(6) of the Act of 1996 are judicial powers of

Hon'ble the Chief Justice of High Court and the

Additional District Judge No.2, Udaipur while rejecting the application by order dated 16.2.2001 exercised delegated powers of Hon'ble the Chief

Justice, therefore, no writ petition giving challenge to the order aforesaid can be maintained before this

Court. According to counsel for the respondents only the course available to the petitioners to challenge validity and propriety of the order impugned is by way of filing a special leave petition before Hon'ble

Supreme Court.

To substantiate the contention, reliance is placed upon Constitutional Bench judgment of Hon'ble

Supreme Court in the case of SBP & Co. v. Patel

Engineering Ltd. & Anr., reported in (2005)8 SCC 618.

Hon'ble Supreme Court by the judgment referred above held that power exercised by Chief Justice of High

Court under Section 11(6) of the Act of 1996 is not administrative but judicial power. Designation of a

District Judge as the authority under Section 11(6) of the Act by the Chief Justice is not warranted on the scheme of the Act and also that an order passed by the

Chief Justice of High Court or by designated Judge of that court is a judicial order, an appeal will lie against that order only under Article 136 of the

Constitution of India to the Supreme Court.

In the instant matter the order under challenge is passed by a designated authority to exercise powers under Section 11 of the Act of 1996 by the Chief Justice and the power exercised by him is judicial power, therefore, in view of the law laid down by Hon'ble Supreme Court in the case of SBP & Co.

(supra) this petition for writ is not at all maintainable before this Court under Articles 226 and 227 of the Constitution of India.

The writ petition, therefore, is dismissed.

In event, the petitioners demand record of the case, be returned to them.

No order as to costs.

( GOVIND MATHUR ),J. kkm/ps.

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