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2017 Supreme(J&K) 676
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
Mohammad Yaqoob Mir, M.K. Hanjura, JJ.
Adil Constructions Company – Appellant
Vs.
State of J&K and Anr. – Respondents
LPA No.274 of 2015
Decided On : 15-07-2017
For the Appellant :Mr. Z.A. Qureshi, Sr. Advocate
For the Respondent: Mr. Q.R. Shamas, Dy. AG.
Important Point—Letters Patent Appeal is available against order passed in writ petition.
Headnote:(A) J&K Arbitration and Conciliation Act, 1997 – Sections 34 and 37 – J&K Arbitration and Conciliation Rules, 1998 – Rules 5 and 6 – Challenge to arbitral award – When a writ petition has been decided, then against judgment remedy of Letters Patent Appeal is available – When an order is passed by High Court in exercise of supervisory powers under Section 104 of Constitution of J&K State which corresponds to Article 227 of Constitution of India, then Letters Patent Appeal will not lie but when a petition is filed under Article 226 and 227 of Constitution of India read with Sections 103 and 104 of J&K Constitution, when it is not expressly stated that petition is allowed only under Section 104 read with Article 227, then aggrieved party has a right to prefer a Letters Patent Appeal before Division Bench.
(B) J&K Arbitration and Conciliation Act, 1997 – Sections 34 and 37 – J&K Arbitration and Conciliation Rules, 1998 – Rules 5 and 6 – Challenge to arbitral award – In terms of Section 37 of Act of 1997, when appeal is not prescribed against an order rejecting application for condonation of delay, party cannot be remediless, that is why writ petition had been filed – Legal issue pertaining to non-availability of remedy of appeal, then period of limitation from which date to reckon and cause shown for filing application for delay of three days, has escaped attention of District Judge.
Mohammad Yaqoob Mir, J.
This appeal under clause 12 of the Letters Patent is directed against the judgment dated 09.12.2015, passed by learned Single Judge while disposing of OWP No.692/2014.
2. Precise factual matrix of the case is as under:
(I) The construction of school building in pursuance to tender notice No.85 of 2007-08 was allotted to the appellant. The claim on various counts raised by the appellant was disputed, as a result whereof, in terms of Arbitration clause in the agreement, notice for appointment of Arbitrator was served upon the Chief Engineer. When no action was taken, the appellant filed application bearing A.A No.06 of 2009 which was disposed of vide order dated 2nd March, 2010, in terms whereof Chief Engineer, PWD, Kashmir, was appointed as Arbitrator who had to submit the award within three months but the Chief Engineer did not enter upon the reference which compelled the appellant to file another application bearing CMP No.03/2011 in A.A. No.06/2009 which stand disposed of vide order dated 22.09.2011, in terms whereof Mr. Gh. Mohi-ud-Din Dar, retired District & Sessions Judge, was appointed as Arbitrator.
(II) The appointed Arbitrator submitted the award dated 17.11.2012. Against the award, Executive Engineer filed objections along with an application seeking condonation of delay. The objections were registered as IA No.6/2013. Same was disposed of vide order dated 16.08.2013. In the said order it has been observed that in view of provisions of J&K Arbitration and Conciliation Act, 1997 and J&K Arbitration and Conciliation Rules, 1998, objections, if any, to the award have to be filed under Section 34 by filing an independent application as per requirement of Rules 5 and 6, same is required to be registered under Rule 7 and placed before the court of competent jurisdiction. In the said order it has been further observed that the power of Chief Justice under Section 11 to appoint an independent Arbitrator since stand exhausted, no further proceedings on the application could be undertaken. The Executive Engineer may take steps in accordance with law by filing a separate application.
(III) The Executive Engineer, accordingly, filed an application under Section 34 of the Act of 1997 for setting aside the award, before the Court of learned Principal District Judge, Srinagar. The said application was accompanied by an application seeking condonation of delay. Learned Principal District Judge dismissed the application seeking condonation of delay. Aggrieved thereof, Executive Engineer filed writ petition bearing OWP No.692/2014 which has been disposed of vide detailed judgment dated 09.12.2015. In terms of the said judgment, writ petition has been treated as an appeal. Same has been allowed. Delay in filing the application has been condoned and the learned District Judge has been directed to decide the application under Section 34 of the Act of 1997 on merits after hearing both the parties.
(IV) Aggrieved by the said judgment dated 09.12.2015, instant Letters Patent Appeal has been filed.
3. Maintainability of the Letters Patent Appeal is questioned by the counsel for the respondents on the ground that the learned Writ Court while converting writ petition into an appeal has, in essence, decided the appeal, therefore, Letters Patent Appeal is not maintainable in view of clear bar envisaged by Section 37 of the Act of 1997.
4. Learned counsel for the appellant would submit that the writ petition could not be converted as an appeal because appeal against the order rejecting the application for condonation of delay is not prescribed under Section 37 of the Act of 1997.
5. Section 37 of the Act of 1997 is relevant to be quoted:—
“37. Appealable orders.—(1) An appeal shall lie from the following orders (and no others) to the Court authorized by law to hear appeals from original decrees of the Court passing the order, namely—
(a) granting or refusing to grant any measure under Section 9;
(b) setting aside or refusing
