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2007 Supreme(Ori) 570
2007 (Supp.-II) OLR — 545
THE CHIEF JUSTICE
M/s. Narendra Nath Panda & Co. and another...Petitioner
Versus
Union of India and three others...Opp. Parties
RVWPET No. 144 of 2006
(Date of Judgment : 31.7.2007)
For Petitioners:M/s. N. C. Sahoo, S. P. Panda, S. Nanda and P. K. Muduli
Amicus Curiae:Mr. R. K. Rath
Headnote:1. ARBITRATION AND CONCILIATION ACT, 1996 - Sec. 11 - Appointment of Arbitrator - Order passed by Hon'ble Chief Justice - Review of same - A power of review is not necessarilyy an inherent power - Such a power has to be conferred by law either expressly or by necessary implication - Held, a review petition for reviewing the order of the Chief Justice passed under Sec. 11(6) of the Act is not maintainable.
I am of the humble opinion that in so far as the High Court is concerned, Article 137 is not applicable. The review power available to the High Court normally flows from the Code of Civil Procedure under Order 47 and Section 114 thereof. The Constitution does not vest the High Court with any power of review. In so far as Supreme Court is concerned it enjoys a constitutional power of Review which is very special power and is part of Chapter IV of the Constitution. Supreme Court’s powers under Article 141, 142 are also part of that Chapter. Therefore, the ratio in the case of Jain Studios is applicable only in the case of an order passed by the Hon’ble Chief Justice of India or the nominated Judge appointed by the Hon’ble Chief Justice of India but the same is not attracted to the orders passed by the Hon’ble Chief Justice of a High Court or his nominee. The ratio in the case of Jain Studios is therefore not attracted to the order passed by the Hon’ble Chief Justice of a High Court or his nominee in respect of an order under Section 11(6) of ABC.
A provision for review is not normally procedural at all. Review is in the nature of a remedy and is a substantive part. Therefore, when the Legislature has consciously given under Section 11(7) finality to a decision of the Chief Justice or his designate under Section 11(6) of ABC and has not provided for review, then to read a right of review in such provisions by an interpretation process would, in my opinion, amount to amending the statute by reading something into it which is clearly not there. Such an interpretation would fall foul of Section 5 of ABC. Therefore, decision on the construction of purely procedural aspect of law does not cover the present situation.
2. CONSTITUTION OF INDIA, 1950 - Arts. 229, 235 - Power of Chief - Power of High Court - Distinction between the two forms of power. (Para - 22)
The power under Section 11(6) is not conferred on the High Court but on the Chief Justice. The distinction between the conferment of power on the High Court and that on the Chief Justice is well known. Even the Constitution recognizes this distinction. As for instance, Article 229 confers power on the Chief Justice whereas the power under Article 235 is vested on the High Court. Under ABC also the power under Section 11(6) is conferred on the Chief Justice whereas power under Section 9 is conferred on a Court. When power is conferred on a Court and specially the High Court which is a Court of Record with all incidental and ancillary powers one of which is its power to correct its records. But, here as has been indicated above, in Patel Engineering, the power has not been conferred on the High Court. Distinction between the two forms of power, one on the High Court and the other on the Chief Justice has been discussed.
3. REVIEW - Power of review - A power of review is not necessarily an inherent power - Such a power has to be conferred by law either expressly or by necessary implication.
4. INTERPRETATION OF STATUTE - It is a well-known cannon of interpretation that when intention of the statute is clear there is no scope for an interpretation.
JUDGMENT
A. K. GANGULY, C.J. This review petition has been filed for reviewing the order dated 10.11.2006 passed by the Hon’ble Chief Justice in exercise of His Lordship’s power under Section 11 of the Arbitration and Conciliation Act, 1996 (hereinafter called “ABC”). The Hon’ble Chief Justice, after considering the facts of the case, was pleased to hold that since no arbitration clause exists between the parties it is not possible for His Lordship to exercise power under Section 11 of ABC to appoint an Arbitrator.
2. When arguments commenced in this matter it appeared to me that an application for review of an order passed by the Hon’ble Chief Justice under Section 11 of ABC is prima facie not maintainable. As such, before considering the matter on merits, the application was heard fully on the question of maintainabili¬ty. In this matter the Court while hearing the learned counsel for the petitioners also appointed Mr. R.K.Rath, learned Senior Counsel of this Court to assist the Court as an amicus curiae and Mr. Rath has ably argued and admirably assisted the Court.
3. Both the learned counsel for the petitioners and the learned amicus curiae urged that the Review Petition is maintain¬able and cited certain judgments which this Court will consider. But this Court is of the opinion that the main judgment which the Court should consider is the Constitution Bench judgment of the Hon’ble Supreme Court in the case of M/s. S.B.P. & Co. v. M/s. Patel Engineering Ltd., reported in AIR 2006 SC 450.
4. In Patel Engineering the Constitution Bench of the Supreme Court consisting of seven learned Judges dealt in detail with various aspects of Section 11 including its several sub-sections. According to the majority view of the said Constitution Bench, the power exercised by the Chief Justice of a High Court under Section 11(6) of ABC is not an administrative power but it is a judicial power. In the course of reaching the aforesaid finding, Hon’ble Justice P.K.Balasubramanyan speaking for the majority held that Sub-section (7) of Section 11 of ABC gives a finality to the decision taken by the Hon’ble Chief Justice or any Judge designated by the Chief Justice in respect of matters falling under Sub-sections (4), (5) and (6) of Section 11. The learned Judge held that this finality is one of the aspects which makes the power a judicial power. (See para 8 at page 460).
5. Elaborating the said concept of finality, the learned Judge held in para 11 at page 461 of the report that the decision of the Chief Justice over the issue of jurisdiction and on the existence of a valid arbitration agreement would be binding on the parties at subsequent stages of the proceeding “except in an appeal in the Supreme Court in the case of the decision being by the Chief Justice of the High Court or by a Judge of the High Court designated by him.”
6. Elaborating on the nature of power conferred on the Chief Justice under Section 11(6) of ABC, the Supreme Court held that the “possible reason” for conferring power on the Chief Justice and not on the Court is that if power had been conferred on the Court “the matter would have been governed by the normal procedure of that Court, including the right of appeal” and the Court held “Parliament obviously wanted to avoid that situation, since one of the objects was to restrict the interference by Courts in the arbitral process. (See para 17 at page 464). The learned Judge has also discussed about the remedy of an aggrieved party like the petitioner against the order of the Hon’ble Chief Justice. That was discussed in para 31 at page 469 of the report, and it has been held that the remedy of an aggrieved party is to approach the Supreme Court under Article 136 of the Constitution. That would give this Court, meaning the Supreme Court “an oppor¬tunity of scrutinizing the decision of the Chief Justice on merits and deciding whether it calls for interference in exercise of its plenary power”. The learned Judge held that this r
