w w w . L a w y e r S e r v i c e s . i n



Mercuria Energy Trading PTE Ltd. v/s Image Mine Products Pvt. Ltd.

    R. Special Civil Application No. 1107 of 2020

    Decided On, 29 April 2022

    At, High Court of Gujarat At Ahmedabad

    By, THE HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI

    For the Petitioner: Amitava Majumdar, Tripti Sharma with Harsh N. Parekh (6951), Advocates. For the Respondents: M.I. Hava (348), Swati B. Singhal, Chanakya Bhavsar (6316), Advocates.



Judgment Text

Oral Judgment:

1. This petition underArticle 227of the Constitution of India is filed by the petitioner with following prayers:

"24[A] Your Lordships may be pleased to declare thatthis Hon'ble Court has the jurisdiction to hear the Petition underArbitration ActIAAP No. 106 of 2016 in terms of the explanation tosection 47of the Arbitration Act.

[B] Your Lordships may be pleased to pass appropriate directions restraining the District Court at Mehsana from hearing the Petition underArbitration Act, i.e. IAAP No. 106 of 2016.

[C] You (sic. Your) Lordships may be pleased to direct the Registry of the District Court at Mehsana to return the records and proceedings of the Petition underArbitration Act, i.e. IAAP No. 106 of 2016, to this Hon'ble Court and further pass appropriate directions to have the Petition underArbitration Act, i.e. IAAP No. 106 of 2016 listed before the Hon'ble Judge of this Court vested with the roster to hear such matters.

[D] Your Lordships may be pleased to pass other appropriate order or direction as this Hon'ble Court may deem fit in the interest of justice."

2. Nutshell facts, as emerge from the record, are that the petitioner obtained Foreign Arbitration Awards dated 26.02.2016 and 26.04.2016 and thereafter, filed an enforcement petition being IAAP No. 106 of 2016 before this Court on 11.11.2016 for enforcement of the said awards. On 20.03.2017, the respondent filed objections to the enforcement of the awards and thereafter, the matter was heard and on 01.07.2019, judgment was reserved. Thereafter, on 09.08.2019, Arbitration and Conciliation (Amendment) Act, 2019 came to be passed and by virtue of the amendments made therein, the jurisdiction of this Court was ousted and hence, on 22.08.2019, the respondent made an oral application to the effect that this Court (High Court) had no jurisdiction in view of amendments, which came to be rejected. The respondent, again on 09.09.2019, submitted that the provisions under the 2019Amendment Acttaking away the jurisdiction of this Court from hearing the aforesaid IAAP No. 106 of 2016 (Sections 11to13) came into force on 30.08.2019 and thereafter, the Court, hearing both the sides, vide order dated 19.09.2019, held that the jurisdiction of the Court had been ousted dis-entitling the Court to pronounce the judgment and accordingly, directed to remit the matter to the District Court, Mehsana, to be decided within a period of 10 weeks. However, thereafter, inHindustan Construction Co. Ltd. v. Union of India, (2020) 17 SCC 324 dated 27.11.2019, the Apex Court struck downSections 13and15of the 2019Amendment Act, holding them to be manifestly arbitrary and againstArticle 14of the Constitution of India and hence, in view of Explanation toSection 47of the Arbitration Act, this Court has jurisdiction to hear the aforesaid IAAP and therefore, this petition with aforesaid prayers.

3. Heard, learned advocate Mr. Amitava Majumdar for learned advocate Ms. Tripti Sharma for the petitioner and learned advocate Mr. M. I. Hava for learned advocate Ms. Swati B. Singhal the respondent.

3.1 The crux of the submissions of Mr. Majumdar, learned advocate for the petitioner, is that in view of the aforesaid decision of the Apex Court in Hindustan Construction Co. Ltd. (supra), striking downSections 13(insertingSection 87w.e.f. 23.10.2015) and 15 (omittingSection 26of 2015 Act w.e.f. 23.10.2015) of the 2019Arbitration (Amendment) Act, holding them to be manifestly arbitrary and againstArticle 14of the Constitution of India, and in view of Explanation toSection 47of the Arbitration Act, only this Court (High Court) has jurisdiction to hear the aforesaid IAAP No. 106 of 2016. Accordingly, it is prayed to allow this petition and to declare that only this Court has jurisdiction to hear the aforesaid petition. It is also prayed to direct the registry of the District Court, Mehsana to call for the R&P to this Court for the purpose.

3.2 In support, the learned advocate for the petitioner has relied upon following decisions:

i)Hindustan Construction Co. Ltd. v. Union of India, the Apex Court on 27.11.2019 [(2020) 17 SCC 324];

ii) Board of Control for Cricket inIndia v. Kochi Cricket Private Ltd. and Others, (2018) 6 SCC 287;

iii)OCI Corporation v. Kandla Export Corporation, 2016 SCC OnLine Guj 5981;

On applicability of decision in Hindustan Construction Co. Ltd.:

iv)Suganthi Suresh Kumar v. Jagdeeshan, (2002) 2 SCC 420;

v)Suga Ram @ Chhuga Ram v. State of Rajasthan and Others, (2006) 8 SCC 641;

On no ground for seeking review:

vi)Haridas Das v. Usha Rani Banik (Smt.) and Others, (2006) 4 SCC 78;

OnArticle 227etc.:

vii)Advani Oerlikon Ltd. v. Machindra Govind Makasare and Others, 2011 (2) Mh.L.J. 916;

viii)Surya Dev Rai v. Ram Chander Rai and Others, (2003) 6 SCC 675.

4. Per contra, while resisting the petition with all vehemence at his command, learned advocate Mr. Hava for the respondent has submitted that this petition underArticle 227of the Constitution of India itself is not tenable and is required to be dismissed with costs. He submitted that the order of the Coordinate Bench dated 19.09.2019 passed under the provisions of theArbitration Act, 1996, as amended byAmendment Acts, 2015 and 2019, is legal and valid and has attained the finality inasmuch as, it is not challenged by the petitioners. He submitted that subsequent change in the law will not invalidate the judgment and it is only the Appellate Court i.e. the Apex Court which can examine the validity and legality of the said judgment. However, as the same has not been challenged by the petitioners, legality thereof cannot be challenged in a petition underArticle 227of the Constitution of India before a Coordinate Bench.

4.1 The learned advocate for the respondent submitted that the scope of a petition underArticle 227of the Constitution of India is well settled and this petition is outside the scope and ambit of the jurisdiction underArticle 227of the Constitution. He further submitted that a Coordinate Bench cannot set aside the directions given by the learned Single Judge in its judgment dated 19.09.2019 and for this reason, this petition is not maintainable.

4.2 It is further submitted thatArbitration Actis a self- contained Code and writ jurisdiction underArticle 227is not available for challenging orders made under theArbitration Act.

4.3 It is further submitted by the learned advocate for the respondent that principle of res judicata is applicable on the facts of the present case as adjudication made by the Court has attained finality inter parte and a subsequent change in law cannot be a ground for reopening the issue already finalized and determined by a Court exercising jurisdiction under the Arbitration Act.

4.4 It is further submitted that it is well established principle that by erroneously assuming a jurisdictional fact, a Court cannot confer upon itself jurisdiction, which, it otherwise does not possess. The existence of a jurisdictional fact is sine qua non or conditio precedent to the assumption of jurisdiction by the Court. He submitted that there is distinction between jurisdictional fact and adjudicatory fact, which cannot be ignored. An adjudicatory fact is a fact in issue and can be determined by the Court on merits, once jurisdictional fact is found to exist, the Court has power to decide the adjudicatory facts or facts in issue.

4.5 Making above submissions, it is urged that this petition, being not maintainable, may be dismissed.

4.6 In support, the learned advocate for the respondent relied upon following decisions:

OnArticle 227of the Constitution of India:

i)Shalini Shyam Shetty and Another v. Rajendra Shankar Patil, (2010) 8 SCC 329;

ii)Radhey Shyam v. Chhabi Nath and Ors., (2015) 5 SCC 423;

iii) (2019) 9 SCC 538;

iv) Special Civil Application No. 15899 of 2019;

On Coordinate Bench cannot set aside the directions given by the learned Single Judge:

v)Safia Bee v. Mohd. Vajahath Hussain Alias Fasi, (2011) 2 SCC 94;

vi) (2018) 17 SCC 244;

On Arbitration Actis self-contained Code and writ jurisdiction underArticle 227is not available:

vii) Bhaven Construction Through Authorised Signatory Premjibhai K. Shah v. Executive Engineer, Sardar Sarovar Narmada Nigam Ltd. and Another, 2021 SCC OnLine SC 8;

On principle of res judicata applicable:

viii)Kalinga Mining Corporation v. Union of India and Others, (2013) 5 SCC 252;

ix)Ratnagiri Nagar Parishad v. Gangaram Narayan Ambekar and Others, (2020) 7 SCC 275;

On the principle that by erroneously assuming a jurisdictional fact, a Court cannot confer upon itself jurisdiction which it otherwise does not possess:

x)Carona Ltd. v. Parvathy Swaminathan and Sons, (2007) 8 SCC 559.

5. Regard being had to the submissions canvassed and considering the material on record vis-a-vis and decisions relied upon by the learned advocates for the respective parties as well as the order dated 19.09.2019, the matter appears to have chequered history. As the facts go, the petitioner obtained Foreign Arbitration Awards dated 26.02.2016 and 26.04.2016 passed by the Arbitral Tribunal seated in London, UK pursuant to which, the respondent was under obligation payment of a sum USD 1.17 million in addition to interest to the petitioner. On 23.10.2015, the Government of India promulgated the Arbitration and Conciliation (Amendment) Ordinance, 2015 amendingSection 47of the Arbitration Act, to be High Court in substitution of the Principal Civil Court of original jurisdiction in a district.Arbitration (Amendment) Act, 2015 followed such definition. In view of aforesaid awards passed in 2016 and the aforesaid amendment on 23.10.2015, the petitioner, on 11.11.2016, instituted a petition under theArbitration Actbeing IAAP No. 106 of 2016 which was heard from time to time. Thereafter, on 09.08.2019 the legislature passed the Arbitration and Conciliation (Amendment) Act, 2019, whereby, afterSection 86of the principal Act,Section 87came to be inserted, which deemed to have been inserted w.e.f. 23.10.2015. By the said insertion ofSection 87, it was provided that, "unless the parties otherwise agree, the amendments made to this Act by the Arbitration and Conciliation (Amendment) Act, 2015 shall -

(a) not apply to-

(i) arbitral proceedings commenced before the commencement of Arbitration and Conciliation (Amendment) Act, 2015;

(ii) Court proceedings arising out of or in relation to such arbitral proceedings irrespective of whether such proceedings are commenced prior to or after the commencement of the Arbitration and Conciliation (Amendment) Act, 2015.

(b) apply only to arbitral proceedings commenced on or after the commencement of Arbitration and Conciliation (Amendment) Act, 2015 and to Court proceedings arising out of or in relation to such arbitral proceedings."

15.Section 26of the Arbitration and Conciliation (Amendment) Act, 2015 shall be omitted and shall be deemed to have been omitted w.e.f. 23rd October 2015.

5.1 In view of the above, attention of the Court (dealing with IAAP No. 106 of 2016 and connected matter) was invited to the said Amendments, which were notified in the Government Gazette on 09.08.2019 and accordingly, the Court, vide order dated 19.09.2019 passed in IAAP No. 106 of 2016 with Civil Application (OJ) No. 1 of 2017, the following final order:

"18. The submissions made by the learned Advocate for the petitioner that this order is likely to cause further delay in making the award, a decree of the Court for this being a foreign award and after this Court having invested substantial time, since, this is going to cause further delay. Even, after once, the award is made a decree of the Court, the execution of which is again going to take some more time. However, for the having held on the first ground and the notification dated 30.08.2019 would make this Court coram non judis, and therefore, it shall need to be DIRECTED to remit the proceedings to the District Court, Mehsana, with a direction to hear the parties and to decide the same within a period of ten weeks from the date of receipt of a copy of this order."

5.2 Thus, in view of Notification dated 09.08.2019 notifying theAmendment Actof 2019, the Court held that it had no jurisdiction and therefore, the matter, was remitted to the District Court, Mehsana.

5.3 Nonetheless, thereafter, the Apex Court in the decision in Hindustan Construction Co. Ltd. (supra), rendered on 27.11.2019, inter alia held as under:

"51. Also, it is important to notice that the Srikrishna Committee Report did not refer to the provisions of the Insolvency Code. After the advent of the Insolvency Code on 01.12.2016, the consequence of applyingSection 87is that due to the automatic-stay doctrine laid down by judgments of this Court- which have only been reversed today by the present judgment-the award-holder may become insolvent by defaulting on its payment to its suppliers, when such payments would be forthcoming from arbitral awards in cases where there is no stay, or even in cases where conditional stays are granted. Also, an arbitral award-holder is deprived of the fruits of its award-which is usually obtained after several years of litigating-as a result of the automatic-stay, whereas it would be faced with immediate payment to its operational creditors, which payments may not be forthcoming due to monies not being released on account of automatic-stays of arbitral awards, exposing such award-holders to the rigors of the Insolvency Code. For all these reasons, the deletion ofSection 26of the 2015Amendment Act, together with the insertion ofSection 87into theArbitration Act, 1996 by the 2019Amendment Act, is struck down as being manifestly arbitrary UnderArticle 14of the Constitution of India."

5.4 Thus, by virtue of the above pronouncement, the Apex Court struck down deletion ofSection 26of the 2015Amendment Acttogether with the insertion ofSection 87into theArbitration Act, 1996 by the 2019Amendment Actas being manifestly arbitrary. What was struck down are extracted hereunder:

"Section 26of the 2015 Act: - Nothing contained in this Act shall apply to the arbitral proceedings commenced, in accordance with the provisions of section 21 of the Principal Act, before the commencement of this Act unless the parties otherwise agree but this Act shall apply in relation to arbitral proceedings commenced on or after the date of commencement of this Act.

Section 87: Unless the parties otherwise agree, the amendments made to this Act by the Arbitration and Conciliation (Amendment) Act, 2015 shall –

(a) not apply to -

(i) arbitral proceedings commenced before the commencement of the Arbitration and Conciliation (Amendment) Act, 2015;

(ii) court proceedings arising out of or in relation to such arbitral proceedings irrespective of whether such court proceedings are commenced prior to or after the commencement of the Arbitration and Conciliation (Amendment) Act, 2015;

(b) apply only to arbitral proceedings commenced on or after the commencement of the Arbitration and Conciliation (Amendment) Act, 2015 and to court proceedings arising out of or in relation to such arbitral proceedings.

5.5 In view of the above, the petitioner has urged that by virtue of the aforesaid pronouncement, the District Court, Mehsana shall be the coram non judis and it is this Court only, which has jurisdiction and accordingly, it is requested to hold accordingly.

6. Whereas, in the submission of learned advocate Mr. Hava, the petitioner has not challenged the decision dated 19.09.2019 passed in IAAP No. 106 of 2016 and connected matter and hence, the same has attained finality between the parties. It is also the say of Mr. Hava that it is only the Apex Court which can examine the validity and legality of the said decision and it cannot be assailed in this petition underArticle 227of the Constitution of India.

7. In this regard, first of all, it would be worthwhile to refer to a decision of the Apex Court inShalini Shyam Shetty and Another v. Rajendra Shankar Patil, (2010) 8 SCC 329, wherein, the Court has considered in detail the scope of interference by this Court to hold and observe thatArticle 227can be invoked by the High Court Suo motu as a custodian of justice. An improper and a frequent exercise of this power would be counterproductive and will divest this extraordinary power of its strength and vitality. The power is discretionary and has to be exercised very sparingly on equitable principle. The observations of the Hon'ble Supreme Court, read as under:

"57. Articles 226 and 227 stand on substantially different footing. As noted above, prior to the Constitution, the Chartered High Courts as also the Judicial Committee of the Privy Council could issue prerogative writs in exercise of their original jurisdiction. [See 1986 (suppl.) SCC 401 at page 469)].

58. However, after the Constitution every High Court has been conferred with the power to issue writs underArticle 226and these are original proceeding. [State of U.P . andothers vs. Dr. Vijay Anand Maharaj - AIR 1963 SC 946, page 951].

59. The jurisdiction underArticle 227on the other hand is not original nor is it appellate. This jurisdiction of superintendence underArticle 227is for both administrative and judicial superintendence. Therefore, the powers conferred under Articles 226 and 227 are separate and distinct and operate in different fields.

60. Another distinction between these two jurisdictions is that underArticle 226, High Court normally annuls or quashes an order or proceeding but in exercise of its jurisdiction underArticle 227, the High Court, apart from annulling the proceeding, can also substitute the impugned order by the order which the inferior tribunal should have made. {See Surya Dev Rai (supra), para 25 page 690 and also the decision of the Constitution Bench of this Court inHari Vishnu Kamath vs. Ahmad Ishaque and others- [AIR 1955 SC 233, para 20 page 243]}.

61. Jurisdiction underArticle 226normally is exercised where a party is affected but power underArticle 227can be exercised by the High Court suo motu as a custodian of justice. In fact, the power underArticle 226is exercised in favour of persons or citizens for vindication of their fundamental rights or other statutory rights. Jurisdiction underArticle 227is exercised by the High Court for vindication of its position as the highest judicial authority in the State. In certain cases where there is infringement of fundamental right, the relief underArticle 226of the Constitution can be claimed ex-debito justicia or as a matter of right. But in cases where the High Court exercises its jurisdiction underArticle 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 underArticle 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 underArticle 227.In almost all High Courts, rules have been framed for regulating the exercise of jurisdiction underArticle 226.No such rule appears to have been framed for exercise of High Court's power underArticle 227 possibly to keep such exercise entirely in the domain of the discretion of High Court.

62. On an analysis of the aforesaid decisions of this Court, the following principles on the exercise of High Court's jurisdiction underArticle 227of the Constitution may be formulated:

(a) A petition underArticle 226of the Constitution is different from a petition underArticle 227.The mode of exercise of power by High Court under these two Articles is also different.

(b) In any event, a petition underArticle 227cannot be called a writ petition. The history of the conferment of writ jurisdiction on High Courts is substantially different from the history of conferment of the power of Superintendence on the High Courts underArticle 227and have been discussed above.

(c) High Courts cannot, on the drop of a hat, in exercise of its power of superintendence underArticle 227of the Constitution, interfere with the orders of tribunals or Courts inferior to it. Nor can it, in exercise of this power, act as a Court of appeal over the orders of Court or tribunal subordinate to it. In cases where an alternative statutory mode of redressal has been provided, that would also operate as a restrain on the exercise of this power by the High Court.

(d) The parameters of interference by High Courts in exercise of its 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 (supra) and the principles in Waryam Singh (supra) have been repeatedly followed by subsequent Constitution Benches and various other decisions of this Court.

(e) According to the ratio in Waryam Singh (supra), followed in subsequent cases, the High Court in exercise of its 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.

(g) Apart from the situations pointed in (e) and (f), High Court can interfere in exercise of its power of superintendence when there has been a patent perversity in the orders of 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) High Court's power of superintendence underArticle 227cannot 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 the case ofL.Chandra Kumar vs. Union of India & others, reported in (1997) 3 SCC 261 and therefore abridgement 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 underArticle 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 underArticle 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 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 High Court.

(n) This reserve and exceptional power of judicial intervention is not to be exercised just for grant of relief in individual cases but should be directed for promotion of public confidence in the administration of justice in the larger public interest whereasArticle 226is meant for protection of individual grievance. Therefore, the power underArticle 227may be unfettered but its exercise is subject to high degree of judicial discipline pointed out above.

(o) An improper and a frequent exercise of this power will be counter-productive and will divest this extraordinary power of its strength and vitality."

7.1 Thus, exercise of power underArticle 227of the Constitution of India should be with a view to keep the tribunals / Courts within the bounds of their authority, to ensure that law is followed by tribunals / Courts by exercising jurisdiction which is vested in them and/or when there has been a patent perversity in the orders of 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. 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.

7.2 The Apex Court in a recent decision inPuri Investments v. Young Friends and Co. and Others, MANU/SC/0290/2022 has observed as under:

"13. There was no perversity in the order of the Appellate Tribunal on the basis of which the High Court could have interfered. In our view, the High Court tested the legality of the order of the Tribunal through the lens of an appellate body and not as a supervisory Court in adjudicating the application underArticle 227of the Considering. This is impermissible. The finding of the High Court that the appellate forum's decision was perverse and the manner in which such finding was arrived at was itself perverse."

7.3 Thus, a petition underArticle 227of the Constitution of India cannot be given a shape of appeal in disguise.

7.4 It would also be worthwhile be refer to a decision of the Full Bench of the Bombay High Court in Advani Oerlikon Ltd. (supra), as relied upon by the petitioner, relevant of which, reads as under:

"Article 227:

8.Article 227of the Constitution confers on every High Court a power of superintendence over all Courts and Tribunals throughout the territory, in relation to which it exercises jurisdiction, excepting any Court or Tribunal constituted by or under any law relating to the armed forces. The distinction between Articles 226 and 227 of the Constitution is that while proceedings underArticle 226of the Constitution are in the exercise of the original jurisdiction of the High Court, proceedings underArticle 227of the Constitution are not original, but are supervisory. The supervisory power underArticle 227of the Constitution is exercised with restraint to ensure that inferior Courts or tribunals act within the bounds of their authority. The jurisdiction is exercised to remedy grave cases of injustice or a failure of justice such as when (i) The Court or Tribunal has assumed jurisdiction which it did not possess; (ii) The Court or Tribunal has declined or failed to exercise jurisdiction which is conferred upon it which has occasioned a failure of justice; (iii) The Court or Tribunal has exercised its jurisdiction so as to over step the limits of its jurisdiction; and (iv) There is a patent perversity or breach of the principles of natural justice."

XXX

20. Upon this discussion, we now proceed to answer the questions formulated in the order of reference:

Re: 1: It is not a correct proposition in law that this Court cannot correct jurisdictional errors or errors resulting in miscarriage of justice committed by authorities which are subordinate to it by invoking powers underArticle 226of the Constitution.

Re: 2: It is not a correct proposition in law that jurisdictional errors or errors resulting in miscarriage of justice committed by subordinate Courts/Tribunals can only be corrected by this Court in exercise of powers underArticle 227of the Constitution. The writ of certiorari can be issued underArticle 226of the Constitution where the subordinate Court or Tribunal commits an error of jurisdiction. Where the subordinate Court or Tribunal acts without jurisdiction or in excess of it or fails to exercise jurisdiction, that error of jurisdiction can be corrected. Moreover when the Court or tribunal has acted illegally or improperly such as in breach of the principles of natural justice the writ of certiorari is available underArticle 226.

Re: 3: Where the facts justify the invocation of eitherArticle 226orArticle 227of the Constitution to correct a jurisdictional error or an error resulting in a miscarriage of justice committed by authorities subordinate to this Court, there is no reason or justification to deprive a party of the right to invoke the constitutional remedy underArticle 226of the Constitution.

Re: 4: It is open to the Court while dealing with a petition filed under Articles 226 and/or 227 of the Constitution or a Letters Patent Appeal under Clause 15 of the Letters Patent arising from the judgment in such a petition to determine whether the facts justify the party in filing the petition underArticle 226and/or 227 of the Constitution.

Re: 5: The cause title, the averments and prayers in the petition can be taken into account while deciding whether the petition is one underArticle 226and/or 227 of the Constitution.

Re: 6: If the Petitioner elects to invokeArticle 226and/or 227 of the Constitution and the facts justify such invocation, a Letters Patent Appeal against the order of the Learned Single Judge would be maintainable even though the Single Judge has purported to exercise jurisdiction only underArticle 227of the Constitution. The fact that the Learned Single Judge has adverted only to the provisions ofArticle 227of the Constitution would not bar the maintainability of such an appeal. The true test is whether the facts justify the invocation of Articles 226 and 227 and this has to be determined on the facts of each case having due regard to (i) the nature of the jurisdiction invoked; (ii) the averments contained in the petition; (iii) the reliefs sought; and (iv) the true nature of the principal order passed by the Single Judge. The true nature of the order passed by the Single Judge has to be determined on the basis of the principal character of the relief granted. The fact that an ancillary direction has been issued underArticle 227of the Constitution would not dilute the character of an order as one with reference toArticle 226.What has to be ascertained is the true nature of the order passed by the Single Judge and not what provision is mentioned while exercising this power.

Re: 7: Where a petition is filed under Articles 226 and 227 of the Constitution and the facts justify the filing of such a petition, it is not lawful for the Court to hold that jurisdictional errors or errors resulting in a miscarriage of justice committed by the subordinate Courts or Tribunals can be corrected only by exercising powers underArticle 227 (andthat the mentioning ofArticle 226is redundant), thus depriving the party of a right of appeal under Clause 15 of the Letters Patent.

Re: 8: When a petition is filed under Articles 226 and 227 of the Constitution and the facts justify the filing of such a petition, it is not open to the Court to hold thatArticle 226 need not have been invoked, on the ground thatArticle 227is clothed with the power to grant the same relief thus depriving the party of a right to elect or choose a remedy.

Re: 9: In a situation where a petition is filed underArticle 227of the Constitution and judgment is rendered in favour of the Petitioner, recourse to an appeal under Clause 15 of the Letters Patent is not barred to the Respondent before the Single Judge merely on the ground that the petition was underArticle 227.In State of Madhya Pradesh v. Visan Kumar Shiv Charanlal(supra), the appeal before the Division Bench was filed by the Respondent to the proceedings before the Single Judge in a petition which had been instituted underArticle 227.Accepting the submission that a nomenclature is of no consequence and it is the nature of the reliefs sought and the controversy involved which determine which Article is applicable, the Supreme Court held that the appeal before the Division Bench was maintainable. A similar position arose in the decision of the Supreme Court inM.M.T.C. v. Commissioner of Commercial Tax(supra). The Division Bench of the High Court had held that since the petition before the Single Judge was underArticle 227of the Constitution, an appeal at the behest of the Respondent to the petition was not maintainable. The Supreme Court held that the High Court was not justified in holding that the Letters Patent Appeal was not maintainable since the High Court did not consider the nature of the controversy and the prayers involved in the Writ Petition."

7.5 Thus, jurisdictional error and/or wrong assumption of jurisdiction can very well be corrected in a petition underArticle 227of the Constitution of India.

7.6 Another limb of argument of learned advocate Mr. Hava is that the decision dated 19.09.2019, rendered by the Coordinate Bench in IAAP No. 106 of 2016 with connected matter, has attained finality between the parties as it is not challenged. Further, in his submission, it is only the Apex Court which can invalidate the said decision of the Coordinate Bench and the same cannot be assailed in a petition underArticle 227of the Constitution of India. The aforesaid argument appears to be misconceived inasmuch as:

i) a perusal of the prayers made in the petition reveals nowhere the petitioner has challenged the aforesaid order dated 19.09.2019 passed by the Coordinate Bench;

ii) since there is no challenge to the said order dated 19.09.2019, there is no question of deciding the validity and/or invalidity of the same and to set aside the directions issued therein;

iii) the Coordinate Bench has not passed the said order in a petition filed underArticle 227of the Constitution of India;

iv) indisputably, the Coordinate Bench was disposed to pass the final order but for due to coming into force the 2019Amendment Act(i.e. subsequent change in law) in the interregnum, making the Bench coram non judis.

7.7 So far as the argument of learned advocate Mr. Hava, relying upon a decision in Bhaven Construction Through Authorised Signatory Premjibhai K. Shah (supra) to the effect that theArbitration Actis a self-contained Code and writ jurisdiction underArticle 227is not available, is concerned, t

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here is no dispute with regards to the ratio laid down in the said decision, nonetheless, the said decision would be of no help to the respondent inasmuch as, the petitioner has not challenged the order dated 19.09.2019 in this petition. 7.8 So far as the argument qua principal res judicata and reliance upon the decisions in i) Kalinga Mining Corporation and ii) Ratnagiri Nagar Parishad (supra) are concerned, it is again reiterated that in the case on hand, the Court is not examining the validity and legality of an order passed earlier and hence, the said decisions also, would be of no avail to the respondent. 7.9 It is pertinent to note, rather reiterate, at this stage that the Coordinate Bench, in the said decision dated 19.09.2019 has not touched the merits of the case and in view of the extant Amendment, the Court passed such an order remitting the matter to the District Court, Mehsana. Thereafter, in view of the decision of the Apex Court in Hindustan Construction Co. Ltd. dated 27.11.2019 (supra), present petition came to be registered on 16.01.2020, which came up for hearing on 17.01.2020, whereon, following order was passed by the Coordinate Bench: "1. Mr. Amitava Majumdar, learned advocate for Mr. Harsh N. Parekh, learned advocate for the petitioner submits that since the award was passed in International Arbitration Proceedings and for which all the proceedings needs to be filed before the High Court for execution and accordingly, it was also filed previously in the year 2016, but during consideration as regards to amendment and insertion of section made under the Arbitration andConciliation Act, 1996, this Court vide order dated 19.09.2019 remitted the proceedings before the learned District Court, Mehsana. Thereafter, in view of judgment in the case ofHindustan Construction Company Limited v. Union of Indiarendered by the Hon'ble Supreme Court in 2019 SCC OnLine SC 1520, insertion of section as well as deletion ofSection 26of the said Act have been struck down declaring the same as unconstitutional. 2. In view of aforesaid development of law, the proceedings which were initiated before this Court in the year 2016 requires to be taken back to this Court. 3. In view of aforesaid position, issue notice for final disposal returnable on 03.02.2020. 4. In the meantime, the learned District Court, Mehsana shall not proceed with the matter. If the Registry has not sent the papers to the learned District Court, Mehsana, it shall be placed before this Court along with this matter on the next date of hearing. Direct service is permitted." 7.10 Thus, at the first instance, the proceedings before the District Court, Mehsana came to be stayed by the Coordinate Bench, which position still prevails, meaning thereby, the proceedings are at the stage where the Coordinate Bench had left in the IAAP No. 106 of 2016. 8. In the backdrop of aforesaid observations and discussion, the Court sums up in following fashion: i) jurisdictional error can be corrected in a petition underArticle 227of the Constitution of India; ii) by virtue of the decision of the Apex Court inHindustan Construction Co. Ltd. v. Union of India, (2020) 17 SCC 324 dated 27.11.2019, the District Court has no jurisdiction and the jurisdiction of the High Court is restored. 9. For the aforesaid observations and discussions, this petition succeeds and is allowed accordingly. It is held that the jurisdiction to hear the petition underArbitration Acti.e. IAAP No. 106 of 2016 lies in this Court. Accordingly, registry shall call for the R&P of the said case, if it is lying with the District Court, Mehsana and shall place the same for consideration before a bench taking up such matters as per the roster. Rule is made absolute accordingly. However, in the facts and circumstances of the case, there shall be no order as to costs.
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