Jammu & Kashmir High Court
Ut Of J&K And Anr vs Cube Construction Engineer Ltd on 4 September, 2025
Author: Sanjay Dhar
Bench: Sanjay Dhar
Sr. No. 81
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
WP(C) No. 2330/2025
CM No. 5397/2025
UT of J&K and anr. .....Appellants
Through: Mrs. Monika Kohli, Sr. AAG
Vs
Cube Construction Engineer Ltd.
..... Respondents
Through: Mr. Rahul Sharma, Advocate
Mr. Rupali Sharma, Advocate
CORAM: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
ORDER
04.09.2025
1. Through the medium of present writ petition, the petitioners have challenged order dated 26.07.2022 passed by learned Arbitral Tribunal.
2. It appears that an order dated 26.07.2022 came to be passed by the Sole Arbitrator in Arbitration Application No. 16/2017 whereby Sh. Vinod Sharma was appointed as Arbitrator to adjudicate the disputes arising between the petitioners and the respondents in respect of the contract relating to the construction of road from Mahore to Sidher. The learned Arbitrator after entering upon the reference has passed the impugned award dated 26.07.2022 whereby claim Nos. 1, 4 & 5 have been decided in favour of the respondents. The petitioners have challenged the impugned award by way of the present writ petition under Article 226 read with Article 227 of the Constitution of India.
3. Learned counsel for the respondents has raised preliminary objection with regard to maintainability of the present 2 WP(C) No. 2330/2025 writ petition on the ground that the petitioners have the alternative and efficacious remedy of challenging the impugned award by way of a petition under Section 34 of the Arbitration and Conciliation Act and, therefore, the present writ petition cannot be entertained.
4. I have heard learned counsel for the parties on the question of maintainability of the present writ petition and perused record of the case.
5. Learned counsel for the petitioners has submitted that although the alternative remedy of challenging the award under Section 34 of the Arbitration and Conciliation of Act is available to the petitioners yet, this Court is not powerless to entertain the present writ petition as the impugned award passed by the learned Arbitrator is grossly erroneous inasmuch as, the same is contrary to the scheme of Arbitration and Conciliation Act as also contrary to the terms and conditions of the Contract between the parties. It has been contended that the learned Arbitrator has failed to appreciate that the petitioners were well within their powers to impose penalty upon the respondents and that the claim with regard to compensation on account of idle machinery is beyond the terms of the contract. It has been contended that the learned Arbitrator by passing the impugned award has rewarded a defaulting contractor and as such, the impugned award is against the fundamental policy of Indian Law.
6. In order to support her contention that the writ Court is not powerless to entertain a challenge to an arbitral award, the learned Sr. AAG has relied upon the judgments delivered by the 3 WP(C) No. 2330/2025 Supreme Court in the cases of Harbanslal Sahnia and anr. Vs. Indian Oil Corpn. Ltd. and ors.; (2003) 2 SCC 107, M/s Radha Krishan Industries Vs. The State of Himachal Pradesh; AIR 2021 Supreme Court 2114, and Tamil Nadu Cements Corporation Limited Vs. Micro and Small Enterprises Facilitation Council and Anr.; (2025) SCC OnLine SC 127.
7. It is not in dispute that the impugned award passed by the learned Arbitrator is amenable to challenge by way of a petition under Section 34 of the Arbitration and Conciliation Act. Thus, there is an alternative and efficacious remedy available to the petitioners to assail the impugned order. The question that arises for determination is whether even in the presence of such alternative remedy to the petitioners, the present writ petition can be entertained.
8. There can be no dispute to the legal position that the High Court while exercising its powers under Section 226 of the Constitution of India has a discretion to entertain or not to entertain a writ petition but it is a settled law that the High Court would not normally exercise its discretion if an effective and efficacious remedy is available to a litigant. This is a self imposed restriction devised by the High Courts. It is only where the writ petition seeking enforcement of any fundamental rights or where there is violation of principles of natural justice or where the orders or proceedings are wholly without jurisdiction or the vires of an Act are under challenge that the High Court would entertain a writ petition even in a case where alternative remedy is available. The judgments relied upon by 4 WP(C) No. 2330/2025 the learned Sr. AAG also crystallize and support the aforesaid position of law.
9. In the instant case, the petitioners are neither seeking enforcement of their fundamental rights nor it is their case that the impugned award has been passed without hearing them. It is also not the case of the petitioners that vires of any legislation are under challenge or that the learned Arbitrator had no jurisdiction to pass the impugned award. Thus, none of the conditions for entertaining a writ petition even in the presence of an alternative remedy, is fulfilled in the present case.
10. Apart from the above, the Constitution Bench of the Supreme Court in the case of SBP & Co. Vs. Patel Engineering Ltd. and anr.; (2005) 8 SCC 618, in categoric terms, held that an intervention of the High Court in the award passed by Arbitral Tribunal is not permissible. In this regard, it would be apt to notice the observations made by the Supreme in Paras 45 & 46 of the said judgment which are reproduced as under:-
"45. It is seen that some High Courts have proceeded on the basis that any order passed by an arbitral tribunal during arbitration, would be capable of being challenged under Article 226 or 227 of the Constitution of India. We see no warrant for such an approach. Section 37 makes certain orders of the arbitral tribunal appealable. Under Section 34, the aggrieved party has an avenue for ventilating his grievances against the award including any in- between orders that might have been passed by the arbitral tribunal acting under Section 16 of the Act. The party aggrieved by any order of the arbitral tribunal, unless has a right of appeal under Section 37 of the Act, has to wait until the award is passed by the Tribunal. This appears to be the scheme of the Act. The arbitral tribunal is after all, the creature of a contract between the parties, the arbitration agreement, even though if the occasion arises, the Chief Justice may constitute it based on the contract between the parties. But that would not alter the status of the arbitral tribunal. It will still be a forum chosen by the parties by agreement. We, therefore, disapprove of the stand 5 WP(C) No. 2330/2025 adopted by some of the High Courts that any order passed by the arbitral tribunal is capable of being corrected by the High Court under Article 226 or 227 of the Constitution of India. Such an intervention by the High Courts is not permissible.
46. The object of minimizing judicial intervention while the matter is in the process of being arbitrated upon, will certainly be defeated if the High Court could be approached under Article 227 of the Constitution of India or under Article 226 of the Constitution of India against every order made by the arbitral tribunal. Therefore, it is necessary to indicate that once the arbitration has commenced in the arbitral tribunal, parties have to wait until the award is pronounced unless, of course, a right of appeal is available to them under Section 37 of the Act even at an earlier stage."
11. From the aforesaid legal position, it is clear that an order/award of an arbitral Tribunal can only be challenged by way of a petition under Section 34 of the Arbitration and Conciliation Act and not by filing a writ petition. Entertaining a writ petition in such matters would amount to circumveting the legislative scheme laid down in the Arbitration and Conciliation Act which provides for a forum for challenging an arbitral award. Merely because the High Court has wide powers does not mean that a writ petition can be entertained against the mandate of legislative intention.
12. For the foregoing reasons, this Court refuses to entertain the present writ petition, having regard to the fact that the petitioners have an alternative as well as efficacious remedy of filing a petition under Section 34 of the Arbitration and Conciliation Act before the appropriate forum. Just because the limitation period provided for availing such remedy may have expired does not form a ground for this Court to entertain the writ petition. In my aforesaid view, I am supported by the ratio laid down by the Supreme Court in the case of Assistant Commissioner (CT) LTU Kakinanda Vs. 6 WP(C) No. 2330/2025 Glaxo Smith Kline Consumer Health Care Limited; (2020) 19 Supreme Court Cases 681.
13. In view of what has been discussed hereinabove, the present writ petition is held to be not maintainable and is dismissed accordingly leaving it open to the petitioners to avail the alternative remedy available to them.
14. Disposed of.
(SANJAY DHAR) JUDGE JAMMU 04.09.2025 Tarun/PS Whether the order is speaking? Yes Whether the order is reportable? Yes Mahavir Singh 2025.09.09 15:55 I attest to the accuracy and integrity of this document