The High Court of Orissa at Cuttack settled a recurring jurisdictional conflict by holding that writ petitions under Articles 226 and 227 of the Constitution are maintainable to challenge orders passed under Section 37(1) of the Arbitration and Conciliation Act, 1996, thereby overruling the preliminary objection that such petitions constitute an impermissible second appeal. The judgment clarifies that the statutory appellate scheme in the 1996 Act does not oust constitutional writ jurisdiction unless expressly stated, preserving the High Court’s supervisory power to intervene where orders lack jurisdiction or suffer from illegality.
Background & Facts
The Dispute
The petitioners in a cluster of writ petitions challenged orders passed by the District Judge, acting as the Commercial Appellate Court under Section 37(1) of the Arbitration and Conciliation Act, 1996. These orders arose from challenges to arbitral awards under Section 34 of the same Act. The opposite parties raised a preliminary objection contending that the writ petitions were not maintainable as they amounted to a second appeal barred by Section 37(3) of the 1996 Act.
Key Facts
- The petitions bear numbers: W.P.(C) Nos. 35289, 35291, 35309, 35312, 35317 of 2025 and W.P.(C) Nos. 3223, 44, 6384 & 8151 of 2026.
- Petitioners include the State of Odisha, M/s. Dhanurdhar Champatiray (Proprietor and Special Class Contractor, Nayapalli, Bhubaneswar), M/s. Mahanadi Coalfields Ltd. (Jagriti Vihar, UCE, Burla, Sambalpur), Odisha Mining Corporation Ltd. (OMC House, Bhubaneswar), Odisha State Road Transport Corporation (Khurda), ARSS Bus Terminal Pvt. Ltd. (Khurda), M/s. Choudhury Fabrication Works (Sambalpur), and various other entities.
- Opposite parties in the respective petitions are private contractors, public sector undertakings, and government officers such as the District Education Officer, Sundargarh.
- The underlying arbitral awards were passed in various arbitration proceedings (e.g., Arbitration No. 7 of 2023 referenced in National Aluminum Company Ltd. v. Maheswari Brothers Coal Ltd.).
- The District Judge’s orders under Section 37(1) either confirmed, set aside, or refused to set aside such arbitral awards.
- The petitioners contended that the orders suffered from jurisdictional errors, illegality, or perversity, invoking the High Court’s supervisory jurisdiction under Article 227.
Procedural History
- 15th July 2026: Date of hearing of the preliminary objection on maintainability.
- 21st September 2026: Date of judgment.
- Relevant Supreme Court orders cited:
- National Aluminum Company Ltd. v. Maheswari Brothers Coal Ltd., SLP(Civil) Diary No. 57336 of 2024, order dated 15.01.2025.
- United India Insurance Co. Ltd. v. Odisha Hydro Power Corporation Ltd., SLP(Civil) Diary No. 55784 of 2024, order dated 06.01.2025.
- Deep Industries Ltd. v. ONGC and another, (2020) 15 SCC 706.
- Thansingh Nathmal v. Supt. of Taxes, AIR 1964 SC 1419.
- Nivedita Sharma v. Coal, (2011) 14 SCC 337.
- Bhabha Construction v. Sardar Sarovar Narmada Nigam Ltd., (2022) 1 SCC 75.
- Punjab State Power Corporation Ltd. v. EMTA Coal Ltd., (2020) (cited).
- Surender Kumar Singhal v. Arun Kumar Bhalotia, 2021 DHC 1097.
Parties' Positions
- Petitioners: Argued that Section 37(3) only bars a second appeal from orders under Section 37(1) and does not oust writ jurisdiction under Articles 226/227; emphasized that constitutional remedies are distinct from statutory appeals; relied on Supreme Court precedents holding that statutory provisions cannot curtail constitutional writ jurisdiction unless expressly stated.
- Opposite Parties: Contended that the 1996 Act is a self-contained code; Section 5’s non-obstante clause and Section 37(3) collectively deny any second appeal, including writ petitions; asserted that allowing such petitions would undermine the arbitral regime and that the aggrieved party must approach the Supreme Court directly.
Relief Sought
The petitioners sought that the preliminary objection be overruled and that the writ petitions be heard on merits; they also sought continuation of any interim orders until final disposal.
The Legal Issue
The central question was whether a writ petition under Articles 226 and 227 of the Constitution is maintainable to challenge an order passed under Section 37(1) of the Arbitration and Conciliation Act, 1996, i.e., whether such petition constitutes a prohibited second appeal under Section 37(3) of the Act.
Arguments Presented
For the Petitioners
The petitioners relied on National Aluminum Company Ltd. v. Maheswari Brothers Coal Ltd. and United India Insurance Co. Ltd. v. Odisha Hydro Power Corporation Ltd. to submit that the Supreme Court had expressly permitted approaching High Courts under Articles 226/227 to challenge orders under Section 37(1). They argued that Section 5’s non-obstante clause applies only to “judicial authority” as defined within the 1996 Act and does not extend to constitutional courts exercising writ jurisdiction. They further contended that Article 226/227 jurisdiction is not an appellate remedy but a constitutional power to correct jurisdictional errors, illegality, or perversity, and therefore cannot be barred by a statutory provision that merely regulates appeals.
For the Respondent/Opposite Parties
The opposite parties emphasized that the 1996 Act is a self-contained code, citing Section 5 (“notwithstanding anything contained in any other law… no judicial authority shall intervene except where so provided in this Part”) and Section 37(3) (“No second appeal shall lie from an order passed in appeal under this section”). They argued that allowing writ petitions would effectively create a second appeal, defeating the statutory scheme’s intent to limit appellate recourse to the Supreme Court only. They urged the Court to treat the petitions as impermissible collateral attacks on arbitral awards.
The Court's Analysis
The Court began by noting that the objection raised a pure question of law and did not require delving into the merits of each case. It examined Section 5 and Section 37 of the 1996 Act, observing that Section 5’s non-obstante clause restricts “judicial authority” under the Act but does not mention constitutional courts. The Court then turned to Supreme Court precedent: in Deep Industries Ltd. v. ONGC, the Court had held that Article 226/227 jurisdiction remains untouched by the non-obstante clause and that High Courts may intervene where orders lack jurisdiction or suffer from illegality. The Court further relied on National Aluminum and United India Insurance, where the Supreme Court had granted liberty to approach High Courts under Articles 226/227 to challenge orders under Section 37(1).
The Court distinguished between an appeal and a writ petition, emphasizing that Articles 226/227 provide a supervisory, not appellate, jurisdiction. It quoted with approval from Thansingh Nathmal v. Supt. of Taxes: “The High Court does not therefore act as a court of appeal against the decision of a court or tribunal… Where it is open to the aggrieved petitioner to move another tribunal… the High Court normally will not permit by entertaining a petition under Article 226 of the Constitution the machinery created under the statute to be bypassed…” The Court concluded that the statutory scheme does not oust constitutional writ jurisdiction unless expressly stated, and since Section 37(3) only bars a second appeal, it does not prohibit writ petitions. Accordingly, the preliminary objection was overruled.
"For the discussions made and reasons stated above, and keeping in view the approach of the Hon‟ble Supreme Court in National Aluminum Company Ltd. (supra) and United India Insurance Company Limited (supra), it would be incorrect to refuse the Petitioners to approach this Court under Article 226 and 227 of the Constitution of India to challenge the order of the District Judge passed under Section 37(1) of 1996 Act."
The Verdict
The petitioners succeeded. The Court overruled the preliminary objection raised under Section 37(3) of the Arbitration and Conciliation Act, 1996, and held that writ petitions under Articles 226 and 227 are maintainable to challenge orders passed under Section 37(1) of the Act. It directed that all the listed appeals be heard on merits on 5th October 2026 before a regular signed Bench, and that any interim orders passed earlier in the respective writ petitions shall continue till the next date.
What This Means For Similar Cases
Constitutional Writ Jurisdiction Not Ousted by Statutory Bars
The judgment reinforces that a statutory provision limiting appeals does not automatically extinguish writ jurisdiction under Articles 226/227 unless the statute expressly ousts such jurisdiction. Practitioners may now invoke High Court writ jurisdiction against appellate orders under specialized statutes (e.g., Arbitration Act, Commercial Courts Act) by demonstrating lack of jurisdiction, illegality, or perversity.
Distinction Between Appeal and Writ Remedy
The Court clarified that Articles 226/227 provide a supervisory jurisdiction distinct from appellate remedies. Consequently, a writ petition is not a second appeal and is not barred by provisions that prohibit successive appeals. Lawyers should frame writ petitions as challenges to jurisdictional errors or illegality rather than as appeals on facts or evidence.
Supervisory Control Under Article 227 Limited to Manifest Errors
While Article 227 permits intervention, the Court reiterated that such power is confined to correcting manifest circumstances of illegality, jurisdictional failure, or perversity. Petitioners must therefore show that the impugned order is patently without jurisdiction or offends the constitutional structure, rather than merely asserting an erroneous appreciation of facts.
