Central Board of Karmachari Provident Fund and ors. Vs. Jog Khajanchi and ors. - Court Judgment

Excerpt:
- constitution of india 1055. article 141; [a.k. patnaik, c.j., dipak misra, abhay gohil, s. samvatsar, & s.k. gangele, jj] dismissal of slp arising from decision of high court whether binding precedent decision of division bench in rama and company v. state of madhya pradesh, [2007(ii) mpjr 229] overruled by full bench of same high court prior to delivery of decision of full bench order passed in division bench decision assailed in slp before supreme court dismissal of slp by short reasoned order, though declaration of law, but high court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by apex court and larger bench decision in jabalpur bus operators association, reported in [2003(1) mpjr 158]. court clarifies that dr. jaidev siddha v. jaiprakash siddha, 2007(2) mpjr (fb) 361; air 2007 mp 269 (fb) is not impliedly overruled in view of dismissal of slp articles 226 & 227; [a.k. patnaik, c.j., dipak misra, abhay gohil, s. samvatsar, & s.k. gangele, jj] power to issue writ under article 226 - [per majority] the high courts exercise original jurisdiction under article 226 of the constitution and supervisory jurisdiction and the power of superintendence under article 227 of the constitution. but, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. whenever word supervisory has been used in the context of article 226 it is in contrast with the appellate or revisional jurisdiction. when a writ is issued under article 226 of the constitution in respect of courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than article 227 of the constitution of india. it is worth noting that the power under article 227 was there in a different manner under the government of india act. power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. the confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. there is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior courts or administrative authorities. the word superintendence has not been used in article 226 of the constitution. it is also evident that the term writs is not referred to in article 227. on a scrutiny of article 227 it would be crystal clear that power of superintendence conferred on the high courts is a power that is restricted to the courts and tribunal in relation to which it exercises jurisdiction. on the contrary the power conferred on the high court under article 226 is not constricted and confined to the courts and tribunals but it extends to any person or authority. be it noted, article 226 as has been engrafted in the constitution covers entirely a new area, a broader one in a larger spectrum. when the legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the apex court. the words of the section have to be understood to mean exercise of powers under article 226 of the constitution of india which is always original. -- m.p. samaj ke kamjor vargon ke krishi bhumi hadapne sambandhi kuchakron se paritran tatha mukti adhiniyam [3/1977]. section 2: writ appeal maintainability from order of single judge-when permissible held, maintainability of a writ appeal from an order of the learned single judge would depend upon many an aspect and cannot be put into a strait jacket formula. it cannot be stated with mathematical exactitude. it would depend upon the pleadings in the writ petition, nature of the order passed by the single judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. it cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate courts has to be treated all the time for all purposes to be under article 227 of the constitution of india. it would depend upon the real nature of the order passed by the learned single judge. the pleadings also assume immense significance. it would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of articles 226 and 227 of the constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. in this context it is apt to note that there may be cases where the single judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that article 226 of the constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. it will depend upon factual matrix of each case. dr. jaidev siddha v. jaiprakash siddha, 2007(2) mpjr (fb) 361: air 2007 mp 269 (fb) is not impliedly overruled in view of dismissal of slp preferred against order reported in rama and company v. state of madhya pradesh [2007 (2) mpjr 229 (db) (mp)]. - in such circumstances, if court is satisfied that the dispute is existing between the parties which is required to be referred to the arbitrator under the terms of the agreement and the court appoints the arbitrator, then the arbitrator so appointed gets the jurisdiction to decide all disputes arising between the parties to the agreement and in such a situation, it is not necessary for the court to determine the points of reference, which are to be referred to the arbitrator for the decision. no such provision has been made in section 20 of the act it is well settled that the provisions of section 23 cannot be imported in arbitration proceedings referred to under section 20.'xxx xxx xxx 9. in view of the foregoing discussions, i am of the view that the court below has not committed any illegality or any material irregularity in exercise of its jurisdiction in passing the impugned order dismissing the application filed on behalf of the applicants, under section 23 of the act and as such no interference is called for in the impugned order.orders.b. sakrikar, j.1. the applicants/opponents have directed this revision under section 115 of the code of civil procedure (for short, 'the code') against the order dated 18th february, 1995 rendered by vi additional district judge, indore, in misc. judicial case no. 6a/89, thereby dismissing the application filed on behalf of the applicants under section 23 of the arbitration act (for short, 'the act').2. the facts of the case lie in a narrow compass. that non-applicants nos. 1 to 3 were given the contract by the applicants for the construction of the office building of the office of the commissioner, regional provident fund, indore and also for the construction of the staff quarters. the office building could not be completed because there were cracks in the building and the same was considered to be dangerous to human life. consequently, the construction work was stopped at the instance of the applicants. the dispute was raised by the non-applicants with, regard to the payment of bills for the work executed, before the settled architects under clause 35 of the tender agreement, (for short, 'the agreement'), but the matter was not settled by them and final certificate was not issued. thereafter, non-applicants nos. 1 to 3 moved an application under section 8/20 of the act for referring the dispute to the arbitrator through intervention of the court. the additional district judge, indore by its order dated 24th september, 1991 passed in arbitration case no. 6a/89 allowed the application thereby directions were given for the appointment of the arbitrator for the settlement of the dispute arose between the parties in connection with the contract aggrieved by the order of the additional district judge, the applicants filed civil revision before this court registered as c.r. no. 371/91. the revision petition was disposed of by this court vide order dated 13-11-1992 with certain modifications with regard to the appointment of the arbitrator. thereafter, in compliance with the directions of this court given on 13-11-1992, an arbitrator was appointed.3. on 1st december, 1994, an application under section 23 of the act, was filed on behalf of the applicants and thereby prayed to determine the points of reference which are to be considered for the decision to the arbitrator. the application was resisted by the non-applicants. after hearing the parties, the additional district judge passed the impugned order holding that the order of this court passed on 24-9-1991 is clear on the dispute referred to the arbitrator and on the points, which the arbitrator is required to decide and dismissed the application. aggrieved by the impugned order, the applicants have filed this revision.4. i have heard shri a. h. khan, learned counsel for the applicants and shri g. m. chafekar, learned sr. counsel with shri n. k. dave, for the non-applicants.5. shri khan learned counsel for the applicants contended that having appointed the arbitrator, it was necessary for the court below to have determined the point of reference pertaining to the dispute which he is required to decide. the counsel submitted that in the order dated 24-9-1991, the court has not determined the points of reference which are to be decided by the arbitrator in view of the provisions of section 23 of the act. the counsel submitted that the court below has committed an error in exercise of its jurisdiction by dismissing the application filed on behalf of the applicants under section 23 of the act. learned counsel placed reliance on the decision of allahabad high court as reported in air 1932 all. 665, mohd. aijas ali v. basant rai.6. in oppugnation, shri g. m. chafekar, learned counsel for the nas submitted that written claim was submitted on behalf of the nas before the settled architects as per clause 35 of the agreement. the claim was not settled and no written decision was given on the claim submitted on behalf of the applicants. therefore, additional district judge, on the application filed on behalf of the na under section 8/20 of the act, ordered for the appointment of the arbitrator for the settlement of dispute arose between the parties, in terms of clause 35 of the agreement. the counsel also submitted that when the arbitrator is appointed through intervention of the court in terms of the contract agreement then the arbitrator gets jurisdiction to decide all the disputes relating to the contract arose between the parties. clause 35 of the agreement is very clear, that on being dissatisfied with the decision of architect on any matter questioned or with the dispute of any kind, shall be decided by the arbitrator appointed under the terms of the aforesaid clause. the counsel submitted that as the court has appointed arbitrator under clause 35 of the agreement, parties are free to submit any dispute arising out of the contract for the decision of the arbitrator. the counsel also submitted that in the present case, the order of appointment of the arbitrator for referring the dispute is passed under section 20 of the act with the intervention of court, where no suit is pending. as such, the application filed under section 23 of the act is prima facie not maintainable. the counsel relied on the decision of punjab and haryana high court reported in air 1980 p&h; 182, kundanlal v. mehtab ram.7. on careful consideration of the submissions made before me, and on perusal of the impugned order and record, it is found that in the present case, the application for appointment of the arbitrator for referring the dispute arose between the parties to the agreement, was filed under section 8/20 of the act, when no suit was pending before the court. in such circumstances, if court is satisfied that the dispute is existing between the parties which is required to be referred to the arbitrator under the terms of the agreement and the court appoints the arbitrator, then the arbitrator so appointed gets the jurisdiction to decide all disputes arising between the parties to the agreement and in such a situation, it is not necessary for the court to determine the points of reference, which are to be referred to the arbitrator for the decision. in view of the above, the impugned order cannot be considered to be illegal and perverse, and requires no interference of this court in exercise of revisional jurisdiction.8. the contention of the learned counsel for the non-applicants with regard to the maintainability of the application filed on behalf of the applicants under section 23 of the act appears to be acceptable. the order of appointment of the arbitrator in the present case is passed under section 20 of chapter iii of the act, which contemplates 'the arbitration with intervention of court, where no suit is pending', whereas section 23 is covered under chapter iv of the act which contemplates, 'arbitration in a pending suit before the court.' in case of kundanlal (supra) the high court, while interpreting the scope of sections 20 and 23 of the act has held as under:'it is not disputed in the present case that the matter was referred to arbitration under section 20 which is a part of chapter iii. the section does not provide that the court while referring a case to the arbitrator should specify the matter in difference between the parties. while making a reference to ,the arbitrator in suits section 23 is applicable. it provides that the court shall refer to the arbitrator the matter in difference which he is required to determine. no such provision has been made in section 20 of the act it is well settled that the provisions of section 23 cannot be imported in arbitration proceedings referred to under section 20.'xxx xxx xxx9. in view of the foregoing discussions, i am of the view that the court below has not committed any illegality or any material irregularity in exercise of its jurisdiction in passing the impugned order dismissing the application filed on behalf of the applicants, under section 23 of the act and as such no interference is called for in the impugned order.10. consequently, this revision petition is without substance and merit. it is accordingly, dismissed without any orders as to costs.

Judgment:
ORDER

S.B. Sakrikar, J.

1. The applicants/opponents have directed this revision Under Section 115 of the Code of Civil Procedure (for short, 'the Code') against the order dated 18th February, 1995 rendered by VI Additional District Judge, Indore, in Misc. Judicial Case No. 6A/89, thereby dismissing the application filed on behalf of the applicants Under Section 23 of the Arbitration Act (for short, 'the Act').

2. The facts of the case lie in a narrow compass. That Non-applicants Nos. 1 to 3 were given the contract by the applicants for the construction of the office building of the office of the Commissioner, Regional Provident Fund, Indore and also for the construction of the staff quarters. The office building could not be completed because there were cracks in the building and the same was considered to be dangerous to human life. Consequently, the construction work was stopped at the instance of the applicants. The dispute was raised by the non-applicants with, regard to the payment of bills for the work executed, before the settled Architects under Clause 35 of the Tender Agreement, (for short, 'the agreement'), but the matter was not settled by them and final certificate was not issued. Thereafter, non-applicants Nos. 1 to 3 moved an application Under Section 8/20 of the Act for referring the dispute to the Arbitrator through intervention of the Court. The Additional District Judge, Indore by its order dated 24th September, 1991 passed in Arbitration Case No. 6A/89 allowed the application thereby directions were given for the appointment of the Arbitrator for the settlement of the dispute arose between the parties in connection with the contract Aggrieved by the order of the Additional District Judge, the applicants filed civil revision before this Court registered as C.R. No. 371/91. The revision petition was disposed of by this Court vide order dated 13-11-1992 with certain modifications with regard to the appointment of the arbitrator. Thereafter, in compliance with the directions of this Court given on 13-11-1992, an arbitrator was appointed.

3. On 1st December, 1994, an application Under Section 23 of the Act, was filed on behalf of the applicants and thereby prayed to determine the points of reference which are to be considered for the decision to the Arbitrator. The application was resisted by the non-applicants. After hearing the parties, the Additional District Judge passed the impugned order holding that the order of this Court passed on 24-9-1991 is clear on the dispute referred to the Arbitrator and on the points, which the Arbitrator is required to decide and dismissed the application. Aggrieved by the impugned order, the applicants have filed this revision.

4. I have heard Shri A. H. Khan, learned counsel for the applicants and Shri G. M. Chafekar, learned Sr. counsel with Shri N. K. Dave, for the non-applicants.

5. Shri Khan learned counsel for the applicants contended that having appointed the arbitrator, it was necessary for the Court below to have determined the point of reference pertaining to the dispute which he is required to decide. The counsel submitted that in the order dated 24-9-1991, the Court has not determined the points of reference which are to be decided by the Arbitrator in view of the Provisions of Section 23 of the Act. The counsel submitted that the Court below has committed an error in exercise of its jurisdiction by dismissing the application filed on behalf of the applicants Under Section 23 of the Act. Learned counsel placed reliance on the decision of Allahabad High Court as reported in AIR 1932 All. 665, Mohd. Aijas Ali v. Basant Rai.

6. In oppugnation, Shri G. M. Chafekar, learned counsel for the NAs submitted that written claim was submitted on behalf of the NAs before the settled Architects as per Clause 35 of the agreement. The claim was not settled and no written decision was given on the claim submitted on behalf of the applicants. Therefore, Additional District Judge, on the application filed on behalf of the NA Under Section 8/20 of the Act, ordered for the appointment of the arbitrator for the settlement of dispute arose between the parties, in terms of Clause 35 of the agreement. The counsel also submitted that when the arbitrator is appointed through intervention of the Court in terms of the contract agreement then the arbitrator gets jurisdiction to decide all the disputes relating to the contract arose between the parties. Clause 35 of the agreement is very clear, that on being dissatisfied with the decision of Architect on any matter questioned or with the dispute of any kind, shall be decided by the Arbitrator appointed under the terms of the aforesaid clause. The counsel submitted that as the Court has appointed Arbitrator under Clause 35 of the agreement, parties are free to submit any dispute arising out of the contract for the decision of the Arbitrator. The counsel also submitted that in the present case, the order of appointment of the Arbitrator for referring the dispute is passed Under Section 20 of the Act with the intervention of Court, where no suit is pending. As such, the application filed Under Section 23 of the Act is prima facie not maintainable. The counsel relied on the decision of Punjab and Haryana High Court reported in AIR 1980 P&H; 182, Kundanlal v. Mehtab Ram.

7. On careful consideration of the submissions made before me, and on perusal of the impugned order and record, it is found that in the present case, the application for appointment of the arbitrator for referring the dispute arose between the parties to the agreement, was filed Under Section 8/20 of the Act, when no suit was pending before the Court. In such circumstances, if Court is satisfied that the dispute is existing between the parties which is required to be referred to the Arbitrator under the terms of the agreement and the Court appoints the Arbitrator, then the Arbitrator so appointed gets the jurisdiction to decide all disputes arising between the parties to the agreement and in such a situation, it is not necessary for the Court to determine the points of reference, which are to be referred to the Arbitrator for the decision. In view of the above, the impugned order cannot be considered to be illegal and perverse, and requires no interference of this Court in exercise of revisional jurisdiction.

8. The contention of the learned counsel for the non-applicants with regard to the maintainability of the application filed on behalf of the applicants Under Section 23 of the Act appears to be acceptable. The order of appointment of the Arbitrator in the present case is passed Under Section 20 of Chapter III of the Act, which contemplates 'the arbitration with intervention of Court, where no suit is pending', whereas Section 23 is covered under Chapter IV of the Act which contemplates, 'arbitration in a pending suit before the Court.' In case of Kundanlal (supra) the High Court, while interpreting the scope of Sections 20 and 23 of the Act has held as under:

'It is not disputed in the present case that the matter was referred to arbitration Under Section 20 which is a part of Chapter III. The section does not provide that the Court while referring a case to the Arbitrator should specify the matter in difference between the parties. While making a reference to ,the Arbitrator in suits Section 23 is applicable. It provides that the Court shall refer to the Arbitrator the matter in difference which he is required to determine. No such provision has been made in Section 20 of the Act It is well settled that the provisions of Section 23 cannot be imported in arbitration proceedings referred to Under Section 20.'xxx xxx xxx

9. In view of the foregoing discussions, I am of the view that the Court below has not committed any illegality or any material irregularity in exercise of its jurisdiction in passing the impugned order dismissing the application filed on behalf of the applicants, Under Section 23 of the Act and as such no interference is called for in the impugned order.

10. Consequently, this revision petition is without substance and merit. It is accordingly, dismissed without any orders as to costs.