State of Orissa Vs. Sudhakar Das (Dead) by Lrs. - Court Judgment

Excerpt:
- [a.p. sen,; baharul islam and; d.a. desai, jj.] in their petitions under article 32 of the constitution the three petitioners who were detained under section 3 of the conservation of foreign exchange and prevention of smuggling activities act, 1974, contended that in the matter of discharge of executive functions conferred upon him, the administrator of the union territory of goa, daman and diu who passed the impugned orders, is in the same position as a governor of a state or the president who must act on the aid and advice of the council of ministers and that in the instant case the orders of detention having been passed by the administrator himself instead of by the chief minister in the name of the administrator, were invalid. dismissing the petitions, held :1. (a) although section 46(2) of the union territories act, 1963 provides that all executive action of the administrator, whether taken on the advice of his ministers or otherwise shall be expressed to be taken in the name of the administrator, the administrator is not purely a constitutional functionary who is bound to act on the advice of the council of ministers and could not act on his own. the language of arts. 74 and 163 on the one hand and the language of section 44 of the union territories act 1963 on the other shows that the administrator is similarly situated with the governor but not with the president when he is to act in his discretion under the act. while exercising judicial or quasi judicial functions, the administrator has to act on his own unaided by the council of ministers like the president who, while exercising power conferred by article 217(3), discharges judicial function and is not required to act on the advice of the council of ministers. but there the analogy ends. the administrator, even in matters where he is not required to act in his discretion under the act or where he is not exercising any judicial or quasi-judicial functions, is not bound to act according to the advice of the council of ministers. in the event of difference between him and his ministers, the administrator under the proviso to section 44(1) of the act, is required to refer the matter to the president for decision and act according to that decision. therefore in such a situation the right to give a decision on the difference of opinion between the two vests in the union government and the council of ministers of the union territory is bound by the view of the union government. there are also powers in the administrator to act in derogation of the advice of the council of ministers. [560 c-d, 561 a-h] (b) the proviso to section 44(1) of the act also envisages that when a difference of opinion between him and the council of ministers is referred to the president, if the administrator considers the matter urgent and necessary to take immediate action during the interregnum, he can completely override the advice of the council of ministers and act according to his own lights which power neither the governor nor the president enjoys. [562 a-c] shamsher singh anr. v. state or punjab, [1976] 1 scr 814 held in applicable. the grievance that the detaining authority had no material from which to infer that the petitioners were engaged in smuggling activities is not borne out by the material on record. copies of recorded statements and other relevant documents had been taken into consideration by the detaining authority. these copies were supplied to the detenu. [563 a-b]. it cannot be said that there was any violation of article 22(5) of the constitution or that the detenu was in any way handicapped in submitting his representation. a gujarati translation of the grounds of detention was supplied to the detenu. the order of detention was a formal recital of section 3(1) of the r cofeposa act showing the provision of law under which the order of detention had been made. although the section of the cofeposa act has not been mentioned. the grounds of detention were sufficiently clear to bring home to the detenu that he was engaged in smuggling activities. [565 f, c-e] the state of bombay v. atma ram sridhar vaidya, [1951] 2 scr 167, held inapplicable. (a) clause (e) of section 8 of the cofeposa act in express terms disentities a detenu to appeal through a legal practitioner in any matter connected with the reference to the advisory board. it is now well settled that the right to consult and be defended by a legal practitioner of one's choice conferred by a article 22(1) is denied by clause 3(b) to a person who is detained under any law providing for preventive detention. according to the express intendment of the constitution itself no person who is detained under any law which provides for preventive detention can claim the right to consult a legal practitioner of his choice or be defended by him. therefore it cannot be said that a detenu has the right of being represented by a legal practitioner in the proceedings before the advisory board. [570 f] (b) the embargo on the appearance of legal practitioner does not apply to a friend who in truth and substance is not a legal practitioner; but if such a friend also happens to be a legal practitioner he cannot as of right appear before the advisory board on behalf of the detenu. [574 f] (c) so is the case with reference to agents. if an agent is in truth and substance an agent, the detenu may appear through him; but if the agent is a legal practitioner, appearance by him as of right would be barred. a friend or an agent of the detenu who is essentially a comrade in the profession of the detenu for which he is detained, such a friend or agent would also be barred from appearance on behalf of the detenu. although a person may have a common law right to appoint an agent there is no obligation on the other side to deal with the agent. the other side has an equal right to refuse to deal with an agent. [574 g-h, 575 a] in the instant case the sender of the telegram stated in clear terms that he was an advocate and was representing the detenu. he had not stated that he was a friend or agent of the detenu and therefore the administrator was justified in refusing permission to the advocate to assist the detenu. [575 c-e] 5. a person detained under a law providing for preventive detention cannot claim as a matter of constitutional right to consult and be defended by a lawyer of his choice; nor can be insist upon being produced before a' magistrate within 24 hours of his arrest. this is evident from article 22 (3)(b) which provides that nothing in clauses (1) and (2) of this article shall apply to any person who is arrested or detained under any law providing for preventive detention. [575 g-h; a-b] 6. it is implicit in articles 22(5) that the representation has to be a written representation communicated through the jail authorities or through my other mode which the detenu thinks fit of adopting. but the detaining authority is under no obligation to grant any oral hearing at the time of considering the representation. if the representation has to be a written representation, there is no question of hearing anyone much less a lawyer. therefore, the administrator's refusal to hear the advocate of the detenu while considering the representation would not be denial of the common law right of the detenu to be represented by an agent. [577 a-c] francis coralie mullin v. the administrator union territory of delhi ors.,[1981] 2 scr 516, held inapplicable. - that part of the award which grants escalation charges is clearly not sustainable and suffers from a patent error.order1. this appeal by special leave arises out of arbitration proceedings. the high court of orissa dismissed an appeal filed by the appellant against the order of subordinate judge, bhubaneshwar making an award made by the arbitrator a rule of the court. the three main issues with which we are concerned in this appeal are:1. whether the arbitrator could have granted an award for escalation in favour of the contractor ?2. whether the arbitrator could have awarded pendente lite interest in favour of the contractor? and3. whether the arbitrator could have granted interest for the pre-reference period?2. it is not disputed that the arbitration agreement contained no escalation clause. in the absence of any escalation clause, an arbitrator cannot assume any jurisdiction to award any amount towards escalation. that part of the award which grants escalation charges is clearly not sustainable and suffers from a patent error. the decree, insofar, as the award of escalation charges is concerned, cannot, therefore, be sustained,3. it is conceded by ms. mana chakraborty, learned counsel for the state that the issue relating to the power of the arbitrator to grant interest pendente lite where the agreement between the parties, as in the present case, did not prohibit grant o: interest and the dispute referred to the arbitrator included the claim of interest, is no longer res integra and stands settled in favour of the claimant and against the state in secretary, irrigation department, government of orissa v. g.c. roy : [1991]3scr417 overruling the view to the contrary as expressed in executive engineer (irrigation balimela v. abhaduta jena : [1988]1scr253 . the decree to the extent, it awards pendente lite interest in favour of the respondents, therefore, is sustained and the challenge to it fails.4. so far as the award of interest for pre-reference period is concerned, it appears appropriate to us, keeping in view the fact that the proceedings in this case have remained pending for almost one and a half decade and the arbitration started as early in 1975, to direct that the respondent shall execute the decree relating to the award of pre-reference interest only on furnishing a bank guarantee to the extent of that amount together with an undertaking that in the event the constitution bench, to which this issue has been referred to in executive engineer, dhankanal minor irrigation division, orissa v. n.c. budhiraj (dead) by l.rs. : air2000sc221 , decides against the decree-holder-respondents, the state shall be entitled to encash the bank guarantee. the respondents shall keep the bank guarantee alive during the pendency of the matter before the constitution bench and on furnishing the bank guarantee and the undertaking the respondents can execute the decree in that behalf.5. thus, the appeal is disposed of in above terms. the impugned judgment and decree shall stand modified accordingly. no costs.

Judgment:
ORDER

1. This appeal by special leave arises out of arbitration proceedings. The High Court of Orissa dismissed an appeal filed by the appellant against the order of Subordinate Judge, Bhubaneshwar making an award made by the Arbitrator a rule of the Court. The three main issues with which we are concerned in this appeal are:

1. Whether the Arbitrator could have granted an award for escalation in favour of the contractor ?

2. Whether the Arbitrator could have awarded pendente lite interest in favour of the contractor? and

3. Whether the Arbitrator could have granted interest for the pre-reference period?

2. It is not disputed that the arbitration agreement contained no escalation clause. In the absence of any escalation clause, an Arbitrator cannot assume any Jurisdiction to award any amount towards escalation. That part of the Award which grants escalation charges is clearly not sustainable and suffers from a patent error. The decree, insofar, as the award of escalation charges is concerned, cannot, therefore, be sustained,

3. It is conceded by Ms. Mana Chakraborty, learned Counsel for the State that the issue relating to the power of the Arbitrator to grant interest pendente lite where the agreement between the parties, as in the present case, did not prohibit grant o: interest and the dispute referred to the Arbitrator included the claim of interest, is no longer res Integra and stands settled in favour of the claimant and against the State in Secretary, Irrigation Department, Government of Orissa v. G.C. Roy : [1991]3SCR417 overruling the view to the contrary as expressed in Executive Engineer (Irrigation Balimela v. Abhaduta Jena : [1988]1SCR253 . The decree to the extent, it awards pendente lite interest in favour of the respondents, therefore, is sustained and the challenge to it fails.

4. So far as the award of interest for pre-reference period is concerned, it appears appropriate to us, keeping in view the fact that the proceedings in this case have remained pending for almost one and a half decade and the arbitration started as early in 1975, to direct that the respondent shall execute the decree relating to the award of pre-reference interest only on furnishing a bank guarantee to the extent of that amount together with an undertaking that in the event the Constitution Bench, to which this issue has been referred to In Executive Engineer, Dhankanal Minor Irrigation Division, Orissa v. N.C. Budhiraj (Dead) by L.Rs. : AIR2000SC221 , decides against the decree-holder-respondents, the State shall be entitled to encash the bank guarantee. The respondents shall keep the bank guarantee alive during the pendency of the matter before the Constitution Bench and on furnishing the bank guarantee and the undertaking the respondents can execute the decree in that behalf.

5. Thus, the appeal is disposed of in above terms. The impugned judgment and decree shall stand modified accordingly. No costs.