UNION OF INDIA Vs. PRATAP CHANDRA BISWAS

JUDGEMENT

(1.) THIS appeal is directed against the judgment of the Subordinate Judge, Lower Assam Districts at Gauhati passed on an award. The facts leading to the impugned judgment may be briefly stated as follows. On the 10th January, 1945, the respondent Pratap Chandra Biswas entered into a contract with the Union of India represented by the Executive Engineer of the Bengal and Assam Railway which was later merged into the North Eastern Railway. The contract was for the supply of line ballast and concrete shingles at the Dittocherra stone quarry in the North Cachar Hills. During this period the railway line between Lumding and Badarpur, commonly known as the Hill Section, fell in an area declared to be "prohibited" for defence purpose. The case of the respondent is that the opposite party undertook to give him facilities for the transport of his labourers through the prohibited area. On this assurance he brought a large number of labourers from Bihar and other places and asked for transport facilities for, taking them for their work at Dittockcherra. But the railway authorities failed to provide the same. Consequently, the respondent had to keep his labourers at Gauhati and Lumding at a considerable expense and finally to send them away.

(2.) IT is not disputed that the objections were filed out of time. Therefore the first point raised is whether the appeal is at all maintainable. Mr. Dam, appearing on behalf of the respondent submits that Section 39 of the Arbitration Act has made specific provisions for appeal against certain orders of the Court passed under express provisions of the Arbitration Act. So, according to Mr. Dam, an appeal will lie under this section against an order refusing to set aside an award provided the refusal is made on an application submitted under Section 33 of the Act. In this case the objections filed being out of time, there can be no refusal to set aside the award within the meaning of section 39(1) (vi) of the Arbitration Act. Consequently no appeal can lie. The learned Advocate General submits that the appeal is maintainable inasmuch as there was no valid reference to arbitration for the second time and consequently the award passed was a nullity. In such a case the validity of the award can be challenged in any appropriate proceedings. In this connection he relies on the decision of the Privy Council in Chhabba Lal v. Kallu Lal, : AIR 1946 PC 72 and cites several cases of different High Courts in which this decision has been followed. But all these decisions are in connection with appeals from decrees made in terms of awards which were alleged to have been made on invalid references. Thus these decisions are irrelevant for our purpose as in the present case we have an appeal not from any decree but obviously under Section 39 of the Arbitration Act against an order refusing to set aside an award. Section 39(1) of the Arbitration Act reads as follows:

(3.) SO the question arises whether the appeal is maintainable under the above section. There is however nothing in the above section or in any other provision of the Arbitration Act to show that the Court can refuse to set aside an award only on an application made by a party. On the other hand, Section 17 provides that the Court will proceed to pronounce judgment according to an award if it sees no cause to remit the award or any of the matters referred to arbitration for reconsideration or to set aside the award. The Section further provides that the Court can make the award only after the time for making an application to set aside the award has expired, or such application having been made, after refusing it. From a bare reading of this section it appears that the Court can suo motu set aside an award. As held by a Division Bench of the Patna High Court in Deep Narain Singh v. Mt. Dhaneshwari, reported in : AIR 1960 Pat 201, if the entire scheme of the Arbitration Act is considered, it is apparent that the Court has an inherent jurisdiction and power to set aside an award if it is vitiated by any illegality, including any illegality arising out of the invalidity of the reference independent of any objection filed by the affected parties to the award. The mere fact that an objection is not filed by any of the parties to the award does not altogether absolve the court from its responsibility of deciding whether there was a competent reference and whether the award was a valid award on the face of it. These are matters which really go to the root of the award itself and irrespective of any objection by the parties, these matters have to be decided by the court before a decree can be passed on the basis of the) award. Deo Narayan Singh v. Siabar Singh, : AIR 1952 Pat 461. Article 158 of the Limitation Act fixes a time limit of a petition for setting aside an award. But there can be no time limit for the Court to act suo motu. Mr. Dam ultimately has to concede that the Court can act suo motu and refuse to set aside an award. But the question is whether in the present case the learned Subordinate Judge has acted thus. In his judgment the learned Subordinate Judge says as follows: - -