C RAI Vs. UNION OF INDIA

JUDGEMENT

(1.) THIS FIRST APPEAL AGAINST AN ORDER OF OUR BROTHER WAZIR C.J.

(2.) DATED llth Phagon 2011 has arisen out of the following facts:

(3.) THE Indian Military authorities took on lease two houses belonging to the petitioner -appellant situate at Srinagar by means of two lease deeds dated 29 -9 -1948 and 7 -10 -1948. On 21 -9 -1950 both these houses caught fire and were completely gutted. The petitioner -appellant by means of letter dated 23 -12 -1950 claimed compensation from the military authorities for the loss sustained by him. The ground taken by him was that the houses had caught fire as a result of wilful negligence of "the respondents servants" - the army personnel - residing there. In reply to his letter elated 23 -12 -1950, the appellant was informed by means of letter No. 2022/AK/BS dated 12/13 January 51 that the question of "damages was under investigation and reference to the higher authorities" and that "the appellant would be informed of the decisions in due course." A Board of officers was constituted somewhere in September 1951, to go into this question as becomes evident from letter No, 4007/4/Q D/ - 27 -9 -1951 issued by the Station Commander. The deliberations of the Board finally culminated in the rejection of the appellants claim which was communicated to him on 13 -3 -1952. Thereupon the appellant sent a notice through his counsel Mr. Avasthy on 1 -3 -1953 in which it was stated: "Now that the Government has finally refused to pay any compensation either on account of fire or the unauthorized removal of goods from these bungalows by the Army Personnel, a dispute has arisen between my client and the Government which has under cl. 18 of the leaser -deed to be referred to an arbitrator to be appointed by the Government of India." It was further stated in the notice that an arbitrator may be appointed in terms of cl. 18 of the lease -deed within thirty days from the receipt of the said notice. After about a year, the Government of India by means of its order No. 3005/45/ Q -l dated 23 -2 -1954 made the appointment of an arbitrator as is stated in the said order, to go into "the dispute arising between the Government of India and Shri C. Rai... ........" The appointment of the arbitrator was made by the Government of India evidently in pursuance of cl. 18 of the lease -deed which runs as: "Should any dispute or difference arise out of or concerning the matter of these presents or any Covenant, clause or thing therein contained or otherwise arising out of this lease the same shall be referred to an arbitrator to be appointed by the Government of India and the decision of such arbitrator shall be conclusive and binding on the parties....... ......" But in the meanwhile, that is before the Government of India had made the appointment of the arbitrator and about four months after 1 -3 -1953. i.e., the date on which notice was given to the Government of India on behalf of the appellant, Mr. C. Rai, for the appointment of the arbitrator within thirty days, the appellant made an application under S. 20, Arbitration Act to this Court with the prayer that orders may be passed for the filing of the arbitration agreement and also for making the appointment of an arbitrator to adjudicate upon the dispute between the parties, the dispute being the claim for compensation made by the appellant on account of the destruction of the leased property by the alleged negligence of the servants of Union of India and its rejection by the army authorities. The application was heard by our teamed brother Wazir C. J. who after hearing it ordered its dismissal. The appellant has now come up in appeal to a Division Bench of this Court against the order of Wazir C. J. The learned single Judge Wazir C. J. had framed the following points for determination: "1 Whether the matters mentioned in the application are matters covered by the lease -deed and, therefore, should be referred to arbitration? 2 Whether or not the claim is barred by limitation? If the answer to this be in the affirmative, can there be a reference to arbitration?