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2001 DIGILAW 626 (CAL)

SARKAR AND SARKAR v. STATE OF WEST BENGAL

2001-09-25

A.N.RAY, S.N.BHATTACHARJEE

body2001
AJOY NATH RAY, S. N. BHATTACHARJEE, J. ( 1 ) THE Hon'ble Judge in the Court below, by his Lordship's impugned order dated 3rd July, 2001 has refused the request of the appellant to nominate an Arbitrator. His Lordship has opined that the residence of the parties and the location of the cause of action would give jurisdiction to the District Court at suri for entertaining the appellant's petition. His Lordship has further, indicated that only thereafter the power of nomination by the Hon'ble Chief justice of our High Court will arise under section 11 of the Arbitration and conciliation Act, 1996. ( 2 ) ALTHOUGH we obtained assistance from learned Counsel appearing for the parties, since section 11 poses many problematic questions today, we requested Mr. Jayanta Kumar mitra, Barrister and Senior Advocate to appear as Amicus Curiae, which he did. He rendered us invaluable assistance. ( 3 ) THE two principal Supreme court cases which have dealt with section 11 and the power of appointment are the two Konkan cases reported respectively at AIR 2000 Supreme Court, page 2821 and JT 2000 (Suppl. 2) SC 150. Mr. Mitter has also given us information about the Constitution bench, now in seisin of the second konkan matter, in Civil Appeal Nos. 5800-89/1997. He has placed before us an order of the Constitution bench dated 25. 4. 2001 in which the Bench requested the Attorney general to assist the Court (as Amicus curiae ). Although Mr. Mitter indicated that an adjournment of this matter might bring the decision of the Constitution bench on record. Mr. Dutt appearing for the appellant insisted that the appeal be disposed of in his client's financial interest. He submitted that as the Supreme Court has passed no stay orders, there is no reason why the appeal should not be disposed of. Before giving our opinion in this matter we have to summarize briefly what the Konkan cases state, as we respectfully read them. ( 4 ) IN Konkan 1 the Chief Justice is interpreted as a persona designata; his power of appointment is ruled to be an administrative power; he is said to be distinct from the High Court; it is said that he should give an appointment without entering- into preliminary controversies; it is also said that if he does not make an appointment a mandamus will lie. Konkan 2 has raised doubts about konkan 1. That is why we are at all free to decide this matter today. Arguments are recorded in Konkan 2 fortifying the view that the Chief Justice's order of appointment is a judicial order. ( 5 ) IN the various sub-sections of section 11 words appear to the effect that "the appointment shall be made, upon request of a party, by the Chief justice or any person or Institution designated by him. " we have taken these words from sub-section (4), but the support of the other sub-sections is very similar. ( 6 ) MUST the Chief Justice make appointment? In our opinion the power to appoint includes the power not to appoint. The use of the word "shall" is not conclusive. Appointment might be refused if pre-conditions are clearly not fulfilled. However, if the objections to the appointment need lengthy arguments, the appointment might be made reserving those arguments to be made again before the arbitrator. ( 7 ) IS the Chief Justice's designate equally powerful? An idea is not afoot, that the matters of appointment might be wholly given over by the Chief justice to his designate. This is a grossly wrong idea. The power of the chief Justice is either to nominate the arbitrator himself or to designate another person who will make the nomination. Either for nomination or for designation the Chief Justice will have to be satisfied about the preliminaries. The designation of the nominator by the Chief Justice must be from case to case and not general designation for all matters. ( 8 ) CHANGES from the old law. Under the Act of 1940 applications inter alia under sections 8, 20 and 33 could be made to District Courts also. In the first two of those sections appointments of Arbitrators were possible. In the present law wherever parties need the intervention of the court for nomination of Arbitrator, they have to approach the High Court of the State. The old law has been changed. Power to nominate an Arbitrator has been centralized in every state. The second change is that under the old Act the Court always itself nominated the Arbitrator. Under the new Act there is a possibility of designation of the nominator. These two do not exhaust the list of changes. ( 9 ) IS the Chief Justice a persona designate. ? Power to nominate an Arbitrator has been centralized in every state. The second change is that under the old Act the Court always itself nominated the Arbitrator. Under the new Act there is a possibility of designation of the nominator. These two do not exhaust the list of changes. ( 9 ) IS the Chief Justice a persona designate. ? In our opinion there is no escape to opining that all references to the Chief Justice of High courts in section 11 must be read as references to the High Court itself. Similarly, and we say this in a milder voice, with the Chief Justice of India and the Supreme Court. Any other interpretation would render the section unconstitutional. If the Chief Justice has been designated by Parliament to do an administrative work, separate and outside the administrative work relating to the state Judiciary already entrusted to the Chief Justice in the Constitution, then Parliament has overstepped its limits. The Chief Justice cannot be made an administrator at the will of parliament. If on the otherhand the order of the Chief Justice under section 11 is a judicial one and Parliament requires the Chief Justice himself to exercise that power then again such mandate goes against Article 225 of the Constitution of India. By that Article, preserving the law then in force at that time the Chief Justice has list fixing powers. Judicial work can be allocated by the Chief Justice and it is his prerogative. If Parliament usurps the power to fix a certain list to the Chief Justice himself Parliament seeks to amend the constitution. If that can be done without offending the basic structure, that at least requires a Constitution amending Act. ( 10 ) WHO is the Chief Justice? it will be seen from Articles 124 (1) and 216 of the Constitution that the High court is the Chief Justice and its other judges, just as the Supreme Court is chief Justice of India and the other judges of the Supreme Court. The court buildings are not the Court, nor anything else connected with the Court but the Court is the body of Judges. A reference to the Chief Justice is, therefore, a reference to the Court of which he is the Chief Justice. The court buildings are not the Court, nor anything else connected with the Court but the Court is the body of Judges. A reference to the Chief Justice is, therefore, a reference to the Court of which he is the Chief Justice. Scheme: ( 11 ) THE scheme to be framed under section 11 sub-section (10) is to be a scheme of the High Court itself. It is to be fixed in a Full Court and thereafter gazetted. The present scheme made by the then Hon'ble chief Justice V. N. Khare alone, requires serious alteration. ( 12 ) THE only way to read down section 11 and make it constitutional is to take references of the Chief justice as references to the concerned high Court, to alter pronouns such as "him" and "whose" into other pronouns or phrases which fit the word "court" rather than an animate person; and to hold that applications for appointments are to be by petitions to High courts under section 11 as has been made here, and those are to be disposed of by the arbitration Court nominated by the Hon'ble Chief Justice both as to preliminaries and as to nomination or designation as the case might be. ( 13 ) IN this view of the matter the appeal succeeds. The matter is remanded to the Hon'ble Judge of the first Court who, having hold that the matter is related to the State of West bengal, and not any other State, shall proceed to make the nomination or designation, as thought fit, at his Lord-ship's convenience. His Lordship, however, should not designate the Hon'ble chief Justice to nominate, as one judge, (least of all the C. J.) cannot be made to act at the behest of another brother Judge. There will be no order as to costs. All parties and all others concerned to act on an authenticated copy of this judgment and order on the usual undertakings. Appeal allowed.