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2005 DIGILAW 756 (GAU)

Subhash Project and Marketing Ltd. v. State of Arunachal Pradesh

2005-10-06

H.N.SARMA

body2005
JUDGMENT H.N. Sarma, J. 1. In this batch of writ petitions filed under Article 227 of the Constitution of India, the jurisdictional authority of the Deputy Commissioner, Papumpare District, Yupia in the State of Arunachal Pradesh to entertain the applications under Section 34of the Arbitration and Conciliations Act, 1996 filed by the petitioners praying for setting aside the award passed by the arbitrator in the matter of the related dispute that arose between the parties, have been challenged. 2. The State of Arunachal Pradesh having invited tender on 26.9.1992 for execution of 5 (five) Micro Hydel Schemes For installation in the East Siang district (02 Nos), West Siang district (01 No) and Tawang district (02 Nos), the Petitioners submitted their tenders and the contracts were awarded to them. The aforesaid Micro Hydel Projects were, sought to be implemented Keeping in view the acute power shortage in the State and to meet the demand and develop the power sector of the State. The tenders of the petitioners having been accepted by the department a letter of acceptance dated 17.3.1993 was issued and in terms of the said letter, the Petitioner was a1lotte the contract in question for commissioning of the said projects on turnkey basis for a fixed lump sum amount. On 18.3.1993, formal deed of contract was executed between the parties. It is alleged by the Petitioner that the works, in question, could not be completed within the time framed due to fundamental breach of terms of the contract attributing to Respondent No. 2. On the other hand, the Respondents-State contends that although the contract was to be executed within the stipulated period of 18 months, the Petitioners failed to carry out their ob ligation and out of the total contract value for the projects amounting to Rs. 105.31 crores (for 06 projects), the Petitioners were paid an amount of Rs. 65.39 crores, which is 62.09% of the total contractual value without any proportionate return in terms of work, thereby jeopardizing the public interest. 105.31 crores (for 06 projects), the Petitioners were paid an amount of Rs. 65.39 crores, which is 62.09% of the total contractual value without any proportionate return in terms of work, thereby jeopardizing the public interest. The Respondents contend that in spite of the contract having been awarded at, exorbitantly high rate, which is 402% above the Arunachal Pradesh Scheduled Rates, 1992 for Civil Works, while the present ongoing rate is only 60% above 1992 rates, and accordingly the price quoted by the Petitioners for civil works was 342% higher than the on going rate and the same is now a subject matter of enquiry by the Central Bureau of Investigation since 07.12.2000. 3. Meanwhile a dispute having been raised by the Petitioners, the Hon'ble Chief Justice of the Gauhati High Court vide order dated 16.3.2001 passed in Arbitration Petition No. 25/2001, as consented by the parties, appointed Hon'ble Mr. Justice R.K. Monisena Singh, a Retired Judge of the Gauhati High Court as sole arbitrator to adjudicate the dispute so raised. Being apprehensive of serious biasness on the part of the learned arbitrator due to certain omissions/commissions in the pending arbitration cases/proceedings before the learned Tribunal, the Respondent No. 2 initiated a proceeding for removal of the arbitrator before the Court of the learned. Deputy Commissioner, Papum Pare District under Section 14 of the Act alleging serious biasness and alleging that the arbitrator has become unable to perform his function and hence, the mandate of the arbitrator stood terminated and the said petition was numbered as Arbitration Petition No. 08 of 2003. The said proceedings, wherein the learned Deputy Commissioner, Papum Pare, Yupia stayed the arbitrator proceedings vide order dated 13.11.2003, were challenged by filing the writ petitions No. 9948-9953 of 2003 and 609 of 2004 before the High Court and High Court disposed the said writ petitions, vide judgment and order dated 26.05.2004 inter alia holding that the proceeding before the learned Deputy Commissioner was not maintainable in law without raising the issue first before the learned arbitrator Under Section 12 and13of the Act and the interim stay of the arbitration proceeding granted by the Deputy Commissioner was also vacated. Thereafter, on 28.5.2004, the learned Arbitral Tribunal passed an award in the connected cases against the Respondents. Thereafter, on 28.5.2004, the learned Arbitral Tribunal passed an award in the connected cases against the Respondents. The order dated 26.5.2004 was also challenged by the State by filing a writ appeal No. 265 of 2004, which is pending for adjudication and the operation and effect of the impugned order dated 26.5.2004 was stayed therein. 4. The awards passed by the learned Arbitral Tribunal dated 28.5.2004 passed in 5 (five) different cases were challenged by the Respondents Under Section 34 of the Arbitration and Conciliations Act, 1996 before the learned Deputy Commissioner, Papum Pare District, Yupia which were registered and numbered as Arbitration Case Nos. 11-15 of 2004. Admitting the Petitioners summons were issued by the learned Deputy Commissioner on 18.10.2004 against the Petitioners. Challenging the aforesaid proceeding before the Deputy Commissioner and summons dated 18.10.2004 issued by him, the present applications under Article 227 of the Constitution of India have been filed by the Petitioners, giving rise to the present Cases. 5. I have heard Mr. G.N. Sahewalla, learned Senior Counsel assisted by Mr. B. Habung, learned Counsel for the petitioners. Also heard Mr. P.K. Goswami, learned senior counsel assisted by Mr. A. Choudhury, learned Counsel appearing on behalf of the Respondent No. 2 Power department and Mr. A. Apang, learned Additional Senior Govt. Advocate Appearing on behalf of the Respondent No. 1. 6. An affidavit-in-opposition has also been filed on behalf of the Respondent No. 2 highlighting the necessary facts and controverting the points raised by the petitioners in these petitions. 7. Mr. Sahewalla, learned Senior Counsel submitted that the court of the Deputy Commissioner in Arunachal Pradesh is not a "Court" within the meaning of Section2(1)(e) of the Arbitration and Conciliation Act, 1996 (hereinafter referred as 'the Act' for short) read with Section 1(3) and 2(4)and Section 17(3) of General Act and con sequently the proceedings initiated before the learned Deputy Commissioner, Papum Pare district at Yupia under Section 34 of the Act are without jurisdiction. It is further submitted that the parties to the agreement having agreed that the contract shall be subject to jurisdiction of the High Court at Guwahati and in the court Sub-ordinate to it and the Court of learned Deputy Com missioner not being a Court Sub-ordinate to the Gauhati High Court, it has no authority to assume jurisdiction to decide the applications Under Section 34 of the Act and only the Court Sub-ordinate to the High Court possesses such jurisdiction. Another limb of submission has also been made by Mr. Sahewalla to the effect that the Petitioners do not expect to get fair justice from the court of the Deputy Commissioner, who is under the control of State Govt. and are bound by the dictates of the Govt. 8. Mr. P.K. Goswami, learned Senior Counsel on the other hand submitted that in terms of the provisions of the Assam Frontier (Administration of Justice) Regulation, 1945, Civil justice in the State is administered by a set of authorities including the Deputy Commissioner and the Deputy Commissioner is the empowered court within the meaning of Section 34 of the Act and has absolute jurisdiction to entertain such applications. It is further submitted by Mr. Goswami that the cause of action relating the matter in dispute in all the cases having arisen, even partly, at Itanagar and some of the subject matter of contract having been situated within the district, the Deputy Commissioner, Papum Pare has got the jurisdiction to entertain such application and none of the clauses of the contract divest the Deputy Commissioner from exercising such powers/jurisdiction. Referring to various provisions of the Assam Frontier (Administration of Justice) Regulation, 1945, the State of Arunachal Pradesh Act, 1986 and the Arbitration and Conciliations Act, 1996 as well as the UNCITRAL MODELLA Ws, The Arunachal Pradesh Interpretation and General Classes Act, 1982, it is submitted by Mr. Goswami that the Court of the Deputy Commissioner, in the State of Arunachal Pradesh, is the principal court of civil jurisdiction before whom an application for setting aside of the award under Section 34 of the Act requires to be filed and the said Court possesses jurisdiction to decide such a matter and the learned Deputy Com missioner, Papum Pare district by entertaining the impugned award has not com mitted any jurisdictional error. 9. Mr. A. Apang, the learned Additional Senior Govt. 9. Mr. A. Apang, the learned Additional Senior Govt. Advocate has also endorsed the submissions made by Mr. Goswami and stoutly rules out any possibility of biasness on the part of the learned Deputy Commissioner in deciding the matter. It is submitted further that the Deputy Commissioners throughout the State is administering civil justice under the provisions of the Assam Frontier (Administration of Justice) Regulation 1945, and even prior to framing of the said Regulation and no bias can be attributed upon such courts as because they are officers under the Govt. 10. I have given my anxious considerations on the submissions made by the learned Counsel for the parties. The crux of the submission of Mr. Sahewalla is that the Court of the Deputy Commissioner, before him, the applications have been filed under Section 34 of the Act, is not a Court within the meaning of Section 34 and he wrongly assumes jurisdiction over the matter. Before dealing with the matter with references to the various provisions of law as cited by the learned Counsels, I feel it convenient and necessary to see what is the concept of jurisdiction in such a matter, existence or non existence of what is seriously disputed by the parties. According to Legal Thesaurus by William C. Barcom, (page 304) "jurisdiction" means: Authority; authority to' hear and decide a case, capacity to decide the matter, issue, capacity to hear the controversy, command, control, decision making power over the case, domain, dominations, dominion, extent of authority, grasp, jurisdiction legal authority, legal' power, legal power to decide a case, legal right, power, province, purview, range, reach, realm, reign, sovereignty sphere, superintendent, supervision, territorial range of authority, territory. In Blacke's Law of Dictionary, 7th Ed. (Page 855) jurisdiction is defined inter alia as 'A Court's powers to decide a case or issue a decree' (the constitutional grant of federal-question jurisdiction). By "Jurisdiction" it means the authority which a Court has to decide matters that are litigated before it or to take cognizance of matters presented in a formal way for its decision. The limits of this authority are imposed by the stature chariton or commission under which the Court is constituted and may be extended or restricted by similar means (Ref: Halsburry's Law of England, 4th Edn. Vol.-10, Page 323). The limits of this authority are imposed by the stature chariton or commission under which the Court is constituted and may be extended or restricted by similar means (Ref: Halsburry's Law of England, 4th Edn. Vol.-10, Page 323). Thus, it is seen that the term "jurisdiction" means the authority to entertain, hear and decide a case or dispute. In Section 34 of the Arbitration and Conciliation Act, 1996, reference to the word "Court" is found. Section 2(1)(e) of the Act defines "Court" as follows: Court means principal of civil court of original jurisdiction in a district and includes the High Court in exercise of its ordinary original civil jurisdiction, having jurisdiction to decide the questions forming the subject matter of Arbitration further the same has not the subject matter of the suit, but does not include any civil court of grade inferior to subject principal court, or any court of small causes. 11. It will also be worth while to mention hear the definition as provided under Article 2 of the Uncitral Model Laws, wherein it is defined as follows: 2(1)(e), "Court" means a body or organ of a judicial system of the State. Courts are created by the authority of the sovereignty the fountain of justice by way of statute or otherwise. 12. It is now relevant for us to see what Section34 of the Arbitration and Conciliation Act, 1996 provides - Section 34 is quoted below: Section 34. Application for setting aside arbitral award- (1) Recourse to a court against an arbitral award may be made only by an application for setting aside such award in accordance with Sub-section (2) and Sub-section (3). (2) An arbitral award may be set aside by the court only if. Application for setting aside arbitral award- (1) Recourse to a court against an arbitral award may be made only by an application for setting aside such award in accordance with Sub-section (2) and Sub-section (3). (2) An arbitral award may be set aside by the court only if. (a) The party making the application furnishes proof that: (i) A party was under some incapacity, or (ii) The arbitration agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law for the time being in force; or (iii) The party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or (iv) The arbitral award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration: Provided that, if the decision on matters submitted to arbitration can be separated from those not so submitted, only that part of the arbitral award which contains decisions on matters not submitted to arbitration may he set aside; or (v) The composition of the arbitral or the arbitral procedure was not in accordance with the agreement of the parties, unless such agreement was in conflict with a provision of this Part from which the parties cannot derogate, or, failing such agreement, was not in accordance with this Part; or (b) The Court finds that: (i) The subject-matter of the dispute is not capable of settlement by arbitration under the law for the time being in force, or (ii) The arbitral award is in conflict with the public policy of India. Explanation-Without prejudice to the generality of Sub-clause (ii) of Clause (b), it is hereby declared, for the avoidance of any doubt, that the award is in conflict with the public policy of India if the making of the award was induced or affected by fraud or corruption or was in violation of Section 75 or Section81. Explanation-Without prejudice to the generality of Sub-clause (ii) of Clause (b), it is hereby declared, for the avoidance of any doubt, that the award is in conflict with the public policy of India if the making of the award was induced or affected by fraud or corruption or was in violation of Section 75 or Section81. (3) An application for setting aside may not b made after three months have elapsed from the date on which the party making the application had received the arbitral award or, if a re quest had been made Under Section 33, from the date on which that request had been disposed of by the arbitral tribunal. Provided that if the court is satisfied that the applicant was prevented by sufficient cause from making the application within the said period of three months it may entertain the application within a further period of thirty days, hut not thereafter. (4) On receipt of an application under Sub-section (1), the court may, where it is appropriate and it is so requested by a party, adjourn the proceedings for a period of time determined by it in order to give the arbitral tribunal an opportunity to resume the arbitral proceedings or to take such other action as in the opinion of arbitral tribunal will eliminate the grounds for setting aside the arbitral award. In order to assume the jurisdiction to decide an application filed Under Section 34 of the Arbitration and Conciliation Act, the Court must be principal civil Court of original jurisdiction in a district. Referring to the definition of the terms "Court" as per UNCITRAL Model laws, it may not even be a court stricto senso as is understood in the Common Penance, but it should be a body or origan of judicial system of the State. 13. In order to deal with the matter in hand effectively, a little trace of the history of administration of justice in these areas, presently in the State of Arunachal Pradesh is considered necessary. 13. In order to deal with the matter in hand effectively, a little trace of the history of administration of justice in these areas, presently in the State of Arunachal Pradesh is considered necessary. The Hill areas of Assam, which were later on came to be known as North East Frontier Tract, was under the administration of the Deputy Commissioners, Lakhimpur and Darrang districts of Assam, were separated by issuing a notification No. 978 EB dated 20.5.1914 issued Under Section1 of the Assam Frontier Tracts Regulation 1880 extending the provisions of the said Regulation to the tract inhabited by Singphos, Nagas and Khamtis and separated from the Lakhimpur district by the said notification. By similar notification No. 979 EB dated 25.9.1914, the said Regulation was extended to the tract comprising from the hills inhabited by Aka, Dafla, Miri, Mishmi, Abor and separated from Lakhimpur and Darrang Districts. As a result, the North East Frontier Tract came into existence comprising of the following 3 (three) administrative units (i) the Central and Eastern Section, (ii) Lakhimpur Frontier Tract; and (iii) the Western Section, comprising the areas within the present State of Arunachal Pradesh. In 1919, the Central and Eastern Section were renamed as Sadia Frontier Tract and the Balipara Frontier Tract. However, the Lakhimpur Frontier Tract continued to be known as such. In 1921 all these Tracts came to be known collectively as "backward tracts" within the meaning of Section 52(a)of the Govt. of India Act, 1919. 14. The aforesaid Tracts were made excluded areas of Assam under the Provisions of Section 81(1)of the Govt. of India Act 1935, which was given effect to by, the Govt. of India (Excluded and partially Excluded areas) Order of 1936. The excluded areas came under direct charge of the Governor who administered them in his discretion Under Section 92 of the Govt. of India Act 1935 through political Officers and the Deputy Commissioner, Lakhimpur. 15. In the year 1943, a new administrative unit was formed, which came to be known as Tirap Frontier Tract, with certain areas from the Lakhimpur Frontier Tract, Sadia Frontier Tract. In the year 1946, the Balipara Frontier Tract was divided into Se La Sub Agency and Subansiri Area. In 1948, as per North East Frontier Tracts (International Administration) Regulation, 1948, formed under Section92 of the Govt. In the year 1946, the Balipara Frontier Tract was divided into Se La Sub Agency and Subansiri Area. In 1948, as per North East Frontier Tracts (International Administration) Regulation, 1948, formed under Section92 of the Govt. of India Act 1935, the remaining area of Sadiya Frontir Tract was bifurcated into two Abor Hills District and the Mishmi Hills District. In the year 1951, the plain portions of the Balipara Frontier Tract, Tirap Frontier Tract, Abor Hills district and Mishmi Hills district were excluded and transferred to the administrative jurisdiction of the Assam vide notification No. TAD/R135/501 109 dated 23.2.195 1. As per North East Frontier Areas (Administration) Regulation 1954, the territories of the North East Frontier Tract namely, Balipara Frontier Tract, Tirap Frontier Tract, Abor Hills District and Mishmi Hills District came to be known as North East Frontier Agency, for short 'NEFA'. Although certain areas of Tuengsang district of tribal areas were added in the back ward tracts of Assam, subsequently, in the year 1957, those areas were transferred to form a part of the present Nagaland State. The NEFA (Administration) Regulation, 1965 which was promulgated in exercise of powers under Article 240 read with sub para.2 of the paragraph 18 of the 6th Schedule of the Constitution, was promulgated by which existing 5 (five) Frontier divisions of NEFA were recognized as five different districts. By a Regulative enactment known as "North Eastern Areas (Re-organization) Act, 1971", the Union Territory of Arunachal Pradesh was established with the territories which immediately before the appointed day (21.1.72) were comprised in the tribal areas specified in Part "B" of the table in Para 20 of the 6th Schedule of the Constitution but excluding the areas covered vide notification No. TDA/R/35/50/109 dated 23.2.1951 and known as "NEFA" ceasing the same to form a part of the State of Assam conferring it to a status of Union Territory. Since, then, the said territory was administrated by the Governor nor of Assam with executive and legislative powers till the formation of the "State of Arunachal Pradesh" which came into being vide enactment of "the State of Arunachal Pradesh Act, 1986" with effect from 20.2.1987. 16. Since, then, the said territory was administrated by the Governor nor of Assam with executive and legislative powers till the formation of the "State of Arunachal Pradesh" which came into being vide enactment of "the State of Arunachal Pradesh Act, 1986" with effect from 20.2.1987. 16. As to the administration of justice in the area in question, in exercise of the powers conferred under Assam Frontier Tracts Regulation, 1880, and in terms of notification issued in the year 1914, the operation of the laws then, in force in the Tracts were barred vide notification dated 13.10.1914. Under the provisions of the Scheduled District Act, 1874 certain Central Acts and State laws were declared to be in force in the tracts vide notifications No. 4955, 4957, 4959 dated 18.8.1916. By the said notification, the Indian Penal Code, 1860, Police Act, 1861, Bengal Regulation Act, 1873 and Assam Frontier Regulation 1891 were also made applicable. However, it is more worthy that the Code of Civil Procedure and Code of Criminal Procedure and the Transfer of Property Act, Registration Act and the Indian Succession Act were not applied in this area. 17. Under Section 52(A) of the Government of India Act 1915-19, the Governor General in Council had the power to direct that any Act or part thereto of the Indian Legislature shall not be applied to the "backward tract". The Governor General in Council, in fact, issued a notification authorizing the Governor of Assam in Council to direct that any act or part thereof of the legislature Of Assam shall not apply with such exceptions or modifications as he might think fit. Thereafter on enactment of the Govt. of India Act, 1935 as per Section 92, no Act of the Central or Provisional legislature could apply to the "excluded areas" unless the Governor so directed. The net result of the enactment and notifications issued was that since the year 1914 till coming into force of the Constitution the enactment of the Central Govt. or State Legislature, did not apply automatically in these areas i.e. in the North Eastern Frontier Tract. After coming into force of the Constitution, these Frontier Tracts were included in part 'B' "tribal areas" under Para 20 of the 6th Schedule of the Constitution. or State Legislature, did not apply automatically in these areas i.e. in the North Eastern Frontier Tract. After coming into force of the Constitution, these Frontier Tracts were included in part 'B' "tribal areas" under Para 20 of the 6th Schedule of the Constitution. Since the Frontier Tracts were not notified as autonomous district under the 6th Schedule of the Constitution, the provisions of Paragraph 20 of the 6th Schedule relating to the applicability of the Central Government and the administrative laws did not arise. 18. In the year 1986, "The State of Arunachal Pradesh Act" was enacted and administration was to be in accordance with the provisions of the said Act. Under Section 46, all laws in force, immediately before the appointed day, in the existing Union territory of Arunachal Pradesh, until altered, repealed or amended. Section 48 provides that all courts and tribunals and all authorities discharging lawful functions throughout the existing Union territory of Arunachal Pradesh or any part thereof immediately before the appointed day shall, unless their continuance is in consistent with the provisions of the Act or until other provision is made by a competent Legislature or other competent authority, continue to exercise their respective functions. Section 46 and 48 are quoted below: 46. (1) All laws in force, immediately before the appointed day in the existing Union Territory of Arunachal Pradesh shall continue to be in force in the State of Arunachal Pradesh until altered repealed or amended by a competent Legislature or other competent authority. (2) For the purpose of facilitating the application in relation to the State of Arunachal Pradesh of any law made before the appointed day, the appropriate Government may, within two years from that day, by order, make such adaptations and modifications of the law, whether by way of repeal or amendment, as may be necessary or expedient, and thereupon every such law shall have effect subject to the adaptations and modifications so made until altered, repealed or amended by a competent Legislature or other competent authority. Explanation: In the Section, the expression "appropriate Government" means, as respects any law relating to a matter enumerated in the Union List in the Seventh Schedule to the Constitution, the Central Government and as respects any other law, the Government of the States of Arunachal Pradesh. 48. Explanation: In the Section, the expression "appropriate Government" means, as respects any law relating to a matter enumerated in the Union List in the Seventh Schedule to the Constitution, the Central Government and as respects any other law, the Government of the States of Arunachal Pradesh. 48. All courts and tribunals and all authorities discharging lawful functions throughout the existing Union territory of Arunachal Pradesh or any part thereof immediately before the appointed day shall, unless their continuance is inconsistent with the provisions of the Act or until other provision is made by a competent Legislature or other competent authority, continue to exercise their respective functions. 19. A survey of the legal history relating to the administration of civil justice in the areas presently falling under the State of Arunachal Pradesh during the British period discloses that during the said period, the provisions of the Code of Criminal Procedure and Code of Civil Procedure were not applied and this system continues till today, although Indian Penal Code was made applicable since 1916. In 1945, consolidating the existing sets of rules, the provisions of Assam Frontier (Administration of Justice) Regulation-1 of 1945 were framed as indicated above. As per Section 52, in deciding the civil dispute, the Courts are to be guided by the spirit and not bound by the letters of the Code of Civil Procedure. By Section 59, the general principles of Indian Evidence Act, 1972 are made applicable in both the criminal cases and civil suits. 20. The State of Arunachal Pradesh enacted an Act namely "Arunachal Pradesh Interpretation General Clauses Act, 1982" where in we get the definition, "District Court" as follows: Section2(23) 'District Court' or the principal court of original jurisdiction means the court of Deputy Commissioner or Additional Deputy Commissioner but does not include the High Court in exercise of its ordinary or extra ordinary original civil jurisdiction. Section 2(24) defines "District Judge" as follows: Section 2(24) 'District Judge' the judge of a district and includes the Additional District Judge. As per the aforesaid two definitions, it is clear that the 'District Judge' means the Judge of the District Court and District Court means, principal court of original civil jurisdiction and the civil jurisdiction means, the court of Deputy Commissioner and Additional Deputy Commissioner. 21. As per the aforesaid two definitions, it is clear that the 'District Judge' means the Judge of the District Court and District Court means, principal court of original civil jurisdiction and the civil jurisdiction means, the court of Deputy Commissioner and Additional Deputy Commissioner. 21. In respect of the tribal areas, the laws which made applicable and administered under the Schedule District Act, 1874 and the Rules for Administration of Justice under the said Act were made applicable and administration of justice in these areas were governed by the Rules so framed. Under the provisions of the Govt. of India Act, 1935, the Rules framed under the Schedule District Act, 1874 continued to remain applicable and on coming into force of the Constitution of India, the said Rules remained to be continued by virtue of Govt. of India (Adoption of Indian Laws) 1937, although the Schedule District Act 1874 was repealed. 22. Assam Frontier (Administration of Justice) Regulation, 1945 were framed by the Governor of Assam, in exercise of the powers conferred under Section 92(2) of the Govt. of India Act, 1935 holds the field relating to Administration of Justice both Civil and Criminal. As per Section 46 of the Regulation, the Civil Justice shall be administered by the Deputy Commissioner, Assistant Commissioner and the Village Authority and the Deputy Commissioner has been provided with the power to try suit of any value and certain other powers regarding arbitration and announcement of the decisions relating to the dispute between the parties are referred to the Section 38 of the Regulation. The Deputy Commissioner also is the appellate authority from the decision. Under Section 48 of the Regulation, an appeal lies upon the original order of the Deputy Commissioner in the High Court and the revision order is also provided against the order passed in appeal by the Deputy Commissioner under Section 50 of the Regulation. The aforesaid provision of administration of civil justice by the Deputy Com missioner is holding in the field till date and this is the structure of administration of civil justice in the State of Arunachal Pradesh. 23. The aforesaid provision of administration of civil justice by the Deputy Com missioner is holding in the field till date and this is the structure of administration of civil justice in the State of Arunachal Pradesh. 23. The aforesaid Assam Frontier (Administration of Justice) Regulation, 1945 was introduced with the express object of ensuring that a vast majority of cases both civil and criminal, may be adjudicated in accordance with the prevailing traditional methods and customs of tribal communities, inasmuch as it has been recognized that the tribal communities need simple codes and laws, focusing importance in their local custom and usages and tradition. Before advent of British in the tribal areas of the Sub-Himalayan region of North East, the Village Council was dispensing justice trying all sorts of cases including those heinous offences like murder, rape and robbery etc. according to their Perennial Customs. While the British occupied these areas they did not alter the basic structure of the authorities and they prohibited certain customs, authorities and method and allowed cases of some nature to be tried either by the Political Officer or his Assistant. Even after independence, the tribal areas of the then Assam in the North Eastern Frontier Tract, administration of justice continued under 1945 Regulation and the Village Councils are still exercising the judicial functions in the matter provided by the Regulation. 24. It is thus, clear that the civil justice was administered during the pre British period by the village authorities and during post British period, it is being administered by the Deputy Commissioner, Assistant Commissioner and the village authorities and out of the 3 (three) agencies, the Deputy Commissioner, tops in the hierarchy. This position was confirmed by a Bench decision of this Court rendered in Abhimanyu Kalita v. Deputy Commissioner and Ors., reported in 1983 (2) GLR 101. In the aforesaid case at para 9, it is inter alia held as follows: 9. ...in these tracts, the Head of the Local Government was the Chief Appellate Authority and the High Court possessed no jurisdiction, except in Criminal Cases against European British Subject; the Deputy Commissioner exercised the combined powers of Judges and District Magistrates and the Assistant and Extra Assistant Commissioners the powers of Magistrates and Munsiffs. Situated thus, the submission of Mr. ...in these tracts, the Head of the Local Government was the Chief Appellate Authority and the High Court possessed no jurisdiction, except in Criminal Cases against European British Subject; the Deputy Commissioner exercised the combined powers of Judges and District Magistrates and the Assistant and Extra Assistant Commissioners the powers of Magistrates and Munsiffs. Situated thus, the submission of Mr. Sahewalla that the Deputy Commissioner cannot be equated to that of a District Judge for the purpose of the present case has no force. 25. Referring to Chapter VI of the Part VI of the Constitution of India, particularly, Articles 233, 234and 235 of the Constitution, it is next submitted by Mr. Sahewalla that the Deputy Commissioner, not being appointed as district judge under the Articles 233/234 is not subjected to control by the High Court under Article 235 and as such, is not entitled to exercise the powers of principal civil court to entertain such applications under Section 34 of the Arbitration and Conciliation Act, 1996. Thus, the core of the issue that falls for consideration in this batch of petitions is whether the court of the Deputy Commissioner is the principal original civil jurisdiction within the meaning of the Section 2(1)(e). In order to answer the aforesaid issue, you are to trace to some extent the history of the region in administering civil jurisdiction. 26. Relating to the control, appointment, subordination the Deputy Commissioner by the High Court under Articles 233/234 vis-a-vis jurisdiction to entertain the petitions, Mr. Sahewalla has fairly re lied on the decision of the Apex Court, reported in (1992) 2 SCC 428 (Shri Kumar Padma Prasad v. Union of lndia and Ors.). The aforesaid case relates to appointment of High Court Judge under Article 217(2)(a) and in interpreting the qualification for such appointment by holding a judicial office the Apex Court interpreted the provisions of Articles 233 and 234. The facts of the present cases are not at all applicable with the aforesaid case and the ratio decided therein, is not applicable. Reliance has also been placed by the learned Counsel, upon the Case reported in (1998) 3 SCC 72 (High Court of Judicature for Rajasthan v. Ramesh Chand Paliwal and Anr.). The facts of the present cases are not at all applicable with the aforesaid case and the ratio decided therein, is not applicable. Reliance has also been placed by the learned Counsel, upon the Case reported in (1998) 3 SCC 72 (High Court of Judicature for Rajasthan v. Ramesh Chand Paliwal and Anr.). Referring to Para 34 of the judgment, it is submitted that Article 235 of the Constitution shows that the High Court has to exercise its administrative, judicial and disciplinary control over the members of the judicial service of the State and the word "control" is used in a comprehensive sense to include general super intendence of the working of the subordinate courts, disciplinary control over the Presiding Officers of the subordinate courts and to recommended the impositions of punishment of dismissal, removal and reduction in rank or compulsory retirement. Further, the word "Control" would also include suspension of a member of the judicial Service for purposes of holding judicial enquiry etc. The Sub mission that the High Court not having such powers over the Deputy Commissioner in such matters, the Deputy Com missioner has no jurisdiction to entertion the application under Section 34 of the Act is a fallacious one and I find that the ratio of the said case is equally not applicable in the instant case in view of the fact that in this case but we are concerned whether the Deputy Commissioner, Papum Pare district Yupia is the principal Court of original civil jurisdiction for entertaining the applications within the meaning of Section 34 of the Arbitration and Conciliation Act, 1996 and legal and historical backgrounds of the administration of justice, both in pre and post period of British and as it exists on today confirms that the Deputy Commissioner is the Principal Court of original civil jurisdiction of the district court. There is no dispute about the ratio of the Cases cited by Mr. Sahewalla, but I do not find that the same are applicable in the instant case. The other cases referred by Mr. Sahewalla, namely AIR 1999 Sc 1098 , (1995) 6 SCC 765 and AIR 2000 sc 2732 are also not applicable in the facts and circumstances of the instant case. 27. Sahewalla, but I do not find that the same are applicable in the instant case. The other cases referred by Mr. Sahewalla, namely AIR 1999 Sc 1098 , (1995) 6 SCC 765 and AIR 2000 sc 2732 are also not applicable in the facts and circumstances of the instant case. 27. It has been faintly submitted by the learned Counsel that the Deputy Commissioner is an executive officer under the control of the State Government and as such he is likely to be influenced by the Govt. and should not be permitted to hear such applications so as to exclude total bias in the matter. 28. 'Bias' pertains to an individual and not to a Court, "Court" and "Officer" pre siding the Court are two distinct and separate entities and 'bias' in an appropriate case may be attributed to the officer and not to the court, which is machinery for administration of justice. The applications under Section34 have been filed in the Court of the Deputy Commissioner and the Court is to decide the same as an organ or body of a prevailing judicial system in the State. The contention of biasness is made only as on as apprehension and without any factual basis, on supposition only. If this contention is accepted, I apprehend, it will lead to a disastrous situation uprooting the entire system of administration of justice in the State prevailing over century. 29. Adverting to the other submissions of Mr. Sahewalla that the Deputy Commissioners lacks jurisdiction to entertain the application under Section 34 of the Act on the ground that they are not appointed by the Governor of the State in consultation of the High Court and as such, the High Court does not have control over them, they not being Sub-ordinate to the High Court in terms of the Articles 233 and 234 is equally fallacious. The aforesaid Constitutional provisions are made for appointment of a district judge for control of the district court and the court subordinate thereto and dealing with the matters relating to posting and promotion etc. of a person belonging to the judicial services of the State. In the instant case, we are concerned with the jurisdiction of the court in which the applications Under Section 34 is to be filed in the State of Arunachal Pradesh. of a person belonging to the judicial services of the State. In the instant case, we are concerned with the jurisdiction of the court in which the applications Under Section 34 is to be filed in the State of Arunachal Pradesh. To put it otherwise, whether the Deputy Commissioner, Papum Pare District can be regarded as the principal court of original civil jurisdiction in terms of Section 2(1)(e) of the Arbitration Act, 1996. As eluded hereinabove, the Code of Civil Procedure is not applied in the State till date and accordingly we do not find the classes of court as referred in the Code of Civil Procedure or in the Bengal Agra and Assam Civil Courts Act (Act No. 12 of 1887) which is also not made applicable in the State of Arunachal Pradesh. In terms of the provisions of Assam Frontier (Administration of Justice) Regulation 1945, the civil justices are being administered by the Deputy Commissioner within the State till date and the provisions of General Classes Act legislated by the State leaves no doubt about the authority of the Deputy Commissioner as the principal court of original civil jurisdiction. 30. The High Court is provided with adequate powers and authority to deal with the correctness or otherwise of the decisions rendered by the Deputy Commissioner, being the appellate authority under Section 48 of the Regulation, 1945. Further, the High Court is also conferred with the powers of revision under Section 50 of the said Regulation by calling for the proceedings of any original case or appeal decided by the Deputy Commissioner and not appealable under the Regulation and may pass such order as it may deem fit. Thus the High Court exercises control and has power of superintendence over the Court of the Deputy Commissioner. 31. Mr. P.K. Goswami, learned Senior Counsel on the other hand has relied upon the following decisions in support of his arguments, reported in AIR 1960 SC 304 (S.M Bhagwati Devi v. S.M. Uma Chatterjee), (1991) 2 GLR 416 (Sadhan Chandra Das v. Smti Edilik Sangma and Ors.), (1983) 1 GLR 36 (Sang Phuntso, Gaon Bura of jang village v. Darjee Mindu and Ors.), (1993) 1 GLR 23 (Sri Kulendra Kumar Dey and Anr. v. Union Territoiy of Arunachal Pradesh), AIR 1967 SC 212 (State of Nagaland v. Ratan Singh), civil Appeal No. 659 of1957 ('Gurumayum Sekhigopal Sarma v. K Onghi Anisija Devi) and 1999 (2) SCC 479 (Sundaram Finance Ltd. v. NEPC India Ltd.) 32. In Gurumayum Sekhigopal (supra), the Apex Court deals with a case relating to the applicability of the spirit of the Code of Civil Procedure where the Code does not apply to Manipur and it was excluded by legislation then in force. Interpretating Section 52 of the Manipur State Hill Peoples (Administration) Regulation, 1947, it is held by the Apex Court that all Courts shall be guided by the spirit but shall not be bound by the letters of the Code of Civil Procedure, 1908 and shall follow the State Limitation Act. It is further held by the Apex Court that this is a piece of legislation which is somewhat strange, but the reason appears to be that the technicalities of the Code, should not trammel litigation embarked upon by a people unused to them. 33. In Ratan Singh (Supra), in answer to an attack on the legality and validity of the Rules for Administration of Justices and P in Naga Hills Districts, 1906, revised in 1937, the Constitutional Bench of the Apex Court at Para 24 and 25, held as follows: (24). The contention that the Rules of 1937 were void ab initio is supported by many arguments. The submission is that Sections 6 and 7 of the Scheduled District Act did not confer any powers of legislation to regulate judicial procedure. It is pointed out in this connection that Section 6(a) gave powers to appoint officers to administer civil and criminal justice and Section6(b) allowed the procedure of the officers so appointed to be regulated which meant administrative procedure and no general law-making authority can be implied and Section 6(c) enabled the choosing of authority by which any jurisdiction, power or duty incident to the operation of any enactment for the time being in force should be exercised or performed in any scheduled district. Reference is made in this connection Section 6(c) of the Act of 1809 where it was laid down that the officers so appointed would, in the matter of administration and superintendence, be subject to the direction and control of the Governor and would be guided by such instructions as he might from time to time, issue. It is contended that by regulating the procedure is meant instructions on the administrative side. (25) In our opinion this is a wrong reading of the Section. We must not forget that the Scheduled Districts Act was passed because the backward tracts were never brought within the operation of all the general Acts and Regulations (particularly the Code of Criminal Procedure) and were removed from the operation and jurisdiction of the ordinary courts of Judicature. In these areas the Indian Penal Code was always applicable but not the Code of Criminal Procedure. The local Governments were empowered by the Scheduled District Act to appoint officers to administer civil and criminal justice and to regulate the procedure of the officers so appointed. Officer appointed to administer civil and criminal justice must follow some procedure in performing this task. Regulating procedure, therefore, meant more than framing administrative rules. It means the control of the procedure for the effective administration of justice. It is sufficient that the Governor General in Council, who enacted the Scheduled Districts Act, framed the Rules of 1874 considering comprehensive rules of procedure for dealing with the criminal cases. This was a clear exposition of Sections 6 and 7 of the Scheduled Districts Act by the Governor-General in Council himself. The Act was understood and conferring full powers to regulate not the administrative procedure only but also the procedure for administration of criminal justice. As the Rules of 1872, 1874, 1906 and 1937 were almost the same (except for a few changes rendered necessary by the altered political conditions). It is clear that a succession of officers saw the necessity of Rules controlling not only the administrative the side but the judicial side of administration of justice. In our judgment the construction of Sections 6 and 7 attempted by the Respondents cannot be accepted. 34. The Apex Court further approving Shekhigopal, at para 29 inter alia held that Courts should be guided by the spirit and should not be bound by the letter of the Code of Civil Procedure. In our judgment the construction of Sections 6 and 7 attempted by the Respondents cannot be accepted. 34. The Apex Court further approving Shekhigopal, at para 29 inter alia held that Courts should be guided by the spirit and should not be bound by the letter of the Code of Civil Procedure. It was also held that by enacting such a law with an eye to simplicity applicable to the people in the backward tracks is not discriminatory one and also held that the Code of Civil Procedure is not applied but its spirit is applied in the State. 35. In Kulendra Kr. Dey (Supra), it was held (Hon'ble Hansaria, J) that Arunachal Pradesh was a part of the "tribal areas" of Assam for whose administration special provisions were made in the Sixth Schedule to the Constitution of India and such special provisions were made keeping in view of the backwardness and particular situation of the tracks. 36. In Sang Phuntso (Supra), it was held by (Hon'ble K.M. Lahiri, J) that to resolve the disputations it is necessary to recount the provisions of trial system under the Regulation, Civil Justice is administered by the Deputy Commissioner and the Village Authority. The complex procedural laws applicable in the rest of India are not applicable in Arunachal Pradesh. The Court system and the forensic process are somewhat novel and typical, different from these followed or obtainable in the rest of India. 37. In Sadhan Chandra Das (Supra), it was held by (Hon'ble Home Choudhury, J) that from the provisions of the Rules for Administration of Justice (in Meghalaya) it appears that in the tribal areas hitherto partially excluded area where Administration of justice are rendered under the pro visions of Rules for the Administration of Justice and police framed Under Section 6 of the Scheduled Districts Act, 1874, there can not be any dispute that the court of Deputy Commissioner is the principal civil court having all the powers of Sessions Judge in the district. 38. In Bhagwati Devi (Supra), the Division bench of this Court interpreting the provisions of the continuity of the Administration of Justice Rules of 1937 applicable to Meghalaya, it is held that at the highest the Court of Deputy Commissioner and Additional Deputy Commissioner can have concurrent jurisdiction in the matter of granting probate. 38. In Bhagwati Devi (Supra), the Division bench of this Court interpreting the provisions of the continuity of the Administration of Justice Rules of 1937 applicable to Meghalaya, it is held that at the highest the Court of Deputy Commissioner and Additional Deputy Commissioner can have concurrent jurisdiction in the matter of granting probate. There is however, no provision in the Administration of Justice and Police Rules in the Khasi and Jaintia Hills providing for transfer of such cases by the Additional Deputy Commissioner to the Munsiff. It was also inter alia held therein that in the administration of the tribal areas, the Governor acted as the agent of the Governor General and within his discretion. In this setting the Governor Under Section 6 of the Scheduled Districts Act, 1874 prescribed the rules for the administration of justice and police in Khasi and Jaintia Hills District. In the said case, it was further held that when a person deprives his rights from the State and is exercising judicial powers vested in a State, he functions as a Court. 39. In Sundaram Finance Ltd. v. NEPC India Ltd., reported in (1999) 2 SCC 479 , it is ruled by the Apex Court that the Arbitration Act, 1996 should be construed uninfluenced by the principles underlying the repealed Arbitration Act, 1940. At para-9, the Apex Court held that the pro visions of the Arbitration and Conciliation Act, 1996 have to be interpreted being uninfluenced by the principles underlying the 1940 Act in order to get help in construing these provisions, it is more relevant to refer to the UNCITRAL Model Law rather than the 1940 Act. Submission of Mr. Goswami that under the Article 2(1)(e) of the UNCITRAL Model Laws, "Court" means "a body or organ of a judicial system of the State" and accordingly the Deputy Commissioner is a Court within the purview of such meaning has sufficient force. 40. It is however, submitted by Mr. Sahewalla that in the instant case, the agreement was executed at Guwahati and in terms of provisions of the agreement, court at Guwahati shall only have the jurisdiction to entertain such applications. It is submitted by Mr. 40. It is however, submitted by Mr. Sahewalla that in the instant case, the agreement was executed at Guwahati and in terms of provisions of the agreement, court at Guwahati shall only have the jurisdiction to entertain such applications. It is submitted by Mr. Sahewalla that parties by mutual agreement has excluded the jurisdiction from civil court and hence, the petitions are to be filed in the court at Guwahati only as per the relevant terms of the contract i.e. Clause 9 of the commercial terms and conditions appended to the agreement inter alia provides that unless otherwise, agreed by the parties by mutual consent the contract shall be subjected to jurisdiction of the Hon'ble High Court at Guwahati and the court subordinate to it. 41. Resisting the said contention, Mr. Gowami has referred to the decisions, reported in AIR 1980 Del 43 (Sushil Ansal v. Union of India and Anr.) and AIR 1984 Del 299 (M/s. Gulati Construction Co., Jhansi v. Betwa River Board and Anr.). Admittedly, the court of the Deputy Commissioner is a court subordinate to the Gauhati High Court. Relevant facts disclose that part of the cause of action arose at Itanagar, the subject matter of some of the contracts i.e. some of the projects are within the district and there is no specific exclusion of jurisdiction of the Court of the Deputy Commissioner, Papum Pare district relating to the dispute. On such consideration, it cannot be said that the Deputy Commissioner, Papum Pare district lacks territorial jurisdiction to entertain such applications and the contentions raised by Mr. Sahewalla cannot be accepted. 42. On over all consideration of the relevant provisions of the present and past statute pertaining to the Administration of Civil Justice in the areas presently falling within the State of Arunachal Pradesh and the provisions of the Assam Frontier (Administration of Justice) Regulation, 1945 and the other relevant laws applicable therein, I have no hesitation to hold that the Deputy Commissioner of the Papum Pare district is the principal court of civil jurisdiction within the meaning of Section 2(1)(e) of the Arbitration and Conciliation Act, 1996 and has got jurisdiction both the latent and patent to entertain and decide on merit such applications Under Section 34 of the Act and accordingly the impugned proceeding pending before the learned Deputy Commissioner is maintain able. Thus the assumption of jurisdiction by the Deputy Commissioner, Papum Pare district, Yupia in entertaining the applications under Section 34 of the Act cannot be held to be illegal and improper. 43. Consequently, I do not find any merit in this batch of petitions and accordingly, the same are dismissed subject, however, directing the parties to bear their respective costs.