Bibhuti Bhusan Kundagrami vs Durgapur Notified Area Authority and Another

Subhro Kamal Mukherjee, J.—In the year 1980 an agreement was entered into between the petitioner/contractor and the Durgapur Notified Area Authority, opposite party no. 1 herein, for construction of a high school building in Bidhanhagar, Durgapur. In the agreement entered into between the parties there was an Arbitration Clause. The said clause was as under:

Any dispute arising under the Agreement shall be referred to the Arbitration, which will be appointed from amongst the following persons:

(a) Chief Engineer, P.W.D.

(b) Chief Engineer, D.S.P.

(c) Chief Engineer. D.P.L.

One Arbitrator to be appointed by the owner and the other by the Contractor and in case the Arbitrators shall not agree then to the decision of an Umpire to be appointed by them. The Word of the arbitrations or the Umpire is to be final and binding on both parties.

It appears that some dispute croped up between the parties and the contractor intended to refer the dispute to arbitration. On the query of the Executive Officer, Durgapur Notified Area Authority, the Secretary, the Durgapur Projects Limited (D.P.L. in short) informed that the post of the Chief Engineer (construction) has been re-designated as that of General Superintendent (construction) and it was, further, informed that at the material point of time Shri H. Sengupta was holding the post. Shri H. Sengupta is the opposite party no. 2 in this application. On December 17, 1986 the contractor nominated the said Shri H. Sengupta as his Arbitrator.

It appears that the contractor moved an application u/s 28 of the Arbitration Act, 1940 before the learned Assistant District Judge at Burdwan and the said proceeding was registered as Misc. Case No. 182 of 1987 of the said court. The said petition u/s 28 was filed on August 19, 1987. By the Order No. 36 dated July 17, 1991 the learned Assistant District Judge, Burdwan allowed the said application u/s 28 of the Arbitration Act, 1940 and granted an extension of time of four months for making the award.

On or about August 22, 1991 the opposite party no. 1 herein filed an application under Sections 5, 9 and 11 of the Arbitration Act, 1940 before the learned Assistant District Judge at Durgapur, District Burdwan. It was contended by the opposite party no. 1 in the said application that the opposite party no. 2 was never named as the arbitrator and dispute between the parties. It was, further, prayed that the authority of the opposite party no. 2 to act as an arbitrator be revoked and his purported appointment be set aside. The said application was contested by the opposite party no. 1 and 2 by filing their respective written objections.

However, on or about November 8, 1991 the opposite party no. 2 published his award and the filed the award in the court of the learned Assistant District Judge at Burdwan on November 11, 1991. A proceeding has been registered as title Suit no. 106 of 1991 of the said court for passing judgement in terms of the award. The opposite party no. 1, also filed an application under Sections 30 and 33 of the Arbitration Act, 1940 before the court of the learned Assistant District Judge at Burdwan giving rise to Misc. Case no. 203 of 1991. Both the said suit and Misc. case are pending in the court of the learned Assistant District Judge at Burdwan.

By the order impugned the learned Assistant District Judge at Durgapur allowed the application filed by the opposite party no. 1 herein under Sections 5, 9 and 11 of the Arbitration Act, 1940 being Misc. Case no. 28 of 1991 and held that the appointment of the opposite party no. 2 as the sole arbitrator was bad in the eye of law and the opposite party no. 2 is not entitled to arbitrate.

Being aggrieved by the impugned order being Order no. 20 dated September 13, 1993 passed in Misc. Case no. 28 of 1991 the present revisional application has been preferred by the contractor/petitioner.

The only argument that has been advanced by Shri Gopal Chandra Chakraborty, learned Senior Advocate is that the Durgapur court had no jurisdiction to entertain the application filed by the opposite party no. 1 under Sections 5, 9 and 11 of the Arbitration Act as on August 22, 1991 the court of the learned Assistant District Judge at Durgapur was nonest. Mr. Chakraborty vehemently argued that the court of the learned Assistant District Judge at Durgapur was constituted by an order communicated under Memo no. 26635-J dated October 22, 1986 for a temporary period upto February 28, 1987 from the date of assumption of charge by the officer selected to preside over the court. He argued that between March 1, 1987 and August 30, 1990 there was no notification/government order for continuation of the court of the learned Assistant District Judge at Durgapur. The said court was made permanent by a government order dated July 8, 1996. Mr. Chakraborty, therefore, submits that the opposite party had no reason and or bonafide justification in filing the application under Sections 5, 9 and 11 of the Arbitration Act, 1940 in the court of the learned Assistant District Judge, Durgapur as the said court had no jurisdiction to function.

It is pertinent to note here that during the pendency of the present revisional application S.N. Mallick, J., directed submission of a report as to whether in the District of Burdwan the court of the learned Assistant District Judge at Durgapur was functioning between January 31, 1987 and August 31, 1991. It is relevant, also, to note here the application u/s 28 of the Arbitration Act being Misc. Case no. 182 of 1987 was filed by the contractor on August 19, 1987 and the application under Sections 5, 9 and 11 under Arbitration Act, 1940 being Misc. Case No. 28 of 1991 was filed by the opposite party no. 1 on August 22, 1991 respectively. Persuant to the aforesaid directions of S.N. Mallick, J., the learned Assistant District Judge at Burdwan submitted a report indicating that the court of the learned Assistant District Judge at Durgapur was functioning between January 31, 1987 and August 31, 1991 and the names of the learned Presiding Officers were, also, supplied in the report.

u/s 13 of the Bengal, Agra and Assam Civil Courts Act, 1887 (Act 12 of 1887) powers have been given to fix local limits of jurisdiction of courts indicating that the State Government may, by notification in the official gazette, fix and alter the local limits of the jurisdiction of any civil court under the said Act. It is, further, provided that if the same local jurisdiction is assigned to two or more Assistant District Judges (presently known as Civil Judge (Senior Division)) or to two or more Munsifs (now known as Civil Judge (Junior Division)), the District Judge may assign to each of them such civil business cognizable by them subject to any general or special orders of the High Court. It was, also, provided that when civil business arising in any local area is assigned by the learned District Judge to one of two or more judges, a decree or order passed by the judge shall not be invalid by reason only, of the case in which it was made having arisen wholly or in part in a place beyond the local area if that place is within the local limits fixed by the state government u/s 13(1) of the said Act.

The Judicial Department of the Government of West Bengal by the notification dated October 22, 1986, inter alia, conveyed the sanction of the Governor to the creation of a temporary court of the learned Assistant District Judge at Durgapur in the District of Burdwan for a period up to February 28, 1987 from the date of assumption of charge by the officer selected to preside over the court. The court of the learned Assistant District Judge at Durgapur had started functioning from January 31, 1987 and exercised jurisdiction over the local limit of territorial jurisdiction of Durgapur. After creation of the said of the court of the learned Assistant District Judge at Durgapur, the said court started functioning with, effect from January 31, 1987 and is continuing till date. The Judicial Department extended the sanction of a temporary court of the learned Assistant District Judge at Durgapur and. ultimately, issued a notification dated July 8, 1996 whereby the temporary court of the learned Assistant District Judge at Durgapur was regularised as a premanent court with retrospective effect from March 1, 1987. From the corresponding exchange between the learned Registrar of this court and the learned District Judge, Burdwan it is, thus, clear that the court of the learned Assistant District Judge at Durgapur is functioning continuously from January 31, 1987.

Moreover, the distribution of local limits u/s 13(2) of the said Act No. 12 of 1887 does not effect a transfer of jurisdiction, but merely distributes it as a matter of administrative convenience. The learned Assistant District Judge concerned who has passed the order impugned is the learned Assistant District Judge for the District of Burdwan and since the teritorial limit of Durgapur is within the District of Burdwan it can not be said that the order passed by him, in the absence of purported notification, is illegal and nonest in the eye of law. This is not a case of total lack of jurisdiction. It can never be said that the whole proceeding is coram non judice and void. No case of substantial prejudice could be made out by the Shri Chakraborty while arguing the revisional application and I do not think that the order impugned, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the petitioner against whom it was made inasmuch as the petitioner has got full opportunity to contest the Misc. Case no. 28 of 1991 on merits.

No other point was argued by Shri Chakraborty, I am not inclined to accept the aforementioned submissions of Shri Chakraborty.

Accordingly, reject the revisional application and affirm the order impugned.

There will be no order as to cost. Urgent xerox certified copy, if applied for, be supplied to the parties as expeditiously as possible.