Bibhuti Bhusan Kundagrami vs Durgapur Notified Area Authority and Another

Subhro Kamal Mukherjee. J.

This revisional application has been disposed of on January 9, 2000. After judgement was delivered at the first sitting of the court, at 2 p.m. on January 9, 2000 Mr. Gopal Chandra Chakraborty, learned Senior Advocate, for the petitioner mentioned the matter before me contending, inter alia, that his first point, that in view of Section 31(4) of the Arbitration Act, 1940 the learned Assistant District Judge at Durgapur had no jurisdiction to entertain the application filed by the opposite party no. 1 under Sections 5, 9 and 11 of the Arbitration Act, 1940 inasmuch as the application u/s 28 of the Arbitration Act, 1940 filed by the petitioner herein was disposed of by the learned Assistant District Judge at Burdwan. has not been considered by me in my judgement In view of the aforesaid submissions of Mr. Chakraborty, I directed the matter to be listed on January 10, 2001 with notice to the learned Advocates for the opposite party no. 1. On January 10, 2001 when the matter was called on for hearing Mr. Chakraborty filed an affidavit affirmed by his learned Advocate-on-record indicating, inter alia, the aforesaid submissions of Mr. Chakraborty. Without, however, going into the controversy, I have heard Mr. Chakraborty for the petitioner touching Section 31(4) of the Arbitration Act, 1940 and Mr. Amal Krishna Saha appearing for the opposite party no. 1 in reply thereto.

Mr. Chakraborty submitted that the application u/s 28 of the Arbitration Act, 1940 was filed by the petitioner in the court of the learned Assistant District Judge at Burdwan being Misc. Case no. 182 of 1987 and the same was disposed of by the said court on July 17, 1991 and in view of the provisions of Section 31(4) of the Arbitration Act, 1940 that court alone has the jurisdiction over the arbitration proceeding and all subsequent applications arising out of that reference and no other court. Mr. Chakraborty cited the case of Guru Nanak Foundation Vs. Rattan Singh and Sons, and drew the attention of the. court to the paragraphs 15 to 17 thereof in order to apprise the court about the scope of Section 31(4) of the Arbitration Act 1940. Mr. Chakraborty, also, cited the case of Kiran Singh and Others Vs. Chaman Paswan and Others, in order to contend that an order passed by a court without jurisdiction is a nullity.

In order to appreciate the submission of Mr. Chakraborty I am to consider the provision of Section 31(4) of the Arbitration Act, 1940 which runs as under:

(4) Notwithstanding anything contained elsewhere in this Act or in any other law for the time being in. force, where in any reference any application under this Act has been made in a court competent to entertain it, that court alone shall have jurisdiction over the arbitration proceedings and all subsequent applications, arising out of that reference and the arbitration proceedings shall be made in that court and in no other court.

Admittedly, the cause of action in respect of the arbitration proceeding arose within the local limit of territorial jurisdiction of Durgapur. A court of the learned Assistant District Judge at Durgapur, District Burdwan was constituted for a temporary period up to February 28, 1997 from the date of assumption of the charge by the officer selected to preside over the court. The court of the learned Assistant District Judge at Durgapur, District Burdwan started functioning from January 31, 1987 and exercised jurisdiction over the local limit of territorial jurisdiction of Durgapur. The said court started functioning 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 whereby the said temporary court was regularised as a permanent court with retrospective effect from March 1, 1987.

The application u/s 28 of the Arbitration Act. 1940 was filed by Mr. Chakraborty''s client in the court of the learned Assistant District Judge at Burdwan on August 19, 1987 when the court of the learned Assistant District Judge at Durgapur was functioning. Section 31(4) of the Arbitration Act contemplates filing of an earlier application under the Arbitration Act, 1940 in a court competent to entertain it. In view of functioning of the court of the learned Assistant District Judge at Durgapur, District Burdwan, on August 19, 1987 the court of the learned Assistant District Judge at Burdwan was not a court competent to entertain the application u/s 28 of the Arbitration Act, 1940 on that date. The decision in the case of Kiran Singh (supra) has no application here. Therefore, the bar u/s 31(4) of the said Act has no application in the facts of the present case.

Let me proceed, for the present, assuming that there was no court of the learned Assistant District Judge at Durgapur when the application u/s 28 of the Arbitration Act, 1940 was filed by Mr. Chakraborty''s client and assuming that the said court was ''a court competent to entertain'' the said application. When, however, the application under Sections 5, 9 and 11 of the Arbitration Act, 1940 was filed by the opposite party no. 1 on August 22, 1991 a competent court of the learned Assistant

District Judge at Durgapur was functioning and exercising jurisdiction over the local limit of territorial jurisdiction of Durgapur. Mr. Chakraborty submits that inspite of creation of the court of the learned Assistant District Judge at Durgapur to exercise jurisdiction over the local limit of territorial jurisdiction of Durgapur, since the application u/s 28 of the Arbitration Act, 1940 was filled and decided by the learned Assistant District Judge at Burdwan, it is only the court of the learned Assistant District Judge at Burdwan that was competent to entertain the subsequent application and no other court. I am not impressed with the said argument of Mr. Chakraborty. The court of the learned Assistant District Judge at Burdwan, at the headquarter of the District, was functioning and exercising jurisdiction over the local limit of various territorial jurisdiction including Durgapur at one point of time. It will be preposterous to hold that even after creation of a court of the learned Assistant District Judge at Durgapur to exercise jurisdiction over the local limit of territorial jurisdiction of Durgapur, the subsequent application under Sections 5, 9 and 11 of the Arbitration Act, 1940 has to be filed only before the learned Assistant District Judge at Burdwan as the earlier application was filed and decided by the said court. The very purpose of creation of the court of the learned Assistant District Judge at Durgapur will become redundant. If the argument of Mr. Chakraborty is accepted the same will lend to absurdity inasmuch as in case of bifurcation of a district or even of a State all subsequent applications will have to be filed before a court outside the district or the state, as the case may be. I hold that in this case the court of the learned Assistant District Judge at Burdwan has divested itself of its jurisdiction to deal with the matter. The decision in the case of Guru Nanak Foundation (supra), relied on by Mr. Chakraborty, dealt with a different aspect and, therefore, has no application here. The learned Assistant District Judge at Burdwan entertained the application u/s 28 of the Arbitration Act, 1940 assuming at a point of time when the said court was exercising jurisdiction over the local limit of territorial jurisdiction of Durgapur and as the court of the learned Assistant District Judge at Durgapur was exercising jurisdiction over the local limit of territorial jurisdiction of Durgapur on the date of filing application under Sections 5, 9 and 11 of the Arbitration Act, 1940 by the opposite party no. 1, the said court was the court competent to entertain the said subsequent application being the successor court.

After hearing Mr. Chakraborty, I find no reason to change my views to the effect that the revisional application should be rejected and I, accordingly, maintain that the revisional application is liable to be rejected. Office to supply xerox certified copy, if applied for, as early as possible to the parties.