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The Rule provides that each party must appoint his, own arbitrator and then the umpire is to be chosen by the two representatives. Ratio |
Tile Cane Commissioner comes into the picture again when the representatives are unable to agree regarding the umpire. Ratio |
But there is an initial stage at which any of the parties can frustrate the arbitration by declining in limine to 789 select his own arbitrator. Ratio |
The arbitration must therefore be by agreement or it cannot take place at all. Ratio |
It remains to mention section 10. Ratio |
That section has no relation to the appointment of arbitrators to begin with. Ratio |
It deals with the position of the third arbitrator chosen by two arbitrators appointed by the parties. Ratio |
That stage does not reach at all if one of the parties does not appoint his arbitrator. Ratio |
It is thus quite clear that sections 8, 9 and 10 of the Arbitration Act do not apply being inconsistent with Rule 23. Ratio |
It is also quite clear that the decision by the Commissioner is the normal mode of disposing of disputes regarding the supply of sugar cane. Ratio |
The Cane Commissioner has the power to direct that the dispute be referred to arbitration but the rules show that there can be no arbitration unless the parties themselves agree. Ratio |
If it is to a sole arbitrator then the sole arbitrator must be acceptable to the parties concerned. Ratio |
If parties do not agree about the sole arbitrator the arbitration is by a Board of arbitrators consisting of one representative of each party and an umpire acceptable to both representatives. Ratio |
The Rule stops short of providing what is to happen if a party does not appoint his representative and the Arbitration Act furnishes no answer because it is inconsistent with the Rule. Ratio |
It is, therefore, obvious that the arbitration must be with the consent of parties and they must express this consent either by selecting an agreed sole arbitrator or by appointing their representative on the Board. Ratio |
This choice is entirely theirs, If the parties do not agree thus far there can be no arbitration at all and the case must be disposed of by the Cane Commissioner himself. Ratio |
Where there are two procedures one for every one and the other if the disputants voluntarily agree to follow it, there can be no discrimination because discrimination can only be 790 found to exist if the election is with someone alse who can exercise his will arbitrarily. Ratio |
It remains to consider an argument which was raised by Mr. Veda Vyasa at the end of the hearing but which was not urged by the learned Attorney General and it is that there may be discrimination in as much as the Cane Commissioner may refer some, disputes to arbitration and keep some to himself even though in all of th... |
In other words, the discrimination is said to exist the other way round that is to say not because there are two modes from which one may be selected arbitrarily but because parties in some cases may be deprived of their election to proceed by arbitration. Ratio |
As we have said the normal mode is decision by the Cane Commissioner with a possibility of arbitration by the agreement of parties. Ratio |
It is most unlikely that the Cane Commissioner would decline to refer a dispute to arbitration where the parties agree that it should be so referred. Ratio |
Where the Cane Commissioner declines to make a reference the question may arise whether he could not be compelled to do so and also whether his decision given against the wishes of the parties would be binding on the parties. Ratio |
But we cannot say that the rule offends Article 14 because the Cane Commissioner may himself decide a dispute which the parties wish to go to arbitration. Ratio |
In our opinion the agreement was a binding agreement and Rule 23(6) of the U.P. Sugar Factories Control Rules 1938 was not ultra vires the Provincial Government and the Rule as a whole does not offend Article 14 of the Constitution. Ratio |
This appeal must therefore fail. Ratio |
It is dismissed with costs. RPC |
RAGHUBAR DAYAL, J. RPC |
I have had the advantage of perusing the judgment of my learned brother Hidayatullah,J., and I agree that there was a binding contract between the parties and in the view of 791 cl.10, the dispute was capable of being referred to arbitration. Ratio |
1, however, do not agree that r. 23 of the U. P. Sugar Factories Control Rules, 1938 is not discriminatory. Ratio |
Sub r.(1) of r. 23 provides that the dispute be referred to the Cane Commissioner for decision or,.if he so directs, for arbitration, and thus gives discretion to the Cane Commissioner to direct that the dispute touching the agreement be referred to arbitration. Ratio |
There is nothing to guide his discretion. Ratio |
The procedure contemplated seems to be that when a party approaches the Cane Commissioner for the settlement of the dispute, the Cane Commissioner may either proceed to decide the dispute himself or may direct the party to go to arbitration. Ratio |
There is nothing in this sub rule to suggest that the Cane Commissioner can refer the dispute to arbitration by arbitrators only when the parties agree to have the dispute so settled. Ratio |
In the absence of such a provision, the discretionary power of the Cane Commissioner cannot be restricted. Ratio |
There seems to be no justification for taking the clause 'if he so directs ' to be if he so directs on the parties agreeing to have the dispute settled by arbitrators '. Ratio |
Clause 10 of the agreement in Form 12, together with the direction of the Cane Commissioner, amounts to the arbitration agreement. Ratio |
Once the Cane Commissioner has given the necessary direction the dispute is to go to the sole arbitrator acceptable to the parties concerned. Ratio |
This is what sub r.(2) provides. Ratio |
In case no sole arbitrator is acceptable to both the parties, the dispute is to be referred to a Board of Arbitration. Ratio |
The parties can thus avoid arbitration by the sole arbitrator by their not agree ing to any particular person to act as sole arbitrator. Ratio |
If the parties do not accept any sole arbitrator each of the parties has to appoint one representative 792 to the Board of Arbitration and the representatives so appointed, then appoint an umpire acceptable to them. Ratio |
It is suggested for the respondent that in case a party does not wish the matter to be referred to the Board of Arbitration, it can easily avoid it by not appointing a representative and that in that contingency, the Cane Commissioner will have to decide the dispute himself. Ratio |
If the parties agree to appoint a representative, the reference of the dispute to the Board of Arbitration would be a reference with the consent of the parties and therefore no question of discrimination can arise, even if the incidents of the dispute decided by the Cane Commissioner himself and by the Board of Arbitra... |
Sub r.(2) or any other sub rule of r.23, does not provide what is to happen when any of the parties does not appoint a representative. Ratio |
It does not necessarily follow from the absence of such a provision that the dispute goes back to the Cane Commissioner for decision or that the Cane Commissioner is empowered to withdraw his direction of referring the dispute to arbitration. Ratio |
Rule 23 has no such express provision in this regard, though sub r.(5) expressly, provides for the Cane Commissioner to take charge of ' the dispute afresh in another contingency. Ratio |
Once the Cane Commissioner has directed reference of the dispute to arbitration, he, in the absence of any provision in the rules empowering him to do so, is not to withdraw that direction and take over the decision of the dispute himself. Ratio |
The omission to provide for such a contingency can only mean that the rule does not contemplate a party not nominating his representative. Ratio |
This appears to be more reasonable to suppose than to hold that the reference of the dispute reverts to the Cane Commissioner who had already decided not to decide the dispute himself. Ratio |
Further, the party 's nominating a representative would not make the reference to arbitration a 793 voluntary act. Ratio |
The parties have no choice. Ratio |
They had to enter into an agreement in Form 12. Ratio |
Their agreeing to cl. 10 of the agreement is not voluntary but is due to statutory requirement. Ratio |
So is their agreement to nominate representative to the Board of Arbitration as they cannot go to a Civil Court for the decision of the dispute in view of sub r. Ratio |
There is nothing in r. 23 to indicate that the decision of the dispute by the Cane Commissioner is the normal procedure contemplated by the rule. Ratio |
Of course, the Cane Commissioner can act as an umpire if he so desires in case the two representatives appointed by the parties to the Board of Arbitration are unable to elect an umpire within a fortnight of the reference to them. Ratio |
In case the Board of arbitration does not give the award within a time fixed by the Cane Commissioner, the dispute is to be deemed to have been freshly referred to the Cane Commissioner, as sub r.(5) in these circumstances, empowers the Cane Commissioner to decide the dispute himself or to appoint another arbitrator or... |
It is clear from the various provisions of r. 23 that there is a difference in the procedure for the dispute being decided by the Cane Commissioner and the dispute being decided by the arbitrator or Board of Arbitration. Ratio |
In the former case, the decision of the Cane Commissioner is final and enforcible by the Civil Court referred to in sub r. Ratio |
In the latter case, the award of the sole arbitrator or the Board of Arbitration is appealable to the Commissioner of the Division in which the factory is situated and the Commissioner 's order is final and enforcible by the Civil Court. Ratio |
It follows that the procedure provided by r. 23 for decision of the dispute touching the agreement is such that parties similarly situated may have the dispute decided by different person an by different procedures according to the, 794 inclination of the Cane Commissioner whose discretion in this matter is uncontrolle... |
The rule therefore offends against article 14 of the Constitution and is void. Ratio |
It is also contended that sub r.(6) providing an appeal to the Commissioner, against the order of the arbitrator or Board of Arbitration is void as the ,State Government had no power to make a provision about appeal. ARG |
Sub section(1) of section 30 of the U. P. Sugar Factories (Control) Act empowers the State Government to make rules to carry out the provisions of that Act, There is nothing in the Act to the effect that provision be made for an appeal against the award of the arbitrator or arbitrators. Ratio |
A rule providing for appeal against the order of the arbitrator or arbitrators is therefore not a rule to carry out any provision of the Act. Ratio |
Clause (u) of sub section (2) of section 30 states that the State Government may make rules to provide for the reference to the Cane Commissioner of disputes relating to the supply of cane for decision or, if he so directs, to arbitration, the mode of appointing arbitrator or arbitrators, the procedure to be followed i... |
It is true that these provisions relate to the settlement of disputes between the parties, but that by itself does not mean that the State Government can provide for appeals against the orders of the arbitrator or arbitrators. Ratio |
These provisions of cl.(u) do not expressly state that the rule can provide for an appeal against the award of the arbitrator. Ratio |
Provisions of cl.(u) make no reference either for the provision of an appeal or for the procedure to be followed by the appellate Tribunal, or for the enforcement of the order of the appellate Tribunal. Ratio |
The absence of such reference establishes that cl.(u) did neither contemplate nor empower the State 795 Government to make rules providing an appeal against the award of arbitrator or arbitrators. Ratio |
Further, the order of the Commissioner is not an award and this is recognised by the language of sub r. Ratio |
(8) of r. 23 which refers to the decision of the Cane Commissioner to the award of the arbitrator or arbitrators and to the Commissioner 's order in appeal. Ratio |
The provision for an appeal in sub r.(6) therefore is not to be treated as something ancillary to the provision for settling disputes between the parties by the Cane Commissioner for which object cl.(u) empowered the State Government to make rules with respect to certain matters. Ratio |
The right to appeal is a substantive right and is to be conferred on a party by or under the Act. Ratio |
The Act must either provide for the appeal or enact that the rules framed thereunder may provide for appeals against certain orders of decisions. ' Ratio |
In the absence of such a provision in the Act, the rules cannot provide for appeals. Ratio |
I am therefore of opinion that sub r.(6) is void. Ratio |
It is true that if sub r.(6) is struck down as void, there would not be any substantial difference between the procedure to be followed by the Cane Commissioner or the Arbitrator or Board of Arbitrators in deciding the dispute, but it does, not necessarily follow from this that r. 23 minus sub rule (6) and other incide... |
It is difficult to say that sub r.(6) is severable. Ratio |
The existence of sub r.(6) and other consequential provisions makes it clear that the State Government which made r. 23 provided for the decision of the dispute by the arbitrator or arbitrators subject to an appeal against the award. Ratio |
It will be sheer speculation to say that the State Government would have made provision for the dispute to be settled by arbitrators if it had known that it could not make any provision for an appeal against that order. Ratio |
I am therefore of opinion that the entire r. 23 is to be struck down both because in its present for it is 796 discriminatory and because sub r.(6) is void inasmuch as the State Government had no power to enact it and it is not servable from the rest of the rule. Ratio |
I would therefore allow the appeal with costs and order the issue of a writ quashing the proceedings pending before the Cane Commissioner and prohibiting him to continue those proceedings. Ratio |
By COURT : In accordance with the opinion of the majority, this Appeal is dismissed with costs. RPC |
Appeal No. 414 of 1960. FAC |
Appeal from the judgment and decree dated September 25, 1958, of the Mysore High Court in Regular Appeal (B) No. 256 of 1956. FAC |
Naraindas C. Malkani and G. Gopalakrishnan, for the appellant. FAC |
Bishan Narain and section P. Verma, for the respondent No. 1. 1962. FAC |
December 12. FAC |
The judgment of the Court was delivered by SUBBA RAO, J. FAC |
This appeal on certificate relates to an internal dispute of the members of a 4 Masonic Lodge called the "Lodge Victoria No. 363 S.C." at Belgaum. FAC |
There is a Scotish institution known as "Grand Lodge of Ancient Free and Accepted Masons of Scotland" at Edinburgh, hereinafter called the "Grand Lodge of Scotland". FAC |
Under its supervision there arc Provincial or District Grand Lodges spread throughout the world. FAC |
There are Daughter Lodges under the superintendence of the District Grand Lodges. FAC |
The Grand Lodge of Scotland is governed by its own written Constitution and Laws. FAC |
There is also a separate Constitution and Laws for every District Grand Lodge. FAC |
One such District Grand Lodge known as "The Grand Lodge of All Scotish Freemasonary in India and Pakistan" has its headquarters at Bombay. FAC |
The aforesaid daughter Lodge at Belgaum is directly under the said District Grand Lodge and is governed by the Constitution and Laws of the latter. FAC |
The appellant was a member of the lodge Victoria, having joined it in the year 1948. FAC |
On October 16, 1952, the second respondent made a complaint against the appellant to the Master, Lodge Victoria, alleging that the appellant was guilty of 12 masonic offences. FAC |
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