A.P.Srivastava, J. - (1.) THESE two petitions are connected with each other and can, therefore, be disposed of together. A co-operative housing society, known as the Co-operative Housing Society Limited, Bindbasni Nagar, Bank Road, Gorakhpur, was registered in 1946 with the purpose of acquiring land and allotting plots out of it to its various members for building houses. Land was acquired in pursuance of the scheme and divided into plots. A blue print was prepared with the approval of the Town Planner and plots according to that blue print were allotted to the various members. According to that blue print a plot situated in between plots Nos. 28 and 29B was to be converted into a park. When allotments were made in accordance with the blue print and the scheme then prepared plot No. 42 was allotted to Sri Shiv Shanker Lal Srivastava, the husband of the petitioner. Plot No. 40, which was adjacent to plot No. 42, was allotted to Sri H. C. Mukherji respondent No. 4 of petition No. 362 of 1962, and plot No. 28C was allotted to Sri Mahendra Misra, respondent No. 4 of petition No. 359 of 1962. All this was done in 1957. Subsequently the managing committee of the society by a resolution dated the 4th January, 1959 decided to shift the park from its origins! place to plots Nos. 38 and 40 of the old blue print and to convert the old plot No. 40 into residential plots. By the time this change in the plan was made plot No. 42 which had originally been allotted in the name of the petitioner's husband was permitted to be transferred to her name and she had built a house on that plot. In the expectation that there would be a park on plots Nos. 40 and 38 she had opened windows towards that side. Some of the members of the society were, however, opposed to the, shifting of the park from its original place to plots Nos. 38 and 40 and wanted it to be kept at its original place according to the 1957 blue print. When the petitioner came to know of this move she made an application under Rule 115 of the Cooperative Societies Rules requesting that the question whether the park could be shifted back from plots Nos. 38 and 40 to its original place in between plots Nos. 29B and 28 should be referred to arbitration. The only person impleaded in that arbitration case was the society itself. An award was given in favour of the petitioner and that award was upheld in appeal. Subsequently two more applications were made for arbitration under Rule 115 of the Co-operative Societies Rules. One was made by Sri Mahendra Misra who had been allotted plot No: 28C which was close to the plot where the park was originally intended to be located and the other was moved by Sri H. C. Mukherji to whom plot No. 40 had been allotted which was by the subsequent resolution of the managing committee to be converted into a park. Sri Mahendra Misra contended that the society had no justification for removing the park from its original place to a new place. He also questioned the transter of plot No. 42 FROm the name of the petitioner's husband to her name. Sri H. C. Mukherji in his application also questioned the right of the managing committee to convert plot No. 40 which had been allotted to him into a park and to give him another plot instead, in both these arbitration cases the petitioner was impleaded as a party in addition to the co-operative society itself. Sri Virendra Singh, respondent No. 3 in both the petitions, was appointed the sole arbitrator to decide the questions raised. He gave his awards against the petitioner and in favour ol in Mahendra Misra and Sri H. C. Mukerji. According to his awards the park was to be located at its original place and was not to be shifted to plots Nos. 40 and 38. Against these awards appeals were riled under the Co-operative Societies Rules to the Assitant Registrar but were rejected with this modification that the transfer of piot No. 42 from the name of the petitioner's husband to her own name was to remain unaffected. Further appeals were preferred to the Deputy Registrar but shared the same fate. By these petitions the petitioner wants the -awards of Sri Virendra Singh as well as the appellate decisions of the Assistant Registrar and the Deputy Registrar to be quashed by a writ of cer-tiorari. The awards are sought to be questioned on merits. But the main ground urged is that there was no dispute relating to the business of the society for which a reference to arbitration should have been made under Rule 115 of the Co-operative Societies Rules. It is also urged that Sri Mahendra Misra and Sri H. C. Mukerji had no right to apply for reference to arbitration. The chief contention of the petitioner in these petitions, in other words, is that the reference to arbitration was bad and incompetent.
(2.) WHEN the learned counsel argued these petitions I felt very doubtful whether the question of the validity of the reference could be raised in writ proceedings and a writ of certiorari should issue to quash the references or the awards made on their basis. I, therefore, heard learned counsel on this point at length. He has not been able to satisfy me about the maintainability of these petitions. Ordinarily the Court has no power to interfere with arbitrations based on agreements and a writ of certiorari or prohibition cannot be issued in respect of such agreements or arbitration awards. Thus in R. v. Disputes Committee of the National Joint Council, (1953) 1 All ER 327, Lord Goddard, C. J. laid down: "That is simply a reference to an arbitrator, and I have never heard of certiorari or prohibition going to an arbitrator. Arbitration is a very old remedy in English law, but in all the centuries that have passed since the decisions of English courts first began there is no trace of an arbitrator being controlled by this Court by writ of either prohibition or certiorari." The learned chief Justice, however, made an exception in THe case of what can oe descrbed as a statutory arbitration in when the arbitrator is acting under the powers conferred by statute and said: "The bodies to which in modern times the remedies of these prerogative writs have been applied are all statutory bodies on whom Parliament has conferred statutory powers and duties the exercise of which may lead to the detriment of subjects as, for instance, wnere a statute gives a certain body, power for me compulsory acquisition of land and an arbitrator is set up by Parliament to assess the compensation, and it is essential that the courts should be able to control the exercise of the statutory jurisdiction within the limits imposed by Parliament. There is no instance of which I know in the books where certiorari or prohibition has gone to any arbitrator except a statutory arbitrator, and a statutory arbitrator is a person to whom, by statute, the parties must resort. It would be an erroneous departure from the law relating to prerogative writs if we were to apply these remedies to an ordinary arbitrator, whether he be a single arbitrator or a body of gentlemen called a committee or council............"
(3.) REALISING this position learned counsel for the petitioner tried to argue that the present was a case of statutory arbitration and a writ of certiorari could, therefore, issue. He referred in this connection to the Co-operative Societies Act, 1912 and the Rules framed thereunder. In the Act itself there is no provision for arbitration but under Section 43(2)(1) rules may be framed by the State Government for reference to arbitration in respect of certain matters. That rule reads: "43. (2) In particular and without prejudice to the generality of the foregoing power, such rules may: XX XX XX XX (1) provide that any dispute touching the business of a society between members or past members of the society or persons claiming through a member or past member or between a member or past member or persons so claiming and the committee or any officer shall be referred to the Registrar for decision or, if he so directs, to arbitration, and to prescribe the mode of appointing an arbitrator or arbitrators and the procedure to be followed in proceedings before the Registrar or such arbitrator or arbitrators, and the enforcement of the decisions of the Registrar or the awards of arbitrators".;