- (1.) THIS is a revision under S.115 of the Civil P.C. filed at the instance of Union of India assailing the order of the Court below appointing a retired Hon'ble Judge of this Court as an Arbitrator in proceedings under S.8(1)(b) of the Arbitration Act.
(2.) THIS is one of those cases which must cause lot of anguish and concern to every right thinking citizen of this country and reflects not very favourably on the attitude adopted by the Government which proposes to be one of the people, by the people and for the people. We must pause here and ponder whether such a long and arduous series of litigation should really have taken place and should have occupied more than 40 years in the arena of Courts and still showing no sign of culmination dispite so many battles that have been fought during the last four decades. The whole thing started when the respondents entered into some contract with the Government way back in the year 1943 which, as usual contained a clause for settlement of dispute through arbitration who was agreed to be the Director of Farms, General Headquarter by designation. In those ancient days there used to be only one Director of Farms for all Military Farms spread over the country with their General Headquarter at Simla, presently in Himachal Pradesh. Due to the advent of second World war and consequent war time expansion and thereafter independence of the country in 1947, many structural changes in the administrative hierarchy took place. For a while, it is admitted, even the post of Director of Farms, General Headquarter ceased to exist. The respondent repeatedly approached the Court ever since 1949 seeking reference of the dispute to arbitration and/or for the appointment of an Arbitrator. However, for one reason or the other, which need not concern us here, the Arbitrator either could not proceed with arbitration or refused to take it up with the result that the matter kept hanging fire all these years. On the last occasion Col. Hari Singh was appointed as an Arbitrator in Dec., 1981 but according to the respondents he was forced to withdraw from the arbitration work while, the revisionist claims that it was his retirement in Feb., 82 which prevented him from proceeding in the matter. May be as it may, an application was moved at that stage under S.8(1)(b) of the Arbitration Act for the appointment of an Arbitrator. Objections were filed by the Union of India but no plea was raised therein that the post of Director of Farms, General Headquarter, Simla or an Officer of equivalent rank has since been restored and was in existence, or that it was possible for the Court to appoint an Arbitrator such as contemplated by Cl. 36 of the Contract. It is true that a very vague and general plea was taken that the application was not legally maintainable. By making this plea as the sole basis of his entire submission the learned counsel has tried to urge that now that the post existed reference only the agreed arbitrator can be made and as such the application under S.8(1)(b) was not legally maintainable. The relevant portion of S.8 of the Arbitration Act may be extracted here; Section : 8 Power of Court to appoint arbitrator/umpire - (1) In any of the following cases : (a) .. (b) If any appointed arbitrator or umpire neglects or refuses to act, or is incapable of acting or dies and the arbitration agreement does not show that it was intended that the vacancy should not be supplied, and the parties or the arbitrator, as the case may be, do not supply the vacancy; or (c) . any party may serve the other parties or the arbitrator, as the case may be, with a written notice to concur in the appointment or appointments or in supplying the vacancy (2) .. Before an application under this provision can be made, therefore, what is necessary is firstly that either the Arbitrator had (i) neglected or refused to act, or (ii) had become incapable of acting, or (iii) had died, secondly that the vacancy was capable of being supplied and lastly that the parties did not supply the vacancy. If these three conditions are fulfilled then the parties to the arbitration agreement can, after serving a notice on the other seeking concurrence in the appointment of the Arbitrator by a written notice, apply to the Court for appointment of the Arbitrator. The contention of the learned counsel for the revisionist is that the first condition of this Sub-Section has not been complied with and as such the respondent had no right at all to apply under S.8(1)(b) of the Act. According to him the Arbitrator had neither neglected nor refused to act nor he had become incapable of acting nor had he died. He further contends that the language of the agreement clearly indicates that the vacancy was not to be supplied and the matter was referable only to the named Arbitrator and to none else.
(3.) IN the objection filed by the revisionist it was nowhere stated that an official with the designation of Director of Farms, G.H.Q. was available for appointment as an Arbitrator. It was also not stated anywhere that same other official having similar powers though with different designation existed. Had a plea of this nature been taken on behalf of the Government it would have been possible for the parties to lead evidence on this question and also for the Court below to find if a person holding that post existed. This was a question of fact which ought to have been raised by the revisionist before the Court below. Having failed to do so it cannot now in revision try to fill up the lacuna by filing evidence.;