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2014 Supreme(J&K) 54
JAMMU AND KASHMIR HIGH COURT
MUZAFFAR HUSSAIN ATTAR & DHIRAJ SINGH THAKUR, JJ.
Ghulam Mohammad – Appellant
Vs.
State of Jammu & Kashmir & Others – Respondents
A.A. No. 3 of 2011
Decided On : 10.7.2014
The main legal point established in the judgment is that the power of appointment of an arbitrator under Section 11(6) of the Jammu and Kashmir Arbitration and Conciliation Act 1997 is not conferred on the Court but on the Chief Justice as the highest judicial authority.
Headnote:
Arbitration - Jurisdiction of Court - Jammu and Kashmir Arbitration and Conciliation Act 1997 - Section 11, Section 34, Section 37 - The court discussed the jurisdiction of the District Judge and the High Court in entertaining applications under Section 34 and appeals under Section 37 of the Jammu and Kashmir Arbitration and Conciliation Act 1997. The court held that the District Court, as defined in Section 2(e) read with Section 42 of the Act, has jurisdiction to entertain an application under Section 34 of the Act. The court also clarified that the power of appointment of an arbitrator under Section 11(6) is not conferred on the Court but on the Chief Justice as the highest judicial authority.
Fact of the Case:
The case involved multiple applications filed under the Jammu and Kashmir Arbitration and Conciliation Act 1997, including an application under Section 34 for setting aside an arbitral award and an appeal under Section 37 against an order of the Arbitral Tribunal. The matter was referred to the Division Bench of the High Court to determine the competent authority to hear the appeal.
Finding of the Court:
The court found that the District Court, as defined in Section 2(e) read with Section 42 of the Act, has jurisdiction to entertain an application under Section 34 of the Act. The court also clarified that the power of appointment of an arbitrator under Section 11(6) is not conferred on the Court but on the Chief Justice as the highest judicial authority.
Issues: The main issue before the court was to determine the competent authority to entertain applications under Section 34 and appeals under Section 37 of the Jammu and Kashmir Arbitration and Conciliation Act 1997.
Ratio Decidendi: The court's decision was based on the interpretation of the provisions of the Jammu and Kashmir Arbitration and Conciliation Act 1997, particularly Sections 2(e), 11(6), 34, 37, and 42. The court emphasized that the power of appointment of an arbitrator under Section 11(6) is not conferred on the Court but on the Chief Justice as the highest judicial authority.
Final Decision: The court held that the District Court, as defined in Section 2(e) read with Section 42 of the Act, has jurisdiction to entertain an application under Section 34 of the Act. The court also clarified that the power of appointment of an arbitrator under Section 11(6) is not conferred on the Court but on the Chief Justice as the highest judicial authority.
MUZAFFAR HUSSAIN ATTAR, J.
1. 20-11-2004, Application A.A. 02 of 2004, u/s. 11 of the Jammu and Kashmir Arbitration and Conciliation Act 1997 (for short Act of 1997) was filed by one Ghulam Mohammad Dar, which was listed before Hon’ble the Chief Justice and notice was issued to the other side. The then Hon’ble the Acting Chief Justice, vide order dated 15-05-2006, appointed Shri S.A. Salam, a retired Development Commissioner, as Arbitrator. The Application u/s. 11 of the Act of 1997 was, accordingly, disposed of. The Arbitrator published the Award on 30-11-2010. The applicants in A.A. 22 of 2011 filed Application u/s. 34 of the Act of 1997 before the learned Principal District Judge, Srinagar, on 20-12-2010, wherein prayer was made for setting aside of the Award.
2. The applicant, Ghulam Mohammad Dar, on 25-02-2011, filed an Application 03 of 2011 u/s. 34 of the Act of 1997 before the High Court in which he prayed for setting aside of part of the Award.
3. After it was brought to the notice of the learned Principal District Judge, Srinagar, that the applicant, Ghulam Mohammad Dar, has also challenged the Award by filing Application u/s. 34 of the Act of 1997, the learned District Judge, vide order dated 02-08-2011, submitted the record of the Application before the High Court. This Application was registered as A.A 22 of 2011. Both the Applications were being considered together by this court.
4. Hon’ble the Chief Justice, on 17-02-2014, referred the matter to the Division Bench of this Court for an authoritative pronouncement on the question of law, viz. whether an Appeal would be competent before the District Judge or before the single Judge of the High Court.
5. On 17-02-2014, order of reference was passed on three Applications, viz. A.A. 01 of 2003, A.A. 03 of 2011 and A.A. 22 of 2011. The order of reference was also passed in A.A 12 of 2012, which is an Appeal filed in terms of section 37 of the Act of 1997 against the order dated 24-07-2012 passed by the learned Arbitral Tribunal, which Tribunal was constituted on 03-07-2009 on the Application filed by the Appellant, Mohammad Shafi Zaroo in terms of section 11 of the Act of 1997. Section 37 of the Act of 1997 is reproduced hereunder :
37. Appealable orders
(1) An appeal shall lie from the following orders (and from no others) to the Court authorized by law to hear appeals from original decrees of the Court passing the order, namely
(a) Granting or refusing to grant any measure under section 9.
(b) Setting aside or refusing to set aside an arbitral award under section 34.
(2) An appeal shall also lie from an order granting or refusing to grant an interim measure under section 17 to a Court.
(3) No second appeal shall lie from an order passed in appeal under this section, but nothing in this section shall affect or take away any right to appeal to the Supreme Court.
6. We have heard learned counsel for the parties.
7. In the scheme of the Act of 1997, an Arbitrator can be appointed, u/s.11 at the request of a party made to Hon’ble the Chief Justice or by his designate. In terms of section 8 of the Act of 1997, a judicial authority, before which an action is brought in the matter, which is subject of an Arbitration Agreement, is duty bound to refer the parties to arbitration, if a party so applies but not later than his first statement on the substance of the dispute.
8. The question of law, which is subject matter of reference in these proceedings, has been dealt with at great length and decision rendered in case titled Administrator Auqaf Islamia Wakaf vs. R.S. Construction Engineers and Others, AIR 2012 J&K 70 : (2012) (2) SLJ HC 519. Similar view appears to have been taken by a single Bench of this Court in a case reported in 2012 (3) SLJ 959.
9. Learned counsel for the parties agreed at bar that the view taken and law laid down by the learned single Bench of this Court in the aforementioned Auqaf Islamia case, will govern the subject-matter reference of these proceeding
